CECBA REFORM GROUP
Collective Bargaining Questions and Answers
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In the aftermath of recent actions undertaken by our OPSEU Bargaining Team, many Members have
approached CECBA Reform Group (CRG) with a battery of questions and concerns. As a result, we at
CRG have decided to offer up either the best fact/historically based answers or most probable theories
we could have concluded. It is our hope this exercise may rationalize and/or even predict the
Employer/Union actions that may lie ahead. As such we also include our best recommendations on how
Correctional Division should prepare for, and respond to, these possible outcomes.
Thank you for your continued support!
Q. Why are EESA negotiations taking so long?
A. We believe it is for two main reasons: (1) Most Local Correctional Presidents have openly revolted
against the OPSEU Executive with their insistent demand for a “COR only Bargaining Unit”, along with a
complete “right to strike” for all OPSEU Members, and; (2) Any sign-off of an EESA will ultimately trigger
a legal response from CRG. Both the Employer and the Union know this. They also know that in such a
challenge, the January 30, 2015 Supreme Court of Canada (SCC) Saskatchewan v. Saskatchewan
Federation of Labour Decision will most likely overturn current CECBA. [Please remember that OPSEU
has already admitted this in Table Talk (April 2, 2015), but are reluctant to fully address this issue!] And
since the goals of CRG do not benefit the Employer and especially the Union, the best way for both
parties to avoid a failing consequence of the SCC Decision, is to pretend that EESA negotiations have
suddenly become unexpectedly complex and too difficult to establish agreement over any EESA’s.
Q. Why does our Employer want to avoid the SCC Decision?
A. An EESA takes away the collective bargaining strength of the Union. As previously argued, the “right
to strike”, encumbered with EESA requirements, make a strike meaningless. Former OPSEU Executive
Board Member David Rapaport asserted,
“OPSEU had done quite well by the arbitration system...if the level of essential services was so
high in the institutions that they could never pull off an effective strike, it would be foolish to
give members what would be an ineffectual right...In order to acquire the right to strike, OPSEU
had to agree to the principle of essential services. But in the consultations on the reform of
CECBA, OPSEU had pointed out how essential services limit the right to strike.” (NO JUSTICE NO
PEACE The 1996 OPSEU Strike Against the Harris Government in Ontario, D. Rapaport, 1996)
Obviously, the Employer manipulated the legislation to its advantage, and OPSEU either failed or simply
did not bother to counteract the ill effects of a meaningless strike within Corrections Division!
“However, OPSEU accepted that the essential services were in fact essential. Any other opinion
would have reduced the moral credibility of the strike” (ibid., D. Rapaport, 1996)
CECBA Reform Group “Questions & Answers” August 2015
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Q. In 2008, during a gathering among the Employer, OPSEU, AMAPCEO, PEGO and the OPPA to
discuss bargaining issues, the Employer proposed an all-Corrections Bargaining Unit. OPSEU did not
agree with this proposal. If the Employer wants an all-Corrections Bargaining Unit, why don’t they
just take steps to do it?
A. The Employer understands that Corrections has traditionally been used by OPSEU to militantly affect
gains at Central Table that have enhanced the wages and benefits of the Unified Bargaining Unit. The
Employer also knows that EESA’s and the current CECBA governance infringing upon the effective “right
to strike” have historically worked favourably for the them.
Nevertheless, we believe the Employer is also tired of: a) costly EESA negotiations; b) the constant
labour unrest within Corrections - including two major labour disruptions since CECBA was last reformed
in 1993- has taken a significant toll on Correctional corporate culture; i.e. teamwork; collaborative
projects; morale; satisfactory working conditions; etc.
What the Employer appears to be absolutely opposed to is granting any concessions to OPSEU for the
unilateral removal of a “right to strike” for Correctional workers. Furthermore, a unilateral removal of
strike rights from union members would be frowned upon by OPSEU and labour organizations.
Appropriate compensation would likely be mandated.
Q. Why does OPSEU want to avoid asserting the application of the SCC Decision when this Decision is
being lauded by organized labour as “a positive game changer for collective bargaining”?
