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Labour - The Unions. International Longshore and Warehouse Union - Canada v. British Columbia Maritime Employers Association
In International Longshore and Warehouse Union - Canada v. British Columbia Maritime Employers Association (Fed CA, 2024) the Federal Court of Appeal dismissed a federal labour JR, here describing the role of the International Longshore and Warehouse Union–Canada (ILWU Canada):[1] The applicant, International Longshore and Warehouse Union–Canada (ILWU Canada), is the bargaining agent for approximately 7400 longshore employees who work in various ports in British Columbia, including the Port of Vancouver. The respondent, British Columbia Maritime Employers Association (the BCMEA), is the non-accredited bargaining agent for employers involved in national and international marine transportation on Canada’s west coast. ILWU Canada and the BCMEA bargain collectively with each other, primarily under long–standing voluntary recognition agreements, to settle the terms and conditions of employment for almost all of the longshore employees who work in various ports in British Columbia. A single industry–wide collective agreement applies to the employees for whom the BCMEA and ILWU Canada collectively bargain. . Amalgamated Transit Union, Local 113 v. Ontario
In Amalgamated Transit Union, Local 113 v. Ontario (Ont CA, 2024) the Ontario Court of Appeal dismissed a Crown appeal that sought to reverse a finding that a TTC-focussed labour statute violated Charter s.2(d) ['freedom of association'].
Here the court canvasses the recent history of the TTC labour relations regime, altered by the Charter s.2(d) strike down (upheld by the CA) of the Toronto Transit Commission Labour Disputes Resolution Act, 2011:[1] The Toronto Transit Commission (“TTC”) operates Toronto’s transit system, which includes subway, streetcar, and bus routes. The TTC has more than 12,000 employees, who are members of several different unions, including the respondents, Amalgamated Transit Union, Local 113 (“ATU Local 113”) and CUPE Local 2 (jointly the “respondents” or the “unions”).[1]
[2] In 2011, the Ontario legislature passed the Toronto Transit Commission Labour Disputes Resolution Act, 2011, S.O. 2011, c.2 (the “TTC Act”). The TTC Act eliminates TTC workers’ right to engage in any form of strike activity, and also bars the TTC from locking out its employees. If the TTC and its unions are unable to resolve issues through collective bargaining, the TTC Act requires them to submit to binding interest arbitration.
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(1) Events prior to the enactment of the TTC Act
[12] The TTC operates the largest transit system in Canada and the third-largest system in North America. At the time of the application, the system consisted of four subway lines,[2] eleven streetcar routes, and approximately 140 bus routes. It has more than 12,000 employees, who occupy a wide array of job classifications.
[13] ATU Local 113 is the bargaining agent for approximately 11,320 of the TTC’s employees. It was established in 1899, and has been negotiating collective agreements with the TTC for more than 100 years. CUPE Local 2 represents approximately 700 TTC employees, who mostly work in signals, electrical and communications. It has been negotiating collective agreements with the TTC for more than 50 years.
[14] Before the TTC Act was enacted in 2011, labour relations between the TTC and its unionized employees were governed by the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“the LRA”), and its predecessor statutes. The LRA adopts what is often called the “Wagner model” of labour-management relations.[3] As the application judge explained in his reasons:The LRA allows unions to engage in legal strike activity after the collective agreement has expired, bargaining has reached an impasse, and certain statutory prerequisites are met, including a membership vote. Strike activity under the LRA can include a variety of measures including a full withdrawal of labour, a partial withdrawal, refusal to work overtime, or work to rule. The LRA regime also entitles employers to lock-out employees or unilaterally alter their terms and conditions of employment, after the collective agreement has expired. [15] Between 1991 and 2008, a total of twelve full TTC service days were lost due to strikes by ATU Local 113, during which CUPE Local 2 workers either also went on strike or were locked out by TTC management.
[16] The longest strike, in 1991, was settled after eight days with the involvement of the Minister of Labour. In 1999 there was a strike that ended after two days. In 2006 there was a one-day “wildcat” strike that ended after the Labour Board ruled the strike to be unlawful and ordered the strikers back to work. In 2008 there was a strike that lasted for a day and a half before the legislature enacted back-to-work legislation.
[17] The 2008 strike was noteworthy because it occurred with very little notice to the public. The TTC had reached a tentative agreement with ATU Local 113 negotiators that required ratification by Local 113’s members, who voted against the deal. Although Local 113 had previously agreed to provide 48 hours’ notice of any strike action, after the failed ratification vote TTC employees walked off the job at 12:01 A.M. on a Saturday morning, giving the public only 90 minutes advance warning. The application judge noted that “[a]s a result, there were thousands of people stranded late at night, without transit.” This led the Ontario legislature to take the unusual step of convening the next day, on a Sunday afternoon, to pass back-to-work legislation.
