In Negotiations, Binding Arbitration is Non-Negotiable
On July 11, 2016, the Ontario Medical Association (OMA) made an unexpected announcement to its members – it had reached a tentative four-year agreement with the Ontario government. The press release posted on the OMA website listed key components of the Patient Services Agreement (PSA) such as annual increases, funding to allow for the addition of new physicians annually, and so forth.
The list, however, did not include a clause for binding arbitration – a major point of contention for Ontario’s doctors and the OMA, which had previously said was an absolute must. A note found at the bottom of the press release stated that the Charter challenge for binding arbitration against the Ontario government will continue.
Ontario’s 33,000 doctors were then invited to participate in a non-binding vote on the tentative agreement, starting on July 27. But in a dramatic turn-of-events just days before the scheduled vote, a group of doctors who oppose the PSA submitted a petition that effectively triggered a general meeting where “the vote that will occur as part of the general meeting will provide a binding decision by OMA members on the tentative PSA.”
In a scathing article against the opposing doctors, André Picard states: “Concerned Ontario Doctors’ Trump-like approach to labour negotiations solves nothing. This is not how a negotiation works.” He goes on to say that it is unclear as to what the opposing doctors are proposing instead.
I would have to agree with Mr. Picard that this is not how negotiations work – legally, politically, and ethically. However, I do not agree that the opposing doctors are a) responsible for the failed negotiation process and b) that they have not offered up any alternatives.
The answer to who is responsible for the failed process and what the doctors are seeking lies in the one element that continues to be excluded from any contract ever struck between the OMA and the province – binding arbitration.
From a legal perspective, good faith negotiations always require a provision for dispute resolution should the parties find that after exhausting all avenues, they fail to come to an agreement. Every such contract has a binding arbitration clause as a standard draughtsmanship provision.
Binding arbitration, the backbone of a bargaining unit’s power, puts the final outcome in the hands of arm’s length, third parties with the appropriate education, training, and expertise to reach a fair and balanced binding decision.
Such a clause is even more crucial in this case when you consider how the OMA came to be the bargaining unit for Ontario’s doctors back in 1991 when the NDP was in power: in lieu of a fee increase for physicians, the OMA agreed to support legislation that would officially appoint the association as the bargaining unit for all physicians in Ontario. The government then enacted a law that, in essence, did what existing labour law could not do – mandated that physicians be part of a union of the government’s choosing, and that the dues, whether they wished to belong or not, would be mandatorily deducted from their pay cheques.
All of this begs the question: why does the government continue to refuse to “consent” to binding arbitration for doctors when it is part and parcel to the negotiation process for all other sectors, both public and private? Their refusal has led to the lengthy delay that has left doctors without an agreement for more than two years and has forced them to challenge the government under the Charter of Rights and Freedoms.
Affording our physicians the courtesy of binding arbitration will undoubtedly bring the transparency and fairness that all doctors are seeking in a process that was created without their consent or input and continues to operate without their knowledge and behind closed doors.
The expertise and guidance of a qualified arbitrator would give credibility to the end result, and would be more cost-effective for the government, better for the public, and respectful of our hard-working physicians.
A Charter challenge will take years to make its way through the courts, if it is even pursued in light of the fact that a “deal” has now been reached by the OMA on behalf of its members. It will cost both sides millions of dollars. The taxpayers’ money that will be invested to litigate this Charter challenge over the next four to five years could be better spent on the delivery of healthcare, lifting morale, and indicating some appreciation for the medical profession that our lives depend on.
More information about the history and law surrounding this issue can be found in Tracey Tremayne-Llloyd's article "When is a Bargaining Agent not Bargaining in Democratic Society".
About the Author
Tracey Tremayne-Lloyd (TTL) is widely recognized as legal counsel and a regulatory expert in the representation and governance of the health professions of Ontario, Canada and in the United States.
TTL is an experienced and senior health law counsel who has successfully represented clients before numerous administrative boards and tribunals, and has extensive experience in the Superior, Divisional and Courts of Appeal in Ontario.
Throughout her career as a health law lawyer, TTL has had her hand on the pulse of the health law business.