A. A successful challenge of CECBA’s EESA language with the SCC Decision would mean that all unionized
OPS Members would receive a complete collective “right to strike” within their Bargaining Unit. In
response, the Employer would have to determine who is truly essential.
A restructuring of the two bargaining units would follow in order to separate the “Essential” jobs from
the “Non-Essential” jobs. More than likely this would result in one or two more bargaining units being
created.
We believe (despite the rhetoric of the Employer claiming the opposite) that all Correctional workers
would actually be declared as “Essential”. (Refer to Table Talk 17 to understand how the government
defines “Essential” and you will acknowledge that ALL our jobs ARE Essential.)
Therefore, in challenging the EESA language, OPSEU would likely lose the “right to strike” for a good
number of their Members. Traditionally, these “essential” workers gave greater bargaining strength to
the “non-essential” workers. Should enforced application of the SCC Decision realistically create the
circumstances that would force the Employer to declare Correctional workers “essential”, those workers
would be exempt of the “right to strike”. This would immediately: a) create the need for a binding
arbitrated mechanism to resolve bargaining impasses for those “essential” workers; b) reduce the
CECBA Reform Group “Questions & Answers” August 2015
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bargaining strength of those workers remaining “non-essential” within the rest of the OPS, and; c)
eliminate the 31% OPSEU-levied wage redistribution scheme that deducts earnings from those
Employees selected to either “work” or, remain on paid “stand-by” under the currently non-reformed
CECBA EESA formula. (During a strike in which we have been subject to EESA’s, Correctional workers
alone would probably contribute approximately $3.5 to $4 million dollars per month into OPSEU’s
redistribution scheme.) Collectively, this represents an unacceptable consequence to OPSEU who,
among others things, would claim a moral responsibility to enhance strike-benefits to ALL its OPS
Membership.
Common sense, experience, and now finally the Supreme Court of Canada all dictate that retaining the
status quo eliminates any benefits derived from the “right to strike”. As per interpretations found
within the Saskatchewan SCC Decision, CECBA-style EESA’s, would be plainly seen as (a) denying Ontario
Correctional workers’ their Constitutional right to associate with their striking members on the picket
line and (b) significantly reducing the effectiveness of that strike effort as meaningless and ineffectual.
“Does the Union Agree With Essential Services?” That was a question OPSEU has asked itself.
Their answer? “No! Nevertheless CECBA dictates that.” (The Source, 10 Dec 2004)
Given this answer it is perplexing, now that the Supreme Court of Canada decision has given OPSEU the
opportunity to challenge the Essential Service legislation in CECBA, that OPSEU shamefully ignores the
decision and continues negotiating under the traditional CECBA version of a strike inclusive of EESA’s.
Q. If OPSEU’s preference is that we continue bargaining under CECBA with EESA’s (if it is not then
they would challenge CECBA), then why are they supporting an ALL OUT stance?
A. OPSEU certainly “appears” to be supporting an ALL OUT stance. In reality, they have had little choice
– our (presidents and CRG) actions have forced them into taking this position. They are keenly aware
the alternative will bring the unwanted consequences of our legal action. Until the EESA negotiations
are completed and ALL EESA’s in both bargaining units are signed off by the parties, then it is our
contention that both OPSEU’s and the Employer’s words are without substance. A clear example of
OPSEU’s rhetoric can be found in its contradictory approach to the concept of arbitration.
In 2004, OPSEU claimed:
“We feel that the members having complete control over the bargaining process is preferable to
binding arbitration.” (ibid., 10 Dec 2004)
However, by 2009 political circumstances had OPSEU conclude:
"The very foundation of law provides that, at the end of the day, if two parties can’t agree there
is an independent person to make a final decision...our members have not had that option. It is
CECBA Reform Group “Questions & Answers” August 2015
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our position this violates the Charter, and we will testify to that fact in Superior Court." (Table
Talk, 06 Jan 2009)
And in the fall of 2014, in the wake of questions from within Corrections Division regarding a standalone Corrections Only Collective Agreement, OPSEU’s corporate position regarding arbitration clearly
infused fear into its following argument:
"While some Corrections members may want a return to interest arbitration, the government
could legislate an arbitration system that is not balanced or fair.” (OPSEU Executive Board, 29
Oct 2014)
It appears that OPSEU takes differing views on an issue when it suits them...not when it suits their
members!
