Rightly or wrongly, teachers do not have the right to strike in Manitoba and Prince Edward Island, with binding arbitration the singular dispute resolution mechanism available.
How this can square with a landmark Supreme Court of Canada decision from January — ruling 5-2 that the right to strike is fundamental and protected by the Constitution, a huge victory for organized labour — is puzzling and may perhaps be clarified only if those provincial Education Acts are now challenged.
The Supremes had been petitioned by public sector unions in Saskatchewan objecting to a 2008 law that limited the right to strike by workers the provincial government had deemed essential, such as jail guards, snow plow operators and health-care employees in the public sector. Over the previous two decades, Saskatchewan had ordered public sector workers back to the job on 10 separate occasions. The government, under the ’08 legislation, retained a unilateral right to decide which workers were essential and, the Supremes concluded, unfairly denied those workers effective alternatives for settling labour disputes.
Canada’s highest court emphasized the importance of the right to strike in promoting equality in the bargaining process, recognizing deep inequalities in a structure of power imbalance. Strikes, the justices agreed in the majority decision, have the potential of placing pressure on both sides to engage in good faith negotiations.
Broadly speaking, very few public sector workers are prevented from hitting the bricks, police officers the most obvious example.
Should teachers be included as essential?
I would say no, if only from a basic reluctance to invest teachers with any further dimension of exceptionalism. Lord knows they already consider themselves plenty exceptional enough as a profession. But it would be interesting — amusing — for teacher union lawyers to stand up in court and argue against teacher designation as an essential service. To say: Nope, teachers aren’t so vital.
Education is essential; educators, not so much.
Those weren’t, therefore, anywhere in the realm of legal bafflegab presented at the Ontario Labour Relations Board Thursday, in a so-called “urgent’’ hearing triggered by three public school boards that have been struck by high school teachers: Durham, Peel and Rainbow/Sudbury. Those boards, via the Ontario Public School Boards’ Association, maintain the strikes — which have thrown 70,000 students out of class — are unlawful and want the OLRB to put an end to the job action.
Their application is narrow — albeit contained in a honking heavy binder, as is the equally door-stopper heft of the “narrative” submitted by the Ontario Secondary School Teachers’ Federation, at the very same time that thousands of striking teachers were staging a rally at Queen’s Park. (Though whether the demonstrators were indeed all striking teachers, thus legitimately available for the protest, was not quantifiable. Perhaps some were not actually on strike, merely playing hooky from class.)
Cut through the legal thrust and parry and billable hours that brought 14 lawyers to the table before chair Bernard Fishbein and the issue is this: Do the workplace matters that allegedly spurred teachers employed by the three aforementioned boards to strike belong at the grown-ups table or the kiddies table?
Technically, the “central’’ table versus the “local’’ table, as detailed in the two-tiered bargaining system enshrined in the School Board Collective Bargaining Act passed in Ontario last year. The adult/central table: Big ticket items such as salary, benefits and class size, which are the purview of provincewide unions and groups of school boards. Versus the kiddies/local table: unpaid leaves, transfer policies, use of occasional teachers. And, because this came up at the OLRB, the language used on placards carried by those teachers who are already striking against their boards. Can’t say, for example, the strike is about class size — a subject that certainly resonates with parents. Not on the local menu, insist the boards affected.
Ergo, is the ongoing strike in fact legal, linked crucially to these locally mandated matters? Or is the job action actually a clever strategy undertaken by the OSSTF, essentially cherry-picking local boards where union leaders were willing to lead strikes and where the provincial union could afford to support the endeavour with strike pay — canaries in the coal-mine against the larger potential of provincewide job action, where negotiations have stalled and with Education Minister Liz Sandals insisting there’s no money in the tax-kitty for substantial raises across the board because of the public-sector wage freeze.
The urgency of Thursday’s hearing is up for debate.
It took Fishbein 90 minutes just to decide on the intervener status bids brought by various parties. He gave CUPE national and CUPE Local 4400 the boot. They collected their briefcases and departed but were immediately replaced at the table by other lawyers, who’d been sitting in the public gallery.
Then all parties disappeared into an in-camera session, to see if they could at least come to terms on an agreed slate of facts. Then they agreed to take lunch.
Well, the facts would seem to be the crux of the thing, so naturally the sides disagreed.
“They’re in a position to conduct a lawful strike but they’re not conducting a lawful strike,” said OPSBA lawyer Michael Hines.
Also: “If there’s a stall it’s because your people don’t want to negotiate anything until the central issues have been resolved.’’
Fishbein, carrying the ball momentarily for the union, countered: “They lay it at the feet of your clients. They say they have been involved in local bargaining. You’re asserting there’s been no local bargaining at all.”
Hines: “No, no. We have a completely different view as to why it’s gone sideways. For every allegation it will be tit-for-tat.
“We say that to the extent that members of a union are in position to strike legally in respect of local issues, that does not give them the legal right to strike in respect of central issues.”
Hines added: “We believe we have sufficient evidence that the OSSTF is encouraging strike activity over local issues.”
Hotly, OSSTF lawyer Heather Alden accused the boards of acting as “thought police for what members are thinking and saying.”
They talk, as lawyers so often do, at cross-purposes.
Fishbein reminded: “This is an expedited process, why we’re here on such short notice.’’
On several occasions, Fishbein warned that he could unilaterally decide on allowing two hours of arguments for this side and two hours of arguments for that side and let’s get going.
But he didn’t do that, with most of Thursday spent behind closed doors. Rather than urgent — laborious.
By 6 p.m., they hadn’t even begun — formally, technically, publicly — mounting arguments.
Let us conjugate: Strike, struck, stricken.
Sorry, nothing else to report.