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?
Wednesday, February 23, 2011
Tuesday, February 22, 2011
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?
Monday, February 14, 2011
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
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?
Thursday, December 2, 2010
Arbitrator rules out "shutdown" as a way of cutting salary
On April 24, 2009, Lakehead University in Thunder Bay, Ontario announced there would be a four-day shutdown in December 2009 resulting in a corresponding reduction of pay for all non-essential employees. The Faculty Association grieved and Arbitrator Devlin has recently allowed the grievance and ordered the University to repay the lost faculty wages.
The Association brought evidence from faculty members about the kind of work they do for the university. It was clear from the evidence that faculty members receive an annual salary and are expected to teach, conduct research and fulfill administrative responsibilities. Faculty members are not paid on an hourly basis and have a great degree of control over scheduling of their working lives. The consistent evidence from the faculty members was that they had duties expected of them in return for which they received their salaries. However, their duties were, with rare exceptions (teaching schedules for instance), not tied to attendance at the Employer's place of business on specific days. Faculty members also testified that December is a very busy month because of the administrative requirements for grade submission for fall courses and course preparation for courses commencing in January amongst other necessary duties.
The University's position was that it was in a state of "crisis" and that the Administrative Executive Committee made a decision that a four-day shutdown in December 2009 "would satisfy the requirement for a balanced budget and have the least impact on operations." The Collective Agreement sets out a process for layoffs in the event that a bona fide crisis exists. However, the University's evidence was that this was not a bona fide financial crisis affecting the long-term well-being of the University. Hence, those provisions in the Collective Agreement were not followed.
The Association grieved the shutdown and met with the University Administration in an attempt to explore alternatives. In these discussions, the Administration admitted that an enrollment increase of merely 100 students would obviate the necessity for a shutdown.
At arbitration, the Employer took the position that the arbitrator was without jurisdiction because the Lakehead University Act vests authority to operate and manage the University in the hands of the Board of Governors. The arbitrator rejected this claim and, instead, interpreted the Collective Agreement on the basis of the fact situation before her.
In reviewing the Collective Agreement, Arbitrator Devlin came to the conclusion that "the collective agreement provides for the payment of annual salary and...makes no reference to regular daily or weekly hours for faculty members." The arbitrator acknowledged that faculty members often work at times that the employer is closed and often work off-site as well. Faculty members receive no extra compensation for any of this additional work.
The Association brought evidence from faculty members about the kind of work they do for the university. It was clear from the evidence that faculty members receive an annual salary and are expected to teach, conduct research and fulfill administrative responsibilities. Faculty members are not paid on an hourly basis and have a great degree of control over scheduling of their working lives. The consistent evidence from the faculty members was that they had duties expected of them in return for which they received their salaries. However, their duties were, with rare exceptions (teaching schedules for instance), not tied to attendance at the Employer's place of business on specific days. Faculty members also testified that December is a very busy month because of the administrative requirements for grade submission for fall courses and course preparation for courses commencing in January amongst other necessary duties.
The University's position was that it was in a state of "crisis" and that the Administrative Executive Committee made a decision that a four-day shutdown in December 2009 "would satisfy the requirement for a balanced budget and have the least impact on operations." The Collective Agreement sets out a process for layoffs in the event that a bona fide crisis exists. However, the University's evidence was that this was not a bona fide financial crisis affecting the long-term well-being of the University. Hence, those provisions in the Collective Agreement were not followed.
The Association grieved the shutdown and met with the University Administration in an attempt to explore alternatives. In these discussions, the Administration admitted that an enrollment increase of merely 100 students would obviate the necessity for a shutdown.
At arbitration, the Employer took the position that the arbitrator was without jurisdiction because the Lakehead University Act vests authority to operate and manage the University in the hands of the Board of Governors. The arbitrator rejected this claim and, instead, interpreted the Collective Agreement on the basis of the fact situation before her.
