The Ontario Superior Court on May 8 struck down “essential service” legislation from 2011 that took away Toronto Transit Commission (TTC) workers’ legal right to withdraw their labour, with Justice William Chalmers finding it unconstitutional, after more than 10 years of cuts.
Along with affirming TTC workers’ right to strike, Chalmers denied a request by TTC management to suspend the implementation order for 12 months. This is significant because it would mean, potentially pending appeal, that the Amalgamated Transit Union (ATU) Local 113 will have its right to legally strike restored in time for the expiry of its current contract in March 2024. This will provide the union with an opportunity to go on the offensive and wage a fight to make gains, both for its own members as well as for the wider working class it serves.
Enabled by the provincial labour board, the TTC’s unionized workforce have faced a coordinated offensive by management since the workers were deemed “essential” in 2010.
From contracting out and the ensuing replacement of hundreds of good jobs with poverty wages, to wage increases below inflation, benefit cuts, and even attempts to bring in part-time workers and eliminate historic job-security provisions, workers have chafed under the dictatorial whip of union-busting CEOs Andy Byford and Rick Leary ever since.
All along, while the workers pushed to fight back,they were advised by the union leadership that they could not use their most effective weapon—the right to strike—because they are “essential”.
The Ontario court’s decision accordingly may come as a relief to many workers. But while the decision confirms that the workers’ democratic right to strike was violated, the imposed collective agreement remains in place until 2024, along with all the losses of the past decade-plus. Winning back what was lost will require, at a minimum, preparation for a real fight between now and when the current contract expires next year. This, in turn, will require a refusal to bend to unjust laws again.
It is not the case that ATU 113 was helpless to fight back against the employer’s assault until now. The history of the labour movement is one of defying unjust laws meant to break the workers. “Essential service” legislation is no different.
When this legislation was first introduced, Fightback characterized it as a political attack by the capitalist class in Ontario against one of the most historically militant and successful unions in the province. The aim of the “essential” designation was not to protect a vital service, but to allow the TTC to unilaterally impose its agenda of cutbacks without resistance.
The typical resistance of TTC workers did give the Ontarian ruling class cause to worry, as they set a dangerous example for other workers. After TTC workers went on strike in 1991, 1999, 2006, and 2008, the bosses decided it was time to teach them a lesson and throw the movement back. This was particularly necessary as the situation was only three years removed from the Great Recession of 2008-9. From the capitalists’ perspective, a sustained and massive attack on the working class was necessary in order to restore the economic equilibrium. It didn’t matter that the crisis had been caused by the capitalists and their system in the first place—they needed to make workers pay the bill, and knocking ATU 113 down a peg would serve in those efforts. Conservative then-mayor Rob Ford collaborated with Liberal then-premier Dalton McGuinty to get the legislation passed in February 2011.
In the past, the bourgeois state has imposed essential service legislation on emergency service workers, arguing that any cessation of their work would have life-endangering consequences for the public. This ignores the fact that these workers care deeply about the people and communities they serve, unlike the politicians and managers who systematically underfund these services. Workers are fully capable during a strike of continuing to provide essential services to vulnerable layers, by putting those services under democratic workers’ control—a fact which was proven during the 1919 Winnipeg general strike.
As the crisis of the system has intensified, politicians have attempted to broaden this definition to include supposed damage to the economy as another reason to designate workers “essential”.This was precisely the rationale Ford and McGuinty used against TTC workers, claiming an eye-watering sum of $50 million lost for every day that the transit system was shut down.
Aside from the fact that this calculation seems to have been made on the back of a paper napkin at the time, Justice Chalmers concluded in his ruling that the removal of transit services does not constitute a threat to human life, and therefore that there is insufficient basis for transit to be considered an “essential service”.
How to break laws that are meant to break you
ATU 113 President Marvin Alfred, in an interview with CP24, summarized the union’s relationship with TTC management under essential service legislation as follows:
The employer has been taking advantage of this legislation and not authentically dealing with us. We’ve just about had to negotiate our right to oxygen and sunshine when anytime we are dealing with the employer they know they always had this in their pocket, that they knew they could always mistreat us based on this legislation (…) We are looking forward to this being something that we will have equal footing when we have the next round of negotiations.
This is an absolutely correct characterization of what one-sided class warfare looks like. It does beg the question, however: why wait for the court to overturn the legislation?
Alfred characterizes the now struck-down law as an “irresponsible” piece of legislation. This does not go far enough. From the standpoint of the interests of the overwhelming majority of the population, this was an illegitimate piece of legislation and an assault against fundamental democratic rights, which deserved to be defied.
At the time of its implementation, we called on the NDP and the Ontario Federation of Labour (OFL) to organize to bring down this law by whatever means necessary. This was not just a fight for TTC workers, but one for the entire working class to unite around.
Unfortunately, not only did union leaders at the time not politically campaign to bring the law down—ATU 113 leaders delayed the decision over whether it was worthwhile to even fight the battle in court!
In hindsight, the decision to go ahead with the case was vindicated. However, it could have easily gone the other way. The bourgeois justice system is in general no friend to the workers, and a different judge may have rendered a different decision. The ATU’s own lawyers estimated at the time of launching the lawsuit that it had only a very small chance of success.
TTC workers are far from the only ones who have suffered such an attack in the recent period, however. There has in fact been a much wider and systematic campaign by the capitalists to remove the legal right to strike in general across Canada.
