Definitive Report - REPORT_NO360, June 2011

1. 324. The Canadian Union of Public Employees (CUPE) submitted its complaint in a communication dated 16 June 2010.
2. 325. In a communication dated 21 December 2010, the Federal Government of Canada transmitted the reply of the Government of the Province of Ontario.
3. 326. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). It has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), nor the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 327. In its communication dated 16 June 2010, the CUPE submits a complaint on behalf of its affiliate branch Local 3903 (the Union). CUPE Local 3903 represents about 3,400 contract faculty, teaching assistants, graduate assistants and research assistants at York University in Toronto. Graduate, research and teaching assistants are full-time graduate students at the University. Much of the graduate student funding is delivered through the collective agreement. The complainant explains that the collective agreement reached in 2005 expired on 31 August 2008. The Union served notice to bargain in July 2008 and met with the employer throughout July, August and September of the same year. The Union’s key demand was to increase graduate funding, since a large majority of its members earn below the poverty line. Its second key demand was to increase job security for contract faculty members. The complainant states that since its creation, the University has disproportionately relied upon contract faculty. Considering the fact that a number of contract faculty members have been working at the University for multiple decades, it has become increasingly difficult for the employer to label them a contingent workforce, and yet contract faculty members continue to be hired on four- or eight-month contracts with little job security. Finally, the Union demanded improvements to health benefits and child care, as well as an increase in duration of contracts, so as to align with the rest of the sector.
2. 328. CUPE alleges that the employer refused to respond to any of their monetary demands until 16 September 2008, and even then, issued only a “placeholder” response, indicating that a more meaningful offer would be forthcoming at a later stage of negotiations. The same day, the employer requested that the Union agree to binding arbitration to resolve all outstanding issues. In compliance with the Ontario Labour Relations Act, the Union filed for conciliation and held a strike vote in which an overwhelming majority of members voted to go on strike.
3. 329. A strike date was set for 1 November 2008. The complainant organization alleges that by the end of October, the employer had still not responded to their key demands. The Union postponed the strike date to 6 November 2008. The employer finally presented its first response to the Union’s demands on 4 November 2008. However it fell short of the membership’s needs and the Union went on strike on 6 November 2008. In response to the strike action, the University cancelled all classes, affecting over 50,000 students.
4. 330. CUPE states that although it repeatedly asked the employer for a meeting, hoping for a quick resolution of the labour dispute, the employer met with the Union on only two occasions in the first two months of the strike – for one day in November and a few days in December. Instead, according to the organization, the employer directed its efforts at getting public support and lobbying the Government to adopt back-to-work legislation.
5. 331. The employer met with the Union for four days at the beginning of January 2009 and presented its final offer. The offer was overwhelmingly rejected by Union members attending the general membership meeting. The complainant organization alleges that instead of continuing to negotiate, the employer responded by filing for a supervised vote on the same offer with the provincial Government. The vote was held on 19 and 20 January 2009, in which the offer was once again rejected.
6. 332. On 21 January 2009, following the supervised vote, the Premier of Ontario announced he was appointing a special mediator. Bargaining resumed on 22 January 2009. However, according to the complainant, the employer refused to make any move. On 24 January 2009, the mediator called the negotiations off, and the Premier of Ontario announced that since the negotiations were in deadlock, the Government would bring a legislated end to the strike. On 29 January 2009, the Government passed the York University Labour Disputes Resolution Act (Bill 145), ordering the termination of the 85-day strike. As a result, collective bargaining was interrupted and the case was then referred to binding arbitration. The arbitrator conducted six days of mediation in March and April of 2009, during which little progress was made. On the sixth day, he tabled a mediator’s recommendation, which he suggested would be his likely position in an arbitration hearing. With few options left, both the Union and the employer signed a memorandum of settlement on 7 April 2009 based on the arbitrator’s recommendation. Although the Union’s bargaining team and executive sent the deal to the membership without a recommendation, the settlement was ratified two weeks later.
7. 333. CUPE alleges that the employer was never serious about reaching a negotiated settlement through collective bargaining and instead relied on the Ontario Government to violate the Union’s members’ freedom of association and collective bargaining rights enshrined in Conventions Nos 87 and 98. The complainant organization states that Bill 145 sets a dangerous precedent for Ontario. Although members of the Union are essential to the operation of the University, according to the complainant, they do not constitute an essential service.

