labour’s collective bargaining expert

It’s Monday morning, November 25, 2019, and the first day of the second week of the trial of the Public Services Sustainability Act. And, for the first time, we are about hear what an expert says about all this. I have a Masters in Alternative Dispute Resolution and an unfinished Ph.D. on negotiation, so I’ve studied all this, and I cannot wait to hear what he is going to say.

some preliminaries

Courts have to deal with every issue imaginable, and there are some things that you need much more than a law degree to grasp. In these circumstances, the parties turn to experts in the relevant fields to help everyone fully understand.

Although the judge has the power to appoint their own expert to assist them, that rarely happens. Instead, each side typically goes out to find their own, and whatever issue is at stake becomes, to some extent, a battle of the experts. I should note, however, that this battle is supposed to be different than the legal battle between the parties to the lawsuit. Experts are intended to be there to provide data and information which will assist the court in coming to certain factual conclusions. They are not there to help the lawyers argue their legal case. The best expert witnesses are the ones who best follow this rule.

Our witness today is Dr. Robert Paul Hebdon, Professor Emeritus at McGill University. His area of expertise is in Industrial Relations, and he is here today to explain to us all what impact the Public Services Sustainability Act is having or might be expected to have on collective bargaining.

Remember that according to the Supreme Court of Canada in B.C. Health Services, a law will violate Section 2(d)’s Freedom of Association and be unconstitutional if it “substantially interferes” with collective bargaining. That is a legal question and it will be for Shannon Carson to argue that whatever the PSSA does amounts to substantial interference as per the Supreme Court ‘s legal analysis. (Shannon and Garth seemed to have divvied the issues up – Shannon gets the collective bargaining stuff, while Garth gets to have all the fun with the finances – blech.).

However, in order to make any legal conclusions about what substantial interference might be, we all need some expert advice about what collective bargaining is, how it works, and what, if anything, related to the PSSA might affect it, and in what way. So Carson calls Dr. Robert Hebdon to the stand and his direct examination begins.

direct examination – by shannon carson

Although Dr. Hebdon has already been qualified as an expert on collective bargaining, Carson begins by taking us through his lengthy resume. You always do this, no matter how qualified the other side agrees your expert is. You want this impressive prelude to set the stage for impressing the court with the impressive expert opinion that follows.

And yes, it is impressive, though I didn’t get all the details. Suffice it to say that Dr. Hebdon has a doctorate in Industrial Relations from the University of Toronto, and has been a professor in management studies at McGill since 2000, where he still teaches today.

Besides, I’m more impressed with Dr. Hebdon’s work experience. He began as a senior research officer for the Civil Service of Ontario, and began negotiating for the Ontario Public Service Employees Union (OPSEU) in the 1970’s. Negotiation is something that you have to do, to do well, and he’s done a lot of it. He estimates he has been at and involved in over 100 collective bargaining tables.

How collective bargaining works

Although there are typically two sides at a collective bargaining table, each represents a number of varying interests. Management’s corporate interests may vary between divisions and departments, and are concerned not just with the issues themselves, but also how those issues fit with overall business strategies.

Unions have even more complex concerns. Their mandates are determined by a largely political process – votes on what the majority thinks are important. But the bargaining team has to represent all workers involved, and there may be any number of groups and sub-groups with widely differing priorities.

There are two basic types of issues that are encountered in bargaining. One type is typically adversarial in nature, like wages. Something one side wants is something the other side doesn’t want, although they may differ in how strong their “wanting” is. The other type is what are known as “win-win” issues, such as health and safety. A safer workplace is a win for everyone.

The line isn’t always that clearly drawn, and you can trade off some win or loss as part of some combined win-win strategy, but it’s a good way to frame how issues are dealt with, and it happens to be the standard academic approach to these matters.

In any event, the strategies are different depending on what kind of issue you are dealing with. For adversarial issues, you generally see what is called “hard bargaining”. Think of haggling over the price in the bazaar – my price, your price, and let’s struggle until we meet in some middle. On win-win matters, you mostly see what is called “integrative” or “problem-solving” negotiation, where everyone is trying to find as much good for both sides as they can.

Again, the line isn’t that clearly drawn when you get to the table, but you get the idea.

