‘til Dissolution Do Us Part: (Re)Assessing the First Contract and Trial Marriage Goals of First Contract Arbitration in Ontario

• DOI: http://doi.org/10.1111/irel.12273
• Author: Bradley R. Weinberg
• Date: 01 January 2021
• Published date: 01 January 2021

‘til Dissolution Do Us Part: (Re)Assessing the

First Contract and Trial Marriage Goals of First

Contract Arbitration in Ontario

BRADLEY R. WEINBERG

Using a series of labor law reforms in the Canadian province of Ontario between

1991 and1998, this article seeks to (re)assess and compare the effectiveness of

two forms of f‌irst contract arbitration (FCA) in satisfying the primary policy goals

of aiding in the achievement of a f‌irst contract and in establishing lasting bargain-

ing relationships. In contrast to previous research f‌indings using this setting, the

analysis fails to identify any statistically signif‌icant difference in the achievement

of f‌irst contracts across the automatic and no-fault forms of FCA. Further, esti-

mates do not appear to identify a statistically signif‌icant difference in the estab-

lishment of lasting bargaining relationships, def‌ined as the settlement of three of

more collective agreements, across the two forms of FCA. These f‌indings indicate

that differences observed during this period in the f‌irst contract success rate and

the establishment of bargaining relationships may be confounded with other fac-

tors than the changes to f‌irst contract arbitration.

Introduction

The decline in union densities in the Anglo-American countries since the

1980s led some scholars to ask whether those countries are converging toward

their own model of industrial relations (Colvin and Darbishire 2013). How-

ever, Canada can be viewed as an outlier. In fact, the most recent estimates

compiled by the Organisation for Economic Co-operation and Development

(OECD 2020) place Canada as having the highest union density of the Anglo-

American countries in 2018, whereas it had the second lowest union density

among them in 1980 (Visser 2006). Explanations for the differing fortunes of

the labor movement in Canada compared to other countries, particularly the

United States, have varied, but scholars frequently cite differences in labor

laws as a contributing factor (Godard 2003).

The author’saff‌iliation is Queen’s University, Kingston, Ontario, Canada. E-mail: bw81@queensu.ca.

INDUSTRIAL RELATIONS, DOI: 10.1111/irel.12273. Vol. 60, No. 1 (January 2021). ©2021 Regents of the

Universit y of Calif ornia. Published by Wiley Periodicals, Inc., 350 Main Street, Malden, MA 02148, USA,

and 9600 Garsington Road, Oxford, OX4 2DQ, UK.

119

Indeed, Canadian labor law includes several different provisions that seek to

improve the accessibility of collective bargaining while reducing employer

inf‌luence in the unionization process. One such law, known as f‌irst contract

arbitration (FCA), permits the parties to a nascent bargaining relationship to

apply to have the labor board or a private arbitrator impose the settlement of

any outstanding issues in the negotiation of a f‌irst collective agreement. This

aims to overcome the well-documented diff‌iculty that newly certif‌ied unions

have in settling f‌irst collective agreements (Ferguson 2008). It also strives to

reduce the ability of management to inf‌luence the process to avoid the settle-

ment of a f‌irst agreement and to provide the parties with a foundation on

which to build a lasting bargaining relationship.

As of 2018, all of the jurisdictions in Canada, both federal and provincial,

have a FCA provision in their main labor relations statute. Although FCA is a

Canadian invention, the proliferation of this policy is not exclusive to Canada

as other countries have enacted or discussed enacting similar policies. Most

prominently, bargaining representatives of low-paid employees working in

multi-enterprise employers in Australia have been able to apply to the Fair

Work Commission for FCA, known as a “workplace determination,”since

2009. Further, FCA comprised one of the main components of the proposed

labor-law reform known as the Employee Free Choice Act in the United States

during the mid-2000s and it was discussed during the debate of the Employ-

ment Relations Bill in the United Kingdom in 1999. Neither of these FCA

provisions have been adopted in their respective countries.

Since its f‌irst enactment in Canada in the 1970s, FCA has evolved such that

there are now a number of different types that may be adopted. Each of these

types of FCA may differ with regard to how effective they are in achieving

the policy’s goals. These goals against which one can measure success include

(1) the cessation of work stoppages during the negotiation of a f‌irst agreement,

(2) the achievement of f‌irst collective agreements, (3) the establishment of last-

ing and mature bargaining relationships, and (4) the deterrence of employer

misconduct. The spread of FCA throughout Canada and the fact that no juris-

diction has ever repealed it demonstrates that FCA is largely an accepted part

of the contemporary Canadian industrial relations landscape. With these devel-

opments, the more important question to be investigated in Canada is not

whether FCA satisf‌ies these goals in relation to its absence, but which type of

FCA best satisf‌ies these goals.

This article seeks to investigate which type of FCA best satisf‌ies key mea-

sures of success using the quasi-experimental research setting of Ontario’s

changing labor laws between 1991 and 1998 identif‌ied by Riddell (2013). Dur-

ing this period, the province changed from one form of FCA to another and

then back again. Whereas Riddell (2013) compared the two forms of FCA

120 / BRADLEY R. WEINBERG