Report in which the committee requests to be kept informed of development - Report No 377, March 2016

Case No 3107 (Canada) - Complaint date: 05-DEC-14 - Closed

1. 215. The complaint is contained in a communication dated 5 December 2014 from the Amalgamated Transit Union (ATU), Local 113.
2. 216. The Government of Canada transmitted observations of the Government of Ontario in a communication dated 28 October 2015.
3. 217. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 218. In its communication dated 5 December 2014, the ATU, Local 113 explains that it is a trade union pursuant to the Ontario Labour Relations Act, 1995. It represents transportation and maintenance workers in the public transit sector in Ontario, Canada, including employees of the Toronto Transit Commission (TTC). The TTC is a public transportation agency that operates bus, streetcar, para-transit, and rapid transit services in Toronto, Ontario. At present, there are approximately 10,066 employees of the TTC represented by Local 113 (6,719 in transportation departments and 3,347 in maintenance departments).
2. 219. The complainant further explains that Local 113 and the TTC have a mature and long standing collective bargaining relationship and have negotiated approximately 55 collective agreements since the 1920s. Prior to the enacting of legislation in 2011 designating all Local 113 members employed by the TTC as “essential”, Local 113 had engaged in decades of hard bargaining to improve protection and working conditions for its members. Unionized workers of the TTC have engaged in strike action eight times in the last 62 years:
   • ■ 1952 – On strike for 19 days;
   • ■ 1970 – On strike for 12 days;
   • ■ 1974 – On strike for 23 days; back-to-work legislation imposed;
   • ■ 1978 – On strike for eight days; back-to-work legislation imposed;
   • ■ 1991 – On strike for eight days;
   • ■ 1999 – On strike for two day; back-to-work legislation imposed;
   • ■ 2006 – On strike for one day; back-to-work legislation imposed;
   • ■ 2008 – On strike for two days; back-to-work legislation imposed.
3. 220. In this respect, the complainant alleges that: in five of the eight times that Local 113 has taken strike action against the TTC, the Province of Ontario has introduced and rapidly implemented back to work legislation, ending the labour disruption; as the time went on, even short strikes were terminated with politically expedient back-to-work legislation; and that, in spite of a complete lack of evidence that strikes by members of Local 113 endangered or could endanger the life, personal safety or health of the whole or part of the population, it became politically desirous for governments to limit or eliminate strike action at the TTC.
4. 221. The complainant further alleges that on 16 December 2010, the City of Toronto requested that the Province of Ontario declare public transit in Toronto to be an essential service and thereby ban strike action by members of Local 113. The City of Toronto Staff Report prepared in advance of this request noted a number of key points with respect to strikes at the TTC:
   • (a) According to the city’s Economic Development, Culture & Tourism (EDCT) Division, the main impact of a TTC strike would be a reduction in the total output of goods and services produced in the city, resulting from increased travel times and commuters making alternate work arrangements;
   • (b) The Toronto Fire Services, Toronto Emergency Medical Services and the Toronto Police Services have each provided their assessment regarding the impact of a strike at the TTC on their ability to effectively respond to emergencies. Each service has reported that there has been no noticeable effect upon their response times or ability to respond due to a strike by TTC employees and the interruption of TTC services;
   • (c) According to Toronto Public Health […] there is no available data quantifying any health impacts during a transit strike in Toronto.
5. 222. According to the complainant, a motion brought before the Council of the City of Toronto to request that the Province of Ontario declare the TTC an essential service clearly reveals the motivation for the request: “recent polls have consistently shown that over 75 per cent of Torontonians support declaring the TTC an essential service (sometimes as high as 90 per cent)”. According to the complainant, when introducing the legislation to the Ontario Legislature, the then Minister of Labour spoke of the “economic impact work stoppages have” and noted that “work disruptions on the TTC severely affect the city’s economy”.
6. 223. On 22 February 2010, the then Ontario Minister of Labour introduced the Toronto Transit Commission Labour Disputes Resolution Act, 2011, which subsequently received Royal Assent on 30 March 2011. Pursuant to sections 1 and 15 of the Act, the prohibition on otherwise legal strike action applies to all employees of the TTC. The Act provides:
7. 224. The Act further provides for binding arbitration to resolve any outstanding disputes, including a number of restrictive criteria which, according to the complainant, limit the arbitrator’s discretion and flexibility:
8. 225. The complainant refers to Case No. 1768, concerning Iceland, in which the Committee held that an Icelandic statute that required an arbitrator to “take account of the valid wages and terms of agreements on merchant ships and the general wage trend in the country” when setting wage rates was inconsistent with fundamental associational freedoms, because “it does not allow [the arbitrator] any flexibility of interpretation” and considered that compulsory arbitration must be “truly independent and the outcomes of arbitration should not be predetermined by legislative criteria”.
9. 226. The complainant argues that with Royal Assent granted, members of Local 113 employed by the TTC lost their long-standing right to strike and gained an interest arbitration model in which the arbitrator faced significant restrictive criteria. The immediate impact of the Toronto Transit Commission Labour Disputes Resolution Act, 2011, was to freeze substantive bargaining and place a chilling effect on all future bargaining.
10. 227. The Act further requires a review within one year following the fifth anniversary of the coming into force of the Act:
11. 228. The complainant indicates that such a review should occur in late 2015 or early 2016. The findings and recommendations of this Committee would be highly relevant to such a review.
12. 229. According to the complainant, although bargaining in 2011 continued for some time, no substantive progress was made. In comparison to previous rounds of bargaining where the parties have not bargained complete collective agreements and have resorted to strikes, there were far fewer items agreed in the 2011 round of bargaining than previously. As the parties were unable to reach a collective agreement in 2011, pursuant to the Act, the dispute was referred to a labour arbitrator for interest arbitration. Although the parties were able to reach a mediated collective agreement in 2014, the inability of Local 113 to threaten strike action had a chilling impact on bargaining and fundamentally altered Local 113’s bargaining power.
13. 230. With reference to the cases examined by the Committee, the complainant recalls that the Committee has repeatedly and consistently held that the right to strike is a fundamental and legitimate means for workers to defend their social and economic interests and that it is “an intrinsic corollary to the right to organize protected by Convention No. 87” (Case No. 1954, para. 405). The complainant further recalls that the Committee has given “essential services” a narrow definition when it concluded that a service is essential only if its interruption would “endanger the life, personal safety or health of the whole or part of the population” (see, for example, Case No. 1989, para. 324) and that the fact that the interruption of a service would cause significant economic damage is “not relevant” for the purpose of determining whether a service is essential (Case No. 1963, para. 230):
14. 231. The complainant further refers to the cases in which the Committee had held that passenger transport services are not “essential services” for the purposes of restricting the right to strike (Case No. 2078: municipal public transit in Vilnius, Lithuania; Case No. 2057: municipal public transit in Bucharest, Romania; Case No. 2324: island ferry services in British Columbia, Canada; Case No. 1768: island ferry services in Iceland; Case No. 2212: island ferry services in Greece; Case No. 2044: island ferry services in Cape Verde; and Case No. 2741: transport workers in New York, United States). The complainant points out that having consistently held that the “transportation sector, including metropolitan transit, does not constitute an essential service in the strict sense of the term”, the Committee has on occasion recognized that in certain circumstances it would be appropriate to maintain minimum service in metropolitan transit (Case No. 2741, paras 767–68).