In reviewing the Collective Agreement, Arbitrator Devlin came to the conclusion that "the collective agreement provides for the payment of annual salary and...makes no reference to regular daily or weekly hours for faculty members." The arbitrator acknowledged that faculty members often work at times that the employer is closed and often work off-site as well. Faculty members receive no extra compensation for any of this additional work.
Faculty members are expected to manage their time, to fulfill the
responsibilities set out in the collective agreement and to record their
activities in a report which they file annually with the Dean in return for
which an annual salary is paid.
The arbitrator concludes by finding that the University was barred from reducing the salary of faculty members during the shutdown. Her analysis entirely turns on the fact that faculty members are paid an annual salary for annual duties. While the University clearly can determine when the doors are open and closed, this cannot have the effect of reducing a faculty member's pay.
This is a significant decision in the academic sphere. Industrial facilities frequently use shut-downs in order to impose effective reductions in annual wages and salaries. However, in those cases, employees are paid on an hourly basis and the ability of an employer to change the hours of operations turns into an ability to change the annual remuneration of employees. Salaried workers with significant control over their working lives are in a different situation. Since their pay does not relate to attendance at the employer's place of business at certain times, their wages cannot be reduced through the mechanism of control over operating hours.
I think the arbitrator got it right. Do you? Join the conversation!
Tuesday, November 16, 2010
Another arbitration award refusing "zero and zero"
Arbitrator Teplitsky recently issued his award for faculty members at the University of Toronto. He awarded 4.5% over 2 years (in addition to regular progress through the ranks) and increased the overload rate to that received by the highest ranking Sessionals at the UofT. He also increased the professional expense allowance to $1500/year (and higher for tenure-stream faculty).
More interesting than the actual award is the reasoning behind it. The University of Toronto had attempted to argue that faculty should receive "zero and zero" over the two year agreement because the government had refused to fund any compensation increases. His argument is cogent - the government no longer has the ability to legislate wage freezes (because of BC Health) and has therefore not done so. However, an arbitrator is supposed to replicate collective bargaining and not act as an instrument of government policy.
In fact, Arbitrator Teplitsky observed that since public employees should not have to subsidize public works, it would be better for governments to raise taxes, than to expect public workers to take freezes while private sector workers enjoy wage increases.
However, UTFA's request for even higher wages in order to preserve UTFA's superior wages with respect to all other collective agreements in Ontario was rejected.
Arbitrator Teplitsky took the position, after reviewing 30 years of bargaining and multiple factors, that wage increases of 4.5% over two reflected similar settlements at other Ontario universities and that as an arbitrator he had to promulgate an award that reflects this fact.
Did he get it right?
If he had implemented the "zero and zero", what would that have meant for interest arbitration in Ontario?
If the government's position is that it won't fund salary increases, how does this differ from Mike Harris' freezing and cutting of transfer payments as a way out of provincial deficits?
More interesting than the actual award is the reasoning behind it. The University of Toronto had attempted to argue that faculty should receive "zero and zero" over the two year agreement because the government had refused to fund any compensation increases. His argument is cogent - the government no longer has the ability to legislate wage freezes (because of BC Health) and has therefore not done so. However, an arbitrator is supposed to replicate collective bargaining and not act as an instrument of government policy.
In fact, Arbitrator Teplitsky observed that since public employees should not have to subsidize public works, it would be better for governments to raise taxes, than to expect public workers to take freezes while private sector workers enjoy wage increases.
However, UTFA's request for even higher wages in order to preserve UTFA's superior wages with respect to all other collective agreements in Ontario was rejected.
Arbitrator Teplitsky took the position, after reviewing 30 years of bargaining and multiple factors, that wage increases of 4.5% over two reflected similar settlements at other Ontario universities and that as an arbitrator he had to promulgate an award that reflects this fact.
Did he get it right?
If he had implemented the "zero and zero", what would that have meant for interest arbitration in Ontario?
If the government's position is that it won't fund salary increases, how does this differ from Mike Harris' freezing and cutting of transfer payments as a way out of provincial deficits?
