What’s the current process of Bargaining?
- Input is sought from membership via survey and feedback directed to Governing Council Representatives.
- Notice to bargain is issued within a prescribed deadline normally prior to the expiry of the Collective Agreement. The AJC has opted and continues to either exercise its statutory right to binding interest arbitration, or where no such right exists, seek the consent of the Employer to agree to binding interest arbitration where the parties reach an impasse. Should the AJC wish to proceed with strike action in the event of an impasse, this change in approach must be approved by a majority of the membership prior to engaging in the collective bargaining process with the Employer.
- Negotiation Team, which is mandated by the Governing Council, reviews input and develops a negotiation strategy.
- Negotiation Team prepares collective bargaining proposals.
- Negotiation Team and Treasury Board meet and negotiate the changes to the Collective Agreement.
- Once both sides reach a tentative agreement, the parties seek ratification from their respective decision makers. In the AJC’s case, the AJC conducts a ratification vote for registered membership approval.
- Currently, if an impasse is reached, either party may request that the FPSLREB establish an arbitration board to rule and issue a binding arbitral award.
How Bargaining Works
Putting the Employer on Notice
Collective bargaining is initiated by a notice to bargain from the union. This notice advises Treasury Board that the union wants to bargain changes to the current collective agreement. While every collective agreement has an expiry date, the terms and conditions of an expired collective agreement continue to be in force until they are replaced by a new agreement or a strike takes place (in the case of bargaining agents who choose the conciliation-strike option as the dispute resolution mechanism).
When we give notice to bargain, the union also chooses a bargaining path which is essentially a decision on the dispute mechanism. Historically, the AJC has opted for the automatic right to interest arbitration to settle disputes, rather than the conciliation-strike option.
Meeting to Bargain
The next step is to set up meeting dates with the Employer (Treasury Board). Once dates have been agreed to, the AJC and Treasury Board each bring their teams to the meetings. The union isn’t the only side that may propose changes to the collective agreement; the Employer can too. Union demands focus on improving wages and working conditions. Employer demands reflect the Employer’s priorities and may, though not always, take on the form of a requested union concessions.
During the meetings, each side has an opportunity to present their proposals and discuss them when the other side doesn’t agree. Depending on how responsive – or not – each side is to the other’s demands, these meetings can go on for many, many months.
While bargaining with the Employer continues, the AJC Negotiations Committee also meets separately to discuss the Employer’s reaction to the union’s demands and how to respond to the Employer’s demands. Bargaining is a process of give and take, and as talks with the Employer continue, either party may decide to withdraw some demands in favour of others. At the end of the day, an agreement requires both the union and the Employer to buy in.
The AJC will regularly update members by email on how bargaining is progressing. Updates are also available on the AJC website: https://www.ajc-ajj.ca/en/negociation-collective/latest-updates
Reaching a Tentative Agreement
The best outcome is when the union and the Employer tentatively agree on the changes that will be made to the agreement. The agreement is tentative until members have had an opportunity to accept or reject it in a ratification vote. TB also has its own internal ratification process.
When Bargaining Breaks Down
At some point, if the union and the employer can’t reach a tentative agreement, they can declare an impasse. In other words, they have gone as far as they can with no resolution in sight.
The AJC has always opted to exercise its statutory right to binding interest arbitration as its dispute resolution mechanism. Should the parties reach an impasse, either the AJC or the Employer may request binding interest arbitration.
Binding Interest Arbitration
Interest arbitration is a mechanism used to resolve disputes in the collective bargaining process. In binding interest arbitration, disputing parties agree in advance to accept the terms of a deal as decided by a neutral third party.
The procedures and process of interest arbitration are governed by the Federal Public Sector Labour Relations Act and Federal Public Sector Labour Relations and Employment Board (FPSLREB) Regulations. To trigger the start of the arbitration proceeding, a Request for Arbitration would be filed with the FPSLREB Chairperson.
The AJC and the Employer would typically request a three-member arbitration board that will decide on any outstanding matters at the bargaining table. The members of the arbitration board will be nominated through a selection process by the Employer and the AJC. If the parties cannot agree on arbitration board members, the FPSRLEB would appoint an arbitrator.
The arbitration board will hold a hearing where both parties will present their positions and evidence. The arbitration board will be required to consider a number of factors, including conditions of employment in similar occupations outside the Public Service, the need to maintain appropriate relationships between classification levels within the Public Service, the state of the Canadian economy, and the Government’s fiscal circumstances.
