A primer on strikes and lockouts
Last week, AUFA’s bargaining team provided you with a brief overview of the bargaining process into which AU and AUFA will soon be entering. The purpose of bargaining is to enter into a new collective agreement. Sometimes, bargaining can reach impasse and the parties must grapple with the possibility of a strike or lockout (or both!).
AUFA’s Job Action Committee (JAC) is charged with (1) preparing AUFA in case there is as work stoppage, and (2) applying pressure on AU to negotiate a collective agreement that AUFA members can live with (so as to avoid a work stoppage). The members of JAC are Bob Barnetson, Brenda Skayman, Gail Leicht, James Haubrich, Jolene Armstrong, Kimberley Lamarche, and Nick Driedger.
While it can be difficult to think a work stoppage while we are in the midst of the COVID-19 pandemic, it is necessary for AUFA to prepare for the possibility of a work stoppage after the pandemic is over. This blog provides an overview of the purpose and process of strikes and lockout. It also identifies the key tasks the members of JAC will be completing in the next few months.
Bargaining impasse
Bargaining impasse is reached when one (or both) parties decide that further negotiation is unlikely to yield an acceptable collective agreement. At this point, bargaining typically stops.
It is common for bargaining to start and stop several times as each side considers its options and adjusts its proposal. The parties may also voluntarily choose to bring in a mediator to see if a settlement can be reached.
The parties may also jointly agree to submit some or all of the items in dispute to arbitration. Arbitration entails a neutral third party receiving submissions from AUFA and AU and then deciding what the terms of the agreement will be.
It can often be difficult to get both sides to agree to arbitration when impasse is reached. This reflects that, typically, one side believes it will achieve a better outcome by applying pressure to the other side through a strike or lockout (or the threat of one) than it will through arbitration.
Pre-Work Stoppage Process
One (or both sides) may decide to move towards a work stoppage in order to apply pressure to the other side to reconsider its position. A work stoppage can entail:
A strike by workers, wherein workers stop doing their jobs,
A lockout by the employer, wherein the employer refuses to let workers do their jobs, and
A simultaneous strike and lockout.
The process that must be completed before a work stoppage can occur is lengthy and has five steps. At any point during this process, the parties can return to the bargaining table and conclude an agreement.
Essential services agreement (ESA): An ESA sets out the job tasks that must continue to be done during a work stoppage in order to protect the health, safety, and life of the public. The parties must either conclude an ESA or convince the Labour Board that there is no need for an ESA.
Mandatory mediation: Once an ESA is in place, the parties must complete mandatory mediation with a mediator appointed by the government.
Proposal Vote: If the mediator recommends a settlement, the parties must vote on the mediator’s recommendation. If both parties accept the mediator’s recommendation, then it becomes the new agreement. If one or both sides reject the recommendation, then mediation is concluded. There is a 14-day cooling off period after mediation.
Strike vote/Lockout poll: Before a union can strike, it must conduct a vote of its members. The vote is supervised by the Alberta Labour Relations Board. A strike can only occur if a majority of voting AUFA members support the strike. Employers must go through a similar process called a lockout poll.
Notice of Strike or Lockout: Once a strike has been authorized, the union can serve the employer with 72 hours of notice of a strike anytime within 120 days of a successful vote. An employer that has completed a lockout poll can similarly issue notice of a lockout on 72 hours of notice.
The process of moving from impasse to a strike is typically a slow one. This is an intentional feature. One outcome of the slow pace is that both parties have ample opportunity to resolve the dispute before a work stoppage takes place.
What happens during a strike?
A strike is a cessation of work by workers. Its purpose is to apply economic pressure to the employer (by disrupting operations) in order to cause the employer to change its position at the bargaining table. Strikes can also apply reputational pressure by embarrassing the employer and driving away customers (i.e., students).
Unions may use picket lines to both restrict access to the workplace and tell the public about what a bad actor the employer is. The distributed nature of AU operations means AUFA will need to be inventive in terms of specific strike actions.
While it is common to speak of a strike as a single event, that is not always the case. Once a union has served notice of a strike, the union has significant latitude in the conduct of the strike. The strike may be periodic (e.g., every Monday). A strike may stop and start. A strike may also be partial, with only certain workers going out or with only certain duties refused.
