Saturday, February 04, 2012

On the Toronto labour situation.

Here's what I've been able to figure out about the Toronto labour situation.

While negotiations are ongoing, so during the initial stages, prior to the no-board report, an employer cannot impose a contract on employees. This has to wait until after the no-board report, when the union is in a legal strike position, and the employer is in a legal lockout position.

Once that happens, employers can change the terms of employment. That is, once the timeline specified in the no-board report has expired, the existing contract is considered non-binding, and the employer can create a new set of terms of employment. This includes changing wages, benefits, shifts, and so on. In the private sector, benefits are usually terminated entirely at this point, and wages slashed to the bone.

However. This is not a permanent contract. The union is still the bargaining agent for the employees until they choose to decertify it. (Aside: there is no process that I am aware of which would grant any goverment the authority to decertify a union. There's big freedom of association issues involved that would make it very difficult to do.)

So, negotiation must continue. Changing the terms of employment is usually, therefore, a pressure tactic: take money out of the employees' pockets until they sign the deal the employer wants. As with Electro-Motive, an employer might ramp up the pressure even higher by locking out its employees, too. Employees might fight back by striking or working to rule.

The trick with the Toronto situation is that the employer wants to impose an agreement which changes not just wages and benefits -- completely legal, to Ontario's shame -- but also job security provisions. Since these provisions are very rare in private sector contracts, and no public sector employer has tried imposing a contract like this, there's no precedent that I'm aware of which explains whether or not this is permissible. It's unsettled. Which means that, if the dispute winds up in court, anyone who thinks they can predict which way it will get decided is full of it.

This implies that if Ford and his group decide to impose new job security provisions, and eliminate positions in accord with these provisions, they will probably get the city sued for it. CUPE Ontario, if not CUPE National, will be very interested in pursuing such a case. And the city could lose; again, it's unsettled, so it could go either way. Given how strong the provisions are, the suit could be for significant money per terminated employee. Basically, a lifetime's wages and benefits plus damages, minus anything earned at other employment, times employees terminated. That could be a pretty big number.

In other words, while a lot of people are cheering Ford for "taking on the unions", he's got absolutely no skin in this game. If it blows up in his face, we're the ones who end up paying when the City loses a big lawsuit. He's taken a huge risk with our money to try to eliminate these job security provisions in one fell swoop, rather than by slow and careful steps. (Which probably would've worked. CUPE 416 already offered to put it into the contract that you have to work for the city for 5 years to get the provisions. The next administration could've argued to push that number higher; and so on, until the provisions are gradually phased out.)

Sort of like transit, really. A huge risk with our money. We pay through the nose and get nothing for it, while Ford walks away smiling.

Thinking about it, I also wonder what contractor would want to try to submit a bid for services in such an unsettled labour environment. How much risk would such a contractor be exposed to, if they bid for services which a court later rules the city had no right to solicit bids on? How much would the city lose if such a contractor turned around and sued the city for its losses?

On the other hand, if Ford is sued and wins, then there's all kinds of potential for nastiness down the road. Any court that made that ruling will have created a mechanism for governments to shred any labour contract they don't like. Which will not be met favourably by the labour movement, which will lead to more lawsuits, possibly even a precedent-setting SCoC suit like Health Services. Not to mention the spillover into the looming negotiations between the province and the teachers, and the province and the doctors.

Whether Ford wins or loses, whether there's a lawsuit or not, there will be all sorts of reactions from labour and allied groups. A strike remains possible, as does work to rule, as do wildcat strikes and sympathy strikes from other unions in the city. (Not just the ones actually employed by the city.) Anyone who seriously thinks the "essential service" designation would stop ATU 113 (the TTC local), for example, from shutting down service in the middle of rush hour to support CUPE 416 against this administration is stupid.

This strategy might temporarily feel good to Fordites, and many Torontonians. But it's terrible, terrible governance. It's very radical and carries all kinds of terrible risks.

Hopefully, what actually happens is that the union complains to the Minister of Labour (Linda Jeffrey), the province intervenes and appoints a mediator with a clear mandate to either get a negotiated settlement out of both sides or it goes to binding arbitration. But, if that's the actual outcome, here's a question to ask: why'd Ford go to this extreme rather than just agreeing to binding arbitration in the first place?

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