DISPUTE RESOLUTION - ARBITRATION
April 29, 2004
As reported last week, (April 23, 2004) your EC Negotiating Team informed the Treasury Board that we have reached an impasse at the Bargaining Table and that we would be filing for arbitration. Due to an inability by TB to seriously negotiate substantive issues it is clear there is no benefit to staying at the bargaining table any longer.
It is always preferable to reach a negotiated agreement. However, if either the Association or the Employer feels that it will not be possible to reach an agreement at the Table, either party can refer the issues in dispute to arbitration.
The decision to choose arbitration rather than the alternate, conciliation/strike, is done by the Association prior to each new round of collective bargaining (i.e. it cannot be decided or changed during negotiations or after negotiations have reached an impasse). CAPE EC members voted before this round of negotiations on which of the two dispute resolution methods they prefer should an impasse be reached. Arbitration was chosen as the preferred route for this round. It is important to note that we have not had the right to arbitration since the early 1990’s as the government removed that right in successive legislative initiatives.
Both arbitration and conciliation/strike have their strengths and weaknesses. Arbitration results in a decision that is binding on the parties, while conciliation results in a decision that may be accepted or rejected by either party. With conciliation, the union is in a legal strike position seven days after the conciliation board report has been issued, therefore the union may strike if it rejects the recommended settlement or if the Employer rejects it. In the Federal Public Service, the Employer has shown no hesitation to use its power to legislate striking employees back to work, and to legislate pay increases. With arbitration, the arbitrator must consider criteria set out in legislation, whereas with conciliation, there are no such criteria. With arbitration, the settlement is final, with conciliation the incentive for the parties to reach an agreement is to avoid a strike.
Arbitration
Our request to proceed to arbitration is made to the Public Service Staff Relations Board (PSSRB). Before it will agree to the establishment of an arbitration board, the Chairperson of the PSSRB must decide if the party making the request have bargained sufficiently and seriously. It may instruct the parties to attempt to resolve outstanding issues through the help of a conciliator.
An arbitration board consists of a three person panel: the Association nominates one member, the employer nominates one member, and a third person is nominated by the PSSRB to serve as a chairperson. Once the arbitration board has been established, both the Association and employer will present rationale to support their outstanding demands and provide the board with formal written submissions. A binding decision is rendered usually within two months after the hearings. Terms agreed upon before arbitration plus the decision of the board become the new collective agreement which both parties are required to implement.
An Arbitration Board will rule on all the issues in dispute and is prevented from ruling on certain issues (e.g. staffing processes). Arbitrators are bound by the following criteria set out in Section 67 of the Public Service Staff Relations Act:
67. In the conduct of proceedings before it and in rendering an arbitral award in respect of a matter in dispute, an arbitration board shall consider:
(a) the needs of the Public Service for qualified employees;
(b) the conditions of employment in similar occupations outside the Public Service, including such geographic, industrial or other variations as the board may consider relevant;
(c) the need to maintain appropriate relationships in the conditions of employment as between different grade levels within an occupation and as between occupations in the Public Service;
(d) the need to establish terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered; and
(e) any other factor that to it appears to be relevant to the matter in dispute.
Arbitrators will only consider a limited number of issues and will usually only make a change to the collective agreement where they can refer to a comparable provision in a relevant collective agreement. Breakthroughs or innovative solutions are included in arbitral awards if a party can demonstrate a compelling reason, or identify special circumstances. Your negotiating team will therefore have to choose which of our outstanding issues to take to arbitration. In doing so we will need to consider whether the issue is important to members and whether an arbitrator is likely to decide in our favour - for example if a similar provision appears in another collective agreement.
It is possible the employer may ask for conciliation. The assistance of a conciliation officer is always available to the parties before going to binding arbitration. Either party can request conciliation to attempt to resolve all or as many of the outstanding issues as possible.
Next:
Next week we will provide you with the reasons your Team felt an impasse had been reached at the table, Later we will post the list of issues we will be bringing to arbitration.
