The TTC union has promised not to strike in the upcoming round of collective bargaining if the City and Province agree to spend some time studying the proposal to make the TTC an “essential service”. Â Here is the Star story on this.
The union and employer are in a strange situation right now.  They are starting bargaining, but they don’t know what collective bargaining model will apply to them.  Right now, the usual Labour Relations Act rules apply so that the workers have a right to strike and the employer a right to lockout if bargaining fails.  Both the union and the employer like this model, but some politicians at the City of Toronto level want to change it.  The Provincial Liberals have suggested they might change the rules and declare all, or some, of the TTC workers “essential”, or perhaps all public transit in Ontario, or just transit in Toronto, or just in big cities …  I have no idea what the plan is, since neither the Premier nor the Minister of Labour have explained the government’s position clearly.  I have discussed all this before on several occasions. This creates a lot of ambiguity, which isn’t usually a good thing in collective bargaining.
There is nothing particularly unusual about a union agreeing  not to strike.  In the Federal sector, the  Public Service Labour Relations Act grants the unions a right to select whether they want to be bound by a strike/lockout model or an interest arbitration model in the event of a strike (see s. 103)  Last I heard, unions chose arbitration over 70% of the time.  In the private sector, there are lots of examples of unions agreeing with employers to refer disputes to arbitration rather than go the strike/lockout route.
The Labour Relations Act permits an agreement to refer bargaining disputes to an interest arbitrator, in Section 40.  The key to Section 40 is that both sides agree.  In this case, the union is offering to forego the right to strike, although it seems to be attaching conditions to that offer  targeted at politicians–spend some time in consultation and discussion about essential services legislation.  The union is correct in noting that the province has not to date invested much time or resources in meaningful consultations about the City’s wish for a ban on the right of transit workers to strike.  If the union removed the conditions and just offered to refer a dispute to an arbitration, and the employer agreed, then, puff!, there would be no strike.  A Section 40 agreement would be legally enforceable.
But here’s a thought:
Could  the union’s proposal to forego the right to strike if the government engages in meaningful consultation  on the question of banning all strikes by TTC workers  part of the process of preparing for a Constitutional challenge against whatever legislation is passed?
Recall the Supreme Court of Canada in B.C. Health Services got pretty pissed off at the B.C. government when it took away workers’ collective bargaining rights without any meaningful consultation.  In that case, the Court recognized a new constitutional right to collective bargaining and to consultation, and  struck down as unconstitutional B.C. legislation that restricted that  right.
Here, we have a Provincial government that has already said publicly that they are in a rush to drive through legislation that would undermine workers’ rights.  Remember the Minister saying last week:  “We’re going to be acting pretty quickly on these discussions.” Today, mere moments after the union’s offer to defer a right to strike in exchange for more consultations, the TTC Chair told the union to take a hike.  The politicians’ apparent rush to restrict workers legal rights, without meaningful consultation, could prove useful for the union’s constitutional challenge, should they decide to launch one.
And remember that unions are looking for the right opportunity to argue that “freedom of association” in Section 2(d) of the Charter includes a right to strike. Â A broad-brush law that bans all strikes by anyone who works in public transit may just prove to be a good test case. Â Certainly such a law would run afoul of Canada’s responsibilities under ILO Convention 87, and the Supreme Court has said that Section 2(d) should provide at least the level of protection afforded by that Convention. Â If the Charter does protect a right to strike, do you think a law banning ticket collectors from striking could satisfy the “minimum impairment” test under Section 1 of the Charter?
Do you think this proposal by the TTC union is the beginning of a paper trail that could end up in a Constitutional challenge?