Preparing for Bargaining

Collective bargaining negotiations can be a daunting task. Whether you’re negotiating a first collective bargaining agreement (CBA) or a renewal CBA, this section is designed to assist you in preparing for and throughout the bargaining process.

Other resources and labour market information can be found at:
http://www.labour.gov.on.ca/english/lr/index.php

To begin the process, either party (the union or the employer) may provide notice to bargain to the other party. This can be done prior to the expiry of your current collective agreement (typically up to 90 days prior to expiry) or at any time following certification in the event of a first collective agreement.

What is collective bargaining?
Collective bargaining is a set of negotiations that take place between the employer and a union, collectively certified to represent a group of your employees. The task is to conclude a mutually acceptable collective agreement.

For non-profit organizations we add that this must be a “sustainable” collective agreement as well.

What is a statutory freeze?
Once notice to bargain has been served (or upon notice of certification for a first collective agreement), a statutory freeze is in place. This means that the employer cannot make changes to the terms and conditions of employment once notice to bargain has been provided (up until the parties are in a legal work stoppage position – a strike or lockout). The employer still has the right to operate its business during this time.

What is a collective agreement?
A signed, written agreement between the employee and the union representing a group of your employees that contains provisions outlining the terms and conditions of employment for employees in the designated bargaining unit.

Obligations during bargaining
Both parties have a duty to Bargain in “Good Faith”. Under Section 17, the Ontario Labour Relations Act (OLRA) imposes a duty on the parties to bargain in good faith which mean that both the union and the employer must make every reasonable effort to enter into a collective agreement.

Management Strategies for Collective Bargaining include:

  1. Review your strategic goals and priorities
  2. Gather data on economic trends and negotiated settlements in related sectors
  3. Conduct wage and benefit surveys
  4. Compare/analyze other collective agreements
  5. Contact other employers (coordination)
  6. Review union priorities and promises
  7. Audit your grievance activity
  8. Review relevant arbitration awards
  9. Cost out your proposals (and cost the union’s proposal once received)
  10. Contingency planning
  11. Prepare bargaining plan and strategy
  12. Determine the management bargaining team
  13. Finalize proposals
  14. Develop communications strategies

TIPS FOR BARGAINING

  • Take detailed notes (dates, times, what was said, intent of language, examples, confrontation, inappropriate comments or conduct, etc.)
  • Prepare well in advance
  • Provide proposals and proposed amendments in writing (date and time any proposals you table and similarly date and time any proposals received from the union)
  • Schedule ample time in between bargaining sessions to adequately prepare for your next meeting
  • Organize yourself before (e.g., binder)
  • Make note of speaking points and rationale – you should be able to justify and explain the reasons for your proposals
  • Seek advice and support from an OPRAH consultant as needed

When does bargaining end?
There are effectively 3 potential conclusions to bargaining negotiations:

  1. Ratification
    Formal approval by the bargaining unit members of the agreement negotiated between union and management bargaining team members by means of a secret-ballot vote
  2. Labour Stoppage
    The parties must exhaust the bargaining process, complete conciliation and have a No Board report issued. At that point the union would be in a legal strike position and may take strike action. Similarly the employer would be in a legal lockout position and may elect to lock employees out, preventing them from being able to continue to work.
    See Conciliation information below for more information.
  3. Decertification
    The employees may opt to decertify a union from representing them. Such action must be initiated by employees and in accordance with the OLRA. They would need to demonstrate that at least 40% of the workforce would like to decertify to hold a vote and if a vote is conducted the threshold is 50%+1 of those who vote that would determine the outcome.
    Where decertification occurs there is no obligation for the employer to negotiate any further with the union.

Conciliation
Conciliation is the use of a neutral third party to help the employer organization and the union representing a group of its employees to come to a mutually satisfactory collective agreement.

  • The conciliation process in Ontario means that either party (the Union or management or both) feel that the use of a neutral third party is needed to help the parties reach a mutually satisfactory collective agreement.
  • Commonly referred to as reaching an “impasse” preventing the parties from reaching a tentative agreement.

The conciliation process involves:

  • Intervention of a neutral 3rd party (appointed by the Ministry of Labour).
  • Either party may make the request.
  • During conciliation and with the assistance of the conciliation officer, the parties will continue efforts to reach an agreement.
  • Parties can be together or separate.
  • The conciliation officer has NO authority to compel the parties to agree to anything and cannot impose anything (persuasion only).
  • The conciliation officer cannot be compelled to testify or reveal anything said to the officer in confidence or otherwise during the process.
  • Conciliation is a required step before the Union is in a lawful strike position or for the Employer to be in a lawful lockout position.
  • The discussions at conciliation are without prejudice.
  • The process can continue as long as the parties are continuing to negotiate and/or until either party makes a request for a No Board Report.
  • 14 days after a No Board Report is released and on the 17th day after report was mailed the parties are in a lawful strike/lockout position (effective the 18th day).
  • The parties can, and are usually requested by the Ministry, to continue to bargain, with the assistance of a mediator, after a No Board report has been requested in conciliation.
  • Once a No Board is issued and if an agreement has not been reached the Employer is in an “open period” where there is no collective agreement in place (note: where labour action is not being taken by the union or employer).