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October 19, 2010

someone near the top of the food chain at UofT had a quiet word with someone near the top of the food chain at the Globe and Mail. (Perhaps at a tea party.) How else to explain an editorial in our “national newspaper” that countenances — nay, calls for — our judiciary to be subservient to the ephemeral partisan policies of governments?:

Arbitration Awards Are Getting a Bit Rich (18 Oct./10)

Governments in Canada need to adopt clear and effective measures to restrain spending in the broader public sector; that is the lesson to be drawn from a labour arbitrator’s award this month, which gave university professors a 4.5-per-cent salary increase over two years – comfortably ahead of the rate of inflation. This decision frustrates public policy.

The financial crisis of 2008 induced a worldwide wave of government spending, intended to counteract the recession, while the private sector suffered. When recovery set in, it was the turn of the public sector to undergo some austerity, because governments now need to repair their finances and return to fiscal balance – a “time-lag” effect.

The Ontario budget last March froze pay for non-unionized public-sector employees; this was enacted in legislation, as a package of budget measures. But the budget also said that the provincial government would not provide funding for renewals of any collective agreements insofar as they gave raises to unionized employees – such as the professors at the University of Toronto.

Martin Teplitsky, a prominent arbitrator and civil litigation lawyer, said in his decision that he would appear to be “a minion of government” if he took into account the university’s ability to pay. The inevitable result will be that the university must cut elsewhere to reward the professors, who are described in the arbitration case as “top-of-the-market”; they are certainly not among the wretched of the  Earth, summoned to rise up in the socialist song The Internationale.

The award may be defensible under the abstract criteria of arbitration law – in this instance “a replication model of interest arbitration.” Fortunately the award is effective only until June 30, 2011. That gives some time for more legislation. Dalton McGuinty, the Premier of Ontario, and other first ministers across Canada, need to think hard about giving the force of law to more of their budgetary policies – turning labour arbitrators into their minions, if necessary.

There is a well-known, 186-year-old saying in law that public policy “is a very unruly horse … once you get astride it you never know where it will carry you.” In this case, however, it is labour law that is the unruly horse, and public policy that stands for prudence and restraint.

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