Last week, the main union representing TTC employees made an offer to the TTC. It said that the workers would agree not to exercise their legal right to strike, thereby most likely assuring the present anti-union Toronto administration and the Liberal government 
that there would be no work stoppages during their elected terms. In exchange, the union asked that the City and Province put off proposed legislation to declare all transit workers “essential” until meaningful consultations had been done about the implications and policy options.
The TTC quickly told the Union to forget it, unless the unions were prepared to agree to NEVER strike. I have expressed my doubts before about whether a contract term saying workers will never strike could be enforced in a practical sense (if interested, see my comments in this piece looking at neutrality agreements) I haven’t seen what the TTC actually proposed, so I can’t comment on it specifically.
What is all this about?
I doubt very much the unions expected the current political leadership of the TTC to agree to their proposal. Even though it would give the City what it wants in the short run (no work stoppage), the City politicians are ideologues who have promised their supporters that they would declare transit essential, and the Liberals have indicated they are open to that idea. So why would the TTC politicians back off now?
In fact, the union is talking to the Liberals, not Mayor Ford and his people, and to the public. There are potential benefits to the union’s tactics so far. Firstly, by offering to give the employer what it wants (interest arbitration), it sends a conciliatory message to the Liberals, the employer and the public. It is the employer refusing interest arbitration, not the workers.
Secondly, it gives the Liberals a potential out if they wish to avoid the potential headache of passing controversial labour legislation that may piss off the labour movement. The Liberals receive a lot of support from unions, don’t forget, especially the construction unions. My sense is that the labour movement leadership perceives this rush to declare all transit workers “essential” as nothing more than an attempt by a reactionary anti-labour political movement in Toronto. Unions have reason to be concerned if the Liberals start acting as puppets for anti-union politicians. So the Liberals won’t gain any friends in the labour movement by helping Mayor Ford implement his platform, which tends to demonize all unionized workers.
Plus, there is a decent chance that a law declaring all TTC workers essential will be subjected to a Charter challenge by the unions, which the Liberals will have to defend, not the City politicians. Recall during the York University strike a while back that Premier McGuinty expressed concern about legislating an end to the strike for fear of a Charter challenge. That potential is even greater here, if as reports are suggesting, the law would ban ALL TTC workers from striking on the basis solely of economic concerns, and not concerns about health and safety, for example.
McGuinty’s concerns in the York case flowed from the Supreme Court of Canada decision in B.C. Health Services. That case did not deal with the right to strike, so the issues considered were different. But it did involve a government that had rushed through labour legislation that restricted the rights of unionized workers with little consultation with the unions affected. The Court seemed particularly peeved off by the government’s unwillingness to engage in meaningful consultation about the changes before it passed the new law. Check out what the majority said in explaining why the legislation violated the Charter’s protection of freedom of association:
The evidence establishes that there was no meaningful consultation prior to passing the Act on the part of either the government or the HEABC (as employer). The HEABC neither attempted to renegotiate provisions of the collective agreements in force prior to the adoption of Bill 29, nor considered any other way to address the concerns noted by the government relating to labour costs and the lack of flexibility in administrating the health care sector. The government also failed to engage in meaningful bargaining or consultation prior to the adoption of Bill 29 or to provide the unions with any other means of exerting meaningful influence over the outcome of the process (for example, a satisfactory system of labour conciliation or arbitration). Union representatives had repeatedly expressed a desire to consult with government regarding specific aspects of the Act, and had conveyed to the government that the matters to be dealt with under the Act were of particular significance to them. Indeed, the government had indicated willingness to consult on prior occasions. Yet, in this case, consultation never took place. The only evidence of consultation is a brief telephone conversation between a member of the government and a union representative within the half hour before the Act (then Bill 29) went to the legislature floor and limited to informing the union of the actions that the government intended to take.
This was an important and significant piece of labour legislation. It had the potential to affect the rights of employees dramatically and unusually. Yet it was adopted with full knowledge that the unions were strongly opposed to many of the provisions, and without consideration of alternative ways to achieve the government objective, and without explanation of the government’s choices.
Could it be any clearer that the Court is very uneasy with governments passing restrictive labour legislation in a rushed and haphazard manner without meaningful public and union consultation?
Flash forward to now. The TTC unions have simply asked for consultation about this very significant new law before it is rammed through. In exchange, they have promised to not strike. However, the City politicians running the TTC Board have refused to even consider consultation in their rush to have the Province ram this legislation through in time for the current bargaining session. And even the Minister of Labour has said he would like to push this legislation through quickly (aka without taking time to consult fully).
Each time that the Liberals and the City politicians announce their unwillingness to engage in any meaningful consultation in their rush to pass the restrictive labour legislation, the chances of a successful Charter challenge ratchet ever so slightly upwards.
Will the Liberals now want to pause and consider the Union’s offer to bargain this round without a work stoppage?