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Will the Liberals Turn to Back to Work Legislation Again at York, U of T?

Strikes by teaching assistants at York and U of T are closing in a grim one month anniversary.  Proposed deals bargained by the unions’ bargaining committees at both schools have been rejected by the union membership, twice at U of T.  Both universities elected to continue classes not taught by the striking workers, which has caused great angst and tension.   Students are placed in the position of either crossing picket lines each morning, or risk falling behind on materials.  Professors, many (most?) of whom side with the striking workers’ claims that they are being unfairly treated, face possible discipline if they refuse to cross the picket lines themselves.  This pits professors against their own students, colleagues, and research assistants.  Almost everyone is angry with the university administrators for one reason or another.  All is not well at Canada’s two largest universities.

Whenever a strike drags on like this at a workplace that provides public services, like education, the potential for government

Will the Liberals Turn to Back to Work Legislation Again?  Photo:  National Post

Will the Liberals Turn to Back to Work Legislation Again? Photo: National Post

intervention arises. Back to Work (BTW) legislation passed by the Liberals ended the strike by CUPE 3093 at York University (the same union on strike this time) in 2009.  That move came after nearly 3 months (November 6 2008 to January 29 2009), making it the longest strike at a university in Canadian history.  We are still a long way from that record, and unlike in 2009, this time most classes have resumed during the strike, so courses could still conclude while the strike continues, though not for all students.  In 2009, McGuinty was criticized in the court of public opinion for waiting 3 months, and by the Conservative Party of Ontario of course. Before introducing the BTW legislation, McGuinty called in a  senior mediator to “bang a few heads together”, as he described the move.  But head-banging didn’t work.  So McGuinty appeared over the weekend, looking casual, and announced with frustration that he had had enough, and that BTW legislation would be introduced.

And it was.  Here is the 2009 legislation.   My recollection is that the parties settled the collective agreement themselves before the arbitrator was called on to issue an award (but correct me if I’m wrong).  Back in 2009, the Liberals were concerned that BTW legislation would face a Charter challenge in the wake of the Supreme Court of Canada’s ruling in B.C. Health Services.  Indeed, CUPE 3093 first threatened to bring a Charter challenge, but then backed off.  I wrote about the possibility of the legislation being challenged under the Charter back then.  However, that discussion has now largely be overtaken by subsequent events.

In particular, the Supreme Court of Canada ruled this year that Section 2(d) [Freedom of Association], protects a right to strike.  What was hypothetical in 2009 is now real.  Any Back to Work legislation passed to end the York and U of T strikes would be measured against the Constitutional right to strike.   If the legislation’s limit on the right to strike “substantially interferes with collective bargaining”, then it must be justified by Section 1 of the Charter to survive.  Justice Abella wrote:  “Where strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, it must be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations.” 

So the Supreme Court did not rule in the Saskatchewan case that governments could never end strikes by BTW legislation.   Sometimes they still can.  However, now governments will be called upon to justify their BTW legislation and to persuade a court that the legislation still upholds the fundamental right to meaningful collective bargaining.

An interesting question is whether the conditions imposed on the interest arbitrator found in the 2009 York University BTW legislation would be Constitutionally valid today.   Here is what the legislation instructed the arbitrator to consider:

In making an award, the mediator-arbitrator shall take into consideration all factors that he or she considers relevant, including the following criteria:

1. The employer’s ability to pay in light of its fiscal situation.
2. The extent to which services may have to be reduced, in light of the award, if current funding and taxation levels are not increased.
3. The economic situation in Ontario and in the Greater Toronto Area.
4. A comparison, as between the employees and comparable employees in the public and private sectors, of the nature of the work performed and of the terms and conditions of employment.
5. The employer’s ability to attract and retain qualified employees.
6. The purposes of the Public Sector Dispute Resolution Act, 1997.

The ‘ability to pay in light of its fiscal situation’ and the assumption of ‘current funding and taxation levels’ criteria are interesting, albeit fairly common in recent interest arbitration legislation.  They are also controversial and in the sight lines of the labour movement.  Since it is the government that determines university funding and taxation levels, and the government plays a central role in determining universities’ ‘fiscal situation’ and ‘ability to pay’, these criteria have been criticized for their tendency to stack the decks against the union proposals and in favour of the employer’s interests.

For example, all a government has to do is cut a university’s budget so it can’t afford to give its employees a raise, and then pass BTW legislation directing the arbitrator to be guided by the inability of the university to afford a raise.  The question can be (and has  been) asked whether that legal model meets the threshold of a ‘meaningful’ collective bargaining process that substitutes for a right to strike.

What do you think?

Kevin Burkett, one of Canada’s most respected labour arbitrators, considered almost identical statutory parameters recently in an interest arbitration award involving Ontario firefighters, decided prior to the Supreme Court of Canada’s decisions in MPAO and Saskatchewan.  Burkett interpreted this language as being simply advisory, telling the arbitrator to “consider” these factors among others, and that’s fine.  However, Burkett predicted too that it would violate the Charter for a government to hamstring the independence of an arbitrator by somehow restricting his or her discretion to consider all relevant factors.  That opinion seems consistent with the SCC’s language in Saskatchewan.

Issues for Discussion

1.   Do you think the Ontario government should legislate an end to the strikes at York University and the University of Toronto?  Why or why not?  

2.   If the Liberals do introduce BTW legislation, do you think that legislation should include the same list of criteria for the arbitrator to consider?  Do you think the SCC’s recent rulings render the conditions listed in the 2009 legislation unconstitutional?

3.   If, as Burkett suggests, the criteria listed above, found in the 2009 York BTW legislation, is merely advisory and do not restrict in any way the arbitrator’s discretion, what legal purpose if any does it serve listing them at all?  





One Response to Will the Liberals Turn to Back to Work Legislation Again at York, U of T?

  1. toro Reply

    November 5, 2018 at 9:26 pm

    Of course there’s the ability to use the notwithstanding clause.

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