Bargaining in a COVID Economy. Get Informed – It’s Your Right

For unions, another round of negotiations has often meant getting back into a familiar pattern: deliver notice to bargain, prepare proposals, have a series of sometimes constructive, sometimes frustrating discussions across the bargaining table, perhaps resort to strike or face a lockout, then arrive at a collective agreement.

We are living in a different world.  Do not assume same-old is the same old.

A union may have a right to a range of information that is relevant to collective bargaining. Unions have a right to receive information about changes an employer is considering that may have a major impact on the bargaining unit.  That is particularly true in response to certain employer positions like a declaration of an inability to pay. They have that right even if they don’t ask, as the obligation to disclose is part of the duty to bargain in good faith.  If they ask, the obligation is probably even more extensive. You can look at a decision called PSAC v. Forintek Canada Corp. for details about how the Ontario Labour Relations Board applied this principle several decades ago.  It is still good law.

Employers may be thinking about a variety of options as COVID-19 remains one of the central features of the economy – from local markets to international trade.  A Union and its members are entitled to know what decisions have been made and what decisions are being considered. To be in the best position to prepare demands, to negotiate for appropriate contract terms and to speak with members about whether a tentative collective agreement is reasonable, it is more important than ever to create a comprehensive request for information and disclosure.

Each request will be different and will depend on the sector of the economy, local conditions, and the relationship between the Union and the employer.  Whatever the circumstances, no union should go into bargaining (or if already there, sign a tentative agreement) without making the request.

The information may be significant, or there may not be much.  It may be that the employer is forthcoming, or it may be necessary to extract it like you were doing dentistry.  In any event, it is much better to have made the request than to be surprised two months after signing the agreement with a reorganization, or a series of layoffs, or some other change that had been in the works for a considerable period of time.

This is one of the obligations the parties have in bargaining. It is more important than ever to make sure the other side lives up to its obligations.

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