Is B.C. Ferries Contract the Wave of the Future?

By Pushor Mitchell LLP
Categories: Blog, Employment Law

Wow! That’s the first thing that came out of my mouth when I read Gary Mason’s story in the Globe and Mail describing the new B.C. Ferries collective agreement. In that agreement, the B.C. Ferry and Marine Workers Union have relinquished the right to engage in strikes.

Wow is right. Even more shocking is the news that the suggestion came from the union’s president, Jackie Miller. It’s hard to look at this as anything less than a seminal moment in the (always exciting) history of labour relations in British Columbia.

This new deal came out of a process entered into by B.C. Ferries and the union to settle hundreds of issues outstanding after the expiry of their last collective agreement in 2003. The parties submitted to binding arbitration on these hotly disputed issues and the arbitrator’s ruling has established a new framework for this acrimonious relationship.

The key element of that ruling was the arbitrator’s acceptance of Miller’s suggestion that future collective agreements be settled by binding arbitration. This means that the threat of future strikes (at least legal ones – more on that later) is eliminated.

Gary Mason described this development as “mind-boggling”, “ground-breaking”, and “stunning”. Who could disagree with his use of those adjectives? This union is regarded as one of the most hard-line amongst many other tough-as-nails bargaining agents in a province known for union activism. For this union to have handed off the single most powerful tool in a union’s arsenal – even in a sector routinely designated as an essential service – is something that must have completely blind-sided the arbitrator.

What does this mean in the long term for unions in B.C. and across Canada? Ask me that question in twenty years and I might be able to provide an answer. In the meantime, I can only speculate.

Let’s assume for a moment that the B.C. Ferries deal is the tip of the iceberg and that other unions – especially in dysfunctional public sector relationships – decide to follow suit. This development could represent a giant step ahead on the path leading to the irrelevance of unions.

That is not to say that I don’t think workers have benefited from union representation over the years. However, the reality is that as time goes on their role becomes more and more restricted to that of negotiator of collective agreements.

The truth is that much of the historical role of unions has already become academic. Governments, both provincial and federal, have largely usurped that historical role.

Unions provided much-needed representation to workers on issues such as workplace safety, employment standards (wages, hours of work, etc.), and human rights. They stood up for workers when the workers were powerless to stand up for themselves.

But, over a span of many decades, governments quietly stole that role away from unions. All provincial and federal jurisdictions in Canada now have well-established workers compensation, employment standards, and human rights legislation. In B.C., for instance, the Workers Compensation Act, Employment Standards Act, and Human Rights Code occupy this territory. Even the relationship between unions and employers is now thoroughly regulated by statute (in B.C.’s case via the Labour Relations Code). In each instance, there is also an administrative body entrusted with the task of ensuring employers’ compliance.

Even the most ardent proponent of management’s point of view would have to acknowledge that union activism may have been the most important factor in those legislative developments. But, in doing so, unions may well have paved the way for their own disappearance. Perhaps, sometime in the future, the elimination of the right to strike at B.C. Ferries will be viewed as a leap in that direction.

What’s left for unions to do? Perhaps this is too simplistic a view, but aside from the occasional grievance arbitration, their role has narrowed to negotiating a collective agreement every few years. And, when those negotiations go sour, they orchestrate strikes (legal or illegal).

As a side note, I should mention that the B.C. Ferries collective agreement probably cannot eliminate the possibility of an illegal strike. Some public sector unions in this province have made good use of illegal walkouts in recent years and there’s no reason to conclude there will never again be an illegal walkout at B.C. Ferries. But, now that the legal right to strike has been eliminated, perhaps the courts will be even quicker to impose sanctions for the sake of pushing illegally striking employees back to work.

It’s hard to imagine unions, generally, embracing the concept of giving up the right to strike. No doubt many of them will see this arrangement as a blow to workers’ solidarity and to the rights of workers everywhere. It’s not totally unprecedented, but it’s the first of its kind (that I know of) in this province.

So, don’t expect to see anyone carrying a “B.C. Ferry and Marine Workers Union ON STRIKE” sign anytime soon. Maybe, when we look back twenty years from now, the phrase “ON STRIKE” itself will be a thing of the past. Maybe, but don’t hold your breath.