by Scott G. Thompson, Retired Partner, Hicks Morley Law Firm
The Labour Relations Act was amended in 1977 to provide for province-wide bargaining in the ICI sector of the construction industry in the Province of Ontario. At that time, the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario (the “ETBA”) was selected by the Minister of Labour to be the employer bargaining agency in the industrial, commercial, and institutional (ICI) sector for employers whose employees were represented by the IBEW construction locals in the Province of Ontario. At the same time, the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario (the “IBEW”) was selected by the Minister of Labour to be the designated employee bargaining agency in the ICI sector to represent all journeymen and apprentice electricians and journeymen and apprentice linemen represented by the IBEW construction locals in the Province of Ontario. These designation orders were expanded in 2001 to include journeymen and apprentice network cabling specialists and cable installers represented by the IBEW construction locals in the Province of Ontario.
The Early Years
In 1978, the ETBA and the IBEW were able to negotiate the first province-wide Principal Agreement, which consolidated 14 local area agreements without a strike. Between 1978 and 1990, the Principal Agreement was renegotiated every two years. Although the parties were able to renew the Principal Agreement without a strike in 1980 and 1984, they were unsuccessful in 1982 (a 1-week strike), 1986 (a 2.5-week strike), 1988 (a 3-week strike) and 1990 (an 8-week strike/lockout). Throughout this period of traditional bargaining between 1978 and 1990, the only material language change to the Principal Agreement occurred in 1982.
Traditional bargaining in the construction industry tends to follow the pattern of the highest settlements. Between 1978 and 1990, all four strikes were over the monetary increase to the wage package. The other construction trades were more than willing to sit back and let the IBEW strike first. Regardless of which trade settled first, the settlement with the IBEW either matched the highest trade or was an average of the two highest trades. The only significant language change negotiated by the ETBA during this period of traditional bargaining was the right to name hire foremen, which it achieved as part of the 1982 settlement.
As a result of the bargaining history between 1978 and 1990, the unionized electrical industry lost significant market share to non-union electrical contractors. Both the IBEW and the ETBA recognized that the increasing duration of the work stoppage and lost person-hours and market share caused by the work stoppage was detrimental to both parties and, therefore, a commitment between the parties was made at the time of the 1990 settlement to explore methods of resolving disputes without resorting to the strike/lockout procedure.
In the United States, the unionized electrical industry has, since 1928, a history of settling their collective agreement disputes through voluntary interest arbitration without strikes or lockouts. The two pillars of the American system are to resolve disputes without work stoppages while increasing the market share of the unionized electrical industry. The ETBA and the IBEW—after investigating the American system— developed their own version of the No Strike/No Lockout Accord for the Province of Ontario (the “Joint Proposal”), which has been utilized on a voluntary basis since the 1992 round of bargaining. The foundation of the Joint Proposal is the parties’ commitment to interest-based bargaining to address the concerns of the unionized electrical construction industry in Ontario.
Historical Dates for the Provincial Agreement Before the Joint Proposal
- 1978, the first round of bargaining by the designated ICI Bargaining Agents, the ETBA and the IBEW settled for two (2) years on a differential basis without a strike.
- 1980 round of bargaining also was resolved without a strike.
- 1982 round of bargaining saw negotiations break down when the IBEW CCO went on strike, a strike that lasted approximately one (1) week.
- 1984 the parties settled without a strike.
- 1986 saw another strike; this time, it lasted approximately two and a half (2 1/2) weeks.
- 1988 was also a strike. The strike lasted for roughly three (3) weeks.
- 1990 saw the third (3rd) consecutive strike, and it lasted approximately eight (8) weeks. In fact, this strike required Minister of Labour intervention for resolution.
A New System: The Joint Proposal
As a result of the above-referenced bargaining history and the recognition of the detrimental effects of the way the collective agreement was being negotiated, the ETBA and IBEW CCO committed to design a new system, which became known as the Joint Proposal. The Joint Proposal has been negotiated prior to collective bargaining since 1992.