Sick of management rights talk
The City of Greater Sudbury recently tried to extract a huge amount of health information from CUPE members claiming short-term sick leave (for a cold, for instance) relying on “management rights” to get this information. A recent decision by Arbitrator William Kaplan (Greater Sudbury (City) and CUPE Local 148, 102 CLAS 309) refused the Employer’s claim that this was a legitimate use of management rights and upheld the Union grievance.
On October 30, 2006, CUPE 148 (representing workers at Sudbury’s long-term care facility Pioneer Manor) was informed that facility management was implementing a new Sick Leave/Disability program as of 1 January 2007. The Union filed a grievance in December. The matter was finally heard at arbitration in July 2010 and a decision released in August.
The new system required employees on short-term sick leave to fill out an Attending Physician’s Statement in order to claim benefits. This form included an authorization for the Employer to get a complete copy of the employee’s entire medical file. The form also included far more information than necessary for the Employer to administer a short-term sick leave program. For instance, the form required the physician to indicate the pregnancy status of the employee, a DSM diagnosis (in other words a psychological assessment), any cardiac issues, an assessment of the employee’s mental competence, etc.
One consequence of the use of this form (besides the obvious intrusion in an employee’s privacy rights) was the increased cost to the employee. Because of the extensive information required by this form physicians were charging up to $104 for completing it. Under the collective agreement, employees bore the costs of the medical note. However, normal physician notes for a short-term illness are relatively cheap and fast. The Union asked the Employer to pay the cost of the physician notes in addition to asking that the new form be discontinued.
The Employer relied on the fact that this form was in use in every other bargaining unit in the City. The Employer felt that it was entitled to this information in order to administer its program
Arbitrator Kaplan completely disagreed. He relied on the dominant trend in arbitral jurisprudence that accords protection to employee privacy unless the Collective Agreement or legislation stipulates otherwise. As Kaplan observes, “short-term absences attract limited disclosure. Experience indicates that these short-term illnesses are often seasonal and usually resolve themselves. They do not normally involve the management of a disability with attendant accommodation obligations where considerable information will often need to be shared.”
The extensive information requested by the Employer on the APS (all medical files, complete history, diagnosis, etc.) rendered the entire form unusable. He directed the Employer to cease using the APS. He also reaffirmed the obligation of employees to pay for the sick note, noting that without the APS the cost was likely to return to the historical norm.
This case points out some of the limits of management rights. Management rights cannot, even in the absence of a collective agreement provision, override basic human rights to privacy and confidentiality.
What do you think?
Should an employer have the right to know pregnancy status? DSM diagnosis? complete medical records? STD status?
Does the amount of information an employer needs relate to the extent of accommodation required?
What about all the other employees in the City. They have, apparently, agreed to this form. Does this ruling help them at all?
On October 30, 2006, CUPE 148 (representing workers at Sudbury’s long-term care facility Pioneer Manor) was informed that facility management was implementing a new Sick Leave/Disability program as of 1 January 2007. The Union filed a grievance in December. The matter was finally heard at arbitration in July 2010 and a decision released in August.
The new system required employees on short-term sick leave to fill out an Attending Physician’s Statement in order to claim benefits. This form included an authorization for the Employer to get a complete copy of the employee’s entire medical file. The form also included far more information than necessary for the Employer to administer a short-term sick leave program. For instance, the form required the physician to indicate the pregnancy status of the employee, a DSM diagnosis (in other words a psychological assessment), any cardiac issues, an assessment of the employee’s mental competence, etc.
One consequence of the use of this form (besides the obvious intrusion in an employee’s privacy rights) was the increased cost to the employee. Because of the extensive information required by this form physicians were charging up to $104 for completing it. Under the collective agreement, employees bore the costs of the medical note. However, normal physician notes for a short-term illness are relatively cheap and fast. The Union asked the Employer to pay the cost of the physician notes in addition to asking that the new form be discontinued.
