Although the media weren’t much interested in the issue during the election campaign, suddenly, now that Mayor Ford has been elected, my earlier blog posts discussing the legal difficulties the City will face when trying to contract out garbage collection are being noted. A couple of weeks ago, editor Rob Granatstein at the Toronto Sun linked to my blog, and today a former Toronto Star city bureau reporter (Alan Christie) did the same on the news website Open File.
Comments from Doug Holyday, the new deputy mayor, in Christie’s piece are very interesting. Here is what Holyday told Christie:
the city would force private contractors to post security bonds that they would forfeit in the event of a strike.
See, I told you it was going to be fun have Mayor Ford as Mayor. So, here’s a question. Can a government include in a commercial contract a clause that punishes a contractor if its’ employees exercise the legal right to strike? I’d assume too that any such clause would have a similar punishment for a lockout of employees, since the result to the City would be same in either case. In essence, Holyday seems to be proposing that the City would fine contractors whose employees strike or are locked out.
Note first that even if such a clause is lawful, it wouldn’t stop the contractors’ employees from striking or the contractor from locking out the employees. It would just require the contractor to pay the city money if that happens. It would punish the contractor if their is a lawful (or unlawful) work stoppage.
There is no doubt that it would be illegal for the contractor to make it a condition of employment that its employees not strike. That would violate Section 70, 72, and probably 76 of the Labour Relations Act. Probably the contractor wouldn’t be so explicit though. More likely, the contractor would tell its employees that if they strike, the contractor will be fined by the City, and the fine could threaten the viability of the contract and possibly the contractor, and consequently the employees’ jobs. The contractor would probably want the employees to think that there could serious business serious implications to the employer if the employees exercise their legal right to strike.
If the contractor told them they could lose contracts if the workers unionized, would that be illegal? Well, if it played out as I’ve described, probably so. It would amount to the employer saying that if the employees exercise their statutory right to unionize or strike, they could lose their jobs. Isn’t that a threat intended to compel an employee to refrain from joining a union or striking?
Is it a violation of the Labour Relations Act for an employer to agree with the City that it will pay a fine if employees strike or if locks out its employees? That’s a good question. Look at section 76. Is it a coercive clause that would tend to dissuade either the contractor from locking out workers or the employees from striking? What do you think?
Here’s another question. Should a contract clause fining a contractor if its employees engage in a legal strike be struck down as contrary to public policy? Courts have struck down clauses that that interfere with the administration of justice because the are contrary to sound public policy. If the clause purported to impose a financial penalty on the contractor if it locks out its employees, for example, what we would have is a contract term that would seek to restrain the exercise of a legal right by imposition of a financial penalty. How do you think a court would respond to such a clause imposed by a government?
I just might have to write a legal paper on this one to tell the legal world what our Mayor’s office is up to if the City were to follow through with Holyday’s suggestion. This is so much fun already!