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The End of Strikes (Via and Toronto)…

by David Doorey July 28, 2009
written by David Doorey July 28, 2009

Could calm be coming to Toronto?
The Via Rail strike by engineers ended shortly after it began by the parties agreeing to go to interest arbitration. That was an odd story, given that the collective agreement had expired two years earlier.  Guess it took the strike to push the parties to arbitration.
The Toronto strike, on the other hand, appears to be close to an end on the basis of a bargained settlement.  Neither party in that case wanted interest arbitration, and the provincial government had not made any rumblings towards legislating arbitration.  The details of the deal are still sketchy.  The Toronto Star is reporting today that the deal is 3 years, with a 6% raise over that period.  On the term that got the public all hot and bothered–allowing workers to ‘bank’ 18 sick days per year–the details are less clear.
The Star is reporting that the deal allows current workers to take the money accumulated in their bank now, or save it until retirement.  (Not sure why you wouldn’t take it now and collect interest on it, unless I misunderstand the deal).  No new banked days would accumulate going forward.  The Globe story seems to suggest (though it’s not really clear) that the banked sick day provision remains in place for current employees, but not new employees.  So we will have to see.
Interestingly, some of the anti-Miller counsellors have been grumbling to the media that, if the sick days are still there, the proposed settlement will not pass council.  So in this case, both the union and the employer are taking the settlement to a vote.  The union is required to do this by law, the employer isn’t.  I can’t imagine that the CIty counsellors would reject the settlement and cause the strike to continue, notwithstanding their grandstanding, but that’s possible.
Now, for my employment law students, how would a non-union employer get rid of a term in an employment contract that gave an employee a right to bank sick days?  If the employee didn’t agree to remove the term, then the employer could unilaterally remove it.  That would be a fundamental breach of the contract and the employee could quit and sue for constructive dismissal.  The employee could win in that case ‘reasonable’ or contractual notice, plus all other benefits they would have received had they been given notice, including presumably, payment for any banked sick days to that point.  The employee would not get her job back though, since a non-union employer can dismiss an employee for any reason it likes by giving notice. The non-union employer could also terminate the employment contract that includes the banked sick day term by giving the required amount of notice to terminate the contract.  Once the notice period ends, the employer could offer the employee a new contract without the banked sick day term.
We see, therefore, that only unionized employees have the ability to actually say no to an employer demand to change a term of the contract and still be protected from being terminated.  The unionized employees can strike.  Any contrary to what many of the morons had to say on talk shows and letters to the editors over the past month, a unionized employer cannot just dismiss strikers.

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David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is the Director of the School of HRM at York and Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and on the Advisory Board of the Osgoode Certificate program in Labour Law. He is a Senior Research Associate at Harvard Law School’s Labor and Worklife Program and a member of the International Advisory Committee on Harvard University’s Clean Slate Project, which is re-imaging labor law for the 21st century

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@SCLSclinic and I were so fortunate to represent this client last year. I am thrilled that this decision brings more clarity for family status accommodations rights amidst a pandemic that has tested parents, caregivers, and families like never before. https://twitter.com/CanLawWorkForum/status/1364605259071561730

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TheLawofWorkDavid J. Doorey@TheLawofWork·
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Here's my latest in @jacobinmag.

If Ontario's labor laws applied in Alabama, the Amazon vote would have been held months ago so workers could get back to their jobs. Instead, the NLRA permits Amazon to conduct a months' long onslaught of anti-union propaganda. https://twitter.com/jacobinmag/status/1364613560425275392

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Amazon workers in Alabama are voting on whether to unionize, but the company is bombarding them with anti-union propaganda. In Canada, by contrast, votes are held quickly, making it harder for companies to stack the deck — a model that can work in the US. http://jacobinmag.com/2021/02/amazon-alabama-canada-labor-law-union-vote

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CanLawWorkForumCLWF@CanLawWorkForum·
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New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

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