The Waiting Game

IT’S THE START OF A REGULAR membership meeting at a local long term care facility in Ontario, and the questions are already coming fast and furious. A couple of heads nod in solidarity.

Although these members aren’t directly asking it, what they’re really wondering is whether their union is doing its job. Their representative is unsure whether to give the Coles Notes’ or the long version. The Coles Notes’ version is that their contract, like many other healthcare contracts in Ontario’s healthcare system, is stuck in the queue, waiting to be settled through binding interest arbitration.

The members’ frustration is understandable. They haven’t had this year’s pay increase yet. Their patience is running out waiting for a new agreement. Meanwhile, grocery prices are up as inflation skyrocketed the past few years, making life more expensive. And their wages just aren’t cutting it anymore.

WORKERS AT THIS LONG TERM CARE facility are not the only ones who are upset. Across Ontario, healthcare workers are tired of waiting for their contracts to be settled.

In most workplaces, an impasse at the bargaining table could lead to a strike or a lockout. But most healthcare workers in Ontario by law do not have the right to strike because they are covered by the province’s Hospital Labour Disputes Arbitration Act (HLDAA), which commits both sides to resolve contract differences through binding interest arbitration in the event negotiations are unsuccessful.

While HLDAA is certainly a good thing from the standpoint of resident care, for workers, the lack of any power to strike and hold out for a better settlement is off the table. The only recourse for them is to get in line behind all the other contracts waiting for months to be settled by an arbitrator. Meanwhile, the bills need to be paid.

In 2024, at least 133 awards were issued by arbitrators, including 15 for CLAC. Of those newly awarded collective agreements, 54 expired that same year and 26 in 2023 or earlier, and 34 had expired prior to the award being issued (only one for CLAC).

SO, WHY DO WE ARBITRATE? Even though the cost of living is finally moderating—to the great relief of many low-paid healthcare workers—inflation soared postpandemic, eating into their earnings. The minimum wage increases have also outpaced healthcare wage increases, turning many healthcare workers into minimum wage earners. Now, they are fighting for compensation just to catch up. Members simply cannot afford to accept a subpar offer.

Neither can the union. Accepting a bad offer now will inevitably affect future bargaining and arbitration. If a “less-than” offer was signed by the union and ratified by its members in 2025, why would the 2027 settlement be any better? Or for that matter, why would a facility down the road get a better outcome if a worse one was acceptable at ratification the next town over?

Arbitrators pay a lot of attention to what union members voluntarily accept and will hold them to it next time. No union worth its dues can allow a race to the bottom.

So, instead, the only recourse is to hold out for an arbitrated award that now takes many months—if not years—to conclude. With so many contracts going to arbitration now, the system—already on the brink—is over capacity.

Arbitrators are so booked up that available dates just to get to a hearing are sometimes over a year out. And then there is still the wait for the decision.

Meanwhile, healthcare workers are stuck earning wages at frozen rates that do not reflect postpandemic inflation. Yes, when the collective agreement is finally settled, their increases will be retroactive. But the wait is painful, ever more so for workers trying to raise families on less than $20 per hour.

Making wait times worse, employers hold out on offering to settle to see what other decisions are being awarded first—especially of larger contracts—as these, unfortunately, set the pattern for subsequent awards. These issues contribute to a chain reaction of events that make wait times worse.

As arbitration has become more and more the pattern for settling negotiations, employers are being cautious and conservative in their offers to settle more now than ever. While some employers choose to do the right thing, many employer negotiators are under strict direction to toe the line and not offer any extras to avoid setting a precedent.

What’s especially frustrating for members is when they hear that other contracts have been settled. Why not theirs?

FRUSTRATION. UNCERTAINTY. WASTE. THESE REACTIONS to the arbitration process in Ontario healthcare are consistent across the province. And understandably so.

The arbitration system is not perfect. It is lengthy, pricey, and often leaves both sides feeling like they have lost control.

“Arbitrators are deciding too many contracts,” says Mira Ponomarenko, CLAC’s Ontario healthcare coordinator. “This is a bad trend for workers. They get an arbitration award that a faceless stranger has imposed on them. In the end, workers have no say in the contract, no opportunity to even vote on it.”

Going to arbitration is never a first choice—it’s the option of last resort. The wait is long, the outcome is uncertain, and the process itself is expensive.

What CLAC strongly believes in is local bargaining: reaching a fair agreement at the table that members themselves can review and vote on. And often, we are able to do just that.

But sometimes employers only put forward offers that don’t come close to covering the real cost of living or even risk rolling back hard-won gains. In those cases, we can’t in good conscience recommend the settlement. That’s when arbitration comes in.

While arbitrators aren’t known for being generous, the reality is that when we’ve made the case well, the results are usually stronger than what was offered at the bargaining table. That’s why, frustrating as the process is, it’s often better than accepting a weak contract that would set workers—and future bargaining—back.