B. The Government’s reply

1. 334. In a communication dated 21 December 2010, the Government of Canada transmits the comments made by the Ontario Government on this case. The latter recalls that while Canada has not ratified Convention No. 98, the Government of Ontario has great respect for the collective bargaining process and that it is not only the responsibility of employers and unions to resolve their differences at the bargaining table, it is also their right under the applicable provincial legislation. To that end, the Government, through the Ministry of Labour (MOL) provides conciliation and mediation support to parties engaged in collective bargaining. Over the past few years, approximately 97 per cent of negotiations have resulted in settlements with no work stoppages.
2. 335. The Government of Ontario recalls that the parties were engaged in collective bargaining for approximately seven months. From October 2008 through January 2009, the Government provided assistance of the MOL conciliation officers and mediators. Notwithstanding the continued efforts of the MOL mediators, the parties remained deadlocked as the Union rejected the employer’s last offer. The provincial Government states that contrary to the assertion made by CUPE, collective bargaining was not interrupted by the adoption of Bill 145, as no actual bargaining was taking place, despite the provincial Government’s efforts to assist the parties in resolving their differences through negotiation.
3. 336. The Ontario Government states that the education of over 45,000 students had been disrupted, with classes having been cancelled for more than 11 weeks, and that the completion of the academic year was at serious risk. The Government points out that post-secondary education serves a critical public function, and that an extension or loss of an academic year has significant personal, educational, social and financial implications for students and their families, as well as serious organizational and economic impact on the University and the broader public. Given these serious concerns and the clear deadlocks in negotiations, the Government considers that public interest required an exceptional and temporary solution to address the matters.
4. 337. The Government of Ontario adds that legislation was introduced only after the parties were given every reasonable opportunity to resolve their differences at the bargaining table. While Bill 145 referred the matters in dispute to a mediator–arbitrator, nothing in the legislation prohibited the parties from continuing to negotiate and, in fact, it specifically encouraged them to do so. The Government indicates that the parties agreed on the appointment of the mediator–arbitrator and that they settled their dispute in the course of the mediation phase of the mediation–arbitration. Therefore, according to the provincial Government, the settlement was not imposed by the mediator–arbitrator, but was agreed to by the parties. The settlement, which sets out the terms of a new collective agreement, was subject to a ratification vote by the Union’s members. On 27 April 2009, the Union announced that its members had ratified the new collective agreement. In the Government’s view, the back-to-work legislation under the circumstances was appropriate and necessary, and effectively facilitated an agreement between the parties.

