On a new front in the TTC vaccine battle, union calls transit agency’s mandate ‘illegal’

Thestar.com
Oct. 14, 2021
Ben Spurr

The TTC’s largest union is ramping up its fight against the transit agency’s vaccine mandate, claiming in new legal filings that the policy requiring employees to get their COVID-19 shots is a violation of provincial labour law.

In a pair of applications made to the Ontario Labour Relations Board on Tuesday, Amalgamated Transit Union Local 113, which represents nearly 12,000 TTC employees, alleges management has engaged in unfair labour practices by imposing two COVID-related policies in recent weeks. The applications have not been tested at the board.

The crux of the union’s case in both filings is that its collective bargaining agreement with the TTC expired at the end of March. The two sides are in arbitration over a new contract, but Local 113 argues that until an agreement is in place the Labour Relations Act and other provincial legislation mandates a “freeze” period during which the TTC is barred from changing members’ conditions of employment.

The vaccine policy the TTC introduced on Sept. 7 requires all 16,000 of its workers be fully vaccinated by Oct. 30. Although there are limited exceptions, compliance is a “precondition to employment.” Local 113 claims the policy “constitutes a substantial and dramatic change from the status quo” that “is expressly prohibited” during the freeze.

In a second application, the union claims the TTC also violated the freeze by delaying the date bus, streetcar and subway operators can sign up for their November shifts until after the Oct. 30 vaccination deadline. The TTC says the move is necessary to address potential labour shortages if a significant number of employees are not vaccinated on time.

“ATU Local 113 filed these applications in response to TTC management unilaterally and illegally changing the terms and conditions of employment,” said Local 113 president Carlos Santos in a statement to the Star.

He described the transit agency’s actions as “an insult to TTC workers who have kept Toronto moving during the pandemic,” but said the dispute could be resolved “if the TTC comes back to the table and negotiates in good faith.”

The TTC has not yet filed a response to the applications, and in a statement, spokesperson Stuart Green said the agency can’t comment on matters before the board.

“The TTC’s position on our policy is clear. We believe it will ensure our employees, their families, the broader Greater Toronto community and our customers are safer,” Green said. “It is truly mystifying that (union) executives would oppose such fundamental common sense public health measures.”

The union is asking the board for orders declaring that the TTC can’t impose a vaccine mandate during the freeze, and that the agency must revert to the previous shift sign-up procedure.

David Doorey, a professor of labour law at York University, said that at least on its face, “the union has a strong case.”

“If there was no agreement by the union to the (vaccine mandate), the employer will need to persuade the labour board that it always had the power to impose a mandatory vaccination policy in the case of a pandemic as part of its managerial rights and so the policy does not amount to a change at all,” Doorey said in an email.

The TTC could also argue the freeze should be waived in an emergency like the pandemic. “It would be interesting to see whether the labour board would entertain such an argument,” Doorey said.

Local 113 has opposed the TTC’s vaccination mandate since agency CEO Rick Leary announced in August transit employees would be required to get their shots. The union initially urged its members to refuse to disclose their vaccination status to management, but backed down last month after the TTC filed its own application to the board.

The union has faced criticism from transit riders and its own members for its opposition to the mandate, and asserts in its new filings that it is “not opposed to vaccination” but is fighting “the TTC’s unilateral implementation of its policy."

As of Tuesday, about 85 per cent of TTC employees had disclosed their vaccination status to management, and 90 per cent of those were fully vaccinated. The TTC has not said what discipline it will impose on employees who don’t get their shots.