One of the factors that permeates the entire bargaining process is the relationship between the parties, or rather, how important it is. And it really depends. Do you care if it gets heated with the merchant in the market? Probably not, especially if you are never going to see them again. But, with any collective bargaining issue between unions and their employers, the relationship is absolutely and utterly key.

Dr. Hebdon remarks that trust in employee-employer relationships is difficult to build, always remains fragile, and easy to destroy. If it breaks down at the bargaining table, you risk a wholesale breakdown, not only of the collective agreement, but also of the ongoing relationship on a day-today basis.

Stages of Collective Bargaining

There are seven general stages of the collective bargaining process, although of course, any one round of bargaining may not go through them in a strictly linear way.

  1. Mandates – Both management and union obtain mandates, guidelines on what each side wants to achieve.
  2. Notice of Bargaining – There is usually some requirement for one side or another to give official notice that they want to begin.
  3. Meetings – The first two meetings are used for first one side and then the other to set out their proposals, and general ground rules, e.g. these are deal-breakers, these are not.
  4. Bargaining Ensues – The bargaining tables start trying to find common ground, explore areas of trade offs, and propose different packaging of issues. This is where all the work is done and it can take a long time. It is not unusual for the parties to meet 20 or 25 times or more during this process. Progress is important to encourage everyone to keep going.
  5. Contract Zone – The parties are close enough to see a deal is in sight. Sometimes, if they are close but not quite there, a third party, such as a mediator or conciliator comes in to help bridge the gap. (And sometimes the law or agreement requires the parties to go through mediation and conciliation regardless.)
  6. Strike or Lock-out – If no agreement is reached, and they are non-essential workers, the union can strike, or the employer can lock them out. Although these situations get all the attention, they are relatively rare. Dr. Hebdon estimates that around 5% of collective bargaining tables end up here, probably even less.
  7. Ratification – If a deal is made at the table, and it is acceptable to union members, the collective agreement is endorsed by a ratification vote.

Special Features of Collective Bargaining in the Public Sector

Over time, there has been an evolution in the public sector in Canada. One of the major issues is and always has been wages, specfically whether they keep pace with inflation, and whether they are competitive in terms of recruitment and retention. This seems to almost always be at odds with a government’s need to reign in budgetary spending.

Because of this perpetual tension, most public sector collective bargaining starts out with non-monetary issues, soft stuff, things that can be made into a win-win and/or trade. That way, the hard bargaining over money can be left to the end, where it makes the most sense strategically, and when after, hopefully, significant progress has already been made.

In Dr. Hebdon’s opinion, as soon as the big monetary issues are settled, the union loses most of its bargaining power. The lost leverage means that they lose the ability to trade something else – like job security – for lower wages.

The Importance of Wages

To highlight the importance of wages for unions, Dr. Hebdon collected data on some 14,254 strikes & lockouts in Canada from 1946-1999.

Roughly speaking, because it is sometime hard to tell what or how important the wages issues were, Dr. Hebdon’s best estimate is that wages and benefits are an issue, or the single major issue, about 77% of the time.

So how important are wages to collective bargaining? A lot.

Dr. Hebdon’s opinion on the pssa

Now Carson takes us to Dr. Hebdon’s opinion of the effect of the Public Services Sustainability Act on collective bargaining in Manitoba.

It’s not good. Dr. Hebdon describes the Act as a “legislated wage settlement”, and notes that it is generally accepted that it is better to allow parties to freely negotiate the means to achieve important policy goals, including budgetary constraints, than it is to impose those terms unilaterally.

What Happens When Governments Impose Terms?

Dr. Hebdon refers to another study from 2014 that demonstrated the effects of this type of government intervention – imposing outcomes. It found that when a government does this, the chances of a negotiated settlement being reached in the next collective agreement goes down by about 27%. It also tends to result in both parties expecting more intervention further down the line, and leads to about 1-8% lower wage increases in subsequent rounds.

Overall, the unions tend to lose bargaining power, which in turn creates all sorts of relationship problems – cynicism about collective bargaining, as well as management’s intentions, and increased distrust and dissension.

In short, imposing outcomes like this on a union tends to have a very negative effect on collective bargaining. Union members can become so dissatisfied that they blame the union management for not being able to protect their interests effectively.

For example, we hear that the Westman Labs employees were so upset with what happened that they filed a complaint to the Labour Board about how the MGEU failed them (as discussed in Michelle Gawronsky’s testimony) .

