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Liberals Introduce Back to Work Legislation to End York Strike

May 7 2018

The Liberals finally delivered York University what it wanted all along: interest arbitration.  It took two months from the commencement of a bitter strike.  Here is a Toronto Star story describing the move by the Liberals, end the NDP’s refusal to vote for the legislation.

Here is the Bill [Bill 70 An Act to resolve labour disputes between York University and Canadian Union of Public Employees, Local 3903].   I haven’t had a chance to read it closely yet to see if it is unique in any way.

Back to work legislation seemed like a forgone conclusion after Industrial Inquiry Commissioner Kaplan recommended it in his final report last week.  That recommendation gives the Liberals ammunition to defend a possible Charter challenge by CUPE 3093.

The Ontario NDP has a long tradition of stalling back to work legislation in solidarity with unions who do not want the

The NDP does not always oppose back to work legislation

The NDP does not always oppose back to work legislation

legislation.  Usually, the Liberals and Conservatives have enough members to enact the legislation, so the NDP can only delay the inevitable a few days.  However in this case, the House is shutting down for the election on Tuesday May 8, so the legislation is likely to stall.

It is worth noting that in the case of long strikes or lockouts, it is often the union that wants the government to intervene and impose interest arbitration.   In fact, an unusual aspect of the York situation is that the union was resisting interest arbitration even as the stoppage dragged on, while the employer was proposing it.   When it is the union that wants binding interest arbitration, you are likely to find the NDP taking a different position.  For example, do you remember the 2 year long strike at Crown Holdings?

In that case, NDP leader Andrea Horwath criticized Labour Minister Kevin Flynn and the Liberals for not enacting binding interest arbitration.  The Liberals responded that they prefer to let the parties bargain their own contract without government intervention unless that is impossible.  Here’s an exchange in the legislation from 2015 in which Horwath asks Minister Flynn when the Liberals will act to protect workers by enacting back to work legislation.

Its all situational.

Unions have been very active pursuing Charter challenges against legislation that impedes collective bargaining and the right to strike.  It is important to pay close attention to the facts of those cases, and it would be wrong to believe that unions are always opposed to government intervention in a strike to force interest arbitration.

Issues for Discussion

Do you think that the Liberals have acted fairly in stepping in now to enact back to work legislation, or is this an unjust intervention in free collective bargaining?

Should CUPE file a Charter challenge, following the lead of OPSEU, which has launched a lawsuit against the Liberals for back to work legislation in the colleges strike?

Imagine that OPSUE and CUPE file Charter challenges against the Liberals intervention in their strikes and the cases make it to the Supreme Court of Canada.  Do you think it would be in the interest of the labour movement and working people for the Court to rule that all back to work legislation violates the Charter (and is therefore unlawful) except in the case of “true” essential services, such as doctors, police, firefighters?



4 Responses to Liberals Introduce Back to Work Legislation to End York Strike

  1. Anna Alma Reply

    May 7, 2018 at 11:30 pm

    “Expect the legislation to be in effect early next week if not sooner.” – how is the legislation expected to pass given that Tuesday is the last day the House sits?

    • Doorey Reply

      May 9, 2018 at 1:23 pm

      Thanks Anna. I had forgotten about the House wrapping up on Tuesday when I wrote that, so I’ve corrected it. Thanks!

  2. Hector Martinez Reply

    May 23, 2018 at 6:52 pm

    In the situation York contract faculty find themselves in, no collective agreement and work is provided on a temporary renewable contract basis; is it possible for the employer to simply not renew any contracts with striking workers and award contracts to non-union, non-dues paying independent contractors thus ridding themselves of the problem?

  3. Wesley Emerson Reply

    May 25, 2018 at 9:06 pm

    Re Mr. Martinez’s comments:
    1. Back to work protocols would normal cover those hired during the strike assuming the strike ends; these are negotiated and we’ve seen how well the parties get along at the table;
    2. If the Prov. orders IA then strike over and all back to work under the expired CA;
    3. the teaching contracts are under the CA so they are suspended as well (strike does not terminate employment – it’s in hiatus);
    4. the test of employee versus Independent contractor would probably preclude the use of the latter;
    5. But is a legal option to use replacement works (AKA Scabs) to teach PT at York so long as York continues to bargain in good faith; no doubt this would set things back with CUPE even further;
    6. Lawyers (I write as one with an Osgood LLB & LLM in Labour and Employment Relations) tend to focus on what is legal versus what is practical. The real question is the pool of qualified candidates who would take a replacement worker position?
    7. Of course the more York relies on PT faculty to deliver services the less bargaining power it has against the PT faculty as represented by CUPE. And the less opportunities for PT faculty to advance to FT faculty the more animosity by the PT faculty.

    If you refuse to compromise on a principle then you must plan your resistance to a union forcing you to compromise. I see one short term and two long term options for York:
    1. York runs the University with FT faculty, cancels all courses taught by CUPE and lobbies the Prov. not to interfere on the basis York does not deliver essential services;
    2. York should apply to the OLRB to merge the YUFA with the PT Faculty CUPE Local and let them figure things out internally before meeting them at the bargaining table. The OLRB has long since moved away from requiring FT and PT BUs.
    3. York increases FT faculty numbers while correspondingly decreasing PT CUPE faculty numbers to weaken CUPE bargaining power over the years.
    York has no appetite for the above thus their offer from the start for IA.
    I am pretty sure CUPE knows that an IA is not going to break big new ground at Canada’s largest university by forcing York to hire a quota of CUPE PT for new YUFA positions.
    Of course I live in Manitoba and you’ve seen the fiasco of labour relations between U of M and UMFA.

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