TTC bashing has become a sport for Toronto’s media these days. Star columnist Rosie DiManno takes it to new heights today, in a rambling rant about how a driver wouldn’t move up two feet for her at a bus-stop. This is what passes for front page news in today’s Toronto!
The media are very keen on supporting the push to declare TTC employees “essential”, so that they can’t strike. Rosie would like more: she’d like the law to somehow make TTC employees be nicer and more considerate to her and others. Generalizing relentlessly in the media that every incident of poor behaviour by a TTC employee is the fault of ALL TTC EMPLOYEES and the union that represents them is very unlikely to have that result, of course. It’s more likely to make the workers feel they are under siege and to make many of them angrier. So too will the proposed move by the province to ban the right to strike for all TTC employees (and apparently only the TTC, and not other transit systems, though I’m still not sure about this).
In fact, the ATU (the union that represents TTC employees) leadership has suggested that “work to rules” may be in store if the province bans their right to strike. What does that mean? Can workers who can’t legally strike do that?
The Origins of the Ban on Work to Rule Actions
The origin of the legal treatment of “work to rules” lies in one of my favourite labour law cases of all time: Secretary of State for Employment v. ASLEF, No. 2, a 1972 decision of the British Court of Appeal that included the famous judge, Lord Denning. It involved British railway workers and their unions. During bargaining for improved working conditions, the unions directed their members to “strictly observe” the employer’s rulebook. The problem was that when the workers obeyed the employer’s rulebook to the letter, the entire train system screeched to a halt.
For example, one rule required that drivers “satisfy themselves that the engine is in proper order” before driving the train. A driver could take some time to be “satisfied” or else be “satisfied” very quickly. If all drivers take longer to “satisfy” themselves, the train system would become hopelessly delayed. That is what happened in Britain.
So the matter ends up in court. The specific legal question before the court was whether a vote of employees on an employer offer could be ordered. But a vote could only be ordered under the British law if there had been a “breach of contract of employment“. The unions argued, “how can there be a breach of contract when we are complying with the employers’ own rules”?
So Lord Denning and the other judges had to deal with this legal question:
“Can complying with your employer’s rules be a breach of your employment contract?”
The Court said it could. Read how Lord Denning gets to this conclusion:
“Those rules must be construed reasonably… It is only when they are construed unreasonably that the railway systems grinds to a halt. It is, I should think, clearly a breach of contract first to construe rules unreasonably, and then to put that unreasonable construction into practice…. The meaning of the instruction [to strictly obey the rule book] is not in doubt. The instruction was intended to mean, and it was understood to mean, ‘Keep the rules of your employment to the very letter, but, whilst doing so, do your very utmost to disrupt the undertaking’. Is that a breach of contract?…
If [an employee], with others, takes steps wilfully to disrupt the undertaking, to produce chaos so that it will not run as it should, then each one who is party to those steps is guilty of a breach of his contract. It is no answer for any one them to say ‘I am only obeying the rule book’… That would be all very well if done in good faith without any wilful disruption of services; but what makes it wrong is the object with which it is done.
So, in other words, what determines whether complying with employer rules is lawful or a breach of contract is the “motive” of the workers in complying with the rules. If it is to harm the employer’s economic interests, then it is a breach of contract.
As a result of this decision, an implied term has been read into all employment contracts in Britain and Canada that requires employees, at all times, to act in furtherance of the employer’s economic interest. This case is often held up as an example of how the courts have creatively crafted decisions to advance employers’ interests over workers’, since the court completely ignored the fact that the workers here were trying to advance their own economic interests. However, the Court ruled that the employers’ interests must trump the employees.
Modern Rules Governing Work to Rules
The reasoning in that British case made it into our Labour Relations Act. The definition of a “strike” in Section 1 of the Labour Relations Act (Ontario), for example, reads:
“strike” includes … a slow-down or other concerted activity on the part of employees designed to restrict or limit output
Can you see how this definition incorporates Lord Denning’s reasoning? It means that, if the TTC drivers agree to follow the collective agreement, or employer rules, to the letter for the purpose of slowing down TTC services, then this would constitute a strike. And if those workers are not legally entitled to strike, then it would be an illegal strike. In that case, the Labour Board or a court would likely order an end to the work to rule if the Employer were to file a complaint.
We will keep an eye on all of this. See, isn’t labour law fascinating?