“Wherever possible, CLAC will continue to push for our model of cooperative labour relations, with meaningful and timely negotiations,” says Mira. “And where circumstances prevent successful negotiations, we will use all tools available—including arbitration—to ensure our members get the increases they deserve and need.”

AT THE UNION MEMBERSHIP MEETING, members are impatient. They’ve waited for a year already. By the time this contract gets settled, they’ll be right back to bargaining for the next one. Many were hoping to get some extra money for the Christmas season.

The representative understands their frustration and launches into the long version answer to members’ questions. She explains about the employer’s directive to avoid precedent-setting settlements and the hold out for arbitration. She explains about the time it takes to agree on an arbitrator and generate a hearing date. She explains about the backlogged arbitration system because everybody is in the same boat.

But by the middle of the first sentence, the representative can already tell that her explanation is bringing little comfort. Soon eyes begin to glaze over as she continues to detail the complexities of the system and its failure to deliver for workers in a timely manner. They’re understandably frustrated and looking for their union to provide solutions now. Unfortunately, there’s little that unions can do—they can’t speed up the system.

But what unions can do—and what CLAC has been doing—is bargain smart, insist on decent outcomes, and actively engage with politicians of all stripes. Government is the rule maker, and often the funder of healthcare facilities.

At its annual lobby days, CLAC has pressed government officials for solutions to the needs of members. And it will continue to do so—as long as it takes until the system is more responsive to healthcare workers’ needs.

The representative wishes she could offer an immediate solution to these members. But until the government fixes this broken system, employers, unions, and workers have few options but to continue to play the waiting game.

Editors Note: A version of this article originally appeared in the January-February 2012 issue of the Guide. It has been updated to reflect the current situation regarding interest arbitration in Ontario healthcare. While some of the circumstances have changed regarding the reasons for delays in arbitration, this is an issue that Ontario healthcare workers have been dealing with for decades. CLAC continues to advocate to the provincial government to improve the system to bring fairness to thousands of CLAC members and others working in long term care.

What Members Are Saying

There is no doubt that thousands of Ontario long term care workers are fed up with the current system. We asked two members about their experience and frustrations with the current system of binding arbitration.

SUKHPAL BAINS, Personal Support Worker

Local 304 Steward and Bargaining Committee Member

We’ve gone to arbitration every single time, and we’ve had to wait long times—two years almost. We’re always behind. By the time arbitration is done, it’s time for bargaining again.

It’s the same as usual—the employer doesn’t want to budge. It’s always about the money. During negotiations, they were cutting down some of the benefits and only offering a small wage increase.

Members know they have to wait. It’s the same all the time. We gotta wait, we gotta wait. But lots of people can’t wait around anymore. We’ve had plenty of long term employees retire or leave.

The worst part is working and seeing employees in all these other industries going on strike, but we can’t go on strike. We’re stuck there. Like seeing the Air Canada strike in the news last summer. They got a deal done really quickly once they went on strike. I think it would be the same in the healthcare field if we could do that.

The employer knows that we can’t go on strike and that we’re stuck with arbitration. They know people need a job and that most of us can’t afford to leave. They’re making a whole lot of money off people but not paying their workers.

FLOR DE MARIA DOMINGUEZ, Personal Support Worker

Local 304 Board Member, Steward, Bargaining Committee Member, and Parliament Hill Lobby Day Attendee

Our last award overlapped so our contract right now is expired. Bargaining and then moving to arbitration was almost two years.

We always go to arbitration. When we are invited to go to bargaining, I’m like, what’s the point? The employer will not come to an agreement.

We’re not asking for the moon and the stars but for something that the arbitrator would actually award us. Why don’t they try to work with us? Instead, in negotiations, they turn around and want to take away this and take away that from us.

Money is wasted going through arbitration. They could use that money instead for increases for us. Then they would have happier employees, and happy employees work better and want to stay. The employer would actually spend less because they don’t have to hire and train so many new workers.

We don’t go into bargaining expecting that we’re going to get everything. We have a clear understanding that we are there to bargain—that’s the whole point. We are not asking for something ridiculous but for something that’s fair. We know for a fact that when it goes to arbitration, the arbitrator will side with us.

But employers know that wait times have gotten longer over the years. They’re just postponing the inevitable.

We are providing care for our residents. We go above and beyond for them. This is not a job for the faint of heart. We’re getting burnt out because we’re getting physically and mentally abused at work.

We come to the employer and negotiate for a little bit more pay for what we’re doing. And they turn around and make us wait because they don’t want to pay. They want to prolong it as long as possible. It’s frustrating and a lot of people are done with it and are leaving the field.

Every time we go to arbitration, the union is working hard. Everything is very professional, and we have all the information required. If the employer comes up with something new, we are very well prepared.