Q. What might be next?
A. All parties expect to return to the table in early September. The agenda to avoid signing-off on any
EESA’s will likely continue.
Remember, OPSEU has already warned us that negotiations could “take a long time” (Table Talk,
13 March 2015), possibly up to two years (Table Talk, 24 April 2015).
Yet this stance lies in stark contrast to the following position.
"In the past, EES negotiations took a long, long time...we shouldn’t have to re-invent the
wheel...our intent is to make EES negotiations short and to the point. The only EES negotiations
that will take place are for workplaces where there has been significant change."(W. Thomas, 02
Sep 2008)
In light of the SCC Decision, no other such “significant change” could matter as much, let alone more!
Accordingly, one has to wonder why OPSEU is permitting the resumption of meaningless negotiations
over EESAs when they KNOW the CRG will certainly challenge their completed signing whenever or
wherever they have to! CRG has arguably made that point abundantly clear to both parties!
Q. Could the Employer meanwhile table an offer?
A. Definitely. It is possible an offer could be forthcoming. Perhaps one might be tabled with a small
increase and a sweetener; e.g. 0,0,2,2 and removing the threat to our retirement benefits slated to
begin January 1, 2017. Such a paltry offer would serve a two-fold purpose: (1) Both the Employer and
OPSEU would avoid the consequences of the SCC Decision on EESA’s until at least the end of the NEXT
Collective Agreement; (2) Any plus-zero offering might be seen as gratitude to OPSEU for cooperating
with the Wynne Government – especially during the Pan Am Games.
CECBA Reform Group “Questions & Answers” August 2015
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In such a scenario, it is foreseeable that OPSEU might crow that they negotiated hard and didn’t backdown. As in the past, they might even recommend a ridiculously quick acceptance of the offer. OPSEU
may even have President Thomas once again publicly acclaim such an offer’s acceptable respectability,
thus rendering any further negotiations virtually defeated.
Notwithstanding, CECBA Reform Group recommends that unless the Employer offers Correctional
workers a comparable wage parity with other law enforcement workers performing similar tasks, Group
refusal is the only option. The probability of winning an arbitration award comprised of a typically wellresearched, comparable remedy is far too great to dismiss. (Please refer to additional letters and
information that will be provided in the coming days to help you weigh the consequences of accepting
any employer offers.)
Q. Could we be locked out or suddenly go on strike?
A. Legally, not until EESA negotiations are completed. In the April 2, 2015 edition of Table Talk, OPSEU
confirms that “a strike or lockout is not lawful until an ESA is in place. The CBU Bargaining Team has
confirmed that means all EESA’s. This means EESA’s in both Bargaining Units, must be signed off.
Q. What happens if the Unified Bargaining Unit settles and Corrections Division does not?
A. In the past, OPSEU has always tried to get the Unified vote in first. It then tries to do whatever is
necessary to get Corrections to follow suit. However, given OPSEU’s marginalization of Correctional
workers and the subsequent revolt by Correctional workers against OPSEU, many expect OPSEU to exact
a bitter vengeance. (eg. Correctional workers in the Unified Bargaining Unit ratify, and then are forced
to cross Correctional Division picket lines to work in a health-compromised workplace.) With that said, it
is reasonable to believe that should all of the Corrections Division remain out, the institutions and the
community would quickly be placed at great risk. This would give the government the “opportunity” to
force Corrections back to work by finally declaring our work as “essential”. We say “opportunity”
because we believe in a situation such as this, the government would not be required to compensate
OPSEU for the removal of the “right to strike” from Correctional workers.
CECBA Reform Group “Questions & Answers” August 2015