B. The Government’s reply

1. 232. In its communication dated 28 October 2015, the Government of Canada transmits the following observations of the Government of Ontario.
2. 233. The Government of Ontario indicates that the Toronto Transit Commission Labour Disputes Resolution Act, 2011, came into force on 30 March 2011. It provides a fair and neutral system of independent third-party binding arbitration as the means to resolve disputes that the parties are unable to resolve through the normal collective bargaining process. According to the Government of Ontario, the parties play a key role and have the following important rights under the Act: they are entitled to choose the arbitrator; may select the method of arbitration; they are provided with a full opportunity to present their evidence and make submissions; and they may, at any time before an award is issued, agree that the arbitration should be recommenced before a different arbitrator.
3. 234. The Government of Ontario argues that the Act was enacted in response to a request from the elected officials of the City of Toronto to address the unique and specific circumstances of Toronto and its transit system and the needs of its residents and those who visit. Those circumstances include the critical role the TTC plays in the life of the city and in assuring the health and safety of its people. The Government of Ontario recalls, in particular, that: (i) Toronto is Canada’s largest city; (ii) the TTC is the largest transit system in Canada and the third largest in North America; (iii) the Greater Toronto Area has the highest concentration of health-care facilities in Canada, including 40 hospitals, 84 long-term care homes and 21 community care centres; (iv) approximately 1.5 million people rely on the TTC each business day, including many health-care workers; and (v) a 2008 report commissioned by the ATU, Local 113, itself pointed to the environmental and health related impacts associated with a full disruption of TTC services. Among other things, that report estimated that without TTC services there would be over 178,000 additional cars on the road in Toronto and about 350,000 new car trips on any business day (with consequent health and environmental impacts related to outcomes such as traffic accidents, smog, etc.).
4. 235. The Government of Ontario stresses that it is committed to balanced, stable and productive labour relations. It considers that the Act does not interfere with the employees’ right to associate or bargain collectively. Indeed, the Act specifically encourages the parties to continue to negotiate with a view to making a new collective agreement. The Government indicates that it had carefully considered the request of the elected officials of the city of Toronto and consulted with the city, the TTC and its bargaining agents, including the ATU, Local 113. Stakeholders, including the ATU, Local 113 and the general public were able to express their views about the proposal by direct communication with the Government and through the legislative process. The legislative process in Ontario is public and democratic. During the legislative process, a Standing Committee of the Legislature, consisting of members of all the political parties, held hearings to receive public input. The ATU, Local 113, among others, made submissions at these hearings. All of those submissions were taken into consideration by the Government. After carefully reviewing the request from the city, the reasons for it, the reality of the circumstances and the input from stakeholders, including the ATU, Local 113, the Government responded in a way that is fair and measured.
5. 236. The Government of Ontario concludes that the TTC plays a vital, unique and critical role in the lives of Torontonians; to lose the services of the TTC is much more than an inconvenience or simple economic issue. It considers that the Act respects the freedom to associate and engage in collective bargaining, and indeed encourages freely negotiated solutions. It provides a fair, neutral and independent means to resolve impasses that cannot be resolved through collective bargaining.

