TTC Essential Services - constitutional? wise?

Yesterday, Charles Sousa, Minister of Labour for the Province of Ontario, introduced Bill 150, Toronto Transit Commission Labour Disputes Resolution Act, 2011. The Province has acted on a request from municipal council to declare all TTC employees essential workers and to deprive them all of the right to strike in all circumstances. Maybe it is just my old constitutional law class with Professor (now Madame Justice) Swinton causing me to think about this twice.

Now that the right to collective bargaining (and possibly strikes) has been constitutionalized (in accordance with the ruling in BC Health), the Court is going to apply the standard section 1 test. And blanket bans tend to run afoul of section 1. Every worker at the TTC is deprived of his/her right to strike according to this bill. Drivers, ticket collectors, maintenance workers, trades, secretaries, cleaners, etc. are all essential workers in the eyes of the government. The section 1 test is as follows: the measure must be rationally connected to pressing and substantial objectives, must minimally impair the right and the impairment must be proportional. I cannot see how the government can meet that test.

In addition, the transit workers' union, ATU 113 had voluntarily offered to submit outstanding matters in the upcoming round of bargaining to binding arbitration in order to allow full consultation. Yet, the Government has acted unilaterally once the City indicated that it desired the legislation.

The failure to consult with worker representatives was one of the things that ticked off the Supreme Court in BC Health. I think the Court is going to be equally confused by the failure of the City and the Government to take the Union up on its offer so as to allow more consultation.

Readers, what do you think?

For me, I don't believe that the TTC is essential for the preservation of health, safety or public order. Those are the essential criteria under ILO jurisprudence for depriving workers of the right to strike. That is why hospital workers, for instance, do not have the right to strike. Interestingly, ambulance drivers in Ontario are not all essential workers. Rather, there is an essential services regime in which some ambulance workers must continue during a strike. SO, the Government is saying that TTC workers - all of them - are more essential to health, safety and public order than ambulance workers. Interesting.

Second, I don't think that the Government will be able to show that the complete ban on strikes meets the section 1 test.

Third, I think the Court is going to be annoyed that the Government moved with such haste and failed to engage in any meaningful consultation. Rather, the City asked and the Province legislated. Surely, that is going to raise concerns.

So, I think that a Court challenge would likely find the legislation to be unconstitutional.

If that is the case, why would the Government proceed? It can't be wise to deliberately enact legislation that will be overturned and in so doing poison labour relations. I think the Government has done so in order to allow the Court to be the one that says "no" to Toronto's new mayor. The Liberals are facing an election in a few months and smart money says they don't want to annoy a popular newly elected mayor of Toronto. Liberals need Toronto seats in order to retain office.

What do you think?

The Emperor's New Clothes - there is no public wage restraint in Ontario

Back in March 2010, the Government of Ontario solemnly announced a program of public sector wage restraint. What the Government did do was to legislate a freeze on non-collectively bargained wages for 2 years.

However, the Government then engaged in a process of "moral suasion" with public sector unions. In essence, the Government politely asked unions to take 2 years of zero increases and also instructed public sector employers that no additional resources would be coming to fund any increases above zero. The Government in addition asked arbitrators to adhere to these "guidelines." I have already blogged about some of the arbitration awards here and here.

Many public sector unions have also engaged in collective bargaining and achieved non-zero wage increases. Although these increases are lower than in previous years, they are nonetheless actual increases (although private sector increases are higher than public sector increases).

The Society of Hydro Professionals (engineers, scientists and professionals at Ontario Power Generation) has recently won an interest arbitration which is the latest nail in the Government's wage restraint coffin. The award by Kevin Burkett excoriates the Government's wage restraint policy in the body of the award.

Here is what he says about the effect of these non-statutory calls for wage restraint:

It should come as no surprise that the parties made very little progress in direct two-party negotiation. Once OPG made it known that it was seeking a zero net compensation agreement and that it would be maintaining that position throughout, there was no reason for the Society to moderate its position or to seriously consider the OPG demands designed to improve the efficiency of its operations. The effect of the Government pronouncement and its direction to OPG was to "freeze" the bargaining and thereby to prevent the parties from either moving to an agreement or at least prioritizing their respective bargaining positions. In the result, an inordinate number of issues have been put into dispute before me.

Of course this is the result. True negotiations cannot occur if the parties are not free to make appropriate decisions. In this case, the Government's unilateral decision that employees of this profitable Government-owned corporation were not entitled to any wage increases effectively derailed any meaningful negotiations.

In the end Arbitrator Burkett awarded the union 3% annual increases in a 2 year contract, granted a break-through benefit increase (for dental implants where the dentist recommends them), leave for Canadian Forces veterans or members on Remembrance Day, enshrined the right of employees to carry forward vacation days, allowed for averaging of overtime over a longer period among other provisions.

Clearly it is time to say that the Emperor has no clothes. There is no wage restraint. Collective bargaining is proceeding as normal and arbitrators are making awards as normal. The only effect of the Government's continued pretense at wage restraint is that it makes bargaining harder and may tend towards more impasses in negotiations. In fact, the result may be an increase in strikes. Surely, this was not the Government's intent.

Readers, what do you think?

Has there been effective wage restraint?

Was it clever for the Government to rely on "moral suasion"?

What should the Government do now?

I think that the best way forward is for the Government to make its decisions on transfer payments and formally abandon any attempt at wage restraint. Allow employers and their employees to freely bargain deals that work for them in the actual circumstances facing local employers and unions. But, that is just my opinion. Yours?

Public sector union rights under threat in Wisconsin

Yes...if you can believe this story, Wisconsin governor Scott Walker has announced a war on collective bargaining rights unprecedented in 21st century North America. On Februar 11, Governor Walker called a special session of the state legislature and proposed a budget bill that strips collective bargaining rights from nearly two hundred thousand Wisconsin public workers.

The bill, going to a vote on Thursday:

• forces public workers to recertify unions annually
• prohibits employer deduction and remittance of union dues
• allows employees to opt out of union dues
• prohibits collective bargaining on issues outside of wages
• limits wage increases to cost of living unless voters pass a referendum to the contrary
• limits collective agreements to one year in duration
• prohibits contract employees from participation in benefits and pension plans
• strips all collective bargaining rights from home care workers, child care workers, University of Wisconsin Health Centre employees, University of Wisconsin faculty and staff

In addition, the Governor has apparently put the National Guard on notice that they may be having to deal with the unrest that may result. Well, no kidding. Not even Hosni Mubarak brought out the army to deal with unrest...but in Wisconsin, well.....

Oh...and cops and firefighters are exempt from these changes......

I cannot fathom a modern North American government stripping hundreds of thousands of workers of their right to collectively bargain, but then again I don't live in Wisconsin.

Readers, what do you think of this bill? In the Great White North (i.e., Canada) such a bill would run afoul of constitutional guarantees of freedom of association. In the US, there is no similar constitutional protection. It almost makes me think of Jean Lesage's famous "the Queen does not negotiate with her subjects."

Should public employees have the same rights as private employees to bargain collectively?

Does the state have the right to impose limits on public employee collective bargaining agreements?

Is this different than legislation ordering workers back to work following a strike?

What do you think the reaction among public sector workers is likely to be?