The employer often is not, and they are hard to deal with. We need to change the system because the current one is not fair to healthcare workers.

How Arbitrators Decide

What criteria do arbitrators use when deciding how to settle a contract dispute? In Ontario’s long term care sector, binding arbitration is covered under the Hospital Labour and Disputes Arbitration Act.

Criteria

(1.1) In making a decision or award, the board of arbitration shall take into consideration all factors it considers relevant, including the following criteria:

1. The employer’s ability to pay in light of its fiscal situation.
2. The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not increased.
3. The economic situation in Ontario and in the municipality where the hospital is located.
4. A comparison, as between the employees and other comparable employees in the public and private sectors, of the terms and conditions of employment and the nature of the work performed.
5. The employer’s ability to attract and retain qualified employees. (1996, c. 1, Sched. Q, s. 2.)

In addition to these specific statutory directions, arbitrators rely on a set of guiding principles. Among these is the principle of replication—arbitrators ought to fashion an award that best reflects what the parties would most likely have arrived at in free collective bargaining where they had the ability to strike and lockout.

Other principles include comparability (an analysis of the terms and conditions in contrast with other comparable workplaces) and total compensation analysis (the total monetary value of a collective agreement).

Binding Arbitration Has Its Advantages—and Disadvantages

3 Advantages

1. No Strikes or Lockouts – Prolonged strikes or lockouts can have devastating financial and emotional effects on workers, families, and work communities. During arbitration, employees still go to work and receive their regular paycheques, which beats walking the picket line, relying on strike pay to make ends meet, or worrying about the well-being of the vulnerable residents that workers genuinely care for.
2. Higher Wages – A C. D. Howe Institute study comparing the economic pros and cons of binding arbitration found that legislation across Canada requiring binding arbitration to resolve public-sector labour disputes led to 1.2 percent higher wage increases, on average.
3. Accountability – Interest arbitration is a tool that unions can use to hold employers accountable. Not all workers in the healthcare sector, such as homecare workers, are covered by legislation deeming them an essential service. As such, their contract disputes are not automatically resolved through binding arbitration. Yet many of these workers will not strike because they do not want to abandon their patients. Without the will to strike or the ability to force the employer to arbitration, making significant contract gains can be slow and painful.

Despite these advantages, taking away workers’ right to strike by declaring their work an essential service is not always a popular choice, particularly with unions. Historically, the right to strike has been a very powerful tool to advance the labour movement and ensure justice and fair working conditions in the workplace.

3 Disadvantages

1. Cost – A lot of research, preparation, time, and money go into preparing for an arbitration hearing. Upward of 150 work hours go into researching and writing arguments to address outstanding proposals presented to the arbitrator. CLAC’s Research Team gets into full swing collating economic data, doing comparative compensation analysis, and providing data in support of the union’s proposals. Once the costs of paying the arbitrator and the union’s nominee to the board of arbitration are included, a union can spend upward of $20,000 on a single arbitration hearing.
2. Time – Arbitration can be very time consuming. Sometimes it takes months—even years—to settle a dispute. During this time, contract terms are frozen, making it difficult for employers, employees, and unions to make workplace or budget decisions.
3. Negotiation Crutch – Arbitration can become a crutch and lead to the absence of real negotiation at the bargaining table. Both parties may be less likely to work toward a settlement if they know that they can force arbitration. When employers and unions are unwilling to make hard decisions and take responsibility for them, they may turn to an arbitrator to make the decision for them.

Neither a work stoppage nor binding arbitration are ideal ways of resolving a contract dispute. Real negotiation is usually the more peaceable and inexpensive option. Plus, when both sides come together to find solutions, acceptance of the agreement is usually much greater by everyone—without the lingering bitterness that often accompanies the end of a strike or an arbitration ruling that goes against one side.

Shortening Shakespeare

Coles Notes were the original study guide series offering condensed versions and analysis of literary works. They were first published by Coles bookstore in Toronto in 1948 for the French novella Colomba. They weren’t officially called Coles Notes until the 1950s. Since then, they have been written for hundreds of books and sold in more than 70 countries. The most popular? Notes for Shakespeare’s plays.

In 1958, Coles sold the US rights to Coles Notes to Clifton Hillegass, and they became known as CliffsNotes, beginning with 16 of Shakespeare’s works. In the 1960s, Hillegass replaced the Coles Notes versions in favour of ones developed by his own writers.

In the last two decades, students were much more likely to use SparkNotes, a digital version developed by four Harvard students in 1999, now owned by Barnes & Noble. Today? Students are more likely to rely on AI to provide them with instant summaries and analyses of virtually any literary work in existence.

Sources: elearninginside.com, torontomike.com, wikipedia.com

Sukhpal Bains

Flor de Maria Dominguez

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