Asking the Right Questions in Negotiations
Experienced negotiators understand the importance of being well-prepared heading into face-to-face meetings. Thorough preparation is the cornerstone of effective negotiations – it strengthens your bargaining objectives and empowers you to counter those from the other side. Most negotiators will have a laundry list of research: current economic indicators, performance of the company, grievance experience over the last year, just to name a few.
One of the least-exercised rights is the production of information that would otherwise be in the exclusive control of the employer. This right is grounded in the statutory obligation on both parties to “bargain in good faith and make every reasonable effort to conclude a collective agreement”. This phrase, common to all legislation across Canada, requires the parties to engage in meaningful negotiations. In support of this objective, labour boards and arbitrators have interpreted these phrases as requiring the parties to share information. Early decisions observed that unions must not be kept “in the dark” when it comes to exercising their important responsibilities. The Ontario Labour Relations Board in Royal Conservatory of Music Faculty Association v. University of Toronto concluded:
Apart from existing terms and conditions of employment (wages, benefits, classification structures, etc.), where a union has a prima facie right to information, the disclosure obligation is contingent upon the information being necessary for one party to adequately comprehend the position taken by the other. In other words, if one party maintains a position (whether in the form of a proposal or response) which is grounded on a rational explanation, that party may be subject to a duty to disclose information to demonstrate the bona fides of that rational bargaining position.
These rights are not without limits – a request for information must relate to issues that are on the table. Exercising the right to productions begins with the delivery of notice to bargain. Production obligations continue through the negotiation process until a collective agreement is concluded.
Negotiators should give careful consideration to how the right to production of information can assist in their negotiations.