October 28 2008

We noted last week that the collective bargaining between York and CUPE 3903, which represents contract faculty and TAs, could result in a strike/lockout anytime after the deadline of Nov. 2, and that University intends to cancel most classes if that occur. I have received a lot of comments and emails about this, many of which show a misunderstanding of the law. So here is a quick primer:

Nov. 2nd represents the legal strike/lockout date. That date is determined by a timeline set out in the Ontario Labour Relations Act. Most of the requirements are found in Section 79. It follows a series of mandatory steps the parties must take during collective bargaining. For example, they must have engaged in bargaining ‘in good faith’ and met with a government-appointed conciliator (like a mediator), who was unable to help the parties reach a settlement. The union must also have held a ‘strike vote’, with a majority of the employees voting to strike. Once the conciliator informs the Minister of Labour that no deal was reached, the Minister will have issued a letter that says he will not require further conciliation (a ‘no board’ report). Some 14 days after the ‘no board’ report, the parties are in a legal strike or lockout position. That is the Nov. 2nd date.

The Nov. 2nd date does not mean the parties must strike or lockout. It just means it is legal for them to do so at anytime after that date. There is no legal requirement in the legislation for either side to give ‘notice’ of the beginning of the strike or a lockout. Apparently, the Union announced it would give 72 hours notice of the beginning of a strike, but I assume that is just a courtesy. If they don’t give that notice, there will be no legal implication (unless the promise to give notice is in some sort of contract with the Employer, but that would be unusual)

Both parties could agree to send the bargaining dispute to binding interest arbitration rather than strike/lockout. That right is found in section 40 of the OLRA. But that doesn’t happen all that often. One reason is that the employer may be better off dealing with a short strike than immediately sending the dispute to arbitration. Interest arbitration (that’s what it is called when an arbitrator imposes a collective agreement) can often result in a better agreement for the workers than the workers would have been able to win by striking. Plus the employer experiences cost-savings during a strike, since it doesn’t need to pay wages. Those savings can then be used to fund some of the agreement that results after the strike. These issues are part of the reason why the TTC recently argued against making it an ‘essential service’: if the TTC were an essential service, it would mean bargaining disputes would go to interest arbitration (rather than be dealt with in a strike), and the TTC anticipates that will lead to larger settlements. There is no requirement in the legislation for the University to cancel all classes. An employer in Ontario can continue to operate during a strike. The decision to cancel classes is a decision of York’s Senate. If a strike/lockout occurs, and it last sufficiently long that the term becomes threatened, then we will no doubt begin to hear rumblings at Queens Park for ‘back to work’ legislation. This is a new law passed by the government that effectively orders the workers back to work, and usually imposes ‘interest arbitration’ as the way that a new collective agreement will be completed. ‘Back to work’ legislation is controversial because it is a violation of Canada’s obligations under the International Labour Organization’s Convention 87, which Canada has ratified. Therefore, if the Liberal government orders the York employees back to work, it will likely also then face a ILO complaint, and a rebuke by the ILO’s Committee on Freedom of Association. The ILO does not have the ability to formally punish Ontario, but it is an embarrassment for Canada that it’s governments keep violating international human rights laws by limiting the right to strike through back to work legislation. (See this report for a summary of cases in which Canadian governments have violated ILO Conventions) It undermines Canada’s ability to speak with credibility to other countries about the need to respect human rights. If the parties actually do bargain a new collective agreement, that agreement will need to be ratified by a majority in a ratification vote. That’s in Section 44. In other words, even if the union’s bargaining team thinks they have bargained an acceptable deal, the employees can still vote it down. This is what happened during the recent VIVA strike. In that case, the strike/lockout will continue.

That’s the scenario from a legal perspective. So, we wait and see what happens …