Science and Analytical (S & A) Group Bargaining 101
For the expanded Bargaining 101 message, please read the whole document, but below is an Executive Summary / Take-home messages:
Bargaining is the process that occurs every few years between the Group (S & A in our case) and the Employer (the Canadian Food Inspection Agency (CFIA) in our case) by which any changes to your working conditions (including pay) are determined, as expressed by your Collective Agreement. Bargaining framework is set by the Public Service Labour Relations Board (PSLRB).
Before bargaining starts, each Group chooses between one of two possible third-party processes for resolution, should discussions become seriously stalled. The two choices are: Binding Arbitration (the historical S & A choice) or Conciliation/Strike.
With Binding Arbitration, if the two parties can not reach agreement, a binding decision is made by an Arbitration Board appointed by the PSLRB. With the Conciliation/Strike route, the third-party report is not binding, and so the point can be reached where members are asked if they are prepared to take job action to protest the Employer’s position.
Each side first makes proposals on items other than pay such as working conditions such as vacation, overtime or travel. Then each side puts forward their pay proposal which includes an economic increase to salary and any other pay solutions for problems with different classifications. Note that your S & A Bargaining Team develops the proposals for bargaining from established concerns as well as from input to the Bargaining Survey.
Typically, discussions between the Group and the Employer are held monthly, as the likelihood of reaching agreement is explored. “Impasse” may formally be declared by either side, which eventually leads to the third-party dispute resolution steps. Resuming discussion and coming to a voluntary agreement are ALWAYS possible at any point in the process, as the goal of bargaining is to reach a settlement.
The primary role of the Bargaining Team is to make strategic decisions before and during bargaining. The Bargaining Team is not the primary source of pressure on the Employer to achieve bargaining gains, particularly ones unique to the Group –that must come from the members.
Bargaining priorities, and what is felt to be achievable by the Bargaining Team, may be dynamic during negotiation, as these can be greatly affected by changing landscape factors such as: settlements that occur for other PIPSC groups or other unions; legal or political decisions; or major shift in the economy.
We know that typically only a fraction of our proposals may be achieved in any single bargaining round, but it is important to lay the groundwork for achieving other goals in future rounds. Thus, different rounds mean a focus on different subsets within the Group, with, hopefully over time, all subsets receiving some focus. Members are encouraged to consider a gain for each subset as a positive for the whole Group.
The Collective Agreement (CA), which determines much of the working conditions of employees, including salary, is established through negotiation, or “bargaining”, between the union bargaining team (S & A Group in this case) and the Employer (the CFIA in this case). Note that the current Collective Agreement for every PIPSC Group, including the S & A Group, can be found on the website of the Professional Institute of the Public Service of Canada (PIPSC).
As bargaining is a key role for the union, it seems very useful for members to have some understanding of the process, rules and contextual realities.
“Notice to Bargain” stage
First, the body that is responsible for governing collective bargaining in the federal government is the Public Service Labour Relations Board under the authority of the Public Service Labour Relations Act (PSLRA). According to the PSLRA, the earliest that notice to bargain can be given is four months prior to the expiry date of the collective agreement (CA).
When notice is given, the Group must have chosen between one of two possible processes for resolving an impasse when the two sides find they are unable to reach an agreement after substantial attempts. The two choices are Binding Arbitration, or Conciliation/Strike, and more information is provided on each of those below. Typically, the decision as to which route will be used is made by the members via a bargaining survey/vote.
It is important to know that the notice to bargain triggers a “freeze” - which means that all working conditions (including the terms of the existing Collective Agreement) are protected and cannot be changed, regardless of how long negotiations take, until:
- an agreement is reached voluntarily to change them; or
- an agreement is reached through Binding Arbitration; or
- in the case of the Conciliation/Strike route, and no voluntary agreement: that three independent steps are all achieved (see section on Conciliation, below)
Following the notice to bargain, both parties are expected to meet at regular intervals, often monthly, to start negotiating the new collective agreement.
The S & A Bylaws outline the process for the Executive to choose the Bargaining Team, including a Chair, and PIPSC assigns the Group a Negotiator. The CFIA side chooses their Bargaining Team, including representatives of various regions, as well as a Negotiator. The PIPSC Negotiator advises the Group on all steps and decisions to be taken during negotiations. Ordinarily, the two Negotiators are the only spokespersons at the bargaining table.
Proposals from each side
Each Bargaining Team is given a mandate by their principals. In the case of the union, it is primarily the members of S&A. The CFIA is given their mandate by the TB which adds to the complexity of the negotiations. While PIPSC bargains with the CFIA, it is ultimately the TB that approves the agreement. Whenever the CFIA wishes to negotiate terms outside of their mandate, they must go back to the TB to make the request.
The mandates are reflected in the proposed changes to the CA that each side puts on the table. Changes may be proposed to:
- the articles directly related to salary (i.e., “Pay Proposal”), as well as
- the articles related to other issues, such as leave, hours of work etc.
In some rounds, the CFIA has very few proposed changes other than salary, while in other rounds there may be various and substantial proposals (typically, to reduce/limit workers’ benefits or working conditions, such as stopping accumulation of voluntary severance). It has recently become the practice of the S & A Group to share with members, via the PIPSC website, the specific proposals from each side.
“Discussions at the Table” – Several distinct “stages”
Discussions almost always start with non-pay issues only.
Typically, rationales of some type accompany the discussion of proposals from each side, but a key insight into bargaining with TB is the reality that rationales (i.e., salary and economy data, logic, and principles of inherent fairness) tend to carry very little weight with the CFIA and the TB on their own. It is messages directly from the members that actually have the power to sway the CFIA and the TB; more on this under Conclusions.