April 29, 2004
As reported last week, (April 23, 2004) your EC Negotiating Team informed the Treasury Board that we have reached an impasse at the Bargaining Table and that we would be filing for arbitration. Due to an inability by TB to seriously negotiate substantive issues it is clear there is no benefit to staying at the bargaining table any longer.
It is always preferable to reach a negotiated agreement. However, if either the Association or the Employer feels that it will not be possible to reach an agreement at the Table, either party can refer the issues in dispute to arbitration.
The decision to choose arbitration rather than the alternate, conciliation/strike, is done by the Association prior to each new round of collective bargaining (i.e. it cannot be decided or changed during negotiations or after negotiations have reached an impasse). CAPE EC members voted before this round of negotiations on which of the two dispute resolution methods they prefer should an impasse be reached. Arbitration was chosen as the preferred route for this round. It is important to note that we have not had the right to arbitration since the early 1990’s as the government removed that right in successive legislative initiatives.
Both arbitration and conciliation/strike have their strengths and weaknesses. Arbitration results in a decision that is binding on the parties, while conciliation results in a decision that may be accepted or rejected by either party. With conciliation, the union is in a legal strike position seven days after the conciliation board report has been issued, therefore the union may strike if it rejects the recommended settlement or if the Employer rejects it. In the Federal Public Service, the Employer has shown no hesitation to use its power to legislate striking employees back to work, and to legislate pay increases. With arbitration, the arbitrator must consider criteria set out in legislation, whereas with conciliation, there are no such criteria. With arbitration, the settlement is final, with conciliation the incentive for the parties to reach an agreement is to avoid a strike.
Arbitration
Our request to proceed to arbitration is made to the Public Service Staff Relations Board (PSSRB). Before it will agree to the establishment of an arbitration board, the Chairperson of the PSSRB must decide if the party making the request have bargained sufficiently and seriously. It may instruct the parties to attempt to resolve outstanding issues through the help of a conciliator.
An arbitration board consists of a three person panel: the Association nominates one member, the employer nominates one member, and a third person is nominated by the PSSRB to serve as a chairperson. Once the arbitration board has been established, both the Association and employer will present rationale to support their outstanding demands and provide the board with formal written submissions. A binding decision is rendered usually within two months after the hearings. Terms agreed upon before arbitration plus the decision of the board become the new collective agreement which both parties are required to implement.
An Arbitration Board will rule on all the issues in dispute and is prevented from ruling on certain issues (e.g. staffing processes). Arbitrators are bound by the following criteria set out in Section 67 of the Public Service Staff Relations Act:
67. In the conduct of proceedings before it and in rendering an arbitral award in respect of a matter in dispute, an arbitration board shall consider:
(a) the needs of the Public Service for qualified employees;
(b) the conditions of employment in similar occupations outside the Public Service, including such geographic, industrial or other variations as the board may consider relevant;
(c) the need to maintain appropriate relationships in the conditions of employment as between different grade levels within an occupation and as between occupations in the Public Service;
(d) the need to establish terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered; and
(e) any other factor that to it appears to be relevant to the matter in dispute.
Arbitrators will only consider a limited number of issues and will usually only make a change to the collective agreement where they can refer to a comparable provision in a relevant collective agreement. Breakthroughs or innovative solutions are included in arbitral awards if a party can demonstrate a compelling reason, or identify special circumstances. Your negotiating team will therefore have to choose which of our outstanding issues to take to arbitration. In doing so we will need to consider whether the issue is important to members and whether an arbitrator is likely to decide in our favour - for example if a similar provision appears in another collective agreement.
It is possible the employer may ask for conciliation. The assistance of a conciliation officer is always available to the parties before going to binding arbitration. Either party can request conciliation to attempt to resolve all or as many of the outstanding issues as possible.
Next:
Next week we will provide you with the reasons your Team felt an impasse had been reached at the table, Later we will post the list of issues we will be bringing to arbitration.