Clement letter showed bad faith, PAFSO says
No requirement to act reasonably, says government lawyer
Treasury Board President Tony Clement’s response to a proposal to settle a bitter contract dispute with foreign services officers through binding arbitration amounts to badfaith bargaining, a union lawyer argued Wednesday.
Andrew Raven told a Public Service Labour Relations Board hearing that Clement’s July 23 letter in response to the proposal by Tim Edwards, president of the Professional Association of Foreign Service Officers, was “plainly unreasonable as it requires the union to agree to an outcome on the very issues it wishes to arbitrate.”
The 1,350 foreign service officers have been without a contract since June 2011. In June, they began strike action at 15 of Canada’s biggest visa processing centres around the world, causing lengthy delays in issuing visas to tourists, foreign students and temporary foreign workers.
In his letter, Clement set several preconditions before he would agree to binding arbitration. One was that the arbitration board could not compare wages earned by foreign services officers and other occupational groups.
Those comparisons are at the heart of PAFSO’s argument that some foreign services officers are underpaid by between $3,000 and $14,000 compared with other government employees doing essentially the same work — the key issue in the dispute.
Clement’s letter also said the arbitration board would have to “give primacy” to the issue of recruitment and retention in its deliberations. Unless the union could establish that the government was having trouble attracting and retaining foreign service officers, he wrote, an arbitration board could not consider internal and external comparisons in making its compensation decision.
PAFSO was willing to accept some conditions set by Clement, including an immediate return to work and acceptance of economic increases agreed to by other public service unions.
But in a letter to Clement dated July 26, Edwards said the other preconditions Clement was demanding were “an attempt to predetermine the outcome by tying the hands of the arbitrator.”
“If you really believe that your offer is ‘fair and reasonable,’ there is no reason for you to shy away from an arbitration process free from any preconditions,” he wrote.
At Wednesday’s PSLRB hearing, Raven argued that the union’s bad-faith bargaining case “is made by Mr. Clement for us in this letter. The behaviour of the employer is flatly contradictory to its duty to bargain in good faith.”
Government lawyer Richard Fader responded that the union’s complaint was “wildly inconsistent” with the Public Service Labour Relations Act. The case “starts and stops” with a clear reading of section 182 of the act, he said.
That section outlines rules for an alternative dispute resolution process, and is distinct from the regular collective bargaining process, Fader argued, meaning that jurisprudence on bad faith at the bargaining table doesn’t apply.
The alternative dispute resolution process is “completely consensual,” he said, and either party is entitled to set any conditions they want for participating.
Margaret Shannon, the PSLRB member hearing the case, asked whether there wasn’t an obligation on both parties to be reasonable. Fader said the act imposes no such requirement. “You can’t read reasonableness into it,” he said.
At one point, Shannon — who repeatedly challenged Fader during his argument — suggested that Clement’s position was akin to saying in a custody hearing, “We’ll talk about child custody, but we’re not going to talk about the children.”
But Fader said the union was inviting Shannon to “essentially redraft” the section of the act dealing with alternative dispute resolution. “Once we go down that slippery slope, it’s a long way down,” he said.
If the PSLRB upholds the union complaint of bad faith bargaining in this case, “it might even send a chilling message to employers,” Fader warned.
Fader’s assertion that the government’s obligation to act in good faith “gets parked” when alternative dispute resolution measures are involved was a “startling proposition,” Raven said.
“I know of no case law that says the employer can, in certain circumstances, act in bad faith.”
If the PSLRB were to accept that argument, Raven said, it would “send shock waves through the labour community.”
He said he also found it “disturbing” that the government’s position was that it was not obliged to be reasonable in setting conditions before agreeing to binding arbitration.
Shannon reserved her decision, saying only that she would release it “in due course.”
Meanwhile, the Green Party of Canada declared its support for the striking foreign service officers Wednesday.
Party leader Elizabeth May said the cost of addressing the wage gaps faced by foreign service officers would be $4.2 million over three years. “That is an insignificant fraction of the cost the job action has had on the Canadian economy,” she said.
May said visa delays for tourists will cost the economy $280 million this summer, and the expected 20 per cent drop in international students will cost the economy a further $1.5 billion.