PSAC members on the picket line.
PSAC members on the picket line. Credit: PSAC / Twitter Credit: PSAC / Twitter

I bump into a colleague in the hallway, days before we are slated to go back out on the picket line, during yet another round of public sector “bargaining” here in Quebec. She exclaims that she has “no intention of freezing her ass off” and will not be part of that process. Another colleague states disdainfully that it is “beneath the dignity” of “professionals” to picket, “like children”, “yelling slogans” and “waving flags” of protest. And of course we’d quickly dismiss this sentiment as a misunderstanding, a failing to show solidarity with fellow teachers/workers. But somewhere a little voice is saying, “well maybe they have a point”.

The point of course may not be exactly the one we think they are making, but when we look at the whole scope of what the collective bargaining process has become, especially in the public sector, one need not wonder why some may wish to have nothing to do with it. Indeed, it is beneath our dignity, and not just “our” dignity, as “professionals”. For after all,  as things have developed, there is little doubt that the point is to compel, in this case public sector workers, to beg for crumbs, by freezing their asses off, until the government deigns to make a reasonable offer. But before we get too far into the weeds of this particular round of “negotiations”, perhaps it would make sense to understand a bit of the history of collective bargaining in Canada. 

The Industrial Disputes Investigations Act of 1907 was the result of the then Federal Labour Minister, William Lyon McKenzie–King’s desire to impose strict rules and regulations to prevent harmful disruptions within the private sector economy. Specifically, work disruptions, in “the utilities”, notably, railways, or transport, or, for example what we again saw last summer, with the general strike at the Vancouver seaport, should be limited in the national interest. Consequently, a system was enacted that put government into the process, as a third party intervener, or legislator, to ensure that unionized workers’ ability to strike would be regulated and that private sector employers, to some extent, would be encouraged, or, in theory, compelled, to “bargain “in good faith”, to avoid such disruptive and destructive eventualities.

Whatever we may say about the efficacy of the process, or its apparent inherent unfairness, the laws and regulations that ensued introduced steps by which the parties needed to proceed before a strike, or work stoppage, could take place. That included, among many other things, conciliation or mediation, a “cooling off” period, even draconian back-work legislation, and at least the suggestion of the prospect of fining intransigent employers. But above it all it was to create a sense that the government needed to act in the best interest of “the nation”, and that the legislation was required to do just that. Again, regardless of whether the act and the laws that followed actually did that, this was the pretense, or the stated intent. But none of this anticipated what was to follow, which was the emergence of a large public sector, and consequently public sector bargaining. Indeed we need to reconsider the entire collective bargaining process anew when this is taken into consideration. So what is the difference?

The main difference of course lies in the fact that the government becomes the employer. So then, what of the idea of third party intervention? By the government, as employer, that passes laws to ensure that the employer, now the government, enacts to ensure that the employer, now the government, acts “in good faith”? It would be absurd to even think this needs to be under consideration by the employer, in the public sector, as it surely would be, in theory at least,  if the employer would be in the private sector. For it would be more than a little absurd to think that the employer would compel the employer, by fining it, scolding it, or legislating it, to bargain in good faith. 

And in addition, we have a very different prospect here, where politicians, well aware of what got them elected, act as chief negotiators, knowing full well how easy it is to turn the public against their prospective political enemies. Taking a warrior stance seems too often to pay off for intransigent governors, turned employers. It is quite simple for a government to remind the public, not only that the government can not afford to “cave to union demands”, but neither can the taxpayer. For after all, who are these workers anyway, but public “servants”, working for the vaunted ”taxpayer”?  In industrial relations, this is nicely called “the feedback loop”: workers go on strike; governments shame them; media follows suit with videos of the elderly standing, waiting for a bus in freezing weather; parents having to scramble for daycare; traffic tie-ups; nurses unavailable, workers looking shabby and on picket lines, and all because they are greedy and already out-earning the average wage earner.

So what requires closer scrutiny is the way in which the public sector employer, as government, can game the process at will and not ever pay a penalty, unless and until that happy day comes, which happens to be today in Quebec, that the public and media finally cotton on to the employer’s shenanigans. And what typically are those shenanigans? Well let me just suggest a few glaring ones. 

