The Law of Work
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
The Law of Work
Law of Work Archive

TTC Union Promises Not to Strike… Hmmm

by David Doorey February 3, 2011
written by David Doorey February 3, 2011

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”.   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.  A broad-brush law that bans all strikes by anyone who works in public transit may just prove to be a good test case.  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.  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?

2 comments
0
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

Leave a Comment Cancel Reply

You must be logged in to post a comment.

previous post
What if an Arbitrator and the Human Rights Tribunal Disagree About Whether an Employer Legally Dismissed an Employee?
next post
The TTC and "Work to Rule"

You may also like

This Blog Entry is About the Lunacy of...

July 21, 2019

A Cross Country Update on the Card-Check versus...

October 3, 2018

The Folly of Not Voting to Strike in...

September 16, 2018

Unifor Posts Photos of Replacement Workers as Gander...

September 10, 2018

A Wrongful Dismissal Case and the Absence of...

August 29, 2018

China Said to Quickly Withdraw Approval for New...

August 27, 2018

The Latest Hot E-Commerce Idea in China: The...

August 27, 2018

The Trump Administration Just Did Something Unambiguously Good...

August 27, 2018

Unstable Situations Require Police In Riot Gear Face...

August 27, 2018

Trump’s War on the Justice System Threatens to...

August 27, 2018

Subscribe via Email

Enter your email address to subscribe and receive notifications of new posts by email.

Join 338 other subscribers

Follow Us On Social Media

Twitter

Latest Tweets

David J. Doorey🇨🇦Follow

Law Prof. Talking #labor & #employment #law #Gig to the masses. Alpaca ❤️ @YorkUniversity @OsgoodeNews @LSELaw @LWPHarvard @Jacobin @OnLaborBlog https://t.co/5V9r8VPHsh

David J. Doorey🇨🇦
Retweet on TwitterDavid J. Doorey🇨🇦 Retweeted
jamesbrad263Brad James@jamesbrad263·
6h

@TheLawofWork @OFLabour Thanks for giving me space on your blog last December to bloviate and whine about this broad topic: https://lawofwork.ca/james_whysoquiet/

Reply on Twitter 1559880762480070657Retweet on Twitter 15598807624800706571Like on Twitter 1559880762480070657Twitter 1559880762480070657
TheLawofWorkDavid J. Doorey🇨🇦@TheLawofWork·
7h

It is rather striking that the @OFLabour is not leading a charge for improved access to collective bargaining.

Emphasizing improved labor standards over collective bargaining rights.

Brad James@jamesbrad263

Private sector union membership is slipping. Ways to address that could include better rights for employees to form unions (as BC has done) or building a broader-based bargaining system for franchise workers. But those aren't in this list of goals from Ontario's union federation. https://twitter.com/OFLabour/status/1559242326391791616

Reply on Twitter 1559872838995218437Retweet on Twitter 1559872838995218437Like on Twitter 15598728389952184374Twitter 1559872838995218437
Retweet on TwitterDavid J. Doorey🇨🇦 Retweeted
greenhousenytSteven Greenhouse@greenhousenyt·
21h

Breaking- NLRB says workers at Amazon warehouse in Albany NY area file petition for union election for 400 workers to join Amazon Labor Union

Reply on Twitter 1559661375890268163Retweet on Twitter 1559661375890268163175Like on Twitter 1559661375890268163907Twitter 1559661375890268163
Load More...

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Climate and Just Transition
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Sports Labour
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.