Labour lawyers say Legal Aid Ontario is dragging its feet when it comes to allowing its articling students to unionize, following the three years it took the organization to agree to negotiate with its staff lawyers’ chosen union.
LAO articling students are now waiting to see the results of a vote that will determine if they join The Society of Energy Professionals, as a dispute between the union and LAO draws out the process.
The Society filed a certification application in May on behalf of the articling students.
The students subsequently held a vote that month over whether they wanted to be represented by the group. But the votes have not been counted yet, as the Ontario Labour Relations Board sealed the results, pending decisions in two disputes between the parties.
The first dispute stems from the LAO’s rejection that the Society has status as a trade union — a challenge the OLRB recently rejected, in a decision on Sept. 21.
The second dispute relates to the LAO’s push for seven bargaining units to represent the articling students, rather than one province-wide arrangement, for which the union is pushing. A hearing date for that matter has been tentatively scheduled at the OLRB in December.
LAO says the remaining dispute is just a normal part of the bargaining process, but lawyers acting for the union say LAO is trying to slow the process down.
“LAO’s position on the articling student bargaining unit description is puzzling and gives every appearance of a delay tactic,” says Lindsay Lawrence, of Goldblatt Partners LLP, who represented the Society of Energy Professionals in the OLRB proceedings.
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“It is simply inconsistent that there should be multiple articling student bargaining units, some populated by as few as two students, instead of one province-wide unit, in circumstances where LAO has agreed to a province-wide unit for the lawyers’ vote.”
Graeme Burk, a spokesman for LAO, says that the organization has simply asked the OLRB for a ruling on an issue that is in dispute.
“This is a normal course of action in a labour proceeding,” Burk said in an email.
He added that the two parties have agreed to work together to try to agree on the facts that are relevant to the bargaining unit structure dispute.
“Delay tactics generally do not involve the co-operation of the other party in a dispute,” he said.
In the ORLB ruling concerning the status dispute, the board said there was no doubt the society was a trade union as it had already been determined as such in a 2007 decision.
“The Board’s decision finding status is essentially final and therefore the union has status unless there is evidence that between the time it was initially certified and the date it filed this application it lost its status as a trade union,” the board said in the decision.
Burk said the status question was raised because it wasn’t clear to LAO that the local union had been correctly established. He said documents LAO requested from the International Federation of Professional and Technical Engineers were never produced.
LAO agreed to negotiate with the Society of Energy Professionals as the representative of its staff lawyers in August. The lawyers ratcheted up their campaign this summer, holding rallies outside multiple Liberal Party functions to apply pressure on the provincial government.
The staff lawyers originally requested to be represented by the union more than three years ago, but they were turned down.
They also filed a charter application challenging the exclusion of lawyers from the Labour Act, but they have since signalled they will drop the challenge after signing an agreement with LAO in September.
The staff lawyers are now set to vote on whether the Society will be their exclusive bargaining representative on Oct. 17.
Garrett Zehr, one of LAO’s articling students from last year who pushed to unionize, says articling students have some unique challenges that unionizing can help to address.
Articling students generally graduate law school with mountains of debt and rarely in much of a position to negotiate their contract, he says.
“And then when they’re actually articling they’re desperate to get a job [and] get hired back after. So they’re not going to want to rock the boat at all,” he says. “So for that reason I think it’s important to have someone you can go to.”
LAO does not pay for its articling students’ licensing fees as the Ministry of the Attorney General does, he says.
There is also a pay gap between LAO articling students and MAG ones, who are represented by the Association of Law Officers of the Crown, says Zehr. While MAG articling students receive a basic salary of $1,167 per week, those with LAO receive $1,095.15 per week.
He added that the effort to unionize is particularly important for LAO’s articling students in remote areas.
“I think it’s important for them to feel that they have the support and someone behind them,” says Zehr, who was hired back and is now a staff lawyer at LAO.
Lawrence says LAO’s request to have the articling students split up into seven separate bargaining structures is “absurd.”
“It would cause an incredible amount of fragmentation,” Lawrence says.
“They’re obviously trying to position Legal Aid Ontario to have the fewest strong bargaining units as possible.”
As LAO has roughly 30 to 40 articling students each year, some of the proposed units could have as few as two students each, she says.
“The only thing that really makes sense with an organization of this type is a province-wide unit,” she says.
She also noted that LAO’s refusal to agree to a province-wide bargaining unit for the students is inconsistent with what it has agreed to in the negotiations with the lawyers.
Burk, however, said that LAO’s different positions on the two proceedings are based upon what makes operational sense to the organization, as the responsibilities of articling students vary in different parts of the province.
Zehr says he thinks LAO’s approach with the two different groups has been consistent, given the fact that the lawyers’ campaign took more than three years to achieve its goals.
“They’ve been dragging the lawyers’ campaign on for several years now,” he says. “It took litigation and finally they’ve agreed to sit down at the table.”
The two parties have agreed to a potential hearing date of Dec. 14, but they are waiting to hear if the OLRB is available at that date.
Zehr says he is hopeful LAO students will be able to unionize soon and hopes that other articling students will take inspiration from that.
“Articling students do have the right to unionize and we hear about some troubling workplace issues and culture around articling and I think unionizing is definitely a way these things can be addressed,” he says.
