Senator Tony Dean

Honourable senators, I rise to speak today on this bill because, for health reasons, I may not be available to do so in the days that follow, if indeed debate does continue into the days that follow. I offer some personal and professional reflections on this legislation.

I want to speak briefly about the right to free collective bargaining and the options that are available in terms of alternative dispute resolution when occasionally that right to free collective bargaining and the right to strike is interrupted. I do that as somebody who has worked on the labour and employer side, who has helped design back-to-work bills, and who has worked in the field of labour policy as a labour deputy minister and, indeed, a mediator.

First of all, we, in this place, all believe in the sanctity and right of free collective bargaining. It is important to note that every day of every year in this country, free collective bargaining is taking place in workplaces under labour codes that recognize the imbalance of power between employers and workers. When those rules are breached in the everyday fracas of collective bargaining, there is recourse to labour tribunals, to labour boards. Those labour boards intervene, and they intervene quickly, and those issues are resolved.

I say this only because free collective bargaining is not just what happens when a strike occurs. There is lots of effective collective bargaining in this country and a huge success rate of free collective bargaining. The vast majority of disputes are resolved without strikes, and that speaks to the effectiveness and balance of the bargaining regimes that we have in this country.

It is indeed the case that for some employees deemed essential — police, fire, nurses, not in every jurisdiction, but in most of them — there is an alternative dispute resolution mechanism put in place. I wonder whether that essential service’s regime is appropriate. I have wondered, throughout the course of my career, whether all workers should have a right to strike. We know some workers are deemed essential. We know the courts have opined on that.

Moving downstream, we also know there are circumstances in which the right to strike is exercised. In certain circumstances, governments intervene, normally where there is a concern about the public interest, to end those disputes. In the federal sector, that’s happened about 30-odd times over the last 40 or 50 years in sectors we all know well: shipping, rail, transportation, telecommunications and, indeed, the delivery of postal services. We have been here before.

When governments intervene, the nature and type of the intervention is malleable. Someone to name the arbitrator. Some impose a back-to-work bill faster than others.

In cases like that, the courts have opined. We have heard what the courts have said about some of those rather rapid interventions, interventions that result in legislation that may not be perceived as even-handed. Much of the opinions of courts that we have heard go to those cases.

In some cases, governments do intervene, and the courts opine on this. Senator Joyal gives us a terrific case study, a clinic, as he usually does, in the criteria the courts have assessed.

I believe in the right to strike. I believe in free collective bargaining. I also acknowledge that governments have occasionally — this is one — chosen to make an effort to intervene in those situations where the public interest is comprised. I’d rather it not be the case, but governments do this.

I want to talk, though, about the fact these decisions are tightly intertwined with the nature of the content of the legislation. In particular, the design of alternative dispute resolution mechanisms. The courts have also opined on this. Some of those ahead of me have also talked about this.

What are these things? Who appoints the arbitrator? That goes to the even-handedness of the process. When government includes the name of the arbitrator in the bill, yes, there is the potential for the perception that legislation is leaning one way or the other, the type of dispute resolution employed, a single arbitrator named by the government or an arbitrator named by the parties, or a process of mediation arbitration where there is a separate mediator and arbitrator, or a combination where an arbitrator first mediates in an effort to help the parties get to the resolution of a dispute.

A voice for unions in this is absolutely critical and goes to the perception of even-handedness. History and practice have told us it doesn’t work best most of the time when the government names the arbitrator.

I note in this particular bill, the parties are charged with agreeing on an arbitrator. Absent that, a neutral official in the Labour Program will name a mediator-arbitrator. Though, in my experience, not without consulting the parties and attempting further to reach agreement on an arbitrator.

Second, the criteria should reflect the interest of both parties. It should be reflective of the issues in the dispute. There are some tough issues in this dispute.

I’m going to read to you the criteria I see in the bill that the mediator and mediator-arbitrator is asked to look at. The health and safety of employees in the workplace:

to ensure that the health and safety of employees is protected;

We know health and safety is a critical issue in this dispute, and the mediator or arbitrator is asked to look at those.

to ensure that the employees receive equal pay for work of equal value;

We know that’s front and centre in the dispute, and that’s a criteria that is set out for the arbitrator to consider.

to ensure the fair treatment of temporary or part-time employees, and other employees in non-standard employment, as compared to full-time, permanent employees;

That appears to be an issue in the dispute.

Equally, looking to the employer:

to ensure the financial sustainability of the employer;

to create a culture of collaborative labour-management relations —

— which appears to need some work in the workplace that we’re talking about. I don’t think there is any surprise about that.

to have the employer provide high-quality service at a reasonable price to Canadians.

The design of dispute resolution mechanisms is absolutely critical. I’m going to fast forward in this.

We have criteria that seem to me to be, for the most part, even-handed from what I’ve been able to see. We have a third party selected on first choice by the parties, and in the alternative, by a neutral official in the Labour Program.

I’m going to finish on the dispute resolution mechanism itself. When we get to this point, there are essentially three options: an arbitrator just goes in, consults with the parties, hears submissions and makes a decision.

Second, we can have a separate period of mediation first by one person, followed by a separate arbitration process by a separate person.

Third, as suggested in this bill, a combined — we already have a special mediator working, but later, beyond this period in which Mort Mitchnick is attempting to work with the parties on resolution, there would be one person who would work for at least seven days as a mediator with the parties in an effort to reach a collective agreement. Failing agreement, that person would then sit as an arbitrator.

In my view and experience, this is the model that, to the extent possible in the circumstances, comes closest to emulating artificially somewhat the pressures at play at bargaining tables.

It’s a long way from the pressure of bargaining tables. But what does it do? It allows the mediator, as a mediator, to understand the positions of the parties, the dynamics of the collective bargaining relationship between the parties at this point in time.

The mediator sees where the issues are, but also observes the behaviour of the parties, observes recalcitrance, a willingness to be flexible or not. That, likely, can give her or him an ability to push the parties around a little bit, and to consider not just the criteria, but the way people are bargaining when he or she lands on the content of that arbitrator’s decision, if, indeed, it gets that far.

If we’re looking in the world of the design of collective bargaining processes to try to emulate, to the extent possible, the dynamics of free collective bargaining, this is about as close as it gets. It’s distant; it’s a long way away from it. It can’t replicate the true dynamics of collective bargaining. It’s as close as it gets.

My opinion, to summarize, if we have to have a piece of back-to-work legislation — I’m not talking about whether I agree with that or not — if we have to have that — and we likely will have that — let’s spend some time, as Senator Joyal and others would ask us to do, to look at the nature and design of that process, it’s even-handedness and the degree to which we think, or not, it’s swaying the momentum or the content or the character of bargaining in one direction or another, or is it as even-handed as it can be? Thanks very much.