We are also reminded of how upset some members of UMFA were after the strike in 2016 – why do we even have a union? (This came up in the testimony of Dr. Mark Hudson.)

What’s Likely to Happen under the PSSA?

In Dr. Hebdon’s opinion, not much. Because wages are so important, it is very unlikely that there can be any meaningful collective bargaining under the PSSA. The source of bargaining power for both sides is based on monetary issues, and without any money on the table, there is really nothing left for anyone to negotiate about.

If wages are the number one priority for the union, well, wages are completely out. And, if job security is the number one priority, well, the unions can’t offer to take less on wages to get it. They could strike, but it is very hard to get members to vote to strike on non-monetary issues, and it’s the “nuclear option” which you would rather not use.

On the other hand. Dr. Hebdon again reminds us that freely negotiated collective agreements can include wage restraints. Manitoba’s public sector unions agreed to a 0% increase in 2010-2011.

On the whole, Dr. Hebdon’s view is that meaningful collective bargaining is almost impossible under the PSSA. He says that he doesn’t want to say its absolutely impossible. There are around 360 agreements that may be affected, and these are sophisticated negotiators, so it is possible that in some limited, unique situation that an agreement will be reached. Nonetheless, Dr. Hebdon’s opinion is that the Public Services Sustainability Act makes the vast majority of collective bargaining not viable.

And the Consequences?

When we come back from the morning break, Dr. Hebdon resumes by telling us all the problems that are likely to result.

Because the legislation makes striking mostly ineffective, what is probably going to happen is more job action (the “work-to-rule” tactics), more grievances, wherever they are available, and more general unrest. “Without strikes, conflict goes underground,” he says.

This has a profoundly negative effect on the workplace. You need cooperation from employees for any collective agreement to work on a day-to-day basis, and you will weaken that process if you get to agreement this way. Anger and resentment have anegative impact on the quality of service the employees provide (exactly the opposite of the PSSA’s stated objective).

Bargaining in Hard Times

This was an interesting piece about when and why unions have been willing to negotiate wage restraints or wage reductions even when the employer is in financial difficulty. Apparently, this happens, and it works when and if the employer says “we’re in hard times, and we have to do it” and then proves it by showing the union the books.

It makes sense, of course. If it is clear that if the finances are bad, naturally the union is going to take less, otherwise they wouldn’t have any jobs left. And in these circumstances, both the employer and the union are indeed working together for the good of everyone.

I kept thinking about what was happening with Kevin Rebeck and the Fiscal Working Group in the run-up to the passing of the Public Services Sustainability Act in 2017. Wasn’t that what the union leaders were asking for? Hey, we hear you – there are financial problems. So, what are they and how can we help? I’m still not sure what those problems were (the Government will tell us when it’s their turn), but it does seem as though the unions were willing.

“Sustainability Savings” under Section 14 of the PSSA 

In the final portion of his testimony, Dr Hebdon goes through, in patient detail, the many reasons why the sustainability savings suggested in Section 14 of the Public Services Sustainability Act aren’t likely to ever work. I’m not so inclined. I don’t have the stamina, nor the patience to spend the time.

This is what Section 14 says:

Use of negotiated sustainability savings

14(1)    Despite sections 12 and 13, if a collective agreement provides for negotiated sustainability savings during the sustainability period, the Treasury Board may — in its sole discretion — approve the use of a portion of the savings to fund an increase to the compensation payable to employees during the last 24 months of the sustainability period under the collective agreement.

“Negotiated sustainability savings” defined

14(2)   For the purpose of subsection (1), “negotiated sustainability savings” means an ongoing reduction of expenditures as a result of measures agreed to in a collective agreement that reduce or avoid costs.

As far as I am concerned, the possibility of anyone ever negotiating sustainability savings under these provisions is as likely as as a meteor striking just north of Selkirk and shifting the ground so much that the Red River backs up, changes course, and then turns around to start to flow south.

It seems pretty silly and so very unlikely to me. First, you would have to have something that you know would save money during the intended collective agreement. Then, you would have to prove that there was actual savings, as well as having some way to concretely measure how much is saved. And even if you can show that some money some where is actually saved, the Treasury Board may or may not give some of it to you, and only in the last two years of the 0, 0, 0.75, 1 pattern.