C. The Committee’s conclusions

1. 237. The Committee notes that in its communication dated 5 December 2014, the ATU, Local 113 alleges that its members employed by the TTC have been deprived of their fundamental right to strike and their right to freely negotiate the terms and conditions of their employment by virtue of a legislation (Toronto Transit Commission Labour Dispute Resolution Act, 2011) declaring the TTC to be an essential service and thus prohibiting any recourse to strike action.
2. 238. The Committee notes that pursuant to section 15 of the Act, “employees to whom this Act applies shall not strike”. Pursuant to section 1 of the Act, this legislation applies to the employees of the TTC.
3. 239. The Committee notes the information provided by the Government of Ontario to justify the prohibition of strikes in the Toronto transit system and, in particular, on the role the TTC plays in the life of the city.
4. 240. The Committee recalls that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests. It further recalls that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population). The Committee has considered that metropolitan transport does not constitute an essential service in the strict sense of the term. It recalls that the transportation of passengers and commercial goods is not an essential service in the strict sense of the term; however, this is a public service of primary importance where the requirement of a minimum service in the event of a strike can be justified. In this respect, a minimum service could be appropriate as a possible alternative in situations in which a substantial restriction or total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 522, 576, 587, 607 and 621].
5. 241. With regard to the compulsory arbitration (section 4 of the Act), the Committee observes that this case does not concern a one-time recourse to compulsory arbitration but rather a global prohibition of the right to strike in a sector that cannot be considered to be, as a whole, essential, contrary to the above principles. The Committee recalls that a system of compulsory arbitration through the labour authorities, if a dispute is not settled by other means, can result in a considerable restriction of the right of workers’ organizations to organize their activities and may even involve an absolute prohibition of strikes, contrary to the principles of freedom of association. It further recalls that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. Furthermore, the Committee considers that provisions which establish that, failing agreement between the parties, the points at issue in collective bargaining must be settled by arbitration are not in conformity with the principle of voluntary negotiation contained in Article 4 of Convention No.98 [see Digest, op. cit., paras 568,564, and 993] .
6. 242. The Committee further notes the complainant’s additional allegation, dealing with issues beyond those raised above, that section 10(2) of the Act limits the arbitrator’s discretion and flexibility by providing for certain criteria that “the arbitrator shall take into consideration”. The Committee considers that the criteria which the arbitrator is obliged to take into consideration under the Act would appear to allow for sufficient discretion and flexibility, bearing in mind that reference to arbitration should only be taken in accordance with the abovementioned principles.
7. 243. In light of the review to be carried out on the operation of the Act in the very near future, the Committee urges the Government to takes the necessary steps so that the Government of Ontario will review the Toronto Transit Commission Labour Dispute Resolution Act, 2011, in consultation with the social partners, in a manner so as to ensure the rights of TTC workers in accordance with the abovementioned principles. It requests the Government to keep it informed in this respect.

The Committee’s recommendation

1. 244. In the light of its forgoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • In light of the review to be carried out on the operation of the Act in the very near future, the Committee urges the Government to takes the necessary steps so that the Government of Ontario will review the Toronto Transit Commission Labour Dispute Resolution Act, 2011, in consultation with the social partners, in a manner so as to ensure the rights of TTC workers. It requests the Government to keep it informed in this respect.