MGHC53H3 Chapter 10: 3rd Party Intervention During Negotiations (McQuarrie)

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Management (MGH)

MCQ Chapter 10 - 3rd Party Intervention During Negotiations Introduction - Strikes and lockouts have the potential to be damaging and lengthy, which is why labour legislation in most Canadian jurisdiction provides for some form of 3rd party intervention in collective bargaining - This allows the 3rd party to settle disputes that may occur and help opposing parties resolve differences without using a strike or lockout - An ideal 3rd party is neutral to both parties and he/she can provide suggestions without being accused of playing favourites and is a fresh set of eyes on the problem to see any missed solutions - 3rd parties may also be introduced by the order of the government to ensure a speedy resolution - The main types of 3rd party intervention used in Canadian jurisdiction are conciliation, mediation, and arbitration - Depending on circumstances of the situation, the types of 3rd party intervention may be voluntary or mandatory - Also 3 less common forms of 3rd party intervention: mediation-arbitration, industrial inquiry commissions, and disputes inquiry boards Conciliation - In all Canadian jurisdictions except BC and Alberta, conciliation is the first possible step in attempting to resolve an impasse in negotiation - The conciliator role is to assess the positions of the parties and the reasons for their inability to reach an agreement and report to the minister of labour and/or both parties - The conciliator does not participate in bargaining sessions or impose an agreement on the parties - Bc of this, conciliation is preferred as the initial form of 3rd party intervention as it allows bargaining parties to retain a greater amount of control over the process - In some jurisdictions, conciliation is required as a precondition to a legal strike or lockout - Meaning the report must be completed and submitted to the minister of labour before a strike or lockout can occur - In some jurisdictions where conciliation is voluntary, the parties may choose to undertake conciliation on their own initiative to work out their differences while maintaining their control over the process and avoiding other 3rd party intervention techniques - The conciliator can be a conciliation office (a single person) or in the federal jurisdiction, a conciliation commission (mutiple people) - They are usually government employees with experience in collective bargaining and dispute resolution - The actual process of C begins with the officer meeting with both parties, looking over the bargaining items that have been settled and that are being negotiated, and determining where each party stands - Also will ascertain what factors may be preventing the parties from reaching an agreement (ie quality of relationship, difference in offers, and willingness to make concessions) - If conciliation was not done voluntarily and not ordered by the minister of labor, the report of the conciliation board or officer will be given to the parties themselves - A minister of labor can use conciliation to not only assist parties in reaching an agreement, but also to create pressure from the public to resolve the dispute - Media can motivate parties to settle faster to avoid damage to their public image and reputation or else the details of their dispute may be published to the public if an agreement is not reached - In some Canadian jurisdictions, if the report of the officer fails to resolve the dispute, legislation can provide a further step in the C process - Appointing a tripartite conciliation board (TCB) - Consists of an individual appointed by the union and employer and a neutral 3rd party - Thus 3 parties are represented hence the name tripartite - The TCB carries out the same process as the conciliation officer or commission with one major difference in the collecting of info on the dispute via a formal hearing where both sides present their cases - Then the board will recommend solutions to disputes to the minister of labor - If the parties agree in advance, the recommendations of the board can be binding -- that is accepting the recommendation as the resolution to their dispute - The C process is used in federal, provincial, municipal, and regional public service disputes bc these disputes often involve essential services - C can delay strikes or lockouts or even avoid them which is key for essential services - E.g. C was used in a dispute between federal government and 8500 technical workers in the public sector. Dispute over wages and the C board recommended that were satisfying to both parties and avoiding a strike - Example demonstrates that C can settle disputes by recommending overlooked solutions (as mentioned in chapter 8) - C can also be used to help parties overcome differences between their positions - E.g. NAV Canada and their wage dispute with the union - Overall C rarely resolves disputes as parties view C as a 1st step they have to take before undergoing more intensive measures so they may not fully support the C process - Furthermore, since C happens at the early stages of the bargaining process, parties are often unwilling to compromise so early - A study of bargaining-related legislation governing the Canadian private sector investigated whether the use of C reduced the likelihood of strikes or the cost of strikes - Study analyzed data between 1967 to 1993 - Results: - the use of C did not significantly reduce either the # or length of strikes - Two stage C process of a C officer and C board was somewhat more effective in reducing strike activity when a 2 week “cooling off” period was used during the C process - Bc of C ineffectiveness of reducing strike activity, C was not significantly effective in reducing the cost of strikes - Strike costs striking workers $100 per day and employers $900 a day - If C is unsuccessful, it is common for mediation to be the next step Mediation - Mediation is a more intensive form of 3rd party intervention than C because the mediator, actually participates in the bargaining process - Mediator does not need to be an employee of the labour relations board or government - Often have experience in labor or management negotiations - Cost is paid by the government agency that made the appointment - When a mediator becomes involved in negotiations, he or she investigates the dispute by attending bargaining sessions and observing the negotiation teams in action to see if any factors are stalling negotiations - Mediator will also listen to each party’s position and suggest either privately or jointly possible resolutions for the issues under dispute - Parties are under no obligations to accept the recommendation - At the end of the mediation process, at the request of either party, the mediator will provide a report that may include recommended terms of settlement - These terms are often persuasive and of real use in helping the parties reach an agreement - Mediator’s recommendation tend to be more persuasive and practical than a conciliator because the mediator has been more involved in the process and is familiar with both parties - Similarly, parties may treat the mediator’s recommendation more seriously as well, due to the parties close contact during the process - E.g. Vancouver public transit bus strike was settled through creating pressure through a mediator’s recommendations 2 months into the strike - From Chapter 9: - In some Canadian jurisdictions (Alberta and PEI), a mediator or conciliator must be appointed prior to the start a strike or lockout - In other jurisdictions (NB, Newfoundland, NS) a conciliator or conciliation board must be appointed before a legal strike or lockout can happen - Booking out for mediators means that the mediator stops trying to help the parties overcome their differences and formally leaves the negotiation process - Can be due to request of parties or the mediator - Booking out occurs when the mediator is unable to help resolve their disputes or parties have no common ground Other Forms of Mediation Special Mediation - BC, SK, and Quebec have a legislation that the minister of labour can appoint a special mediator at any time during the collective bargaining process - NS as well but it is called “preventive mediation” - In Alberta it is called “informal mediation” - The special mediator has expanded protection, privileges, and powers under the legislation and informs the minister on the progress of mediation - One distinction between special mediation and other forms of mediation is that much of the special mediator’s authority is determined by the terms of each individual appointment - The main distinction is that a special mediator can be appointed at any time during the bargaining process - he/she may be requested to submit a report to the minister of labor and/or both parties, and this report may be considered the same status as one from a conciliation officer Fact Finding - In BC a fact finder can be appointed to meet with parties engaged in bargaining - He/she is responsible for inquiring about issues between parties and submitting a report to the associate chair - Report includes all issues and any other relevant findings - Upon receiving the report the chair may give it to the parties or make it public - The fact finder is a mediator, but serves a function similar to a conciliator Interest Arbitration (IA) - Most intensive and invasive form of 3rd party intervention - Bc
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