C. The Committee’s conclusions

1. 338. The Committee notes that this case concerns back-to-work legislation (the York University Labour Disputes Resolution Act, 2009) adopted by the Government of Ontario to bring to an end an 85-day strike at the York University (the relevant provisions of the Act appear in the appendix).
2. 339. The Committee notes that the legality of the strike is not disputed and that the complainant and the Government of Ontario appear to agree generally on the events that led to the adoption of the back-to-work legislation. The preamble to the Act summarizes the main reasons for its adoption and reads as follows:
3. …
4. The parties have engaged in collective bargaining for approximately seven months for new collective agreements, including conciliation and mediation with the assistance of Ministry of Labour staff, but have failed to resolve their disputes. A vote of the members of the bargaining units represented by the Union in respect of the University’s last offer was conducted. That offer was rejected by all of the bargaining units. Continuing efforts of the Ministry of Labour to assist the parties in resolving their differences through mediation have proved unsuccessful. Negotiations have reached an impasse and the parties are clearly deadlocked.
5. The strike has been ongoing and classes have been cancelled for more than 11 weeks. The education of over 45,000 students has been disrupted and the completion of the academic year is at serious risk. Post-secondary education serves a critical public function. Furthermore, a lengthy extension or loss of an academic year has significant personal, educational, social and financial implications for students and their families as well as serious organizational and economic impacts on the University and the broader public. These negative consequences may be long term in nature and the repercussions could extend beyond the parties, the students and their families. The continuation of these disputes and the resulting disruption in education and its corresponding effects give rise to serious public interest concerns. The interests of students, families and the broader community require that these disputes be resolved. Having regard to these serious circumstances and the clear deadlock in negotiations, the public interest requires an exceptional and temporary solution to address the matters in dispute so that new collective agreements may be concluded through a fair process of mediation–arbitration, staff and students can return to class and the University can resume providing post-secondary education.
6. 340. At the outset, the Committee observes that this is the fourth time in the last ten years that it has been called to address the issue of special legislation being adopted to put an end to a lawful strike in the education sector in Canada, Ontario [see Cases Nos 2025, 2145 and 2305 as set out in its 320th, 327th and 335th Reports, respectively]. The Committee notes that in the present case, the Government maintains that the adoption of the back-to-work legislation was justified in order to protect the public interest. While it appreciates the Government of Ontario’s concerns set out above, the Committee recalls that the right to strike is one of the legitimate and essential means through which workers and their organizations may defend their economic and social interests [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 521–522]. Furthermore, while the right to strike can be subject to certain limited exceptions, the Committee recalls that the education sector does not fall within these exceptions [see Digest, op. cit., para. 587]. The Committee recognizes that unfortunate consequences may flow from a strike in a non-essential service, but considers these do not justify a serious limitation of the right to strike unless they become so serious as to endanger the life, personal safety or health of the whole or part of the population. In examining a previous complaint involving the education sector, the Committee stated that the possible long-term consequences of strikes in the teaching sector did not justify their prohibition [Case No. 2145, para. 303, 327th Report, and Digest, op.cit., para. 590]. In this respect, however, the Committee has considered that in cases of strikes of long duration, minimum services may be established in the education sector, in full consultation with the social partners [see Digest, op. cit., para. 625].
7. 341. The Committee deeply deplores that the Government of Ontario has decided, for the fourth time in about ten years (September 1998, November 2000, June 2003 and January 2009) to adopt ad hoc legislation which brings to an end, in a unilateral manner, a lawful strike in the education sector. The Committee considers that repeated recourse to such legislative restrictions can only in the long term destabilize the labour relations climate, if the legislator frequently intervenes to suspend or terminate the exercise of rights granted to workers and their union by the general legislation.
8. 342. In this context, the Committee notes that according to the complainant, although it repeatedly asked the employer for a meeting, hoping for a quick resolution of the labour dispute, the employer met with the Union on only two occasions in the first two months of the strike. According to CUPE, instead of trying to reach a negotiated solution, the employer directed its efforts at getting public support and lobbying the Government to adopt a back-to-work legislation. As regards the allegation of violation of the principle of bargaining in good faith, the Committee notes that the Government indicates that no actual collective bargaining was taking place as the parties were deadlocked due to the Union’s rejection of the employers’ last offer. As a general rule, the Committee recalls that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties. It further recalls that the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided [see Digest, op. cit., paras 935 and 937].
9. 343. The Committee further notes that once the offer had been rejected by the Union membership in a vote supervised by the Government on 19 and 20 January 2009, the mediator appointed by the latter on the following day called the negotiations off on 24 January, just three days after assuming his/her duties. The Committee understands (from the publicly available records) that on the very next day, Bill No. 145 was introduced in the Legislative Assembly and given the first reading. On 29 January 2009, the Act providing for a binding mediation–arbitration procedure was adopted. While noting the Government of Ontario’s statement that nothing in the legislation prohibited the parties from continuing to negotiate and that the legislation rather encouraged them to do so, the Committee recalls as regards the compulsory nature of the mediation–arbitration process, that recourse to these bodies should be on a voluntary basis [see Digest, op. cit., para. 932] and that recourse to compulsory arbitration in cases where the parties do not reach an agreement through collective bargaining is permissible only in essential services in the strict sense of the term [see Digest, op. cit., para. 994]. The Committee regrets that despite its recommendations in the previous abovementioned cases to consider establishing a voluntary mechanism which could avoid and resolve labour disputes to the satisfaction of the parties concerned, it appears that adoption of a back-to-work legislation continues to be seen by the Government of Ontario as the only means of dealing with a deadlock in a collective bargaining. The Committee emphasizes that the Government should promote free collective bargaining and considers, as it did in previous cases, that it would be more conducive to a harmonious industrial relations climate if the Government of Ontario would establish a voluntary and effective mechanism which could avoid and resolve labour disputes to the satisfaction of the parties concerned. The Committee therefore once again urges the Government to take steps to encourage the Government of Ontario to establish a voluntary and effective dispute prevention and resolution mechanism rather than having recourse to back-to-work legislation.

