In the Ontario Ready-Mix industry, the big three employers (Lafarge, CBM and Dufferin) all coordinate their collective bargaining efforts in the Greater Toronto and Southwestern Ontario regions. They meet regularly before and during bargaining to discuss the status of negotiations and to exchange information. Although each organization bargains separately with the unions they absolutely work together to secure similar if not identical results. The process is made even easier by the fact that the union that they all deal with is the Teamsters.
We cite this as a clear example where companies work together in the labour relations milieu without any fear that they are going to be accused or charged with “collusion”. At least once a year we come across some well-meaning corporate lawyer or HR professional who does not want to engage in sharing information or participating in industry meetings about labour relations for fear of facing some legal recourse for engaging in unlawful behaviour.
Assuring these people that the sharing of information, sitting in on a meeting to discuss bargaining with other companies or even working together in a coordinated effort is not illegal necessitates proving a nullity. There are no laws in Canada that prohibit this activity. The Competition Act does not cover this situation in any way and the various Labour Relations Acts in every jurisdiction essentially insulate labour relations activities from any aspect of anti-trust or anti-combines legislation.
Collusion is a secret agreement between two or more parties to limit open competition by deceiving, misleading, or defrauding others of their legal rights, or to obtain an objective forbidden by law typically by defrauding or gaining an unfair market advantage. In the Ready-Mix example there is nothing secretive about the arrangements. The unions know what is going on, the Ministry of Labour knows what is going on, everyone knows that the companies are working together. The results of the coordinated bargaining are public documents available through the Ontario Labour Relations Board. The union is free to cooperate or to resist the coordinated efforts and does not lose any advantage because of the efforts of the employers to work together. In fact, it makes the playing field more even, because of course the various Teamsters Locals are working in a very coordinated manner behind their scenes. Everyone gains from a more efficient and transparent process.
In the case of companies unwilling to share information about their collective agreements there are a few simple things they should know:
- Under labour legislation all collective agreements are public documents and should be made available through the various labour boards. While the Boards do not have up-to-date databases and obtaining information from them is not always easy, in theory the information should be there for all to see. So not sharing the information first hand simply makes getting the information more difficult for the person asking. (Tip: If you are a management bargaining team member trying to gather information for your preparations and face this response from your competitor, the easiest workaround is simply to call the union involved as they are usually very cooperative in sharing information).
- Generally speaking the reason labour relations matters are considered exempt under anti-combines/anti-trust laws is that the legislation (e.g. Labour Relations Act) enabling the unionization had to ensure that unions, which are themselves combinations of individual economic actors, were legitimized. In order to create a level playing field, the legislation could not then turn around and say it is legitimate for employees to form collectives in order to exert economic pressures on employers but not legitimate for employers to do the same in response. So, legislation in Canada actually allows for employers to work together in centralized bargaining regimes which are actively practiced in the health, construction and marine industries amongst others. In these industries the employers have gone one step further and have applied to the respective Ministry of Labour to become recognized as a central bargaining agent for a group of employers in the same way a Council of unions can apply to become a centralized bargaining agent on behalf of a group of unions.
In the context of these more formal centralized arrangements, there is nothing preventing employers from coordinating their efforts while maintaining independent bargaining status as individual employers. Nor is there any prohibition on a group of employers all appointing the same chief negotiator (also known as a bargaining agent) to act on behalf of each individual company. For further clarity, this can happen without any formal recognition or certification of that agent by Ministry of Labour or anyone else for that matter.
In the health sector, we not only see examples of Associations being formed to legitimize the centralized negotiator as a certified bargaining agent but we also see associations acting on behalf of members without actually engaging in centralized bargaining. There are many allowable approaches to working together on labour relations. In fact these are encouraged as they are seen to promote efficient bargaining and to contribute to an efficient market.
The only act of collusion that is prohibited by labour legislation is any secret deal made between an employer and a union that defrauds the employees represented by that union, or otherwise deprives them of their right to be fairly represented in all matters related to their employment.
We encourage all unionized employers to be ready to share information with each other and cooperate in supporting collective bargaining efforts. Moreover, there are many examples of industry groups that could benefit from a coordinated strategy and effort but are reluctant to do so because there is an unfounded fear that they are somehow legally barred from doing so. We hope we have de-bunked that myth.