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.
