Friday, 18 January 2013

A Strike by Any Other Name...

On January 11th, the Ontario Labour Relations Board (OLRB) issued a decision on the teachers’ unions’ planned one-day protest of the collective agreements that were imposed on them under the Putting Students First Act (PSFA).  The decision found that the planned protests, in substance, were strikes and were therefore illegal.

On January 9th, the Elementary Teachers’ Federation of Ontario (ETFO) announced that it planned to have its members participate in a “day of protest” or “political protest” over the imposed collective agreements. The protest was to occur on Friday, January 11th. The protest was to include a full-day withdrawal of services by ETFO members.

The question for the OLRB was whether the planned political protest would constitute an illegal strike. The Collective Agreements were imposed by order of the Lieutenant Governor in Council under authority of section 9(2) of the PSFA. Under both section 9(4) of the Act and various sections of the Ontario Labour Relations Act (LRA) a strike or lockout in defiance of such an order is illegal.

“Strike” is defined in section 1 of the LRA in the following way:

“strike” includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow-down or other concerted activity on the part of employees designed to restrict or limit output.

One of the problems faced by the ETFO was that the planned protest included a cessation of work via the withdrawal of services. Further, there is a fairly large line of Board decisions which find “political strikes” to nevertheless be strikes and consequently illegal during a collective agreement. The ETFO argued that the precedents did not apply in this situation because the situation of the ETFO was different from those past decisions in that the current situation of the ETFO involved the protest of collective agreements that had been imposed on them. The other decisions concerned the protest of freely negotiated collective agreements. The Board was not swayed by this argument, finding that if ETFO’s position were to succeed it would undermine the purposes of the PSFA. Further, any Charter argument in support of the planned protest was rejected, with the Board stating:

Nor am I persuaded that the Charter protection afforded to speech (whether “labour speech” or speech generally) outweighs the disruption that will be wrought on the statutory labour relations scheme by ETFO’s position…

Having made these determinations, the Board decided that the proposed planned day of protest would constitute an illegal strike. Though disagreeing with the decision the union leadership asserted their respect for the decision-making authority of the OLRB.

While this was a sound judgment based on the current laws, the decision only further highlights how onerous the PSFA is. In imposing collective agreements, the Act has not only stripped the teachers of their right to strike, it has severely stifled the ability of teachers to voice dissent in any effective way. The precedent this sets is worrisome. Dissent is a bedrock principle to the health of our democracy. Every healthy and robust democracy allows for dissent. The ability to dissent, in other words, is the canary in the coal mine when it comes to measuring the health of a democracy. While it’s true that this is arguably only one indication of a democracy’s health, it is a nevertheless a vital indicator.

The ETFO is litigating the constitutionality of Bill 115 (and the PSFA) in court. We hope the court will take measures to correct the grievous violations of Charter-protected rights wrought by Bill 115 and restore some semblance of democratic order to Ontario.


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