In the opinion of Dr. Hebdon, there are a number of ways that the Public Services Sustainability Act, both independently and cumulatively, ensures that there can be no collective bargaining in the Province of Manitoba:
1. Wages are out. Unions cannot even table proposals. Wages are already set. This causes cynicism about the process. Bargaining power is reduced when wages are not available for trade off. As a result, any bargaining is unlikely to be meaningful.
2. When wages are out, employers give nothing else. When employers ask for wage restraints on the basis of financial problems, it often works if the employer opens the books, and lets the union see it for themselves. This way, it is clear that the employer is not just posturing, and if the union is convinced, they can accept lower wages in exchange for other concessions.
Under the PSSA, however, the employer doesn’t have to do anything except point to the PSSA. To illustrate, three unions – College of the North, Red River College, and Assiniboine Community College – all agree to wage restraints in 2010 in exchange for better job security. When the same unions came to negotiate under the PSSA, their employers got wage restraints without giving anything else up, because it was clear that trade-offs for wage restraints weren’t necessary.
3. Other impacts. Without wages on the table, there is a decreased possibility of settlement, higher resort to formal legal proceedings, and decreased amounts of monetary benefits overall. This has a chilling effect into subsequent rounds, a reflection of the reduced bargaining power than continues on into the next round.
Free negotiation is always better than legislation in both the public and private sector. The Government’s collective bargaining expert admitted that legislating wages is an easy tool (i.e. a tool for the lazy).
There are many examples in this case, including Westman Labs., which show how the PSSA has harmed the relationship between the union and their employer, as well as between the unions and their members.
Strikes become futile because employees cannot change anything, and have no impact on their workplace issues. As a result, you see more underground conflict in day-to-day operations.
Thus, the PSSA has made a great big mess in labour relations in the Province of Manitoba.
4. Sustainability Savings. According to Dr. Hebdon, Section 14 makes no sense and is unlikely to ever be used.
The employer has no incentive to use Section 14. If the measure involves a management right (and therefore outside the collective agreement), the employer isn’t going to want to change it into something now covered by the collective agreement, because it would then no longer be in their exclusive control. Furthermore, if there are any savings in these areas, the employer is better off keeping the matter out of the collective agreement; that way, they can keep all the savings for themselves.
The unions don’t have any incentive to use Section 14 because anything they negotiate for in the collective agreement ends up being a net loss. Because the amount the union can receive under Section 14 is capped at 50%, the most unions can receive is 50 cents on the dollar. It makes no sense for the unions to agree to measures, like reduced overtime, which result in reduced, wages when the employees will only get half of it back at most.
Furthermore, nobody knows whether the Treasury Board will approve of passing the sustainability savings on to the unions, or how much. The Treasury Board has absolute discretion; they can decide whatever they want, including giving the unions nothing at all.
Section 14 is merely a reminder of how little thought the Government put into the development of the PSSA. (Indeed.)
There haven’t been any collective agreements that successfully included any sustainability savings under Section 14. The only time it was tried was in the GEMA, where the Government made a number of proposals. They were all on monetary issues which would result in lower wages, and thus were all concessions that, if the union had agreed to them, would be a loss to members that they could at most only get half back.
5. Conditional Ballots. Dr. Hebdon testified that these are very unusual and a result of the “bizarre world” the unions now find themselves in. In all cases, the conditional ballots were the only way the collective agreements could be ratified, and thus are a potent demonstration of protest against the PSSA.
6. Biased. Dr. Hebdon was of the opinion that the PSSA was biased, unfair, and unnecessarily heavy-handed. He was not challenged on this opinion in cross-examination.
7. Employer loses bargaining power too. Although it is true that Dr. Hebdon admitted that when wages are taken off the table, the employer can lose bargaining power too, that doesn’t mean that the employer’s loss of bargaining power is equal to the unions.
(In fact, the unions almost always lose more. Thus it is probably better to say that while taking wages off the table may change the bargaining power of both sides, it almost always tips the balance of bargaining power in favour of the employer at the expense of the union.)
8. Non-monetary trade-offs. While it is possible to trade non-monetary benefits for each other, the gains achieved tend to be very slight. For example, BUFA thought that the gains it was able to obtain were very minor, and they too had a conditional ballot and section-specific reopeners which called for monetary issues to be reopened if the PSSA was found to be unconstitutional.
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All of these opinions of Dr. Hebdon were credible and were not challenged on cross-examination.