November 16 2017
The college instructors represented by OPSEU have soundly rejected the College Employer Council’s proposed collective agreement put to them in a forced “final offer vote”. The 5 week long strike continues, for now. Here are some very quick thoughts about what happens next written immediately after the final offer vote results were announced.
The Colleges used the final offer vote successfully to end a strike back in 2010.
As I wrote then, the final offer vote was successful by a narrow margin of 51%! You can’t get much closer than that, and this result was a clear sign of a painfully divided bargaining unit. Nearly half of voters rejected the employer’s offer. This time, the employer’s offer was resoundingly crushed with a 86% No vote. The Colleges very clearly misjudged the mood of the employees.
Employers have only once chance to use the final offer vote option. The option appears in Section 17(2) of the Colleges Collective Bargaining Act. Using the FOV option is risky for employers. A rejected FOV can cause the workers and the union to further dig in their heels and create distrust and hostility in the bargaining room. When a FOV is soundly rejected, as in this case, an expectation arises among employees that the employer will now improve its offer. From the union’s perspective, any deal that fails to improve on the proposal that was rejected will be considered a huge failure. The votes results also demonstrate that the willingness of the workers to continue their fight.
The overwhelming NO vote result may also have implications for the constitutionality of any back to work legislation the Liberals might enact, as discussed below.
The Origins of the Final Offer Vote Law
The “final offer vote” concept was introduced in Ontario in the 1980s by a Conservative government at the same time they introduced the current section 47 of the Ontario Labour Relations Act, which allows for mandatory union dues checkoff clauses in collective agreements. The right of employers to insist on a vote of their final offer was the quid pro qua to employers in exchange for the union benefit of union dues checkoff. Employers use then FOV power when they believe the union leadership is blocking an offer that a majority of employees would accept if given the chance to vote. Back in the 1980s, there was no law requiring unions to conduct ratification votes at all. That requirement came later in the 1990s. Remember that all the employer needs is 50% plus one of the votes. This permits an employer to put forward an offer that it believes a slim majority will accept, whereas unions usually want a much broader level of acceptance.
The Back to Work Legislation Legal Minefield, and What Now?
The province has already signalled that it intends to meet and, as Premier McGuinty once said during the York University T.A. strike, “bang some heads together”. The option of back to work legislation is a possibility. Certainly the government will let it be known that it is considering it. Often the mere threat of back to work legislation can be enough to provoke the parties to reach a deal because one side or the other, or both, would prefer to reach a deal than leave it to an arbitrator to impose one. In the York University T.A. strike a few years back, the Liberals introduced back to work legislation and the parties quickly reached a deal to avoid it. That could happen here.
However, in the aftermath of the Supreme Court of Canada decision in Saskatchewan v. SFL and the 2016 decision in Canadian Union of Postal Workers v. Canada , the Ontario government has been rightly cautious about whether back to work legislation in this case will past constitutional scrutiny. The Canada Post decision struck down back to work legislation enacted by the federal government and so provides a good overview of the legal issues that could arise if the Ontario Liberals were to enact back to work legislation to end the colleges strike and that legislation were challenged. If you interested in why back to work legislation is a minefield read Canada Post, but note that the legislation in that case had several glaring problems caused by the Harper Conservative’s ideological and obviously non-neutral approach to collective bargaining intervention. I suspect the Liberals would be smarter.
Those earlier cases recognized that the Charter of Rights and Freedoms protects a right to strike. [The development of the Charter’s application to collective bargaining law is traced in Chapter 48 of The Law of Work: Complete Edition, written by myself and Ben Oliphant]. This means that all back to work legislation must satisfy the constitutional threshold for government intervention in free collective bargaining.
Back to work legislation violates freedom of association if it “substantially interferes” with a meaningful process of collective bargaining, which occurs when the legislation disrupts the balance of power between employees and employer.
In the colleges scenario, the outcome of this vote provides indisputable evidence that the union has overwhelming employee support for it to continue collective bargaining towards a deal that better addresses their interests. The union would like to return to the bargaining table backed by the strong winds of that support. If the government interjects now to end bargaining and refer the dispute to an arbitrator, OPSEU will have a good argument that the legislation sucked the wind from its sails and neutralized its bargaining power. If negotiations now resume for a short period, and the employer offers nothing new because it hopes and suspects the government will intervene, any subsequent back to work legislation may be perceived as having shifted the balance of power in the employer’s favour.
This is not an easy situation for a government to craft legislation to end the strike and that would survive constitutional scrutiny. The trick likely would be to craft legislation that would be saved by Section 1 of the Charter as being demonstrably justified in a democratic society. This requires the government to draft legislation that impairs the employees’ right to collective bargaining as little as possible and that somehow addresses the interference with bargaining power caused by the back to work legislation without exasperating it.
The back to work legislation used by the federal Conservatives in the Canada Post case was struck down and was not saved by Section 1 because, among other reasons, the court ruled that the “final offer selection” model of interest arbitration it imposed in lieu of the right to strike preferred the employer’s interests and thereby altered the bargaining power of the parties. The Liberals would need to craft an arbitration scheme that is truly neutral and independent. That may be possible, but it is not the preferred route for the government. In Canada Post, the court accepted that continuance of mail delivery was a pressing and substantial objective, but it may not be as clear that the resumption of a college term meets the pressing and substantial objective standard in Section 1 jurisprudence. Certainly, college education would not meet the standard of “essential service” recognized in international law to justify interference with the right to strike, which is limited to services without which people would be put at risk of serious harm. In short, it is far from clear that back to work legislation applied to end the college strike at this point could survive a Charter challenge.
Due to the complexity of crafting back to work legislation today, the Liberals would like to avoid having to enact back to work legislation. I suspect that they are hoping instead that the parties will resolve the outstanding issues or agree voluntarily to refer them to some form of dispute resolution. The parties have already agreed to refer some of the contentious issues to a committee. It remains to be seen whether the two sides can agree on a solution for resolving the remaining issues that ends the work stoppage without government intervention. As noted above, a common government tactic is to threaten or even enact back to work legislation that one or both parties will find unfavourable and thereby create an incentive for the parties to reach a deal in order to avoid the legislation. Watch for that. The interesting twist now, because of the recent Charter cases, is that if the back to work legislation favours the employer, and that causes the union to cave and settle to avoid the legislation, this fact can then be used in the evidence in the Charter challenge that follows.
I recklessly predicted in this Toronto Star article last week that this strike would eventually be resolved by some form of agreement to refer the outstanding issues to some form of dispute resolution. But I have been wrong before.
Any other predictions on what will happen next?