The Original Joint Proposal (1992-1994): The original Joint Proposal established the Joint Electrical Promotion Plan (“JEPP”) to promote the unionized electrical construction industry and the IBEW organizing fund to promote union organizing throughout the Province of Ontario. In addition, the original Joint Proposal established the Electrical Trade Joint Board (the “ETJB”) as an ongoing policy and grievance settlement mechanism. The original Joint Proposal was based on the commitment to early negotiations on the understanding that if the parties were unable to reach an agreement on language issues, all outstanding changes to language would be withdrawn. Only the monetary increase to the wage package and monetary improvements to the room, board and travel allowances would go before an arbitrator, called the selector, under a final offer selection model of interest arbitration.
During the 1992 round of negotiations, the ETBA and the IBEW were able to reach a settlement to renew the Principal Agreement without going to the selector under the original Joint Proposal.
The key elements of the original joint proposal, which grew out of the parties’ experiences in traditional bargaining between 1978 and 1990, can be identified as follows:
- The commitment of the ETBA contractors to contribute 20¢/hour to JEPP and to an IBEW organizing fund.
- The establishment of the ETJB to address policy issues and grievances.
- Early negotiations to settle the collective agreement ahead of the other trades in order to influence the pattern for that round of bargaining.
- The agreement that only outstanding monetary issues will be referred to final offer selection in an expedited arbitration process as a substitute to the traditional strike/lockout model of dispute resolution.
- The Post-Negotiation Wage Adjustment (PNWA) provision is based on the highest two construction settlements to ensure that the IBEW would not be left behind by bargaining early and foregoing its right to strike.
- Ratification of the Joint Proposal by the IBEW membership on a province-wide basis where each person has one vote.
Over the next 30 years, there were 11 Joint Proposals, with the most recent round of bargaining pertaining to the 2022 Provincial Agreement.
In the Tenth Joint Proposal (2019-2022), for the 2019 round of bargaining, the Joint Proposal was negotiated earlier than previous rounds. The IBEW and ETBA began discussions in February 2018 and reached an agreement in October 2018. ETBA was concerned that bargaining would end as soon as a Joint Proposal was signed off. After numerous discussions and exchanges, the Parties agreed to encourage local areas to use a mediator to assist with local bargaining. Eight areas ended up taking advantage of this offer, and as a result, a few local agreements saw meaningful changes to help the Parties achieve their shared goals.
The IBEW and ETBA were able to achieve a negotiated settlement during Provincial Bargaining, which provided for an increase of $4.05 over three years. Once all the comparison trades had settled, the ETJB agreed to a PNWA adjustment of 17 cents for a total wage increase of $4.22 over three years.
A key component of the Joint Proposal was to address market share in two ways. First, by resolving disputes without resorting to the strike/lockout procedure, and secondly, by developing mechanisms to increase market share.
The significance of market share varies across the province, and data to define and measure market share are difficult to ascertain.
There have been improvements in bargaining over the years, and apart from agreement on wage increases, there have also been significant language changes, including increased name hiring and mobility across the province.
The Second Joint Proposal (1995-1997): The Joint Proposal was renewed for the 1995 round of bargaining, but this time the parties were unable to reach an agreement. Although the Operating Engineer and the Glazier trades settled for higher amounts in the 1995 round of negotiations, the ETJB decided that no PNWA would be made because both of those settlements, among other things, had a catch-up component to them when compared to the 1992 settlements.
The Third Joint Proposal (1998-2000): The Joint Proposal was renewed for the 1998 round of bargaining, but at the time, the ETJB recognized that there was a significant risk that the other trades would seek to achieve catch-up coming out of the previous recession and that a catch-up settlement would not be an appropriate comparison settlement for the PNWA process. As a consequence, the PNWA provision was amended:
The parties were again unable to reach an agreement on the wage increase even though they were only 20¢ apart. The selector accepted the IBEW final offer as the more reasonable proposal, primarily because the ETBA was seeking a wage freeze in the first year of the agreement. Although both the Refrigeration Worker and the Sprinkler Fitter trades settled on average 10¢ higher than the IBEW offer selected by the selector, the ETJB decided that no PNWA should be made for that round of bargaining.