And oh by the way, the Government has said elsewhere that the majority, or presumably at least half of all of this fairy-tale money shall go to Manitobans, which means that even if the Treasury Board is going to be generous and as generous as they can be, union employees will at most receive half.

Yeah. Don’t waste my time.


As Shannon Carson finishes, it is now Alan Ladyka’s turn. We haven’t seen him in action yet, and I’ve been calling him “Mr. LadyBird”. (At the end of this day, I finally ask Heather Leonoff to tell me her team’s names so that I can start referring to them properly.) But as Ladyka gets going you can see why I did. He flits from point to point, while he delicately flips pages. He’s very precise, and light, just like a little bird. (The Lady part was totally coincidental.)

Ok, enough with the imagery. Let’s look at what Ladyka did with the cross-examination of Dr. Robert Paul Hebdon.

Ladyka begins as all lawyers do, by reminding Dr. Hebdon what experts are supposed to be here for, and more importantly, what they are not supposed to do. He ends by getting Dr. Hebdon to agree that in any expert opinion, one should not overstate. And then …

Ladyka:   Well, let’s look at your summary on page 25 of your report. You say that the Public Services Sustainability Act is destroying collective bargaining rights in the Province. But not all collective bargaining has been eliminated, so that’s overstating it, isn’t it?

                  Dr. Hebdon says something like, well, maybe not really. “Destroying” may be a rhetorical flourish, but there really is substantial damage. (Score a point for the Government, but it’s not very big. It’s just semantics, which doesn’t count that much.)

Ladyka:    And you also say that there can be no meaningful collective bargaining, so you are saying it’s unworkable, and therefore impossible?”

                  No. That’s not what he’s saying. Dr. Hebdon replies that this doesn’t mean it is impossible, but rather that it is difficult, challenging, and generally not viable. (Point to Dr. Hebdon. Ladyka moves on.)

Ladyka:   Now, isn’t it true that there is a vast number of non-monetary issues that may be important to the unions, things like workload, job security, part-time, right? And these matters can be just as important to employers as they are to the unions, can’t they?

                  Hebdon does not disagree.

Ladyka:  And it is possible that some non-monetary issues may be more important than wages, or anything else?

                   Yes, possibly.

Ladyka:   And you can use win-win trade-offs on non-monetary issues as well, you don’t always need a monetary trade-off, right? 

       It is possible, but not very likely. (Dr. Hebdon scores again.)

You see how this goes, and I have to say although he wasn’t making much headway, I thought Ladyka was doing a pretty good job. He was trying to poke holes in Dr. Hebdon’s opinion, and he was doing all the right things. The only reason he wasn’t succeeding was because those holes weren’t there to be poked.

Next, Ladyka refers to some bulletins that MGEU, UMFA, and BUFA sent to their members after some of the agreements, where they highlighted the some of the gains that had been made. For each of them Ladyka is trying to demonstrate that see – not only is collective bargaining working in the Province, the unions themselves are saying good things. This crashes and burns, because, as Dr. Hebdon rightfully points out, this is just the unions trying to put a positive spin on a very difficult situation.

Then there was something about strikes. I’m not sure what Ladyka was after, but when he points out that UMFA was allowed to strike, and did strike in 2016. Dr. Hebdon says, yeah but it was an exercise in futility.

Ok, so now Ladyka wants to go through all the ways in which Dr. Hebdon demonstrates that the chances of anyone actually negotiating any so-called sustainability savings under Section 14 are basically none. Of course, the Government wants to suggest that this is not so, and that there are oh so many ways creative and sophisticated negotiators could create opportunities for these sustainability savings.

It doesn’t go well. Dr. Hebdon just ends up reiterating and strengthening his points, and ends with “I wish it worked but I just don’t see it working.”

Science, Cyncism, and the Meaning of Unfair

I am guessing that when this next portion was prepared, it was under the heading – let’s get him to admit that he is giving personal opinions, as opposed to expert ones. It’s a shame really. They were doing so well, but this section wasn’t so good.

First, Ladyka takes Dr. Hebdon back to page 7 of his report, and asks “but you’re not a scientist, are you? This is social sciences, but that’s not science is it?”

