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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