The Fourth Joint Proposal (2001-2003): In 2000, as a result of issues surrounding government legislation, the renewal of the Joint Proposal was in doubt, although eventually, it was renewed when the parties were able to agree upon significant language changes to the Principal Agreement, including improvements for increased name hiring and mobility across the province.
The PNWA remained the same as the 1998 [Joint Proposal]. Once again, the parties were unable to reach agreement on the monetary wage increase. The difference between the two wage proposals was significant, with the IBEW seeking a wage increase of $3.40 over three years, which was front-end loaded in the first year. The ETBA’s final offer was a wage increase of $2.75 over three years. Given the deteriorating economic climate in February 2001, the Selector accepted that the ETBA’s final offer was more reasonable. Subsequently, the Mechanical and Sprinkler Fitter trades settled for $3.40 over three years, and, therefore, the ETBA determined that a post-negotiation wage adjustment of an additional 65¢ was appropriate to bring the electrical settlement to $3.40 over three years.
The Fifth Joint Proposal (2004-2006): In the spring of 2003, the ETBA and the IBEW held extensive negotiations with respect to travel allowances for mobile workers as part of the process for renewing the Joint Proposal. At that time, the ETJB agreed to amend the PNWA procedure by confirming that designated ICI construction trades were the only relevant comparison trades and that only provincial settlements (i.e. one raise for the province) would be considered for comparison purposes. In the 2004 round of bargaining, the parties were able to achieve a negotiated settlement for the first time since 1992. The negotiated settlement was $3.40 over three years. Although the Mechanical and Sheet Metal trades subsequently settled for $3.40, the Refrigeration and Millwright trades settled for $3.90, which resulted in a PNWA of 50¢, which was agreed upon provided that a stabilization fund of at least 50¢ was established within each IBEW local area.
The Sixth Joint Proposal (2007-2009): In the summer of 2006, the ETBA and the IBEW held extensive negotiations for the renewal of the Joint Proposal, which included the concept that there would be one monetary settlement across the province and an amended PNWA clause which provided as follows:
After all of the other construction trades have settled, the Joint Board will review the money settlement in comparison with the other trades, whether agreed to or selected by the selector. If the parties fail to agree on an adjustment, the matter will be referred back to the selector, who will adjust the settlement to the average of the two highest settlements of the Ontario ICI construction settlements (26 trades as per the OCS) in accordance with the rules and procedures established by the ETJB.
Once again, the ETBA and the IBEW were able to achieve a negotiated settlement during the 2007 round of negotiations, which provided for an increase of $3.80 over three years.
During the 2007 round of negotiations, the vast majority of those ICI trades, with a single province-wide settlement, settled between $3.80 and $4.00, or less, over three years. Both the Boilermakers and the Operating Engineers settled for $4.00 across the province over three years. The Sprinkler Fitters settled for $4.90 across the province over three years. The Demolition settlement was for $7.00 across the province for three years.
The existence of the Demolition settlement at $7.00 resulted in a post-negotiation wage adjustment arbitration because the parties disagreed over whether or not the Demolition settlement was a relevant comparison settlement for the post-negotiation wage settlement process. If it were to be averaged with the Sprinkler Fitters settlement of $4.90, as the IBEW claimed, then the adjustment would be $2.15 for a total ETBA/IBEW settlement over three years of $5.95.
If it was not a relevant comparison settlement, as the ETBA claimed, then the two relevant comparison settlements would have been the Boilermakers/Operating Engineers at $4.00 and the Sprinkler Fitters at $4.90, which would have resulted in an adjustment of $0.65 for a total ETBA/IBEW settlement over three years of $4.45. This dispute went to arbitration, and the arbitrator accepted the IBEW position and determined that the PNWA should be $2.15. In a supplemental decision, the arbitrator also determined that the whole adjustment should be applied as of May 1, 2008, which meant that the IBEW received a wage increase of $3.40 an hour on May 1, 2008, and a total wage increase of $5.95 over the life of the collective agreement.