Yep. You heard it here. The Government of Manitoba doesn’t think that social sciences are sciences. Wonder what all those social scientists they employ are being paid for. (Note: Economics is considered to be one of the social sciences, guess that kicks 95% of the people in the Ministry of Finance out of the sciences club.) It’s a bit of a blunder, and more than a little rude. But Dr. Hebdon politely replies that he is a social scientist and that his research is done in accordance with the scientific method, or something like that. (I’m too busy scoffing, and being surprised.)

In the same vein, Ladyka almost snickers at Dr. Hebdon’s use of the word “cynicism” to describe some of the upset in unions when collective bargaining gets trashed. Also a big fail. Cynicism may be an emotion, but that doesn’t mean that anyone observing it is emotional.

And then Ladyka challenges Dr. Hebdon’s description of the Public Services Sustainability Act as “unfairly tilting the balance towards employers.”

“Unfairness, that’s a personal opinion, not a professional one, right?” Ladyka says.

He loses me here. I’m rolling my eyes. Lawyers have professional opinions on fairness every day of their lives. Be interesting to find out how many times the lawyers have already discussed “fairness” in this trial. The words “It is unfair” are not the exclusive domain of the whiny five-year child.

I look over at Heather Leonoff, staring off into space. I wonder if she’s amusing herself with dreams of retirement. She has certainly earned it.

There was a little bit more, but I miss it, so now it is time for some redirect.

redirect – by shannon carson

It doesn’t happen that often, but the person who put the witness forward always has the right to re-direct after cross-examination. It’s pretty limited, and you get whacked if you try to abuse it, but basically it is there for you to correct or clarify something new that came up during the cross-examination. Here, Shannon Carson puts it to good use.

Remember those bulletins that Ladyka tried to use to show how great the unions thought their deals were, even with the Public Services Sustainability Act in the background? One of them was apparently about the Manitoba Liquor & Lotteries’ GOLICO, the agreement that Miranda Lawrence testified about.

Since Ladyka opened the door to what Manitoba Liquor & Lotteries thought of the whole process, Carson asks Dr. Hebdon what he thinks, given what Miranda Lawrence had to say about it, which was bad, bad, very sad, and so very bad. Dr, Hebdon agrees that this shows just how hard it is for the unions, and confirms their lack of bargaining power in the circumstances.

And as for the ratification ballot, where the union wrote in that members were voting for the agreement under protest, Dr. Hebdon says that this is not normal – “I have never seen something like this.” It suggests how unhappy the union members are, and “it is a reflection of the bizarre world of collective bargaining that the PSSA puts them in.”

Which leads to the conclusion Dr. Hebdon leaves us all with. As a result of the Public Services Sustainability Act, what is happening in the public sector is not really collective bargaining at all.

The Trial Begins

Setting the scene in Courtroom #210 as the trial of MFL v. Manitoba begins. We get some background and meet the players.

Opening Statements

The proceedings begin with opening statements. Here, the lawyers for each side give us an outline of the course they are going to take (and why it is going to take 13 days to get there).

The Testimony of Kevin Rebeck

The President of the Manitoba Federation of Labour testifies about consultations between the government and some Labour leaders prior to the PSSA being passed. They weren’t very fruitful, and there seems to have been some question as to whether the government was being truthful.

Passed but Not Proclaimed?

Why is the government waiting to proclaim the PSSA? I thought there was a financial emergency, and dire warnings of our precarious fiscal position. But it has been 2 1/2 years. Don’t they need it yet?

The Testimony of Elizabeth Carlyle

Elizabeth Carlyle gets cross-examined about what happened in a negotiation between CUPE and the Winnipeg School Division. It wasn’t a lot, and it doesn’t sound as though it was very good.

The Testimony of Dr. Mark Hudson

Remember when the faculty at the University of Manitoba when on strike in November of 2016? Dr. Mark Hudson is here to tell us why it happened. And he fills us in on what was happening between the University and the Province behind the scenes.

The Testimony of Tom Paci

Tom Paci appears on behalf of the Manitoba Teachers Society. His story? A quest for justice for Manitoba’s 15,000 teachers and an appeal to the gods of justice – how can we be bound by the PSSA when it is not law?

Indirect Taxing & Discriminatory Taxation

If a tax by any other name would be as taxing, could wage freezes be indirect taxation? And if members of public sector unions are paying more in taxes to support public services, would this qualify as discriminatory taxation?

