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MacKay willing to wait and see with new Trudeau government

Thursday, November 12, 2015 @ 7:00 PM | By Cristin Schmitz

Federal lawyers building a strike fund are “cautiously optimistic” they won’t have to walk out or work to rule in order to make contract improvements under the new Liberal government, says the president of the Association of Justice Counsel (AJC).

After nearing an impasse with the Treasury Board earlier this year, the union for 2,600 federal Crowns and Department of Justice lawyers increased its dues last July to build a “job action” fund for financing possible rotating strikes if progress stalls and members deem them necessary.

However, the Oct. 19 majority win of the Liberals — who campaigned on pledges to “bargain in good faith” with public sector unions, and to roll back several Conservative labour laws — is seen as positive from labour’s perspective, said union leader Leonard MacKay, a federal Crown from Halifax.

“I think there is some cautious optimism,” said MacKay. “The anti-union…animus of the Harper government was well known…so any change in government we thought would be helpful to us.

“We’re preparing for the worst, but we’re hoping for the best. So as far as time lines go, we will have to give this government some time to develop their mandate.”

The AJC’s four-year collective agreement expired in May 2014. In eight bargaining sessions with Treasury Board negotiators since early 2014, no progress was made on the issues for AJC members because the Conservative government focused on its desire to replace current public-sector sick leave benefits with a new short-term disability plan, MacKay said.

“They were completely obsessed with sick leave and talked about little else, and so that’s the reason why we were approaching an impasse,” he said.

The lack of progress on key issues pushed union officials to contemplate job actions, including potential strike action, in 2016.

MacKay noted the pay of lawyers working for the provincial governments of Ontario, British Columbia, Alberta, Saskatchewan and Manitoba outstrips their federal counterparts. For most federal front-line prosecutors (LP2), the top pay is $137,886, he said.

Heavy workload and burnout are also issues for AJC members. For example, staff shortages exist in Alberta, where federal prosecutors have left to earn close to $30,000 more as provincial Crowns.

The prospect of federal lawyers going on strike for the first time increased significantly in 2013 with changes to collective bargaining in the Public Service Labour Relations Act (C-4) which took away the right of the AJC and other federal unions to choose binding arbitration following mediation.

It left only conciliation and the possibility of a strike if an impasse ensued. The Liberals have pledged to “revisit” the legislation.

“Until those changes in the Act — if they are going to be changed — come about, we still have to keep job action on the table,” MacKay said. “It hasn’t gone away.”

However, any job action has effectively been postponed because of the new government.

The Treasury Board is not expected to be back to the bargaining table with the AJC before January, at which point MacKay is hoping it has a new mandate “to be more of a partner than an adversary, as [Prime Minister Justin] Trudeau has suggested.

“We kind of have to start fresh with the new government. Ideally we’d have a collective bargaining agreement that we have agreed to by next early summer or late spring, maybe.”

The next-best scenario would be if the union’s rights to arbitration are fully restored to what they were before C-4, he said.

“I think it’s fair to say the worst case would be us being forced to take job action. We have to prepare for that, but it’s not something I would want to do.”

Strikes, in particular, are likely a last resort, he added.

“It’s likely that we would do a work-to-rule type of campaign initially, which means you don’t go off the job. You just work strict hours, don’t do certain things — like we have a few on-call obligations with phones 24/7; we could decide not to do those.”

Before the AJC would be in a legal strike position, there would have to be an impasse with the Treasury Board, conciliation, and a vote by the membership authorizing a strike. If it comes to that, the union would likely follow the approach taken by the Professional Association of Foreign Service Officers, which conducted strategic rotating strikes. For the AJC that might mean lawyers not doing a particular bail court for a week, MacKay said by way of example.

“I think that the extreme examples would be getting entire offices to march off the job for…a week, or even just a couple of days.”

MacKay said the AJC is consulting with law societies for guidance on their members’ professional obligations in the context of any job actions.

Government lawyers in Canada rarely go on strike, although provincial Crowns in Quebec and Nova Scotia have done so in the past in order to protest wages and working conditions. The AJC’s membership (20 per cent prosecutors and 80 per cent lawyers for the DOJ and agencies, tribunals and courts) is not marching down that road yet, said MacKay. “We are a little more optimistic,” he said.

The AJC has also joined other public-sector unions in constitutional challenges to some Harper-era labour laws. The Liberals have promised to “immediately repeal” Bill C-377, which mandates extensive public financial disclosure by unions, and Bill C-525, which makes it more difficult to certify (and easier to decertify) unions.

The Liberals have also committed to repealing a measure in the most recent omnibus budget bill (C-59) which enables the Treasury Board to unilaterally change sick leave provisions in collective agreements.