In Canada, collective bargaining disputes in the public sector may be resolved by interest arbitration, particularly in situations where there is no legal right to strike or lockout. Each province may decide that interest arbitration will have legal status under the applicable public sector legislation. For example, provincial police and firefighter collective bargaining may provide for interest arbitration in place of the right to strike.

A recent court case in Manitoba decided an issue under the legislation in that province that provided for interest arbitration (Manitoba Government and General Employees’ Union and Minister of Finance for the Government of Manitoba 2020MBQB 68). The Manitoba Civil Service Act stated that the union could apply to the Minister of Finance to appoint an arbitration board on the grounds that bargaining had begun but no agreement had been reached due to difficulties in bargaining. In that case, the Collective Agreement had expired and the parties commenced collective bargaining by exchanging proposals and meeting for 2 days of bargaining. The Manitoba Government and General Employees’ Union (MGEU) submitted that the circumstances in this round of bargaining were different, because the Government had recently passed in the legislature the Public Services Sustainability Act, which limited wage increases in the public service over a 4 year period to a maximum of 0%, 0%, 0.75% and 1% respectively, in each year of the 4 year period. Also, the MGEU submitted that the Government would not say if wage rates could be negotiated that exceeded the legislated maximum, and therefore there was no free collective bargaining. However, the Minister of Finance had refused an application by the Union for the appointment of an arbitration board. The wage limit legislation had been passed in the legislature but had not yet been proclaimed into force. The process of proclamation was an administrative function that the Government could implement at any time.

The MGEU applied to the Court for an Order of Mandamus, requesting that the Court direct the Manitoba Government to appoint an arbitration board, pursuant to the Civil Service Act.  The Government argued that the Minister of Finance had discretion to refuse to appoint the arbitration board, and that his discretion had been exercised fairly. The Court reviewed the Civil Service Act, and decided that the Minister did not have discretion to refuse the application to appoint an interest arbitration board where the Union had met the requirements of the legislation, namely to file a request and supply a statement of the difficulties in bargaining. There was no requirement that the parties demonstrate an impasse in bargaining. Although the Public Services Sustainability Act had not been proclaimed into force, the Government could proclaim the legislation at any time, and make its effect retroactive to the period of collective bargaining.

The Manitoba Court of Queen’s Bench directed the Government to appoint an arbitration board under the legislation. The procedure is that each party appoints its nominee to the board and the nominees jointly appoint the Chairperson, or failing agreement, the Minister appoints the Chairperson.

For further information, see here.