Have you heard the news?
BCGEU: The votes are in and nearly 95% of BCGEU’s public service members voted in favour of strike action, in their fight for a fair deal that includes #COLA! This is a big day for BC’s labour movement.
Read on to learn more about why this matters and how important it is for Collective Bargaining. Union Power in BC has been suppressed for over 3 decades. BCGEU’s Strike Vote success is an important first step in achieving cost of living adjustments for us all! #COLA4ALL
Bargaining in the shadow of BC’s Public Sector Employers’ Council
For three decades, the wages, benefits, and language British Columbia’s faculty associations are able to negotiate have been restricted by the government. How do workers mobilize and challenge the PSEC regime and its iron grip on the province’s public-sector bargaining?
What is PSEC anyway?
There are approximately 430,000 workers in British Columbia’s public sector, which includes Crown corporations and agencies, health and community social services, and K-12 and postsecondary education. More than 330,000 of these public-sector workers are unionized and they are all subject to the same “mandate,” determined by the Public Sector Employers’ Council (PSEC), which has coordinated all public-sector bargaining in British Columbia for over 25 years. This “mandate” stipulates that all public-sector bargaining agents are subject to the same wage increase, collective agreement length, and bargaining cycle.
According to PSEC, its purpose is “to oversee the province’s strategic coordination of labour relations, total compensation planning, and human resource management across six public sectors.” Its website justifies its role by stating that it “protects the interests of taxpayers by ensuring public sector compensation costs are aligned with… the budget objectives set by government.”
While PSEC is often portrayed as autonomous from government, this is and always has been fiction. It exists within the Ministry, is Chaired by the Minister of Finance, and its president reports directly to the Minister.
The history of PSEC: From language to money
Created in 1993 by the NDP government of Premier Mike Harcourt, PSEC was part of the Public Sector Employers’ Act. The council was originally intended to bring uniformity to language in collective agreements. On paper, it was an advisory body, and no laws were ever written to secure its jurisdiction as an official authority. Under PSEC, each public-sector area has its own employers’ association, including higher education.
In its now 27 years of existence, PSEC has morphed into an official body that oversees all aspects of collective bargaining. It sets financial limits on contract outcomes through bargaining mandates that artificially constrain public-sector wages. This explains why both university faculty and K-12 teachers in the province have low salaries relative to their counterparts in other provinces, despite British Columbia’s robust economy and high cost of living. PSEC’s oversight is not confined to compensation and the body scrutinizes and approves all employer proposals and counter-proposals.
PSEC and its bargaining mandates have persisted through many years, transcending political parties in power and becoming an omnipresent feature of public-sector bargaining. Initially focused on aligning collective agreement language, cost containment was an afterthought that naturally manifested once government had its foot in the door. One might ask, “Whom does it benefit?” Certainly not BC’s public-sector workers. There are fewer public-sector workers per capita in BC than in any other province, and their wages have not kept up with inflation over many years of cutbacks and redundancy initiatives.
PSEC might seem to have little relevance for BC’s universities and colleges, who receive less than fifty per cent of their base funding from the provincial government. Nonetheless, the sector has fallen under PSEC’s purview since its inception, and its scrutiny of postsecondary bargaining has grown over time.
PSEC expands territory: Union busting
Once established, PSEC began to intrude further into public-sector bargaining, particularly in the years of austerity budgets in the mid-1990s. As NDP Premier Glen Clark famously put it, “If I gotta pay I getta say.”
PSEC did not have a specifically anti-union mandate until the election of Gordon Campbell and the BC Liberals in 2001. Among Campbell’s first initiatives was ushering in one of the most ambitiously anti-union legislative and regulatory frameworks since World War II. Employers, including research universities, were stripped of all autonomy at the table and bargaining often devolved into a cynical charade. PSEC was, in essence, turned into the enforcement branch of the Liberals’ union-busting agenda. The clearest example of this was the Liberal government’s 2012 attempt (under Premier Christy Clark) to provoke a full-blown strike rather than bargain in good faith with the BC Teachers’ Federation (BCTF). A subsequent legal challenge ended with the Supreme Court finding in favour of the BCTF.
In the case of colleges and universities, PSEC enforces its mandates through board of governor appointments. In BC, government appointees hold the majority share of votes on boards of governors, and the appointment process has long been overtly political. Because of this, a board that contravenes PSEC’s mandate can easily be fired and replaced.
A board of governors that contravenes PSEC’s mandate can easily be fired and replaced.
PSEC as both a sword and shield
PSEC is often described as the bogeyman of bargaining; perhaps even better likened to the Wizard of Oz. At the table, employers use PSEC as both a sword and a shield, claiming that they can’t agree to this (defence) or they must achieve that (offence) because of direction from PSEC. The mandates of the employer and PSEC become conflated in such a way that the union never knows with whom it is bargaining. Is it the employer pushing for draconian management rights or PSEC? Each say it’s the other but, since PSEC isn’t physically in the room, it’s hard to pinpoint an origin with any real confidence.
For BC’s research universities, bargaining plays out like this: employers and faculty associations sit across the table and pass proposals back and forth while PSEC casts it shadow over the entire negotiation. Every proposal and counterproposal the employer develops is passed through PSEC to be vetted and approved before being handed to the union. Numbers are crunched, edits are made, and language is fine-tuned. The process slows and caucuses are long as everyone waits for PSEC. At times, it is not entirely clear who has the authority to conclude bargaining, but, at some point it draws to an end and the collective agreement is ratified. Or, in the case of the University of Northern British Columbia (UNBC), members end up walking out and seeking support through the labour board or an arbitrator, as they have done in the last two rounds of bargaining.
