The Ongoing TTC "Essential Services" Debate

The issue of whether TTC employees should be declared “essential services” has been floating around for a while now, but was in the news again this weekend as the Liberal government has indicated that it is beginning consultations with the union and TTC management about whether to grant the new Mayor’s wish to make the TTC essential. As this Globe and Mail article notes, the province promised to consider the possibility if the City voted in favour of a resolution to have the TTC deemed “essential”, and that resolution passed 28-17 in a recent City counsel vote.   For my new industrial relations students, it’s useful to recap the debate.
What is this all about? The purpose of making transit “essential” is to prohibit the workers from striking.  That’s all we’re talking about.   We don’t mean “essential” in the sense that everyone needs access to transit–if that were the case, then the City would not keep raising the fares to a level that many working poor cannot afford. The TTC has been around since the 1920s, and strikes have been infrequent, though in the past there have been a few long strikes.  One report I saw noted that there have been about 70 days of strikes at the TTC in nearly 90 years, most of these happening prior to the 1980s.  For example, there was over 45 days lost to strikes in the 1970s, and less than 5 days in 2000’s (although part of the explanation is that contemporary governments have often legislated a quick end to strikes in recent years).
What are the debates?
Supporters of a TTC strike ban:   The argument from those who would like to ban transit strikes is simple enough and it is economic.   A transit strikes makes it more difficult for people to get to work and this costs the economy.  That is Mayor Ford’s argument and even the Toronto Star, a vocal critic of Ford in many aspects, agrees with this argument.  The argument is that the right of transit workers to strike to achieve better terms of employment must give way  to the economic interests of others to get to work by public transit.
That is an interesting argument, and unusual in rights discourse.   If you believe that there is a “human right” to strike–and that is what many people argue, see below–then it is an interesting debate about whether a human right should have to give way to economic expediency–the desire to be able to get to work on a transit system.  Historically, and in international human rights law (see below),  “essential”  workers have been understood to refer only to those without whom human life, health, or safety would be imperiled.    In other words, a job is “essential” when it is needed to protect human health (i.e. doctors, ambulance drivers, police, firefighters), not when it is important to the local economy.   If you can see the difference between a doctor/firefighter and  a bus driver, then you can understand part of the debate over the meaning of “essential”.  In some cases, in Ontario, we allow workers to strike, but require some of those workers to remain at work to protect public safety.  That is how we deal with ambulance drivers, for example  (see the interesting comment on this post by Dave Wakely, who notes that the proposal to declare TTC workers essential, if passed, would mean bus drivers are more “essential” to us in Ontario than paramedics).
Another argument in favor of declaring transit workers essential is that interest arbitration, the method of resolving disputes when there is no strike or lockout right, is actually beneficial to workers, so that on balance, this is a reasonable solution.  John O’Grady, a well-respected economist and former research director for a major labour organization set out a form of this argument in an earlier Guest Blog here. That argument rests on the assumption that the interest arbitration process will continue to function in roughly the manner that it has, and that under this model, workers are well-served.
Opponents of a TTC strike ban. Some opponents of the move to make transit workers essential rely on a different sort of economic argument.  Studies show that unions often do better in interest arbitration than when they follow the strike/lockout model.  In other words, the cost of transit goes up when you ban strikes, and that increase will be passed along to taxpayers in some form (either higher TTC fees, higher taxes, or cuts to other services).  So, for example, the CD Howe Institute (a conservative think tank) claims that banning TTC strikes will increase annual payroll at the TTC by $6 million dollars.  That money will have to come from somewhere (i.e. you and me, if you live in Toronto).  To be clear, while Mayor Ford makes a lot of claims about saving taxpayers money, the proposal to ban TTC strikes is not one of them. This move is likely to increase costs, not decrease them.
A second argument against banning transit strikes is that doing so will impede collective bargaining, since both parties know that in the end an arbitrator will resolve any disputes.  Since arbitrators often “split the difference” between the parties’ positions, this discourages the parties from bargaining in a frank and open way.   Industrial relations scholars study these claims, as I have noted before. Many experts in the field argue that the best relationships are those in which the parties (unions and employers) have bargained the agreements themselves, so that mandatory arbitration does not contribute to a healthy industrial relations climate.  A response to that argument is that, at the TTC at least, the parties already behave as if they are subject to mandatory interest arbitration, since recent governments have quickly legislated TTC strikes to an end in any event, so that both sides expect this to happen.
The other main argument against banning transit strikes is that it is a violation of fundamental, internationally recognized human rights.  There is no doubt that a transit ban will be found to violate Convention 87 of the International Labour Organization, mentioned above.  Canada has ratified Convention 87.   In it’s Digest summarizing ILO law on the right to strike, we find this explanation of essential service (para. 581):

To determine situations in which a strike could be prohibited, the criterion which has to be established is the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population.

Applying that definition, the ILO has ruled that metropolitan transit systems and railways  (see para. 587) are not essential, so that governments are not permitted to ban the right of these workers to strike.  Opponents of declaring transit workers “essential” argue that rather than violating international human rights, the Ontario government should be a vocal advocate of these rights and a global leader in advancing workers’ rights against oppressive governments and powerful economic interests.
Neither the Union Nor the Employer Wants the Change to be Made
Interestingly, both the TTC union and the TTC itself oppose the “essential services” proposal.  The Union makes the “human rights” argument primarily, along with the argument that bargained agreements work better than imposed ones.  The employer similarly argues that bargaining should be left to the parties, while also expressing concern about the  “economic” costs of banning its employees’ right to strike.   So the push for this legal change is one drivn by popular politics–Ford and the people who elected him are against public sector unions–and not one based based on any principled argument from the parties that actually have to deal with the workplace on a day to day basis.
Is it only the TTC that is essential, or all public transit?
It is unclear to me whether the idea is that only the TTC would be declared essential, or all public transit in Ontario.   If the TTC is essential, then aren’t  the Mississauga Transit, or the Hamilton, Sudbury,  or Vaughn transit employees also essential?  I have no idea, but I would presume so.   Not having a bus to take to work is equally disruptive for a transit user in Mississauga and a Mississauga employer as it is for a Toronto worker and a Toronto employer.  Does anyone know if the idea is to declare all transit workers in Ontario “essential”, or just TTC employees?  Can you think of an argument as to why only the TTC is essential and not other transit authorities?