The Employer relied on the fact that this form was in use in every other bargaining unit in the City. The Employer felt that it was entitled to this information in order to administer its program
Arbitrator Kaplan completely disagreed. He relied on the dominant trend in arbitral jurisprudence that accords protection to employee privacy unless the Collective Agreement or legislation stipulates otherwise. As Kaplan observes, “short-term absences attract limited disclosure. Experience indicates that these short-term illnesses are often seasonal and usually resolve themselves. They do not normally involve the management of a disability with attendant accommodation obligations where considerable information will often need to be shared.”
The extensive information requested by the Employer on the APS (all medical files, complete history, diagnosis, etc.) rendered the entire form unusable. He directed the Employer to cease using the APS. He also reaffirmed the obligation of employees to pay for the sick note, noting that without the APS the cost was likely to return to the historical norm.
This case points out some of the limits of management rights. Management rights cannot, even in the absence of a collective agreement provision, override basic human rights to privacy and confidentiality.
What do you think?
Should an employer have the right to know pregnancy status? DSM diagnosis? complete medical records? STD status?
Does the amount of information an employer needs relate to the extent of accommodation required?
What about all the other employees in the City. They have, apparently, agreed to this form. Does this ruling help them at all?
Arbitrator imposes 2% wage increases in spite of govt "wage freeze"
Arbitrator Jesin's recent interest arbitration award between Extendicare and SEIU Local 1 is the first interest arbitration award in the broader public sector since the Government of Ontario announced that it was seeking a 2-year compensation restraint in the broader public sector.
There were multiple issues in dispute which had been unable to be resolved as a result of the Employer's unwillingness to bargain over wages. They claimed that the March budget statement (and subsequent statements from provincial officials) meant that there was no ability to agree to any collective agreement containing wage increases.
Arbitrator Jesin disagreed. He noted that there was "no legislation by the government requiring such a freeze" That is, of course, true. Some would argue that after BC Health, the government could not so legislate. Since the government's March statement indicated that collective agreements signed prior to March 2010 would be honoured including those with wage increases, then clearly some employees in the sector would be getting wage increases in this period. He concludes that "given that increases are being found for other nursing home employees and for some other health care employees I accept that there should be a wage increase in these agreements."
He awarded only 2% increases because the economic situation has been trending downward recently. Other unionized workers are accepting wage increases in the 2% range (down from about 3-4% earlier).
Did Arbitrator Jesin get it right? Or should he have listened to the government's position?
I think he got it right. If collective bargaining is constitutionally protected activity then the government has no right to deprive employees of the right to engage in it. Arbitrarily holding wages frozen removes a core element of collective bargaining. Since governments can't legislate, an interest arbitrator is supposed to impose a contract reflective of industry norms. Arbitrator Jesin did exactly that. Perhaps now all the other broader public sector employers and unions can go back to negotiating collective agreements instead of "consulting" with the Government.
There were multiple issues in dispute which had been unable to be resolved as a result of the Employer's unwillingness to bargain over wages. They claimed that the March budget statement (and subsequent statements from provincial officials) meant that there was no ability to agree to any collective agreement containing wage increases.
Arbitrator Jesin disagreed. He noted that there was "no legislation by the government requiring such a freeze" That is, of course, true. Some would argue that after BC Health, the government could not so legislate. Since the government's March statement indicated that collective agreements signed prior to March 2010 would be honoured including those with wage increases, then clearly some employees in the sector would be getting wage increases in this period. He concludes that "given that increases are being found for other nursing home employees and for some other health care employees I accept that there should be a wage increase in these agreements."
He awarded only 2% increases because the economic situation has been trending downward recently. Other unionized workers are accepting wage increases in the 2% range (down from about 3-4% earlier).
Did Arbitrator Jesin get it right? Or should he have listened to the government's position?
I think he got it right. If collective bargaining is constitutionally protected activity then the government has no right to deprive employees of the right to engage in it. Arbitrarily holding wages frozen removes a core element of collective bargaining. Since governments can't legislate, an interest arbitrator is supposed to impose a contract reflective of industry norms. Arbitrator Jesin did exactly that. Perhaps now all the other broader public sector employers and unions can go back to negotiating collective agreements instead of "consulting" with the Government.
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