In what legal aid staff lawyers are calling a “classic union busting,” Legal Aid Ontario’s chief executive officer has rejected their bid to secure collective-bargaining rights.
After six months of waiting, legal aid staff lawyers who are fighting to join a union heard back from LAO head Bob Ward about their request and they don’t like what they’re hearing.
As a group of protesters held a rally on Oct. 18 outside LAO’s office where a board of directors meeting was ongoing, Ward sent a letter to the lawyers rejecting their bid for voluntary recognition, says Bill Fitzpatrick, a spokesman for the group.
Under labour laws, lawyers must get voluntary recognition from their employers in order to join a union. The Labour Relations Act excludes lawyers, but others in that position, such as police and government lawyers, have received voluntary recognition from their employers, according to the legal aid lawyers.
“In order for lawyers to have representation to enter into a collective-bargaining agreement with their employer, their employer needs to voluntarily recognize them,” says Fitzpatrick.
Yet lawyers, such as those working with the Ontario Crown Attorneys’ Association and the Association of Law Officers of the Crown, have secured such rights, legal aid lawyers say.
Indignant about their situation, legal aid lawyers had requested that the Society of Energy Professionals serve as their exclusive bargaining agent. But after “thoughtfully and carefully” considering the request, Ward sent a response to union president Scott Travers saying he had decided to reject it.
“LAO does not have any legal obligation to voluntarily recognize a trade union to represent employees to whom the [Ontario Labour Relations Act] does not apply, nor to enter into a bargaining relationship with a trade union entirely outside the established process and structure of the OLRA,” he wrote in a response to the lawyers.
Ward also disputed the lawyers’ claim that what they’re asking for is no different from what Crown attorneys have.
“What the Society of Energy Professionals is seeking is, in fact, entirely different from the relationship that exists between the Crown in Right of Ontario and its lawyers,” wrote Ward.
“No group of lawyers in Canada, to the best of our knowledge, is, or ever has been, represented by a trade union such as the Society of Energy Professionals in their employment relationship,” he added, a statement Scott says is “historically and legally” incorrect.
Ward also said the relationship between the Crown and its lawyers is a “direct” one and that “these relationships have evolved over time and have been fashioned by those associations of lawyers and their employer in accordance with their respective interests.”
Steven Barrett, counsel for the LAO staff lawyers, says Ward’s response “is not rooted in reality or common sense.”
There’s no difference between their desired union and the associations that represent other government lawyers, according to Barrett. “It’s frankly not a reason that would make any sense for anyone who has any understanding of labour relations. I think the real motive is made clear by Bob Ward’s statement that he wants to deal and bargain directly with individual lawyers.”
Eighty per cent of legal aid lawyers chose to join the Society of Energy Professionals, Barrett notes.
“For the employer to say, ‘No, we don’t want to bargain with your choice and we’re just going to bargain with you and set a committee’ would be illegal,” he continues. “It’s not really for the employer to decide who its employees choose to be represented by.”
Besides what Barrett calls “classic union busting,” the lawyers also allege there’s “an element of discrimination” in LAO’s refusal to grant voluntary recognition.
Two-thirds of LAO staff lawyers are women and the group includes other “vulnerable” lawyers from diverse racial backgrounds, they say.
“On the one hand, the more traditional associations are recognized to have collective bargaining rights, yet [to] the group of lawyers who are most vulnerable, Bob Ward is saying no,” says Barrett. “That’s blatantly discriminatory.”
Just over 100 people attended the recent rally, according to Fitzpatrick. Some of those in attendance were members of the Ontario Nurses’ Association, the latest group to throw its support behind the lawyers. “Nurses know what it’s like to be told, ‘no,’ you don’t deserve the same democratic right to collectively bargain your working conditions as similar groups of employees that are male-dominated,” said ONA president Linda Haslam-Stroud in a press release.
“When we began organizing 40 years ago, the government, at first, refused to recognize nurses as union members,” she added.
In a letter written in response to Ward, Scott said he was “disappointed” with the CEO’s conclusion. “To be frank, after almost six months, your letter struck me as a cavalier and arbitrary dismissal of the democratically expressed wishes of LAO lawyers,” he wrote.
“Your ‘explanation’ is also historically and legally inaccurate,” Scott continued, citing that among other lawyer groups, CUPE Local 1949 represents legal aid lawyers in Saskatchewan.
“Your uncertainty regarding the extent to associate is astounding,” he wrote. “If any uncertainly exists, LAO should err on the side of an interpretation that promotes and recognizes Charter rights and freedoms, rather than one which abrogates them.”
Attorney General John Gerretsen has already acknowledged legal aid lawyers’ right to secure a collective agreement. The Criminal Lawyers’ Association also supports the idea.
For commentary on this issue, see "LAO staff lawyers want recognition and respect."