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Are unions losing their purpose?
By Howard Levitt

David Miller, Toronto Mayor, is playing to lose. Haunted by his past generosity and shackled by his pro-union proclivity and lack of business experience, he is letting opportunity slip away.

By not pulling the plug earlier on the union's collective agreement, which expired in January, he permitted members of the Canadian Union of Public Employees to strike in July rather than in winter. That makes it less painful for the strikers and more so for residents of Toronto.

Howard Levitt
Miller's errors were then compounded by his unwillingness to confront the union with injunctions as they set up their illegal blockades, as his job should require him to do.

Instead, he turned his fury on the residents of the city, warning of prosecution for those who littered. Then he shut down city services, even on Canada Day, rather than keep them running with managers, replacement workers, contractors and any City workers who wished to keep working (only a small percentage actually voted to strike).

He could yet be a hero, hiring the recently unemployed at a lower cost than union wages, to replace civic workers during the strike. If Torontonians had their services provided and simultaneously saved taxes, the CUPE's bargaining power would disintegrate. However, that is unlikely to happen under Miller's watch.

The Mayor still has another simple solution that would end this strike -- one private sector clients have successfully used when they are in a similar position. He could either contract out the work, at lower rates, to waste disposal and other companies or hire and train workers to do the job. That's because a provision in the union's collective agreement that provides employees of more than 10 years service with a permanent job if the city contracts out or privatizes their position does not apply during a strike.

Governments at all levels across the country pay public sector employees far above market rates. This essentially amounts to taxpayers paying their employees far more than they earn themselves and creating tax rates that are unsustainable.

In negotiating a contract, public employees are either declared essential services or are permitted to strike but are then sent to arbitration. In both cases, an arbitrator decides their wages and benefits. Historically, they have done this by looking at other similarly overpaid public sector workers. That is unsustainable, as well.

Public sector unions should still be permitted to strike, but instead of demanding back to work legislation, the governments should contract out the work or hire replacement workers. The preparation for this should be done before the strike begins, a step that in most cases would prevent the union from striking.

Why is no mayoralty candidate advocating this?

A client of mine, whose union was recently decertified, just bought a business from a unionized employer. At the time of the sale, the employer commented that my client would be better off if it learned to deal with unions. My client did not see it that way. It was happy to lose the adversarial environment that goes with having a union and be able to make its decisions in the interests of its business and employees without worrying about Byzantine collective agreement provisions.

Increasingly, Canadian employees represented by unions are coming to the same conclusion. The rate of unionization in this country is in dramatic decline, particularly in the private sector.

Protective legislation for employees and a sympathetic judiciary provide non-union employees with as much, and in some cases, more protection than that enjoyed by organized labour. Unionized employees cannot even sue for wrongful dismissal and usually are limited in their severance to the minimum provisions of each province's employment standards act.

In short, I would say unions are no longer a necessary evil in Canadian workplace.

Howard Levitt, counsel to Lang Michener LLP, is an employment lawyer who practises in seven Canadian provinces and is author of several texts, including The Law of Dismissal for Human Resources Professionals, recently released. He can be reached at hlevitt@langmichener.ca



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