The Law of Work
  • Home
  • About
  • Professor David Doorey
  • In the Media
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
  • Home
  • About
  • Professor David Doorey
  • In the Media
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
The Law of Work
Law of Work Archive

O'Grady on the TTC and Interest Arbitration

by David Doorey February 26, 2010
written by David Doorey February 26, 2010

Occasionally, I get comments here that are deserving of wider readership.  Here is one of those.   John O’Grady,  a long-time labour researcher and economist, with vast experience in interest arbitrations left the following comment in response to my post of earlier this week about the spat amongst politicians as to whether the TTC should be declared an essential service:

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.

Thanks John.  Very insightful, as always.

2 comments
0
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is a Full Professor of Work Law and Labour Relations at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

Leave a Comment Cancel Reply

You must be logged in to post a comment.

previous post
Ontario Politicians Push to Ban Exercise of a Fundamental Human Rights
next post
Osgoode Hall Law School LLM in Labour Law

You may also like

This Blog Entry is About the Lunacy of...

July 21, 2019

A Cross Country Update on the Card-Check versus...

October 3, 2018

The Folly of Not Voting to Strike in...

September 16, 2018

Unifor Posts Photos of Replacement Workers as Gander...

September 10, 2018

A Wrongful Dismissal Case and the Absence of...

August 29, 2018

China Said to Quickly Withdraw Approval for New...

August 27, 2018

The Latest Hot E-Commerce Idea in China: The...

August 27, 2018

The Trump Administration Just Did Something Unambiguously Good...

August 27, 2018

Unstable Situations Require Police In Riot Gear Face...

August 27, 2018

Trump’s War on the Justice System Threatens to...

August 27, 2018


Follow Us On Social Media

Substack
Bluesky

BlueSky Latest Posts

No posts available.

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Climate and Just Transition
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • Constructive Dismissal
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gender
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • New Zealand
  • Newfoundland
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Sports Labour
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • Tax Law
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.