[18] In the wake of the 2008 strike, Toronto City Council debated a motion that asked the province to declare the TTC an essential service, but the motion was defeated. However, City Council revisited the issue two years later, in late 2010, and this time the motion passed.
(2) The TTC Act
[19] On February 20, 2011, the government introduced Bill 150, which created the TTC Act. The legislation passed second reading on March 8, 2011 and was sent to committee. A few weeks later, on March 30, 2011, after two days of committee hearings, Bill 150 carried without amendment, and it received royal assent that same day. This also happened to be the day before the TTC’s collective agreement with ATU Local 113 expired.
[20] The application judge noted in his reasons that studies and stakeholder consultations prior to the enactment of Bill 150 were limited:In answer to an undertaking, the Government stated that no other models were studied at the time the legislation was introduced. The Government argues that Bill 150 was introduced after consultations with the City, TTC, and Unions. The [unions] argue that based on the evidence, the consultations with the unions were very limited. There is no evidence that the province obtained a study or report to examine the impact of TTC strikes on the life, health or safety of the public. [21] As the application judge explained, the TTC Act removes employees’ right to strike or take collective action of any kind, replacing that right with mandatory interest arbitration:The TTC Act removes the right of TTC employees to engage in a strike. No collective action of any kind is permitted. The [removal of the] right to strike applies to all TTC employees regardless of the job. For example, no distinction is made between operators and customer service agents. The TTC Act also removes the employer’s right to lock out the employees and prohibits the employer from unilaterally changing the terms and conditions of employment.
Instead of the right to strike, the TTC Act provides for a mandatory binding interest arbitration process. In the event of an impasse in bargaining … the arbitrators are to be appointed by joint agreement. If the parties are unable to agree on an arbitrator, the Minister of Labour shall appoint one. (3) Collective bargaining at the TTC since 2011
[22] The parties presented conflicting evidence about how the TTC Act has affected collective bargaining between the TTC and its unions. Both sides adduced opinion evidence from academic experts about how replacing the right to strike with binding interest arbitration generally affects the collective bargaining process. The parties also presented evidence about the history of collective bargaining at the TTC since 2011.
[23] In summary, the unions’ evidence was that the relationship between the TTC and the unions has worsened since the passage of the TTC Act, and the TTC’s management has become less respectful and reasonable. The application judge accepted this evidence, and adopted the comments of the arbitrator who conducted interest arbitrations in 2018 and 2021. The arbitrator noted in his 2021 award that since the passing of the TTC Act, “collective bargaining has been singularly, serially and completely unsuccessful.”
[24] Based on the expert evidence presented by both sides, the application judge concluded that “the loss of the right to strike adversely affects other critical components of the relationship between the employer and employees.” In particular, he accepted that “there has been an increase in grievances since the introduction of the TTC Act and a decrease in member involvement, which indicate the impact of the infringement of the right to strike on union democracy.”
[25] The application judge found further that “the removal of the right to strike has had a negative effect on the negotiating process.” He explained:The manner in which negotiations were conducted after the enactment of the TTC Act supports the conclusion that employees have not been on an equal footing with the TTC. Mr. Kinnear, Mr. Morton and Mr. Franco’s evidence with respect to the approach taken by TTC negotiators in 2011 is particularly troubling.[4] The negotiators were more confrontational and aggressive. The negotiators stated that they had less incentive to be conciliatory because the union did not have the right to strike. The Government did not file an affidavit from any TTC negotiators in 2011 to rebut this evidence. [26] The application judge also found that “interest arbitration substantially interfered with the ability of the parties to reach voluntary settlements”, explaining:As noted by Professor Hebdon,[5] binding interest arbitration can result in “chilling” and “narcotic” effects. That has also been borne out by the evidence. The TTC and its largest union, Local 113 have been unable to reach voluntary agreements without assistance in three of the last four bargaining sessions.
Arbitrator Kaplan was the arbitrator appointed to settle the terms of the collective agreement between the TTC and Local 113, in 2018 and 2021. In his 2021 Award, he notes that although the parties met ten times between the end of February 2021 and the end of March 2021, there were no agreed items to be incorporated in the collective agreement. He states that there was “no possibility of finding common ground about anything”. . Ontario English Catholic Teachers Association v. Ontario (Attorney General)
In Ontario English Catholic Teachers Association v. Ontario (Attorney General) (Ont CA, 2023) the Court of Appeal considered (and mostly denied) a Crown appeal from a successful lower court Charter s.2(d) ['freedom of association'] application by unions and employees associations against Ontario legislation ['Protecting a Sustainable Public Sector for Future Generations Act, 2019' (PSPSFGA)] limiting public sector salary raises by statute.
