Union Successful at Interest Arbitration – prevents contracting out, secures wage increases and other benefits

In a recently released
interest arbitration decision the Amalgamated Transit Union (the union) successfully
argued against the employer’s (the TTCs) efforts to water down formerly
negotiated protections and was awarded a new three-year collective agreement
which covers some 11,000 operators, collectors and maintenance workers. Among
the several aspects of the award is a wage increase, with the union set to
receive a 6% wage increase over three years. Central to the case was
identification of an appropriate comparator.

In Toronto
Transit Commission v Amalgamated Transit Union, Local 113, 2018 CanLII 99135 (ON LA)
ATU disputed the employer’s intention to fundamentally alter the collective
agreement, and to alter it in such a way as to remove the negotiated
contracting out provisions, to eliminate the Sunday premium (an additional .25
cents per hour) as an “antiquated

and to introduce a part-time workforce. The employer also sought a wage
settlement that would mirror those negotiated at the City of Toronto and the
wage agreements negotiated with smaller unions.


The employer justified
the fundamental changes it sought on the basis that they were necessary for
“collective agreement modernization, to meet service needs and to position the
organization for long-term economic viability.”


The union rejected any
concessions and took the position that it should achieve further economic and
other gains based on long-established bargaining patterns. In compliance with principle
of replication, the union sought comparability with freely bargained sector
norms – meaning other public transportation systems.


Kaplan stated that no particular interest arbitration criteria has primacy. That
being said, he noted that replication theory, an arbitral doctrine which holds
that an interest arbitrator

strive to replicate the agreement which the parties themselves would have
reached by a process of free collective bargaining, is among the most
important. Replication criterion is also often the most disputed as it involves
the identification of an appropriate comparator.

As stated above, the TTC took the position that its
operators, collectors, and maintenance workers should be compared to City of
Toronto employees and the wage outcomes reached at the City, along with those
that were agreed-upon (or awarded) with several much smaller TTC unions. The
TTC argued that these settlements should drive the determination of the wages
in the collective agreement with the union. The union argued that the only
appropriate comparators were other public transportation systems.

arbitrator agreed with the union and found that the most appropriate
comparators were other transit services. In this case, Metrolinx and
Mississauga MiWay and Brampton Transit. The bargaining results at GO Transit were
also instructive.

also considered that the doctrines of gradualism and demonstrated need were
important. However, he found that drastic change absent compelling and
demonstrated need is not a normal feature of interest arbitration, a process
that has been characterized as conservative and incremental. According to
Kaplan, breakthroughs – for either the union or the employer – are only ever
justified in the most compelling of situations with
facts that didn’t
apply in this case.

In the result, Kaplan denied the TTC’s efforts to “modernize”
the collective agreement, prevented the TTC from incorporating language to
allow contracting out, and awarded wage increases to the union of 6% over three


In 2011 the provincial government declared the TTC an essential service,
which had removed the union’s ability to strike. While interest arbitration was
effective in resolving the issues in this case, it’s a poor substitute for the Charter-recognized
right to strike. Preventing or banning the right to strike for certain workers
may actually increase costs to the public employer since disputes need to be
settled by interest arbitration. That being said, and while there are a lot of
concerns with interest arbitration, the result in this case was favourable and
will serve as a reminder to employers that collective agreements cannot be
drastically changed without compelling circumstances that make such change

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