Over the past two years, Ontario has been at a crossroads with its physicians. The physicians maintain that Liberal government has cut health care funding. The Liberals of course, counter that this is simply a dispute about money, and that physicians have simply been asked to take a modest pay cut. As always, it is the patients that suffer whenever there's a dispute of this magnitude between physicians and government.
Lost in all of this of course, is some of the legal jargon, that is expounded by both sides, to advance their own agenda. The Liberals maintain that they underwent a one-year bargaining process, that was agreed upon by both sides, and that they are acting within the parameters of that agreement. The physicians of course, privately maintain that the government did not act in good faith, throughout the course of the negotiations, and are using physicians as a scapegoat to balance the budget. In their charter challenge, they claim that because they can't strike, they have no effective means of countering the government. In essence, the Ontario Medical Association (OMA), is claiming that the government is acting like a bully, and is picking on a group that cannot fight back.
While I obviously should have some bias in this issue, the reality is that I can see why it is difficult for the average member of the public to have sympathy for either side.
From a legal point of view, the government is correct. There was an agreed-upon process that the OMA foolishly agreed to in 2012, that upon closer reading, suggests that the government can make unilateral cuts if the negotiation process fails. The fact that the OMA didn't recognize this, speaks more to their ineptness at politics then anything else.
However, what is also true, is that the OMA, has not been able to avail itself of any protections enshrined in labour law. This is because, contrary to the perception in the lay press the OMA is not a union. It is a professional association, and has been since it's inception.
Now it is true that in the 1990's the Bob Rae New Democratic government gave it the sole bargaining rights for physicians, along with the ability to forcibly collect dues from all physicians (prior to this dues were voluntary). In return, the OMA offered to help "co-manage" the Health Care system. However, because it was not formally recognized as a union, the OMA did not (and still doesn't) have protection against unilateral actions of the government.
For example, there are certain fundamental rights given to unions, such as binding arbitration, when their members are not legally allowed to strike (eg. Firefighters). By not being unionized, the OMA cannot access those rights, and protect it's members.
Whose fault is that? Clearly it is the fault of the leadership of the OMA for not recognizing that at the end of the day politicians of all stripes, will simply focus on their agenda of getting re-elected, no matter what the cost, as opposed to acting in the best interest of the public. If attacking doctors will get votes, the politicians will do that. If cutting a deal with teachers is the price you pay for the teachers supporting them in the last election, politicians will do that too.
However, it's not too late for the OMA to learn from it's mistakes. Physicians can, and should, hold a certification vote to enshrine the OMA as a union. The benefits of this to the OMA are many. Currently, if there is to be some sort of job action, the government, is not obliged to respect the OMA's decision. For example, supposing the OMA were to direct it's members to stop attending hospital committee meetings until an agreement was reached. The hospitals can still go to physicians, and say "but we're so close to making a final decision on such and such policy, and your input is so valuable" or "you know we're going to move ahead with this decision whether you help us or not, see you might as well help us as you'll have to live with the consequences". This kind of thing happens all the time.
On the other hand, if the OMA was a union, then once it mandated that it's members would not attend committee meetings, it would become difficult, if not impossible under Ontario law to try to work around that decision. Do you think a Principal can go to a teacher in the midst of a job action (say not filling out a report card) and ask them to reconsider, without charges of workplace retaliation being filed by the Teachers Union?
This would create a situation (unlike current) where physicians could apply pressure on the government to send an impasse to a third party arbitrator who would resolve the dispute. Now of course, the government can always unilaterally impose legislation to rescind any arbitration award, however, one wonders if they would. To do so would risk the wrath of all the other unions, as they would surely recognize that if the government does that to one union, it will do that to another.
Far more importantly it provides the general public with a recognition that no matter what the difficulties, there will be a fair process for settling disputes. Governments are legally required to behave in a certain manner with unions. As a result, there will be safeguards in place to ensure that while the OMA and government are working on their disagreements, the health care provided will not suffer. That is clearly not the case now, as witnessed by events in Orillia, Kingston, London and more.
For many decades, physicians themselves have resisted unionization. There's never been an article written on why, but my sense is that for whatever reason, they felt unions were "beneath" them somehow as professionals. I've also had more senior physicians express to me concerns about a loss of independence if one were in a union.
However, the reality is that the current system is clearly not working for either physicians or their patients. Without some basic fundamental rights against unilateral actions, both physicians and their patients will continue to suffer at the whim of a government that appears to make decisions by fiat. It's time for physicians to shed their biases and unionize.