Finalizing a new agreement
When the AJC and the employer agree on a tentative agreement, the members have the final say. Information is shared and information sessions held to explain the changes in the tentative agreement and a ratification vote will be held. If a majority of members vote in favour, a new collective agreement will be signed.
If members reject the tentative agreement, this would trigger either more bargaining and in the absence of a further revised tentative agreement, binding interest arbitration.
An arbitral award is binding on the employer, the bargaining agent, and the employees in the bargaining unit and forms a supplement to the collective agreement.
What happens to my terms and conditions of employment once notice to bargain has been issued?
The status quo. The terms and conditions of employment applicable to the employees in the bargaining unit continue to be in force. This "statutory freeze" on the terms and conditions of employment remains in force until a new collective agreement is reached, or an arbitral award is rendered. Note that this freeze is not absolute, but instead refers to "business as usual" and changes cannot be made that would not be within the reasonable expectations of the parties.
What can be bargained?
The AJC can negotiate increases to the rates of pay, as well as improvements to other working conditions, such as leaves of absence, flexible working arrangements, to name a couple.
Flexible work hours
Did you know that…
The Collective Agreement recognizes the importance of a flexible working schedule allowing lawyers to balance personal and professional obligations? However, this flexibility must be reconciled with the employer’s legislated right to manage hours of work. As a result, such flexibility is subject to operational requirements and managerial approval. Lawyers may enter into alternate work or flexible work hour arrangements with the approval of their manager, who is expected to exercise their discretion in a non-arbitrary, discriminatory or bad faith manner. That said, lawyers in question must work an average of 37.5 hours per week over a 4-week period. What a lawyer can’t do, is to take it upon themselves to set his or her own schedule without management approval.
What can’t be bargained?
Under the FPSLRA, some terms and conditions of employment are not currently negotiable. A collective agreement may not, directly or indirectly, alter or eliminate any existing term or condition of employment or establish any new term or condition of employment if:
(a) doing so would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for the implementation of the term or condition; or
(b) the term or condition is one that has been or may be established under the Public Service Employment Act, the Public Service Superannuation Act, or the Government Employees Compensation Act.
This means that, for example, a collective agreement may not cover pension issues, benefits payable on injury or death, the assignment of duties, and the classification of positions.
Indeterminate Status
Did you know that...
...the conversion from term to indeterminate employee cannot be bargained? Indeed, pursuant to section 59(1) of the Public Service Employment Act, the conversion from term to indeterminate employee will take place “at the end of the cumulative period of employment specified by the employer in circumstances prescribed by the employer”, which are outlined in section 7.2 of the Term Employment Policy.
For more information on the matter, please refer to the AJC FAQs for Term Employees. If after consulting our FAQs, you still have questions, do not hesitate to send your inquiry to admin@ajc-ajj.ca.
Pension
Did you know that...
...the Public Service Pension Superannuation Act governs all aspects of the public service pension plan? Indeed, everything including eligibility, contribution rates and even death benefits are legislated and thus are not subject to collective bargaining. The sole power to amend or modify your pension plan rests with the government. All bargaining agents can really do is to lobby on your behalf.
Promotion
Did you know that ...
…promotions are not subject to collective bargaining. The Public Service Employment Act and the Financial Administration Act regulate the Employer´s right to manage its human resources through delegated authority. Although the AJC actively advocates on behalf of its members and supports all career development programs that may be put in place by different Departments, it simply cannot direct the employer to offer or increase promotional opportunities through the bargaining process.
Classification
Did you know that...
…classification levels are not the subject of collective bargaining. Are you regularly doing work above your current classification level and feel you should be reclassified to a higher level?
Since classification levels are not the subject of collective bargaining, there is very little the AJC can do to help you unless you submit an individual request to the AJC to support the filing of an individual job content grievance on your behalf. For more information on job content, acting pay and job classification grievances, including the process to follow to request support, please refer to our online FAQ relating to job descriptions and classifications.
Health Care Benefits
Did you know that...
…health care benefits are negotiated at the National Joint Council level? There is a cyclical review conducted every three to five years that allows bargaining agents to send their proposed changes to the health care plan.
What if an agreement is not reached?
If the AJC and the Employer are unable to reach an agreement, the AJC will avail itself of the dispute resolution processes under the FPSLRA. For more information on the FPSLRB´s dispute resolution mechanisms, please click here
