Written by Elizabeth Clarke – Edited by Emilia MacDonald
The recent upheaval in Ontario labour relations affecting approximately 55,000 public education support workers (including librarians, custodians, early childhood educators and administrative staff) represented by the Canadian Union of Public Employees (CUPE), will have ramifications for labour relations in Ontario and other provinces.
The Ford government quickly withdrew Bill 28 (only passed on November 3rd) and agreed to re-engage in mediative discussions with the goal of negotiating a collective agreement. Nonetheless, it is important to understand the events which precipitated this decision and the mechanisms that were employed by the Ontario government through Bill 28. The “notwithstanding clause” in the Canadian Charter of Rights & Freedoms is rarely used but may be invoked again in future labour disputes. Through Bill 28, the Ontario government has asserted unique and aggressive action against these public sector workers.
The previous collective agreement for these public education support workers (not including teachers) expired at the end of August this year. In the last two months, CUPE and the Ontario government actively negotiated for a new four-year agreement, albeit with no success. In the face of increasing inflation, CUPE demanded high wage increases for these workers by 11-12%. This increase would challenge the government’s previous offering of a 2.5% per year wage increase for workers making less than $43,000/year, and 1.5% per year for those earning more. On October 30th, CUPE gave the required minimum five days notice that entitled employees to strike as early as November 4th. A withdrawal of services by the education support workers would result in school closings due to safety concerns.
In response, the Ontario government introduced Bill 28 almost immediately. The legislature passed the “Keeping Students in Class Act, 2022” a day in advance of any possible strike action on November 3rd. The title of the Act indicated the government’s position: the prevention of a strike and the avoidance of school closures was the key objective. This legislation deterred the employees from striking, as well as from engaging in any further wage negotiations. Unlike most, if not all, past back-to-work legislation in Ontario (and in other provinces), this Act did not provide for an independent arbitration process binding upon Ontario and CUPE. Rather, it unilaterally declared a new four-year contract with the outlined wage increases capped at the government’s last offer (of 2.5% & 1.5% per year), with significant fines for non-compliance by CUPE and individual non-unionized workers. CUPE and affected employees protested this unique new legislation by striking anyway on November 4th.
The Charter: Freedom of Association Should Guarantee the Right to Strike
Extensive rights and freedoms are guaranteed by the Charter, including the four Fundamental Freedoms. In addition to freedom of religion and of peaceful assembly, every Canadian is assured the “fundamental… freedom of association”.
It has been long conceded that the right to engage collectively in bargaining with an employer falls within, and is thus protected by, the Charter. In 2015, the Supreme Court expanded this right by ruling that the right of employees to strike is an essential part of meaningful collective bargaining. Therefore, the right to strike is also a protected “freedom” under the “Freedom of Association” clause within the Charter.
Bill 28 and the Act resulting from it, would therefore infringe directly upon the rights granted by the Charter.
The Notwithstanding Clause: Provincial Exclusion of Certain Rights & Freedoms
To reach consensus during the adoption of the Charter in 1982, several provinces insisted on incorporating a clause that would limit the right to exempt certain parts of the Charter, including the freedoms listed in section two of this article, from being applied for a maximum period of five years. Section 33 of the Charter states that a provincial legislature can in fact (conditionally) exclude certain portions of the Charter from enforcement, if this intended exclusion is expressed explicitly. Although the invocation of this “notwithstanding clause” has been rarely used, Ontario recently declared such a Charter section exemption in its Bill 28 legislation. One can presume its inclusion served to protect the Provincial government from any potential legal action that may be taken by CUPE, which would invalidate the imposed collective agreement. In the passing of Bill 28, Ford essentially revoked a fundamental right and used further legislation to protect the Ontario government from the potential fallout.
This attempt to impose a new legislated four-year collective agreement upon these public sector workers with its previous (minimal) wage offer, while removing their right to strike/negotiate further and imposing heavy fines upon CUPE to punish any such strike action, has received widespread public criticism. Public condemnation of the Ford government’s action was immediate: from the Canadian Civil Liberties Association, to the federal government, and other public and private sector unions, opposition was potent and the possibility of a general strike was imminent. Even the Prime Minister criticised Ford’s use of the “notwithstanding clause” as a proactive measure in advance of any strikes. PM Trudeau stated that it was an attack on the basic right of employees to engage in effective collective bargaining. Public opinion polls indicated a higher degree of support for unions now, than what has previously existed in many years prior.
Ford Government Takes it All Back
On November 7th, just a few days after the Act was passed, Premier Ford and Education Minister Lecce reversed the government’s position by agreeing to repeal the controversial legislation on Monday, November 14th. Education workers agreed to return to the schools while CUPE and the provincial government resumed mediation towards a new agreement.
It is not often that public pressure causes such an immediate reversal of government action, but these recent events indicate that public critiques of unreasonable government initiatives can be effective. Hopefully, all parties will soon reach consensus on a negotiated four-year agreement, without interruption of classroom time or infringement on education workers’ rights.
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Government of Canada, D. of J. (2022, April 14). Section 2(d) – Freedom of Association. Charterpedia. Retrieved November 20, 2022, from https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art2d.html#:~:text=Freedom%20of%20association%20guarantees%20the,a%20right%20to%20collective%20bargaining.
Phillips, A. (2022, November 7). Ford, Lecce taken to school for mishandling education dispute. thestar.com. Retrieved November 8, 2022, from https://www.thestar.com/opinion/star-columnists/2022/11/07/ford-lecce-taken-to-school-for-mishandling-education-dispute.html
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The Constitution Act, 1982 [Part I – The Canadian Charter of Rights and Freedoms]