To borrow a phrase from Mark Hancock, the national president of the Canadian Union of Public Employees (CUPE), the Doug Ford government in Ontario has gone “full nuclear” and suspended the Charter-protected rights of the provinces’ lowest paid education workers to collectively bargain and strike.
On Monday, Ford’s Progressive Conservative (PC) provincial government tabled its Bill 28, the Keeping Students in Class Act, an egregious piece of legislation that preemptively removes education workers’ right to strike through use of the ‘notwithstanding clause’ and imposes an insulting contract on more than 55,000 educational assistants, support staff, and custodians.
Those closely watching the contract negotiations between CUPE and the government knew things were unlikely to end well. However, the extent of Ford’s overreach and his government’s blatant disregard for workers’ rights is truly something to behold.
After weeks of attempting to get the PC government to seriously respond to their proposals at the bargaining table, CUPE Ontario School Board Council of Unions (CUPE/OSBCU) members voted 96.5 per cent in favour of strike action early last month. With nearly 83 per cent of members voting, this supermajority sent a clear message to Ford and Minister of Education Stephen Lecce: education workers demand serious improvements to pay and working conditions.
Lecce and Ford of course completely ignored the democratic mandate of the union. Instead, they continued to offer insulting 1.5- and 2.5-per cent wage increases to workers who earn an average of $39,000 per year, while publicly warning them not to strike.
After receiving their “no board” report from the Ontario Ministry of Labour on October 17, the union was set for a legal strike date of November 3. Throughout this week, CUPE has remained ready and willing to bargain, but the government indicated it was uninterested, setting as a condition that the union withdraw its intention to strike — a ridiculous request. Rather than bargain or allow a lawful strike to commence, this government, which patently has no regard for the rule of law, has instead chosen to impose draconian legislation on education workers.
According to the text of Bill 28, workers earning less than $43,000 annually will receive pay raises of 2.5 per cent, while those earning $43,000 or more will see raises of only 1.5 per cent per year. However, according to CUPE, the government’s wage plan is a good deal worse than this already terrible offer appears. Because wage increases are based on a set pay grid, workers in categories who will eventually earn more than they currently do will receive 1.5 rather than 2.5 per cent increases. Essentially, far more workers than the government is letting on will only get a 1.5 per cent pay increase, at a time when inflation is still running at nearly 7 per cent. The government is literally offering lowly paid education staff a raise of roughly 40 to 70 cents per hour. Insulting doesn’t even begin to describe it. If the legislation sticks, this garbage collective agreement will be in force until Aug. 31, 2026.
CUPE had been asking for wage increases of $3.25 per hour, or approximately 11.7 per cent. While this might sound like a substantial bump in pay, when placed in the context of wage patterns in education over the past decade, it is truly modest. Recall that earlier this year CUPE released a detailed study of its members’ wages since 2012 (which I covered in Class Struggle). The big takeaway of the study was that education workers had received an effective wage cut of 10.2 per cent over the past decade (cumulative nominal wage increases of 8.8 per cent, against 19 per cent inflation). Put another way, the union is now seeking 1.5 per cent above where workers’ wages would have been had they simply kept up with inflation. Hardly a bank-breaking proposal.
Indeed, CUPE’s proposed wage package would cost the province roughly $240 million per year. As Ricardo Tranjan points out in the Toronto Star, that amounts to just 0.1 per cent of the Ontario government’s projected revenue for 2022-23.
Keep in mind, this is a government that is also flush with cash and passing out tax cuts to those who don’t need them. Ford’s government recorded a $2.1 billion surplus in 2021-22, following a pandemic that revealed the utterly decrepit state of so much of our public service infrastructure, schools included. The PCs are now losing $7.5 billion per year in revenue since forming government in 2018. The election gimmick of eliminating licence plate renewal fees alone cost $1.8 billion.
Perhaps most shockingly, Bill 28 additionally sets out fines of up to $4,000 per day per member, and up to $500,000 per day for the union in the event of an “unlawful” strike in defiance of the legislation. To put that in perspective, a single day’s fine amounts to more than 10 per cent of the average education workers’ yearly salary. It isn’t hard to discern where this government’s priorities are.