These tactics are often much more disruptive to the employer than an ongoing strike. They also reduce the financial pinch felt by workers. For these reasons, employers often issue a lockout notice when they receive a strike notice. This allows the employer to refuse to allow workers to do their jobs and, thus, makes the strike more manageable for the employer.
What happens during a lock out?
A lockout occurs when the employer refuses to allow workers to perform their jobs. Its purpose is to apply pressure to the union to change its position at the bargaining table. It does this by stopping workers’ wages.
Employers may lock the workers out indefinitely. Or an employer may opt for a short lockout followed by telling workers to return to work. This short lockout is commonly called a 24-hour lockout, although the exact duration (one hour, one day, one week) is immaterial.
One of the things that happens when there is a lockout (or a strike) is that the old collective agreement (that was continuing operating under the bridging provisions of the Labour Relations Code) ceases to exist. Consequently, a lockout allows employers to terminate the agreement and bring workers back to work under different terms of employment (typically the employer’s last offer).
The only way for workers to resist this tactic is for the union to go on strike. For this reason, unions typically respond to an employer serving lockout notice by serving strike notice. Absent a strike, the workers must return to work under the employer’s terms (or abandon their jobs). Returning to work means the workers are, de facto, accepting the employer’s offer.
The logic and paradox of labour conflict
The consequences of a work stoppage are usually very significant for both the employer and the workers. Consequently, the threat of a work stoppage is often enough to cause one or both sides to moderate their demands and, thereby, move closer to a mutually acceptable agreement. This creates the paradox that the threat of conflict often prevents conflict. This helps explain why fewer than 1% of negotiations in Alberta result in a work stoppage.
For this dynamic to operate properly, each side needs to have a credible strike or lockout threat. Consequently, AUFA must prepare for a strike each round of bargaining as well as be prepared to execute a strike. Having credible strike threat raises the cost to AU of stonewalling at the bargaining table. It also takes away the employer’s incentive to use a 24-hour lockout to impose a new contract (because AUFA can respond with a strike).
Wages and benefits during a work stoppage
The employer is not required to provide any wages during a strike or a lockout. AUFA is a member of the Canadian Association of University Teachers (CAUT) Defence Fund. Starting the fourth day of any strike, the Defence Fund provides a strike/lockout pay of $88 (tax free) per calendar day. This money is distributed through AUFA. Typically eligibility for strike pay is contingent upon participating in strike activities (e.g., not working), although this decision is the purview of the AUFA executive.
AUFA has also set aside funds to maintain our health, drug, dental, vision and life insurance premiums during a work stoppage. The period of a work stoppage is not considered pensionable time and there are no pension contributions made during a work stoppage.
Upcoming JAC Tasks
JAC will be beginning preparations against the possibility of a strike or lockout over the next few months. Our expectation is that a work stoppage would not occur until late in 2020 at the earliest. The duration of the COVID-19 pandemic will likely affect both AU’s and AUFA’s decisions about the timing of a work stoppage.
The key preparations that you will see over the next few months are these:
Information Request: We will be asking AUFA members to update their home phone numbers and email addresses (we collected these two years ago during the last round of bargaining). This information is necessary because a work stoppage will prevent AUFA from using AU systems to communicate with members. This information is kept in a password protected file in the AUFA offices and will only be used in the event of a work stoppage. Last round, over 90% of AUFA members provided this information.
Bargaining Analyses: In cooperation with the Bargaining Team, JAC will be providing analyses of employer proposals to the AUFA membership.
Member Actions: If bargaining begins to go poorly, JAC will be organizing member actions to apply pressure to the Board to reconsider their position. In the past this has included letter writing campaign,s social media posts, and information pickets. The purpose of these actions is to apply reputational pressure to AU to move towards an acceptable settlement.
Banking Request: In the event of a work stoppage, AUFA will be distributing strike pay through direct deposit. To do this, AUFA will need to collect the bank account number that you wish your strike pay deposited in. Last round, JAC determined that it would not collect this information unless it appeared a work stoppage was likely. This trigger point for collecting this data will be the application by either side for government mediation (a key step towards a work stoppage).
Conclusion
The members of JAC are hopeful that AU and AUFA will be able to negotiate a mutually acceptable collective agreement. It is important, however, that AUFA be prepared in case a work stoppage occurs. A viable strike threat is an important tool to keep an employer at the table bargaining.
Bob Barnetson, Chair
Job Action Committee