CECBA Essential Services, Strikes, and Interest Arbitration

• Author: Timothy Hadwen/David Strang
• Pages: 463-585

463

 

CECBA Essential Services, Strikes,

and Interest Arbitration

A. INTRODUCTION

The Crown Employees Collective Bargaining Act, 1993 (CECBA)1

incorporates essential services requirements into a strike/lockout regime.

This is compared and contrasted with the only other essential services

legislation in Ontario — the Ambulance Services Collective Bargaining

Act, 2001 (ASCBA).2 The CECBA exceptionally requires interest arbi-

tration for the Correctional Bargaining Unit.

CECBA Part IV — Essential Services and Part III.1 — Interest Arbi-

tration — Correctional Bargaining contain the main provisions of the

CECBA’s unique interest dispute resolution scheme. Those provisions

do operate in the context of the Labour Relations Act, 1995 (LRA),3

since the CECBA incorporates the interest dispute resolution provisions

of the LRA in their entirety, subject only to the explicit modif‌ications

and additions contained in CECBA Part II — Application of Labour

Relations Act, 1995.

For completeness, this chapter also reviews lived experience with:

• picketing issues unique to Ontario government employees on

strike

• “return to work” protocols

1 SO 1993, c 38 [CECBA].

2 SO 2001, c 10 [ASCBA].

3 SO 1995, c 1, Sch A [LRA].

464 | ONTARIO PUBLIC SERVICE EMPLOYMENT AND LABOUR LAW

• illegal strikes

• possible ad hoc legislation restricting collective bargaining

Under the CECBA regime, there have been two strikes by direct

employees of government, the OPSEU strikes of 1996 and 2002. The

1996 strike lasted f‌ive weeks and the 2002 strike lasted seven weeks.

Each involved widespread strike and picketing activity across the

Ontario Public Service (OPS) in Toronto and throughout the prov-

ince.4 The 1996 picketing of the Legislative Assembly and the resultant

Ontario Provincial Police (OPP) response were the subject of a judicial

inquiry. Lengthy essential services agreement negotiations preceded

both strikes. Signif‌icant levels of essential services were required and

performed during the strikes. Substantial litigation occurred in various

forums as discussed below. The degree of disruption was a factor in the

2016 CECBA amendment, introducing interest arbitration for correc-

tions. Both strikes were settled without legislation or interest arbitra-

tion. In the 1996 strike, a key issue was job security, with the settlement

ending the contractual job oer guarantee that had been required for

employees to be laid o due to divestment of work, and introducing

enhanced severance and a requirement for the employer to make “rea-

sonable eorts” to secure oers of employment for divested employees.5

In the 2002 strike, key issues were conversion of f‌ixed-term employees

doing ongoing work to regular employment status6 and employer-de-

sired reorganization of insured health benef‌its administration.

B. CECBA ESSENTIAL SERVICES

) Context

a) Legislative Models for Strikes/Lockouts and Essential Services

The three basic models of legislation dealing with strikes/lockouts and

essential services are:

• the “unfettered strike” model: the standard strike/lockout regime

4 See D. Rapaport, No Justice, No Peace: The 1996 Ontario Public Service Employ-

ees Union Strike against the Harris Government in Ontario (Montreal: McGill-

Queen’s University Press, 1999) [Rapaport].

5 See history of OPSEU/MBS “reasonable eorts” and job security provisions in

Chapter 9.

6 See discussion in Chapter 10 of conversion of f‌ixed-term to regular employment.

CECBA Essential Services, Strikes, and Interest Arbitration | 465

• the “no strike” model: strikes and lockouts are illegal, and inter-

est arbitration is used to f‌inalize collective agreements

• the “designation” or “controlled strike” or “essential services”

model: strikes and lockouts are legal, but some services are desig-

nated as essential by agreement of the parties and/or board order

with the consequence that those services must be maintained

during any strike or lockout7

Versions of all these schemes are used for dierent provincial and

federal public sector workforces in Canada, and the strengths and

weaknesses of the various models have long been the subject of debate.8

The “unfettered strike” model has been favoured because the nega-

tive impact of a strike or lockout, or the threat of same, motivates both

parties to reach a compromise and leaves the nature of that compromise

in the hands of those who know the issues best — the parties themselves.

The concern raised by the model is that public services are provided on

a monopoly basis, without alternate sources of supply, so strikes or

lockouts will pose a threat to public welfare and give disproportionate

bargaining power to public sector unions.

Where the social impact of any strike or lockout is seen as unaccept-

able, then the “no strike” model puts the resolution of the dispute in

the hands of expert interest arbitrators. This model has its own risks.

Conf‌lict can be redirected awayfrom strikes to higher grievance arbi-

tration rates.9 In bargaining, the “no strike” model has a “narcotic

7 For a review of the Canadian experience and evaluative commentary, see Bernard

Adell, Michel Grant & Allen Ponak, Strikes in Essential Services (Kingston, ON:

IRC Press, Queen’s University, 2001), especially Chapter 2 [Adell et al]; Eric

Tucker, “Regulating Strikes in Essential Services: Canada,” in Moti Mironi &

Monika Schlachter, eds, Regulating Strikes in Essential Services: A Comparative

“Law in Action” Perspective (The Netherlands: Wolter-Kluwers, 2019); electronic

copy online: ssrn.com/abstract=3277648 [Tucker]; Joseph B. Rose,“Regulat-

ing and Resolving Public Sectorin Disputes in Canada”(2008) 50:4 Journal of

Industrial Relations [Rose, 2008].

8 Harry W. Arthurs, Labour Disputes in Essential Industries (Ottawa: Privy

Council Oce, 1968); Mark Thompson & Sara Slinn, “Public Sector Industrial

Relations in Canada: Does It Threaten or Sustain Democracy?” (2013) 34 Com-

parative Labor Law and Policy Journal 393 [Thompson & Slinn].

9 Robert Hebdon & Robert Stern, “Tradeos Among Expressions of Industrial

Conf‌lict: Public Sector Strike Bans and Grievance Arbitrations” (1998) 51:2

Industrial and Labor Relations Review 204.