Legislation may be vulnerable to Charter
This last week has not been a good one for the right to strike in Canada. Especially so in light of the Supreme Court’s 2007 ruling in B.C. Health Services that the right to participate in meaningful collective bargaining is a Charter right.
First, on February 21 the government of Quebec imposed a collective agreement on its Crown prosecutors and lawyers that reproduces the wage increases negotiated by other public sector unions.
This has been its practice now for several agreements running. The Association des juristes de l’État (AJE) has demanded binding arbitration, but the government has consistently refused.
Salaries of Quebec government lawyers, and notably of senior and experienced ones, are far below the Canadian average. Lawyers are reportedly resigning en masse.
Then, the Ontario government introduced a bill on February 22 to ban strikes at the Toronto Transit Commission.
Rather than proceeding through an essential services framework, where only those employees whose duties can be shown to directly affect public health and safety are essential, the bill follows the style of the Hospital Labour Disputes Arbitration Act (HLDA) and the Police Services Act in simply declaring that all collective agreements must be settled by binding arbitration where negotiation fails.
The list of factors that the arbitrator is required to take into consideration is the same as those enumerated in HLDA. We have seen on several occasions recently how arbitrators working under that Act have brought down awards that have exceeded what the government announced was its desired outcome.
The Ontario Federation of Labour has planned a “day of protest” for April. The AJE will present premier Charest with a funeral wreath.
