Monday, December 20, 2010

Arbitration no replacement for responsible negotiation

Binding arbitration seems to be the new catchword for labour relations in Newfoundland lately. The doctors who recently reached a tentative agreement with government want to enshrine binding arbitration in the next contract and now there’s word that MetroBus employees in St. Johns want to go in the same direction.

It would appear that binding arbitration is being viewed by some at least as a panacea to difficult labour negotiations. The only problem is that it can go either way – you might get want you want or you might get what the other side wants; the one sure thing about arbitration is that there is a winner and a loser.

A few years back, I had a chance to work with one of the top labour lawyers in Canada and joined him in some negotiations. His perspective, with which I agree, is that labour negotiations have become completely adversarial to the extent that the parties are often left in the position of not being to compromise for fear of losing face with their constituency. The approach is no longer one of negotiation but more of demand and counter demand with raised voices, slammed doors and intransigence on the part of both sides.

From what I can tell in the government-doctors dispute, the government pretty much caved and gave the doctors whatever they wanted. Not hard to see in that scenario why Jerome Kennedy would opt not to offer for the Tory party leadership. You can be guaranteed that a smart opposition would make him wear that through any election campaign. Everyone knows that the doctors stooped way low to use public health as a bargaining chip in the negotiations and they won – largely because they made people afraid. It is called the HYPOCRITICAL oath, isn’t it?

Now the bus drivers are apparently looking for arbitration as well, to settle a seven-week old dispute with the city of St. Johns. The fact that the two sides haven’t been able to come to an agreement speaks of that same intransigence and again, the public are being used as pawns. A lot of people in this community depend on the bus and I suspect when the bus drivers’ union leadership decided to call a strike, they felt that because it was so close to Christmas, the city would cave and give them what they wanted or wanted to take away. It didn’t work out that way and seven weeks later, with Christmas in a few days, those employees are on strike pay – which is enough to afford Kraft dinner but not the ketchup to go with it.

All that binding arbitration does is take away the responsibility of the parties to negotiate in good faith. Why should they bother when they know that an arbitrator or arbitration panel will come in and solve their dispute for them? It’s like two kids fighting on the playground. The teacher can break it up and send them both back to their classroom, but until they have to look one another in the eye and say they’re sorry and shake hands, all that happens is the dispute simmers and they’ll be fighting again after school. The handshake is symbolic but if they can make that first move, there’s hope.

Binding arbitration is not and never will be the answer to intransigence in labour negotiations. It is only the answer for those who don’t have the fortitude to act like adults in negotiations.

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