Thursday, January 22, 2009

David Doorey is the man. Again.

Read this. It's long, but entirely worth it.

For those short on time, the gist is this. In 1987, the Supreme Court of Canada (SCC) ruled that the freedom of association section of the Charter of Rights and Freedoms (Section 2(d)) did not include the right to strike. In 2007, SCC ruled that this decision had been partly mistaken and Section 2(d) includes a right to collective bargaining. Doorey suggests that SCC is slowly expanding its reading of Section 2(d) to match more closely Convention 87 (C87) of the International Labour Organization (ILO). C87 has been interpreted to include a right to strike. Thus, if SCC continues to expand its reading, sooner or later it will find the right to strike in Section 2(d). The ILO reads C87 to allow for back to work legislation only when life, personal safety or health of the population are at risk, and has specifically censured Canada for legislation in cases such as teachers' strikes. So, if SCC keeps pushing its reading forward, it may one day strike down the power of provincial governments to order, say, striking teaching assistants and contract faculty back to work.

Therefore, the stakes are much higher than douchebags like Peter Shurman and idiots like John Tory believe. (Sorry, that was me editorializing.) If McGuinty passes back to work legislation, he could (probably will, given what I'm hearing) face a Charter challenge. And he might lose it -- which would strip the province of its ability to end things like transit strikes with legislation. It would also (Doorey doesn't trace this connection) cause problems for premiers of other provinces, who would now likely face similar challenges -- once it works once, it'll be tried again. McGuinty might still be able to pass such legislation if it is held that Section 1 of the Charter allows for back to work legislation, as justified "in a free and democratic society". But he'd probably like to fight that battle over something big (Doorey suggests a hospital or TTC strike, but maybe an elementary teachers' strike?).

Overall, then, back to work legislation looks like a long shot at best. Which means either the union will just wilt -- unlikely; if they were going to cave, the forced rat would have done it -- or the university is going to have to up the offer. Unless, of course, the university decides to get ideological about this and tries to continue on without TAs and contract faculty. (Good luck with that one.)

My guess? Give it a week, ten days at the outside, and the university will move. Maybe not a lot, but they'll move.


Chet Scoville said...

Now that's really interesting. So McGuinty's backed into a corner, and neither John Tory nor the idiot press understands that.

ADHR said...

That seems to be the size of it. Adding to the hilarity, I read something in the Toronto Star today (here, second-last paragraph) where Tory was quoted as saying that he was "familiar" with the decision and it didn't apply because of "different circumstances". Of course, he didn't actually explain why it didn't apply, but I'm sure McGuinty is pleased to know that a man with no legal exposure at all is telling him, with no argument whatsoever, to charge ahead with all guns blazing.