Typically, this comes in the form of back-to-work legislation. Over the years, its use has become a matter of routine in any large strike of a certain duration in an important industry. It has been used effectively in each case largely because union leaders have refused to call it out for what it is—a political attack by an elite minority against fundamental democratic rights of the majority—and to follow the logical practical conclusion, which would be to defy and actively appeal for wider solidarity with mass sympathy strikes.
For years we have been saying that somebody, somewhere has to defy, or else the right to strike is not worth the paper it’s printed on. CUPE education workers finally broke the trend last November and successfully defied, defeating Doug Ford’s Bill 28 behind the threat of an Ontario-wide general strike. This was an incredibly inspiring victory, and an example that should be automatically followed in future when any union has its right to strike removed through back-to-work or essential service legislation.
To strike or not to strike
The CUPE strike also proved, however, that a successful defense of the legal right to strike does not automatically lead to victory over the main bread-and-butter demands in any given struggle. To give the best possible chance, union leaders need to be willing to actually use the right to strike to its maximal extent. After the legal right was restored by the defeat of Bill 28, CUPE leaders with the Ontario School Board Council of Unions (OSBCU) not only failed to adequately make use of it, but failed to use it at all, throwing away their historic victory to accept a below-inflation deal.
It bears remembering that the whole point of a strike is to disrupt. As we saw during the recent Public Service Alliance of Canada (PSAC) national strike, bourgeois politicians and the corporate media always wail about the terrific economic and social consequences of a strike. The Toronto Star even went so far as to warn that the PSAC strike could kick-start a recession! Never mind that there are far more powerful forces at work, such as the Bank of Canada deliberately trying to provoke said recession by drastically increasing interest rates; the workers are surely to blame for this, as with everything else!
The bankers and bosses’ only real concern in any strike is that it will disrupt their profits. They are only able to extract these profits by exploiting the labour-power of their workers day in and out, without cessation. At a certain stage, workers become conscious of this exploitation and organize to fight against it. They soon learn that it is only by completely shutting production down that they can cut off the flow of profits, and bring the maximum pressure to bear on the boss to give in to their demands and advance their cause.
While in the public sector, private capitalists are replaced by state managers, the relationship is still fundamentally the same. The capitalist state is in many ways designed to operate just like a private capitalist enterprise, increasingly so in recent decades.
In the case of government workers who provide a service to the public, the use of the right to strike does not inevitably pit the workers against the wider public as some suggest. On the contrary, a recent poll showed that 55 per cent of Canadians supported PSAC’s demand for remote work, and a full 62 per cent blamed Doug Ford for school closures caused by the CUPE education strike.
All of this is indicative of a general shift to the left of public opinion—particularly over the last few years as the pandemic hypocrisy of government bailouts for, and profiteering by, the rich contrasted with the growing misery of the masses. The public identifies with unions’ demands for wage increases to match inflation and remote work rights precisely because these are issues that affect all workers. Nobody likes transit or school closures. But when unions correctly identify the government and the rich as the side to blame in a given strike, considering that the workers’ demands are just, then that provides the basis for support and solidarity from the wider working class.
TTC workers must now prepare to use the right to strike
Having regained the legal right to strike, TTC workers now find themselves suddenly in a potentially favourable situation. But potential will only be translated to actual, material gains if their unions are prepared to actually exercise that right to the fullest possible extent.
The right to strike is like a muscle: it must be put into use if it is to be effective, and with disuse comes atrophy. Given that the last TTC strike took place 15 years ago, the majority of ATU and CUPE transit workers will have never had the experience of being on a picket line before. Many of them likely even have very little idea of what the union is or what it does!
For this reason, the leaders of these unions must commit to systematically educating and preparing members for strike action prior to their current contract expiring. An all-out rank-and-file organizing campaign, similar to what CUPE education workers did prior to their strike, would be a good start.
In its past, ATU 113 has had a well-established reputation as an “old-school” militant union, with leaders known to fight ferociously on behalf of their members. To its detriment, however, the union has often failed to extend this approach to fighting for the wider working class who depend on the transit system to get to work every day, sometimes even taking a directly antagonistic approach. This was best exemplified in the 2008 strike when the union only gave the public 90 minutes’ advance notice of the strike, which began at 12:01 a.m. on a Saturday night! This stranded thousands of Torontonians who were enjoying an evening out on the town, and understandably soured the union’s public reputation.
As mentioned, public opinion has become more favourably disposed towards unions and workers’ struggles in general in recent years. This should not be taken for granted, however. To ensure the public is on its side in a future strike, transit workers must also take up demands to improve the quality and affordability of public transit, and be prepared to fight for them. CUPE Local 2 and ATU 113 have previously embraced the bold demand for free, fully funded public transit. This should be taken up again and publicly campaigned for in the leadup to next year’s contract negotiations.
Finally, the fact that the legal right to strike has been regained does not mean that it cannot be attacked again through the use of back-to-work legislation. As a result, both ATU and CUPE must prepare to defy back-to-work legislation if and when it is brought down, and work with other unions in the province to escalate to an all-out general strike if necessary to ensure any such legislation is crushed. Doug Ford has already burned his fingers once in his attempt to run roughshod over the right to strike. If he dares try again, workers should mobilize to bring his government down.