Should doctors hold out for binding arbitration?

Posted on August 10, 2016 in Health Delivery System – Opinion
Aug. 09, 2016.   ANDRÉ PICARD

Are physicians entitled to binding arbitration to resolve their contract disputes with government?

That is a central question in the ongoing dispute between the Ontario Medical Association and the province. But it’s not a simple question, because it comes with a lot of legal, political and emotional baggage.

Binding arbitration is a process by which a neutral third party, either an individual or a panel, steps in after labour talks break down and imposes a settlement. For the most part, it’s supposed to function like nuclear deterrence, encouraging the two sides to resolve their differences or risk a deal one side really doesn’t like.

Unionized employees who provide essential services (and therefore cannot go on strike), such as police officers and firefighters, often resolve their contract disputes using a process of binding arbitration and doctors would like that ability, too.

Seven provinces and territories – PEI, Nova Scotia, New Brunswick, Manitoba, Saskatchewan, Alberta and the Northwest Territories – have some form of binding arbitration for doctors. However, most governments retain the legal right to suspend the provision, as Nova Scotia has recently announced it will do.

The OMA, having failed to get the Ontario government to agree willingly to binding arbitration, is trying to force its hand in court, arguing that it has a constitutional right to this form of dispute resolution.

That argument has been bolstered significantly in a series of rulings from the Supreme Court of Canada, which reinforced the argument that workers – whether they are in unions or associations – have a right to strike and, when that right is removed because services are deemed essential, then workers are entitled to other protections like binding arbitration.

However, physicians are not formally considered an essential service. They have the right to strike, although it is tempered by an ethical obligation to provide essential care and by restrictions imposed by their regulatory bodies. However, there have been doctors’ strikes of various lengths and breadths in seven provinces, including Ontario.

Further, while some physicians are salaried employees, the majority are actually independent contractors. So, in the legal case, the government will no doubt argue that the self-employed do not have the same protections as employees.

In other words, the legal battle will be long and complex, with legal scholars saying it will take about four years for a ruling.

In the meantime, what should Ontario doctors do? Should they accept a contract that essentially leaves them treading water for four years or should they reject the contract offer and go back to the bargaining table with the demand that the province acquiesce to their demand for binding arbitration?

That’s essentially the choice the 42,000 members of the OMA will have to make when they vote at a general meeting on Aug. 14.

Many Ontario doctors are angry about rollbacks in fees and at being vilified by a government that is taking a hardline stance on cost control.

But, regardless of the vote outcome, there is no way Ontario will simply roll over on the issue of binding arbitration because they are mindful of history. Notably, the infamous 2002 case in British Columbia, where an arbitrator granted a 20-per-cent fee increase, which would have resulted in a windfall of $50,000 per doctor. (The government adopted legislation that invalidated the arbitration award.)

Ontario’s overwhelming goal in contract talks with doctors has been to achieve a predictable physician services budget, and binding arbitration would undermine that approach.

At the same time, those calling for Ontario doctors to reject the contract seem to presume that binding arbitration would result in a better deal, but that’s not a given either.

In the drawn-out contract talks, Ontario has called on both a facilitator and a conciliator, both of whom essentially said physician fees should rise 1.2-per-cent annually. In the proposed contract, the OMA negotiated a 2.5-per-cent per annum increase, double that amount, along with some other carrots and sticks.

The question now is: Do doctors roll the dice and bet they can squeeze more out of the provincial treasury, or do they bide their time until a court ruling gives them the ultimate bargaining tool, binding arbitration?

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