Generally, some progress is made during initial discussion of individual non-pay articles, with each side typically agreeing to drop various of their proposed changes to the CA (i.e., meaning the article will be left unchanged). Minor improvements may be agreed to by the CFIA at this stage.
After several meetings, the pay proposals are typically added to the table discussions. That means that agreement on significant changes to CA articles becomes possible, because the two sides can now begin talking in terms of complete packages of proposed CA changes, rather than focusing on agreement of one article at a time.
It is in this stage when it becomes clear, slowly or quickly, whether agreement will be possible. It is expected that temporary pauses in discussion will occur, but importantly, there are almost no formal rules about “impasse” status. As long as both sides continue to feel there may be benefit from talking, intermittent discussion will often continue despite a declaration of impasse.
This reflects that the declared goal of bargaining is to reach a settlement, and that resuming discussion and coming to voluntary agreement are ALWAYS possible at any point in the process, early or late. Importantly, if a voluntary tentative agreement package is reached at any point, the S & A Group Constitution and By-Laws require that it be ratified by a majority vote of Group members. Only regular members are eligible to vote on matters related to collective negotiations, including the method of dispute resolution and the ratification of proposed collective agreements. Rand deductees cannot vote on the tentative agreement unless they sign a PIPSC Membership Application Form.
Continuing Impasse: Mediation is typically the next step
If an impasse has been declared by one side or the other, and progress continues to be stalled, a request will typically be made to the PSLRB to assign a Mediation Officer to assist the parties in overcoming the impasse. This step applies regardless whether the negotiations are on the Arbitration or Conciliation/Strike route. Whether or not this step is included can also be considered as part of the overall Bargaining strategy, depending on the situation; for instance to either prolong reaching the next subsequent step, or getting to it more quickly.
Carrying out Mediation may take weeks or months after an impasse is declared, and settlement continues to be possible at any point if both sides are motivated.
If Mediation fails: “Third Party” is the next step
If the Mediation step does not achieve an agreement, or if it is skipped, the next step is the appointment of a “third party” panel, depending upon the dispute settlement route chosen by the Group.
If Binding Arbitration was chosen, then an Arbitration Board will be appointed that will consider whatever proposals have not been either already agreed to or already dropped. The decision by the Arbitration Board is final, and therefore no ratification is required. This is the route many S & A members have chosen
In the case of a Group on the Conciliation/Strike route, a Public Interest Commission (PIC) will be appointed to provide a recommendation, but their report is not final or binding.
Again, for both routes, carrying out this specific step can also take weeks or months, depending on scheduling meetings in an often backlogged system and the requirement for both sides to agree on the individual appointees to the PIC
Reality of Final Settlements vs Original Proposals
As members may guess, the range of issues that the S & A Group would like to see resolved is far, far greater than what historically has tended to be achievable at the bargaining table – particularly given the restrictions on the bargaining process in the last few rounds.
The reality is that in any given round of negotiations, only a fraction of proposed improvements have any likelihood of success. And, while the Bargaining Team establishes priorities, those may have to be fluid during that round. “Landscape factors” that we have no control over can strongly affect negotiations. For instance what is achieved at other tables while we are in discussion and unforeseen economic factors, or political or legal decisions can have a significant effect on the negotiations and the decisions taken.
Importantly, we also know that even if a particular improvement is not achieved in a given round, the groundwork is being laid for potentially achieving it in a future round. CFIA learns that it is an issue for us, and the fact that it is a problem will be reinforced by what CFIA hears from their management between negotiation rounds.
Or, CFIA may offer to address only a part of the issue, leaving some aspect unchanged, or some subsets of members still struggling. Such a stepwise solution is not uncommon with CFIA – and it is important for members to appreciate that the gain is meaningful even if not everybody is satisfied. The fight will continue in the next round.
So it can be seen that although the focus on a specific subset of members varies between rounds, over time all members will receive some attention. Members are encouraged to consider a gain for each subset as a positive for the whole Group, and therefore, to show support for each other.
Understanding the bargaining process is one very important step towards S & A member engagement in the process. So too, are regular updates from the Bargaining Team – though these necessarily vary in the level of details and information provided. There are several reasons for this. Anything put on the PIPSC website is available to CFIA, so clearly details about strategies may not be shared. In addition, as long as a settlement looks possible, it is generally not productive to share details of evolving “packages” under discussion at the Table, as the final agreed-upon package may be different.
What the S & A Group can do is be clear with members about the rationales for our proposals, which can mean, for example, a description of the workplace problem, with real-life examples to back it up, and explaining how our proposal is a win-win solution to this problem for both sides. However, CFIA and TB tends not to regard an issue as a problem unless a persistent level of noise has been made by the affected members in the workplace. Actual grievances are particularly effective. In the cases with no basis for formal grievance, tactics such as ‘carpet-bombing’ of emails, or sit-ins with upper management can be achieve results. This is also true of any salary changes other than “the pattern” of economic increase established by agreements completed ahead of us (often the Public Service Alliance of Canada (PSAC).
Unfortunately, the only data that the TB tends to see as compelling regarding pay are people actually leaving jobs, or problems recruiting enough employees (i.e., establishment of a Recruitment and Retention issue). People unhappy enough to make persistent noise in the workplace can achieve something as well, but almost everything else is dismissed, including the arguments and data presented at the bargaining table, no matter how sound or well reasoned. The reality is that the power to move the CFIA and TB lies in the actions of members.
Thus, the bottom line is that when “battles are won”, it is often because of a foundation built up in previous rounds, plus actions prior to the bargaining round, as well as factors aligning in the landscape at that time to support it. Science groups have historically achieved improvements in different ways. A good example is the passive way that an improvement in a non-PIPSC CA eventually trickles through to us. We are now realizing it is time to change that process and mobilization is a big part of making that change happen.