First, ignore the entire mediation process. Thereby, the government puts an utterly ridiculous “offer” on the table effectively signaling that it has no intention of ever entering anything resembling a serious mediation process, let alone bargaining in good faith. This is quite significant because without this step, the stage is surely set for strike action on the part of the unions. Next, the government appeals to the public, stating that they have made a “generous offer” but that the union refuses to come to the bargaining table. We have heard these refrains time and again. Then, the unions announce their intention to strike to hopefully, from the employer’s perspective, a loud chorus of boos. 

In the recent past, in Quebec anyway, governments have passed back-to-work legislation even to preempt a strike, and have imposed a collective “agreement”, with a threat of fining both individuals and unions. In fact we have to go back 50 years here to find a time when the government made an offer that was quickly accepted by the unions. In that case, it was, again, done for political reasons, so that the then PQ government could ensure its re-election. Then shortly after accomplishing that goal, it famously, cut public sector wages by 20 per cent, throwing the unions into an “illegal” wildcat strike that remains in the memories of many in Quebec. 

But of interest there is the fact that the Supreme Court of Canada determined that the government was well within its rights to do all manner of things, including to pass laws and impose fines and contracts, even gut the terms of an existing collective bargaining contract, while, it seems, not needing to abide by what in the past would have been considered, by conventional rules of collective bargaining, in the private sector, to be illegal. On occasion, the Supreme Court has found that governments could be found to have acted illegally, or unconstitutionally, but generally speaking the process, as it is has evolved, ensures that governments get to act as judge, jury and executioner in the collective bargaining process. 

So what does that mean? 

A): as it is the public sector employer, it supposedly acts with a public mandate; 

B): it is not governed by the possibility of third party intervention; 

C): it puts offers on the table for the unions to consider; 

D): it decides consequently what’s fair and unfair; 

E): it then gets to impose its own decisions upon its employees; and of course, 

F): it never has to stand out in the cold or close down its own shop and lose money in the process. And the people inconvenienced, by work stoppages? Aside from the arrogant, indignant workers, they are the lowly, innocent taxpayers who, on most occasions, rally to the employer. Except, not this time.

Recent polls in Quebec show that Premier François Legault, a private sector employer in his other lifetime, has been disrobed and stands naked before a Quebec population, not as a saviour but as a cruel businessman,; not as a statesman-like governor, but as a person who speaks confidently, until he loses a by-election to his rival, the PQ, for, in part, being an abusive boss whom even the French language dailies now call out for his duplicity and insensitivity. After all “les anges guardiennes,” the nurses of Covid era fame, are now accused, by M. Legault,  of  “holding the Quebec population hostage”, a most unfortunate turn-of-phrase in the present moment. But what this simultaneously exposes is the need to completely rethink the public sector bargaining process and what that would that entail, not just in Quebec but everywhere across Canada. Otherwise it seems that there are no limits, no guardrails, to prevent the abuses that governments can dream up to impose upon its workers.

So first, whatever rules and rigours apply, for the private sector employer, must immediately be applied during public sector negotiations, presumably more fairly than they have been before: 

Therein, the government is merely a party to the process. 

They need to be ruled over by a third party intervention process. 

They are stripped of their capacity to bargain in bad faith. 

The capacity to rule by legislation curtailed. 

In sum, there should be a commission established to change the rules and laws governing collective bargaining and updates what was begun in 1907. In so doing, the miasma, unfortunately,  of first having to have this done on a federal level, then provincially, will unavoidably be repeated. But perhaps a first step would be for the Supreme Court to rule that this is a requirement. That would mean that a large public sector union would need to place this prospect before the court. 

Again, there have been different decisions, on the merits of union complaints against provincial governments in Canada, so it’s not as if the prospect for success is off the table, or is utterly improbable to succeed. Most of all we must all recognize that the entire system is in need of overhaul and is no longer appropriate in the 21st century. For, if nothing else, it is an insult to the public sector workers, to all workers, who are currently compelled to freeze their asses off, on picket lines, begging for crumbs, while all they can hope for is that governments feel compelled to return to the bargaining table, and beg for forgiveness from a public, now onto their game.

Stephen Block

Stephen Block currently teaches media literacy and political philosophy at Vanier College where he also served as an executive in the local union. His formal training is in industrial relations, political...