The Seventh Joint Proposal (2010-2012): In 2009, the ETBA and the IBEW, after extensive negotiations, agreed to renew the Joint Proposal. Given the dispute over the post-negotiation wage adjustment that arose under the Sixth Joint Proposal, this time, the parties addressed this issue in greater detail. Not only were the comparison trades limited to eight and a cap of 50¢ imposed on the PNWA, for the first time, the issue of differential settlements was addressed by providing a formula on how they were to be valued in the PNWA process. Once again, the ETBA and the IBEW were able to achieve a negotiated settlement during the 2010 round of negotiations, which provided for an increase of $3.25 over three years. Once all the comparison trades had settled, it was determined that a PNWA adjustment of 50¢ was appropriate for a total wage increase of $3.75 over three years.
The Eighth Joint Proposal (2013-2015): In 2012, the ETBA and the IBEW, after extensive negotiations, agreed to renew the Joint Proposal. Once again, the ETBA and the IBEW were able to achieve a negotiated settlement during the 2013 round of negotiations, which provided for an increase of $4.10 over three years.
Once all the comparison trades had settled, it was determined that a PNWA adjustment of 10¢ was appropriate for a total wage increase of $4.20 over three years.
The Ninth Joint Proposal (2016-2018): For the 2016 round of bargaining, the Joint Proposal was not renewed until January 2016, which was very late. In fact, the Mechanical trade settled early, before the ETBA and the IBEW finished bargaining for the monetary wage increase, which made it difficult for the parties to reach a negotiated settlement. The ETBA’s final offer was $3.15 over three years, which was equivalent to the Mechanical settlement, and the IBEW’s final offer was $3.50 over three years. The selector agreed that the ETBA’s final offer was the more reasonable one given the Mechanical settlement and awarded the ETBA’s final offer. Once all the comparison trades had settled, the ETJB determined that the average of the two highest comparison trades was $3.925, which was rounded up to produce a PNWA of $0.78 for a total wage increase over three years of $3.93.
The Tenth Joint Proposal (2019-2021): For the 2019 round of bargaining, the Joint Proposal was negotiated earlier than previous rounds. The IBEW and ETBA began discussions in February 2018 and reached an agreement in October 2018. ETBA was concerned that bargaining would end as soon as a Joint Proposal was signed off. After numerous discussions and exchanges, the Parties agreed to encourage local areas to use a mediator to assist with local bargaining. Eight areas ended up taking advantage of this offer, and as a result, a few local agreements saw meaningful changes to help the Parties achieve their shared goals.
The IBEW and ETBA were able to achieve a negotiated settlement during Provincial Bargaining, which provided for an increase of $4.05 over three years. Once all the comparison trades had settled, the ETJB agreed to a PNWA adjustment of 17 cents for a total wage increase of $4.22 over three years.
The Eleventh Joint Proposal (2022-2024): For the 2022 round of bargaining, the Joint Proposal was signed off in May 2021, with local bargaining beginning in November 2021. It was like the previous joint proposal with the option of using a mediator during local bargaining and the same post-negotiated wage adjustment with eight trades and a cap of $1.00. Again, eight areas used a mediator, and there were not as many local changes made during this round of bargaining. The 2019 round was somewhat different because the Provincial Government changed the legislated ratio to 1:1, so the areas without ratios identified in their local agreements were 1:1.
Provincially, substantial changes were made during bargaining. Also, the IBEW and ETBA were able to negotiate a wage settlement of $6.05 (8.6%) over three years. Inflation was at an all-time high in February 2022, which is when the Parties were negotiating. The first-year increase was substantial at $3.00 (4.4%). Once the comparison trades had settled, the Parties agreed to a PNWA adjustment of the $1.00 cap for a total wage increase of $7.05 (10%) over three years. Inflation kept increasing, which resulted in higher-than-average increases among other trades.