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Will the new NBA Collective Agreement be Valid in Ontario?

by David Doorey November 11, 2011
written by David Doorey November 11, 2011

I did a post last summer noting that the lockout of the Toronto Raptors was most likely unlawful under Ontario labour law. Yesterday, that post was referenced by both ESPN and NBC Sports in the U.S.
Here’s another fun question for you labour law students.  News suggests the parties are close to reaching a new collective agreement.  That collective agreement between the NBA and the Players’ Union would sweep in the Toronto franchise because it covers all players in the NBA.  However, the agreement must still meet the requirements of Ontario law to be considered a valid collective agreement here in Toronto.
Ontario law includes a number of requirements for collective agreement, and other mandatory procedural requirements that must be satisfied before a collective agreement has legal force.  One example relates to the rule requiring mandatory ratification of a collective agreement.  Section 44 of the Labour Relations Act says that a proposed collective agreement “has no effect until it is ratified” by a vote of the bargaining unit in which greater than 50% of eligible employees cast a secret ballot accepting the agreement.  The legislation says that “all employes in a bargaining unit” must be given an opportunity to vote.
The NBA Players’ union is saying it intends to conduct a vote on the employer’s latest offer.
Consider this:   What if 51% of NBA players vote to accept the agreement, but 100% of Toronto Raptors vote to reject it?  Is the agreement binding on the Raptors’ players?
Does the requirement in the Ontario legislation that more than 50% of employees vote to accept the collective agreement mean “50% of employees governed by Ontario law?”, or 50% of all bargaining unit employees, including the 95% of employees who do not fall within the jurisdiction of Ontario law?
It’s a silly question in the basketball case perhaps, because no one is going to single out the Raptors in practice.  However, the point is not silly in a larger sense.  It hilights the complications that can arise when trying to sort out the legalities of transnational collective agreements that purport to govern relationships across jurisdictional boundaries.
Should workers in a foreign country be able to dictate the terms of employment for Ontario workers?

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David Doorey

Professor Doorey is a Full Professor of Work Law and Labour 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.).

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