A Strike By Any Other Name

Is a “day of political protest” an illegal “strike”? As Shakespeare so famously wrote in Romeo and Juliet, “A rose by any other name would smell as sweet,” meaning the name of the thing does not matter, what matters is what things are.

In a decision released in the early morning hours of January 11, 2013, The Minister of Education v. ETFO and Sam Hammond, 2947-12-U, the Ontario Labour Relations Board held that it was.

In one of the first of what will likely be many decisions concerning the Putting Students First Act, 2012 (formerly “Bill 115”), OLRB Chair Bernard Fishbein held that the proposed day of political action would be an illegal strike contrary to the provisions of that Act.

Facts

By order in counsel dated January 2, 2013, the Ontario government imposed, pursuant to the provisions of Bill 115, “collective agreements” upon, amongst others, elementary school teachers represented by the ETFO, the respondent in the decision cited. I put quotations around collective agreement as I fail to see how something imposed by statute can be called an “agreement,” but I am digressing.

It was equally well-known that the ETFO was calling for a day of political protest on Friday, January 11^th and that Mr. Hammond was encouraging its members to participate in that protest.

Arguments

The Minister submitted that it is a well-established principle of Canadian labour law that those working under a collective bargaining agreement cannot strike during the term of that agreement.

For its part, the ETFO submitted that the principle cited by the Minister applies only to collective agreements freely negotiated, not to agreements imposed by statute.

Decision

Before I get into the decision, as an aside, it would certainly be much easier if the OLRB would make the text of its decisions available to a copy and paste function.

At paragraph 12 of his reasons for decision Chair Fishbein held that:

I am not persuaded that [the ETFO’s arguments] are sufficient or salient distinctions. I am not persuaded that ETFO’s suggested test for political strike that would be exempted from the unlawful strike provisions is workable and that it would not undermine the fundamental provisions of the Act [i.e. Bill 115] that preclude strikes during the course of a collective agreement. 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 acceding to ETFO’s position – in other words that the section 1 defence to Charter violations is not as applicable in this case as it was in all the previous cases. Accordingly, the day of protest that ETFO was indispitedly authorized and supported for January 11th, 2013 is an unlawful strike under the Act.

Citing the hour of his decision, “it is now after 3:30 a.m. on January 11, 2013 and this hearing commenced at 3:00 p.m. on January 10, 2013”) Chair Fishbein ended his reasons on that, adding that “more detailed and fuller reasons for this decision will be provided at the written request of any of the parties to these proceedings.”

Commentary

I presume that Chair Fishbein thereafter promptly went to bed. Shortly after that parents and students across Ontario awoke to confusion as to what the decision meant and, more to the point, whether school was actually open.

What does the decision mean? Cynically, what it means is more anger and confusion. As Chair Fishbein notes in his decision, pursuant to section 14 of the Act the OLRB lacks the jurisdiction to inquire into whether the law is legal. Although an Application has been commenced in the Ontario Superior Court, as Chair Fishbein notes, that case likely won’t be heard until at least September, 2013. With reasons for decision likely to be reserved, and undoubtedly an appeal after that, we are likely looking well into 2014 until we have an answer on the constitutionality of Bill 115.

Is the OLRB’s decision correct at law? I think so. Reading the Chair’s decision I cannot help but be struck by the fact that the decision appears to be written through somewhat gritted teeth. The decision is based more on the effect of Bill 115 than on the Labour Relations Act, 1995 which governs most other collective bargaining situations in the province.

That said, the ETFO’s argument that only those working under freely negotiated collective agreements should be precluded from striking during the term of those agreements is appealing. It is just as possible that a court of appeal will agree with that argument; and I suspect that an appeal is forthcoming.

Returning to the heart of the matter though, when Bill 115 was first introduced I wrote that in response to question ‘Is Bill 115 constitutional,’ “I don’t know, and I don’t care.” See What’s Really Being Put First?. I added,

As I stated at the outset of this post, a good part of me does not care if the law is constitutional or not. I do care, but my interest is mostly academic and driven by professional interest.

My preference, however, would have been for the law not to have been passed at all. I fail to see why collective agreements could not have been negotiated without these restrictions being forced upon the parties. What if a School Board was, somehow, awash in cash? Why is that Board precluded from giving its employees a wage increase? What if a Board found other efficiencies or budget restraints? I simply do not get it.

It would appear that I was correct; more time will be spent arguing whether the law is valid than in addressing the actual issues of the parties. While it remains to be seen who will win that legal argument, it’s becoming equally clear that there will be no real winners in this matter.

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As always, everyone’s situation is different.  The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He tweets from @SeanBawden.