In this quote, the court sets out a useful characterization of several main Ontario union and employees associations, here in a s.2(d) Charter challenge to wage restraint legislation:C. THE RESPONDENTS
[31] There were ten groups of respondents on the appeal. While the respondent organizations[2] represent employees that fall within the scope of the Act, they are not all similarly situated. They work in different sectors, including education, health and energy. In addition, some of their members are directly employed by the province, whereas others are employed by other bodies that fall within the scope of the Act; therefore, in some cases, the collective bargaining takes place directly with the province and in other cases it takes place with an employer other than the province. Finally, some of the respondents’ members work for employers that are fully funded by the province, partially funded by the province and, in some cases, not funded by the province at all.
[32] In order to highlight these differences, it is helpful to provide a brief description of each organization:a. Ontario English Catholic Teachers Association (“OECTA”): OECTA is the designated bargaining agent for teachers employed by the English-language Catholic district school boards in Ontario. While the members of OECTA are employed by their individual school boards, OECTA participates in a process of “central bargaining” with the Crown and school boards over significant issues, such as salary increases.
b. Ontario Secondary School Teachers’ Federation/Fédération des enseignants-enseignantes des écoles secondaires de l’Ontario (“OSSTF”): OSSTF is the designated bargaining agent for secondary school teachers employed by the English-language public district school boards in Ontario. It also represents a variety of other education workers employed by both French and English school boards. While these OSSTF members are employees of their respective school boards, like OECTA, OSSTF participates in a process of “central bargaining” with the Crown and school boards over significant issues. In addition to its school board members, OSSTF also represents members who work for employers offering transportation services to school boards and members who are non-teaching employees at some universities.[3]
c. Elementary Teachers’ Federation of Ontario (“ETFO”) and l’Association des enseignantes et des enseignants franco-ontariens (“AEFO”): ETFO is the designated agent to bargain on behalf of English-language elementary teachers in Ontario as well as certain other education workers, such as early childhood education workers and professional support personnel. AEFO is the designated bargaining agent for all public and Catholic French-language elementary and secondary school teachers in Ontario. While the members of ETFO and AEFO are employees of their respective school boards, ETFO and AEFO also participate in a process of “central bargaining” with the Crown and school boards.[4]
d. Ontario Nurses’ Association (“ONA”): ONA represents registered nurses, nurse practitioners, registered practical nurses, personal support workers and other health care professionals across Ontario. ONA’s members work in a variety of settings, including hospitals, long-term care homes and community health clinics.
e. Ontario Federation of Labour (“OFL”): OFL’s application was brought on behalf of several organizations, including OFL, the Canadian Union of Public Employees (“CUPE”), the Association of Management, Administrative and Professional Crown Employees of Ontario (“AMAPCEO”) and various university faculty associations. These organizations represent a broad variety of employees in different sectors, including hospitals, long-term care, social and community services, education, universities, transportation, the justice system and the Ontario Public Service.[5]
f. Ontario Public Service Employees Union (“OPSEU”): OPSEU represents a broad range of workers who work in the Ontario Public Service or who are employed by broader public sector employers. They include cleaning staff, personal support workers, college professors, office administrators, correctional officers and education assistants.[6]
g. Unifor: Unifor represents employees in the private and public sector. The public sector workers Unifor represents work in a variety of areas, including health care, social services and education.
h. Society of United Professionals, Local 160 of the International Federation of Professional and Technical Engineers (“Society” or “Society of United Professionals”): The Society represents employees in the energy sector who work for Ontario Power Generation (“OPG”), the Independent Electricity System Operator (“IESO”) and the Ontario Energy Board (“OEB”). The Society’s members include professionals, such as engineers, accountants, lawyers and managers. The Society bargains with OPG, IESO and OEB, which are self-funded and receive no funding from the province.
i. Power Workers’ Union (Canadian Union of Public Employees, Local 1000) (“PWU”): PWU represents employees in the energy sector who work for OPG and IESO as well as other entities not subject to the Act. Its members work in clerical, technical and skilled trade positions. As with the Society, PWU bargains with OPG and IESO, which, again, are self-funded and receive no funding from the province.
j. Carleton University Academic Staff Association: The Association represents faculty members, librarians and instructors employed by Carleton University. The members of the Association are employed by Carleton and their collective bargaining agreement is with Carleton. The province provides funding grants to Carleton, which covers 30 to 35% of its budget. However, the province does not directly fund the compensation paid to the Association’s members.
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