This whole episode is much darker than the economic details, however. A government infringing on Charter-protected free association rights in this manner is arguably unlike anything labour has seen before. Yes, governments across Canada routinely violate public sector collective bargaining rights through back-to-work legislation, wage restraint bills and ‘secret mandates’ whereby they set the parameters of public sector bargaining without unions knowing. But “Keeping Students in Class” takes the ‘permanent exceptionalism’ of government repression to another, dangerous, level.
The Charter of Rights and Freedoms ostensibly protects citizens from governments that might impede the exercise of various rights, including the right to free association. Since 2015, free association has been understood to mean the right to strike as a part of meaningful collective bargaining.
By invoking the notwithstanding clause — a section of the Charter that allows governments to suspend fundamental freedoms for particular pieces of legislation for a five-year period — the PCs are tacitly admitting that Bill 28 is illegal. The government knows full well that they are violating workers’ Charter-protected rights to bargain and strike, and so are relying on an obscure ‘get-out-jail-free’ card that, as the Canadian Civil Liberties Association has stated, was never intended to be used in contract negotiations.
Through the notwithstanding clause, the government is also able to limit the jurisdiction of other arms of the state to investigate the Charter-compliance of the legislation. Section 14 of Bill 28, for example, limits arbitrators from the Ontario Labour Relations Board from inquiring or “[making] a decision” regarding the bill’s (non)compliance with other legislation, such as the Ontario Human Rights Code or the Ontario Labour Relations Act.
Additionally, unlike most back-to-work bills where outstanding issues are sent to arbitration, Bill 28 denies access to arbitration and instead unilaterally dictates CUPE’s new collective agreement.
Legally, there’s very little the union can do. Use of the notwithstanding clause prevents unions from challenging this grotesque legislation in court or at the labour board. In the future, people will need to think critically about how to limit the use of this supposedly exceptional portion of the Charter, but in the here and now, the judicial route is closed. As well, challenging the imposition of fines and penalties is likely a long shot. There might be some potential for contesting individual fines levied against workers participating in today’s walkout at school boards that have closed schools, which many boards plan to do. But I wouldn’t bet heavily on the success of this approach.
In some respects, the fact that legal recourse seems to be foreclosed clarifies the nature of the challenge that labour confronts. Although litigation can at times be an effective tactic in labour’s arsenal, for too long unions have depended on taking their fights to the courts. Unions have no choice but to instead treat Bill 28 as the political battle that it is.
As Larry Savage, professor of Labour Studies at Brock University, relayed to me: “Counting on the courts to protect labour rights was always a dicey proposition, but if governments are going to start using the notwithstanding clause to override workers’ Charter rights, legal strategies become even less effective. Mounting a political fightback is more important than ever and could include reviving flying pickets, sit-ins, demonstrations and organizing the defeat of the government at the polls. To be successful, these strategies require cross-union alliances and a renewed sense of solidarity.”
There are some early signs such solidarity is taking shape. CUPE National called the legislation “an appalling display of contempt for workers’ rights, for the collective bargaining process, and for the workers who look after our kids and keep our schools running” and vowed to have workers’ backs. On Thursday morning, OPSEU announced that it would encourage its 8,000 members in education to walk off the job in solidarity with CUPE, and that the union would cover any fines or penalties incurred. Many other unions have condemned the government’s actions and expressed solidarity with CUPE, including the Teamsters, Unifor and, notably, LiUNA Canada, who had previously endorsed Ford during the provincial election.
The government is also in the process of bargaining contracts with the various teachers’ unions. Ford and Lecce are clearly signalling to these unions that they have no interest in good faith bargaining. On Monday, the Elementary Teachers’ Federation of Ontario (ETFO) walked away from the table in an act of solidarity with CUPE. “On this of all days, ETFO could not, in good conscience, sit across the table from the government, and so we ended negotiations for the day,” the union said. Other teacher’s union leaders have similarly condemned the PCs’ assault on workers’ rights.
On Tuesday afternoon, hundreds turned out for emergency rallies organized by the Ontario Federation of Labour in Toronto. As this newsletter comes out, CUPE members are set to defy the legislation and walk off the job in a one-day protest. What happens next week remains to be seen, though CUPE/OSBCU president Laura Walton indicated Wednesday that education workers would be on strike “until further notice.”
For this strike to be successful, unions across Ontario and Canada will need to offer more than strong words. The rights of workers everywhere are on the line. As the old labour slogan goes, “An injury to one is an injury to all.” I, for one, will be on the line with CUPE this morning. I hope you are too.
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