In late April, Joe, a City of Toronto employee in the economic development and culture division, received an email from the city’s redeployment team. It said he had two options: be redeployed, possibly to a long-term-care facility or shelter — or be placed on unpaid emergency leave.
“I have children. Do I really want to go into a situation like that and put everyone in my household at risk?” says Joe (whose name has been changed to protect his identity). “But, if I don’t, then there are financial repercussions.”
He’s not the only one grappling with such a choice. On April 16, the province issued an order under the Emergency Management and Civil Protection Act that effectively permits municipalities to override collective-bargaining agreements with only a day’s notice to unions. Since then, unionized municipal employees across Ontario have been redeployed to the front lines of the COVID-19 pandemic without the full security of their collective agreements.
Some employees have been redeployed to shelters, 311 call centres, and long-term-care homes. (In LTC facilities, city staff are used as screeners, cleaners, laundry assistants, and feeders, among other roles.) Others have been reorganized within their divisions. Joe says he was given a questionnaire that asked him to rank his preference for positions.
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A spokesperson for the Ministry of Municipal Affairs and Housing told TVO.org via email that the orders were necessary to support essential services: “Municipalities and District Social Service Administration Boards – which oversee local services like homeless shelters and Ontario Works programs – have the flexibility to offer reassignments to their staff.”
Alison Davidson, the municipal coordinator for the Canadian Union of Public Employees in Ontario, says that the emergency orders allow municipalities to override the terms of collective agreements “Our concern about the orders is that it overrides Charter rights for employees,” she says. “And that’s the right to freely collective bargain.”
Employees who decline redeployment are eligible for the Canada Emergency Response Benefit. However, they won’t receive a benefit available to employees who have an approved accommodation or who are not asked to change roles — a 75 per cent top-up to Employment Insurance benefits. “It seems almost punitive in a way,” Joe says. “Agree to go and put yourself potentially in harm’s way, or we are going to disincentivize you financially.”
In the context of a pandemic, the legal right to freely collective bargain could be overridden, says Eric Tucker, a professor of employment and labour law at Osgoode Hall law school in Toronto: “There’s constitutional protection of collective-bargaining rights … The likelihood is that the government, if challenged, would be found to have the legal power to override provisions in collective agreements that limit the employer’s flexibility in deploying its workforce and meet the needs of a pandemic crisis.”
But union leaders question the point of the order. “These orders are not necessary in the municipal sector,” says Davidson. “CUPE Locals were quite active negotiating directly with their employers, saying, ‘You need us to help out doing something else — we can do that.’”
Davidson says that, before the province’s emergency orders came down, she was already working with CUPE locals and their employers to arrange redeployment agreements in an attempt to avoid layoffs. She says she told Steve Clark, the minister of municipal affairs and housing, that unions and municipalities were working things out.
“It’s almost like a reflexive response by the government,” Tucker says. “They immediately assume that collective agreements are an obstruction to their freedom to take action and, so, without there being any evidence that there is actually a problem, they issue these orders.”
Beth Waldman, a spokesperson for the City of Toronto, told TVO.org via email that, “even with the provincial orders in place, the city continues to follow the existing terms and conditions of the current collective agreements where possible.” Toronto is one of more than 200 Ontario municipalities that has declared a state of emergency.
Lawyers say that workers retain their right to refuse unsafe work and the right to ask for accommodation in the context of possible redeployment, as outlined in the Occupational Health and Safety Act and the Human Rights Code. If employees are reassigned to work they feel is dangerous or unsafe, they can file a complaint, which may lead to an investigation by the Ministry of Labour, Training, and Skills Development. The protections under the Ontario Human Rights Code also still apply, says Ron Minken, an employment lawyer in Markham.
“If someone is refusing to work because they are higher risk, they may be older, or because perhaps they are a single parent with children at home and in that situation need to either look after them — or the kids are vulnerable,” he says, “then they would also be entitled to accommodation under the Human Rights Code.”
Waldman says that these concerns are being addressed by the city according to existing health and safety legislation. If an employee refuses work while on the job, the usual processes— including a possible ministry investigation — will be triggered.
In municipalities across Ontario, grievance procedures are largely on hold.
Joe has decided to accept redeployment. He’s not sure what he’ll be doing and knows only that it may include administrative support. Still, he’s worried. “It just seems a bit daunting even with training,” he says. “A number of frontline workers are living in hotels right now, so they are not bringing anything back into their households. That’s all very frightening.”