Appendix

1. Relevant provisions of the York University Labour Disputes Resolution Act, 2009
2. …
3. 3(1) As soon as this Act receives royal assent, the employer shall use all reasonable efforts to operate and continue to operate its undertakings, including any operations interrupted during any lockout or strike that is in effect immediately before this Act receives royal assent.
4. (2) As soon as this Act receives royal assent, the employer shall terminate any lockout of employees that is in effect immediately before this Act receives royal assent.
5. (3) As soon as this Act receives royal assent, the bargaining agent shall terminate any strike by employees that is in effect immediately before this Act receives royal assent.
6. (4) As soon as this Act receives royal assent, each employee shall terminate any strike that is in effect before this Act receives royal assent and shall, without delay, resume the performance of the duties of his or her employment or shall continue performing them, as the case may be.
7. 4(1) Subject to section 6, no employee shall strike and no person or trade union shall call or authorize or threaten to call or authorize a strike by any employees.
8. (2) Subject to section 6, no officer, official or agent of a trade union shall counsel, procure, support or encourage a strike by any employees.
9. …
10. 6. After a new collective agreement with respect to a listed bargaining unit is executed by the parties or comes into force under subsection 19(5), the Labour Relations Act, 1995 governs the right of the employees in that unit to strike and the right of the employer to lock out those employees.
11. 7(1) A person, including the employer, or a trade union who contravenes or fails to comply with section 3, 4 or 5 is guilty of an offence and on conviction is liable:
12. (a) in the case of an individual, to a fine of not more than $2,000; and
13. (b) in any other case, to a fine of not more than $25,000.
14. (2) Each day of a contravention or failure to comply constitutes a separate offence.
15. 8. A strike or lockout in contravention of section 3, 4 or 5 is deemed to be an unlawful strike or lockout for the purposes of the Labour Relations Act, 1995.
16. …
17. 10. If this Act applies to the employer and the bargaining agent in respect of a listed bargaining unit, the parties are deemed to have referred to a mediator–arbitrator, on the day this Act receives royal assent, all matters remaining in dispute between them with respect to the terms and conditions of employment of the employees in that unit.
18. 11(1) On or before the fifth day after this Act receives royal assent, the parties shall jointly appoint the mediator–arbitrator referred to in section 10 and shall forthwith notify the minister of the name and address of the person appointed.
19. (2) If the parties fail to notify the minister as subsection (1) requires, the minister shall forthwith appoint the mediator–arbitrator and notify the parties of the name and address of the person appointed.
20. …
21. (7) The minister may appoint as a mediator–arbitrator a person who is, in the opinion of the minister, qualified to act.
22. 12(1) The mediator–arbitrator has exclusive jurisdiction to determine all matters that he or she considers necessary to conclude a new collective agreement.
23. (2) The mediator–arbitrator remains seized of and may deal with all matters within his or her jurisdiction until the new collective agreement is executed by the parties or comes into force under subsection 19(5).
24. (3) The mediator–arbitrator may try to assist the parties to settle any matter that he or she considers necessary to conclude the new collective agreement.
25. (4) As soon as possible after a mediator–arbitrator is appointed, but in any event no later than seven days after the appointment, the parties shall give the mediator–arbitrator written notice of the matters on which they reached agreement before the appointment.
26. (5) The parties may at any time give the mediator–arbitrator written notice of matters on which they reach agreement after the appointment of a mediator–arbitrator.
27. 13(1) The mediator–arbitrator shall begin the mediation–arbitration proceeding within 30 days after being appointed and shall make all awards under this Act within 90 days after being appointed, unless the proceeding is terminated under subsection 18(2).
28. (2) The parties and the mediator–arbitrator may, by written agreement, extend a time period specified in subsection (1) either before or after it expires.
29. …
30. 15(1) An award by the mediator–arbitrator under this Act shall address all the matters to be dealt with in the new collective agreement with respect to the parties and a listed bargaining unit.
31. 16. The award of a mediator–arbitrator under this Act is final and binding on the parties and on the employees.
32. …
33. 18(1) Until an award is made, nothing in sections 10 to 17 prohibits the parties from continuing to negotiate with a view to making a new collective agreement and they are encouraged to do so.
34. (2) If the parties execute a new collective agreement before an award is made, they shall notify the mediator–arbitrator of the fact and the mediation–arbitration proceeding is thereby terminated.
35. …