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Ontario Politicians Push to Ban Exercise of a Fundamental Human Rights

If my title ran in a major newspaper, it would no doubt catch people’s attention, who would wonder why Canadian politicians would want to do such a thing.  Imagine provincial and municipal politicians arguing in favour of eliminating the right to practice one’s religion.   Could you see that happening?

Yesterday, a bizarre spat took place between Premier McGuinty and Toronto Mayor David Miller in which the Premier of Ontario opined that the banning the right to strike of TTC workers should be made an election issue in the forthcoming municipal elections.  Not surprisingly, the Mayor told McGuinty to bud out of municipal affairs.  [Can anyone explain to me why the Province would need the City's approval to ban TTC strikes anyways?  If McGuinty has suddenly changed his tune and now believes banning public sector strikes is a good thing, then why doesn't he just pass the law?]

What’s interesting for us labour law people is that fact that Canada has ratified Convention 87 of the ILO, through which it has promised the international community and Canadians that it will protect a right of all workers to strike (except police and military), unless the strike would pose a real danger to the health and safety of the population.  Public transit does not fall within that exception, so that it is without doubt that a complete ban on strikes by subway and bus drivers would violate Convention 87.  The right to strike is considered a fundamental human right by the ILO, and by ratifying the ILO Convention, Canada has pledged its support for that principal. Moreover, the Supreme Court of Canada told us recently that ‘freedom of association’ in out Charter of Rights and Freedoms must provide “at least the level of protection” to workers as does Convention 87 (see B.C. Health Services, paragraph 70).

Seen through this lens of international law, then, isn’t it odd that politicians would be falling over one another to appear to be the champion of a law that would ban the exercise of a fundamental human right and put the Province of Ontario (once again) in violation of international law?  Or do you think that Ontario should disregard international, fundamental labour rights as long as enough voters approve?

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One Response to Ontario Politicians Push to Ban Exercise of a Fundamental Human Rights

  1. John O'Grady Reply

    February 26, 2010 at 1:07 pm

    Arguments against compulsory arbitration that turn on ILO Convention 87 have always struck me as unpersuasive. Convention 87 makes no reference whatsoever to strikes or workplace actions. This is an inferred right, not a stated right. And to my mind the logic behind the inference is not compelling. Whenever the courts have interjected themselves into labour relations by enunciating sweeping legal doctrines, they have usually made a mess of it. The decision on BC Health Services is no exception. A far more pragmatic approach is required.

    The first pragmatic question is ‘does arbitration as it is practised in Canada confer advantages on working people that are essentially comparable to those conferred by conventional collective bargaining with the right strike?’ The answer to that, I believe, has to be ‘yes’. In the first place, without exception, all empirical work on compulsory arbitration comes to the conclusion that arbitrated awards generally replicate or improve upon prevailing norms. Second, the OLRA, among other Canadian labour relations statutes, provides for arbitration on a first agreement when the conventional bargaining process fails. This has been an option that many unions have used to salvage contracts that would otherwise have been defeated by hard bargaining on the part of employers. And third, there are numerous instances, especially in the construction industry, of the parties voluntarily adopting arbitration. Indeed, this trend is now quite strong. In short, I think it is difficult to argue that compulsory arbitration, as it is practised in Canada, fundamentally prejudices the interests of working people.

    The second principled question is whether reliance on arbitration degrades the bargaining process. There is evidence to support this claim, although I think the conclusions may be overstated. The authors of these studies rely almost exclusively on health sector bargaining which may be subject to some unrecognized factors that are unique to the health sector. In any event, as far as the TTC goes, bargaining has for sometime been conducted in the expectation that the Legislature would end any prolonged strike. In other words, whatever degradation of the bargaining process is likely to arise from compulsory arbitration is already likely to be evident. As one who was involved in the last arbitration, this was apparent to me. So as far as the TTC goes, our situation is that we are already paying the ‘cost’ of compulsory arbitration in the form of a degraded bargaining relationship and probably the other labour relations effects documented by Bob Hebdon, but as a community, we are not getting any of the stability benefits that might ensue from a formalized system of compulsory arbitration.
    In my view, the most desirable arrangement would be a framework agreement in which the TTC and the City agreed to arbitration for the next three contracts. A framework agreement of this type governed the fire protection sector in Ontario for many years until the Harris government formally imposed compulsory arbitration on that sector.

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