Are Strikes Becoming Obsolete?

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Are Strikes Becoming Obsolete?

The latest teachers’ strike has brought forward a debate that goes back to the late 60’s and early 70’s. This was an era when public servants across Canada were earning the right to bargain collectively. The big debate was how bargaining disputes should be settled. Some argued for compulsory arbitration as the only civilized method of settling disputes. Even Jakob Finkelman who was the Chair of the Public Service Staff Relations Board stated that compulsory arbitration would become the norm in dispute resolution.

Strikes in the public service have a different impact than strikes in the private sector. In the private sector strikes primarily hurt the participants because the public has alternatives. For example, if Ford Motor Company is on strike the public can wait for the strike to end or purchase a different make of automobile. At best it is an inconvenience. In the public sector like the education sector there is no alternative to the service provided by School Boards and as such when they go on strike it is the public that is hurt much more than the participants. This always leads to the discussion there must be a way to solve disputes that does not involve withdrawal of services that seriously inconvenience or hurt the public.

So far the only alternative has been compulsory arbitration. Why is it that this has not become the norm as it was anticipated in the 60’s and 70’s? The answer is that the arbitration process as is now practiced has not been able to replicate effectively what strikes provide. There are two major issues that contribute to this situation. The first is that arbitrators are selected by the parties and are paid by them. They must be acceptable to both sides and it makes sense for them not to make rulings that really hurt one side or the other because they would quickly become unacceptable to one of the parties and their case load would decline. As such, most rulings are change averse. If one seeks significant change to the collective agreement it will seldom happen in an arbitration environment. The second reason is that although there often are criteria developed by legislation that arbitrators have to take into account when making a decision, the only real criteria that is used is replication.

The theory behind replication is to create an outcome that would have occurred had a strike taken place. However, there are many factors to consider when trying to replicate an agreement reached after a strike. The size of the organization, management structure, financial situation, and geography are some of the factors. None of the foregoing is considered, instead the only criteria being considered is what is happening in that particular industry. Replication, for example, in the Long Term Care industry only considers what is happening in the same industry. However, the biggest single factor that is seldom considered is the relative bargaining strength of the parties. This is one of the most significant factors in a strike outcome. A strike is after all, a power game.

Therefore, to the question of are strikes obsolete, the answer has to be in the negative. Until a more effective alternative solution arises, the strike is still relevant. Compulsory arbitration, which has often been mentioned as the alternative needs to be redesigned so that it can truly attempt to replicate the likely outcome if a withdrawal of services had occurred. As a first step the Government should establish an Arbitration Tribunal with appointed arbitrators much the same way as judges are appointed. They need to be totally independent from the parties and rules of procedures and criteria developed to truly replicate an outcome that likely would have been reached by way of a strike before they can be seen to be effective.

How Pesce & Associates Can Help

Our Consultants have decades of experience in negotiating and labour relations. To discuss how we can assist you, please contact Angelo Pesce, CHRP, CMC, Partner and Principal Consultant at apesce@pesceassociates.com or 416-491-1501 ext. 23.

For further information on the full range of human resources consulting services offered by Pesce & Associates, please visit our website at http://www.pesceassociates.com. Follow us on Linkedin, Twitter or Tumblr for regular updates, HR tips, helpful hints and HR news.

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Employment Standards Act Changes

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Employment Standards Act Changes – What You Need To Do

As of May 20, 2015, changes to the Employment Standards Act have come into effect. The following provides you with specific details and access to the necessary resources so you can ensure you are compliant.

ESA Information Poster
A new ESA Information Poster has been developed and must be posted in all workplaces. The new obligation is that all existing employees must be provided with a copy of the poster before June 20, 2015. On an ongoing basis, all new employees must receive a copy of the poster within 30 days of their first day of work. It is recommended that you make the poster part of your new employee hiring package. Follow the link below to access the new poster.

http://www.labour.gov.on.ca/english/es/pubs/poster.php

Self-Audits
With the new amendments, Employment Standards Officers (ESOs) may now require an employer to complete a self-audit to report on their compliance with the Act and identify any outstanding wages due to non-compliance. If you are required to do a self-audit, you will receive written notice (the notice must be in writing) from an ESO which must specify:
• The period to be reviewed;
• The provision(s) of the ESA that are to be covered in the self-audit;
• The date by which the employer must provide the results of the self-audit to the ESO.

If the self-audit indicates that one or more employees are owed outstanding wages, the employer must provide a list of names and amounts that are to be paid with proof that the wages were paid out once completed. As well the employer must provide details on how they will ensure ongoing compliance. Whatever the results of the self-audit, the ESO retains the right to conduct his/her own investigation.

How Pesce & Associates Can Help
Our Consultants have decades of experience working with the Employment Standards Act and helping clients ensure they are compliant. We utilize a Compliance Assessment Review process to ensure organizations are compliant with all employment related legislation. To discuss how we can assist you, please contact Elizabeth Hill, Partner & Senior Consultant, at ehill@pesceassociates.com or 416-491-1501 ext. 23.

For further information on the full range of human resources consulting services offered by Pesce & Associates, please visit our website at http://www.pesceassociates.com.