The Testimony of Michelle Gawronsky

The leader of the Manitoba Government and General Employees Union recounts her experiences since the advent of the PSSA. Everything she says about her automatic approach to understanding concerns and finding ways to solve problems makes me think ” leader, leader, this is a great leader.”

The Super Six Speak

Six experienced union negotiators come to tell us about what has been happening in their collective bargaining worlds. We learn more about what the PSSA means for public sector unions and their collective agreements.

Labour’s Collective Bargaining Expert

Dr. Robert Hebdon testifies about the impact of the PSSA on collective bargaining in Manitoba’s public sector. It isn’t good.

The Testimony of Sheila Gordon

We end the union tales of collective bargaining under the PSSA in passed-but-not-proclaimed limbo with MGEU’s GEMA. Sheila Gordon, MGEU’s senior negotiator was there. And she is here to tell us how those negotiations did not go anywhere.

Labour’s Read-ins and One Last Reveal

You never know what read-ins from discovery might reveal.

The Testimony of Richard Groen

Richard Groen, an Assistant Deputy Minister from the Ministry of Finance, testifies about the Province’s budgets and such.

I was expecting him to demonstrate what all the financial fuss in 2017 was about, you know, why our financial ship was sinking so much that we needed all hands on deck. But …

A No-Compete Treat for the Labour Market?

I don’t understand why the government doesn’t think it should have to compete in its own labour market. It does everywhere else.

The Testimony of Garry Steski

Is it wrong to admit that before this I didn’t really know what a bond market was? Well, I do now, and we learn a little about how Manitoba’s bonds were affected by the fiscal challenges in 2016. Or not.

Bean Counters, Businessmen & Business of Government

If businessmen go into government to bring the principles of good business to government, then shouldn’t they act like good businessmen when they get there?

The Government’s Collective Bargaining Expert

It is best to talk about what happened here as little as possible. So we’ll talk a bit about the importance of turkey instead.

The Testimony of Aurel Tess

How a short day of seemingly tedious technical testimony on Manitoba’s Summary Financial Statements turned into a most unpleasant surprise.

Politicizing the Provincial Comptroller

Ok, Manitoba. Politicizing the Office of the Provincial Comptroller?

That takes the poop-cake.

The Government’s Economics Expert

The government’s economics expert, Dr. Livio Di Matteo, has a motto he lives by: Agimus Meliora – Let us do better.

It makes me wonder, Manitoba, can’t we do better than the PSSA?

Labour’s Economics Expert

Dr. Eugene “the Earnest” Beaulieu testifies that the PSSA is not only not necessary, it is a harsh measure that puts an unfair burden on public employees.

Bye Bye, Dumbo

Let’s take one last look at the Elephant in the Room, and then say goodbye.

The Mandamus Application

A day of argument about whether a statute that says “the Minister SHALL FORTHWITH” means that the Minister can decide not to do something and make up his own reasons for why he shouldn’t.

Decision on the Mandamus Application

Justice Keyser, the judge on the Mandamus Application, has spoken. Here’s a hint – MGEU wins.

Bill 9: We’re Gaming Again …

Before we begin all the good stuff, Garth Smorang has some objections to yet another litigation game the Government of Manitoba is playing.

Labour’s Final Argument

Labour’s last stand. Shannon-the-Hammer and Smorang-the-Smasher pull it all together and wrap it all up.

There is an awful lot of it, so Labour’s final arguments have been separated into four separate posts, which start here …

Butt-First Buffoonery

How did the Government of Manitoba get to such an embarrassing PSSA place? They backed into it.

The Government’s Final Argument

Forget the Elephant-in-the-Room.The Government of Manitoba has got many other ways to try to move the goalposts, as they try to change the game.

Kind of seems like they know they are losing.

Labour Replies

The Finale of the Finale. Labour replies.

(This means we are finally done. At least with the evidence and arguments.)

The Onion of Outrage

Why am I here? Why spend so much watching lawyers and judges and reading endless cases? It’s a pretty simple answer.

I was mad.

The Decision is In!!!

The Honourable Justice Joan McKelvey has ruled. Labour won. The PSSA is unconstitutional.

This is what she decided and why.

What Have We Learned?

There’s lots to discover from considering Justice McKelvey’s decision, and not just for labour lawyers. Let’s take a look at what we have learned.