Unions usually win during labour arbitration: experts

OTTAWA – A strike by the union representing Air Canada mechanics, baggage handlers and ground crew may have been thwarted by back-to-work legislation, but labour experts say the workers could still come out on the winning side.

The legislation was passed late Tuesday night, and if approved by the Senate, it will send the dispute to binding arbitration. The arbitration process will see the union and airline put forward their best offers and an arbitrator will select one.

Union representatives, together with the NDP and Liberal MPs decried the government’s move to quickly pass back-to-work legislation on Wednesday.

They said the government interference not only erodes their labour rights, but puts them at a disadvantage vis-à-vis the company.

“The Harper Conservatives have intervened in 4 out of 5 labour disputes at Air Canada, giving unfair advantage to management in these negotiations,” said a press release by the Liberals on Wednesday.

Global News asked two labour experts about the situation – particularly who wins and who loses when parties face each before an arbitrator. They say that in most cases, the employer has more to lose.

“If government thinks they are going to save money by interfering in collective bargaining and sending it all off to arbitration, then they are sadly mistaken because the evidence shows quite the contrary,” says Glenn Wheeler, a staff lawyer for COPE, a union representing office and professional employees. None of his members work at Air Canada.

Wheeler said arbitrators often look at previous collective bargaining processes and try to duplicate their wage increases, and often they actually award higher increases than would have been reached during bargaining.

Get breaking National news

For news impacting Canada and around the world, sign up for breaking news alerts delivered directly to you when they happen.

Sign up for breaking National newsletter Sign Up

By providing your email address, you have read and agree to Global News' Terms and Conditions and Privacy Policy.

“Once things are taken out of the hands of the employer, then things result that employers would not have wanted, not only to do with wages, but very often with non-monetary parts with collective agreements,” he said.

As a senior vice-president with CBC and later at CP Rail, George Smith has extensive experience representing employers during labour relations and collective bargaining processes.

Smith, now at Queen’s University School of Policy Studies, said union members can turn down settlements negotiated at the bargaining table in the hopes of doing better during binding arbitration.

“In this climate, when unions aren’t the aggressor at the bargaining table, often management are, binding arbitration more often reflects the employees’ desire or the union’s desire than the company’s,” he said.

Early government intervention gives the employees the option not to roll the dice on a strike, Smith said.

“These unions do not have to fund strikes. The employees don’t have to lose a day’s pay and they get to go into a process, that at least in the short-term, is going to give them the chance of a more positive settlement,” Smith said.

That won’t be the case this time, said Marcel St-Jean, president of the International Association of Machinists and Aerospace Workers, the union battling Air Canada.

“It’s impossible. When you are at the negotiating table you have a certain power, which was the strike. If I send my people to a table where they will be negotiating with an arbitrator, how strong can he be? He doesn’t have the tools to work,” St-Jean said.

St-Jean said in this case the union doesn’t have the right to ask for more than it did in the earlier failed agreement, but that the company can make the case for giving employees less.

As for how much faith he has in the process, St-Jean only said: “I cannot answer this today. I had faith in the Canadian government before.”

Air Canada and the union can still work out a deal between themselves, said Labour Minister Lisa Raitt.

“There’s nothing to say that the parties, even with the legislation in place, cannot do their own deals, that they cannot have their own discussions and in fact we welcome them to go back to the table,” she said while debating the legislation on Tuesday. 

There is one big loser when it comes to binding arbitration, according to Wheeler.

It’s democracy.

“The right to strike is a fundamental right,” he said. “(The government) has in effect taken away hard-won democratic rights. It’s a loss for all when the government can do that.”

Raitt said a strike or a lockout at Air Canada was an “economic disaster” the country could simply not afford.

“We will do what we need to do to protect the Canadian economic recovery,” she said on Tuesday night.