The only board of governors to defy the PSEC mandate was that of Okanagan University College under the Campbell government. In 2002, the governing board agreed to a settlement with faculty that was more generous than the terms dictated by PSEC. In response, Campbell fired the entire board, later dismissing its president prior to the end of their contract, and split the institution in two: one part returned to its predecessor state as a college (now Okanagan College) and the other part transformed into a campus of the University of British Columbia (now UBC-Okanagan). It was a chilling event and serves as a warning to this day. No university board or president has defied PSEC since.
After two decades of bargaining, PSEC had largely limited its sphere of influence to enforcing and monitoring compensation, as it had become less focused on the language uniformity it had been created to coordinate. However, in the 2012 round of bargaining PSEC extended its reach even further into the bargaining room by ordering employers not to negotiate anything that could be construed as management rights without PSEC’s explicit permission. This egregious overreach continues today.
PSEC’s role in collective bargaining represents an extreme level of government intrusion.
PSEC’s role in collective bargaining at research universities presents unique challenges in BC, and represents an extreme level of government intrusion in comparison with other provinces where negotiations take place directly between each faculty association and university board of governors. It could well be argued that PSEC’s role in bargaining undermines a fundamental tenet of research universities—autonomy from direct political intrusion.
What is to be done?
The current BC NDP government, led by Premier John Horgan, has shown no appetite for eliminating or even restricting PSEC’s role in bargaining—especially where monetary issues are at stake. The government has also shown little appetite for depoliticizing the board of governor appointment process or for eliminating the majority share of government appointees at universities. PSEC remains a powerful force, with three different political parties having affirmed its authority for nearly thirty years.
Faculty associations have existed in the province’s research universities for decades, but most began formal certification as a means to countervail the power of employers and PSEC. The UBC Faculty Association was voluntarily recognized in 1989, but uses binding arbitration rather than job action for resolving impasses. The other member associations of the Confederation of University Faculty Associations of BC (CUFA BC) certified later. Royal Roads University Faculty Association certified in 2006, followed by the faculty associations at Simon Fraser University, UNBC, and the University of Victoria in 2013 and 2014. Unionization has helped to recalibrate the power differential, but PSEC has shown that, to maintain its control over both rights and compensation, it is willing to force impasses at the table and let the unions go out on strike.
It is worth noting that arbitrators in the province have been very clear that they will not be guided by the PSEC mandate when making awards. Consider the language in two recent decisions: In 2012’s UBC vs. Association of Administrative and Professional Staff of UBC award, the arbitrator stated that “[Any] arguments raised by UBC relating to ability to pay or PSEC will not be considered…While PSEC or ability to pay issues may have been topics that UBC considered during the negotiation process, they are not part of my assessment…” Then, in 2014’s UBC vs. UBC FA award, the arbitrator stated that the “agreement does not involve application of the PSEC bargaining mandate, and does not mirror the University’s funding from government.”
The dismissal of PSEC’s authority by arbitrators is the sole reason PSEC instructed employers to reject any bargaining proposals for binding arbitration or as a dispute resolution mechanism. This is a signature example of PSEC’s political power—an amorphous and defining labour relations regime that exists nowhere in law or policy but is zealously enforced.
PSEC’s proposals have been more palatable in the 2019-2020 round of contract talks than in previous years. We are seeing a three-year mandate of two per cent wage increases instead of the usual cuts. There is less overt hostility to unions, less intrusion into so-called management rights, and, for the first time, a willingness to meet with provincial union representatives instead of whispering in the ears of the employer exclusively. That doesn’t change the fact that PSEC still represents an interference in the right to free and fair collective bargaining and, beyond mobilizing support and mounting political pressure, the only other potential check on PSEC’s power is the courts.
It is critical to understand that the jurisdiction of PSEC has never been enshrined in legislation and has always relied on a brazen tradition of realpolitik prevalent in British Columbia. The legal standing of PSEC is such that it has managed to evade constitutional challenges as a court case would be lengthy and costly, requiring alliances among all labour organizations in the province.
In the last several years, the Supreme Court of Canada has turned the so-called “labour trilogy” on its head by firmly enshrining free and fair collective bargaining as a Charter right protected by freedom of association. Though the most senior labour lawyers in BC have been cautious about the potential success of any legal challenge of PSEC, the ground has shifted, leaving PSEC more vulnerable to a potential challenge. However, any challenge would need to be undertaken with special care and intention. A loss in the courts would open the floodgates to something much worse than what exists now and would likely have significant ramifications for other provinces. Regardless, a legal challenge may be inevitable.
The biggest tragedy in all of this has been the government’s obvious conflict of interest as it rationalizes being both the employer and lawmaker; that is, the organization that gets to make the laws that regulate its rights as an employer. Court challenges are too prolonged and costly to remedy violations of freedom of association with any real consequence. By the time corrective systems come to the rescue, there is a new government in power with a new agenda. On some level, the absurdity of unchecked power must be known.
At its core, PSEC is essentially a political problem born of the political culture of BC. While the province’s complicated bargaining system makes up the very fabric of public-sector labour relations, we know that other provincial governments keep a watchful eye on PSEC’s successes.
Any strategy to oppose PSEC must be rooted in mobilizing political support for free and fair collective bargaining.
Any strategy to oppose PSEC must be rooted in mobilizing political support for free and fair collective bargaining. Despite its lack of legislative teeth, PSEC has been incredibly effective at devaluing the political capital of unions and demoralizing organizing efforts. That said, the organizing capacity of unions is precisely why PSEC was created in the first place. Building that capacity and organizing are the only sustainable ways to restore free and fair collective bargaining in BC.