The collective agreement governing the terms of employment of approximately 55,000 Ontario public education workers (such as custodians, librarians and early childhood educators) expired on August 31, 2022. Since then, the Canadian Union of Public Employers (“CUPE”), which represents these workers and the Ontario government, have been actively negotiating the terms of a new collective agreement with little success.
With historic inflation gripping the province, a central topic at the bargaining table is compensation, with CUPE demanding annual 11.7% wage increases for the bargaining unit and the Ontario government offering wage increases between 1-2% per year.
On Sunday, October 30, 2022, CUPE gave the required five days’ notice to the Ontario government that the bargaining unit may pursue strike action as soon as Friday, November 3, 2022. In response, the Ontario government tabled Bill 28, the Keeping Students in Class Act, 2022 (the “Act”).
Bill 28, if passed, will bring an end to the negotiations between CUPE and the Ontario government by unilaterally introducing a new collective agreement. The collective agreement included in Bill 28 caps wage increases at 2.5% annually for workers who earn below CA$43,000 per year, and at 1.5% annually for workers who earn above CA$43,000 per year.
Importantly, Bill 28 also purports to prohibit any strike or lock-out action and will allow the Ontario government to issue fines to those who choose to strike despite the prohibition. Individuals may be fined up to CA$4,000 per day, while CUPE could be fined up to CA$500,000 per day, should they proceed with strike action.
Bill 28 also seeks to protect the Ontario government from any legal action commenced pursuant to the Canadian Chart of Rights and Freedoms (the “Charter”) by relying on section 33 of the Charter, the “notwithstanding clause.” The “notwithstanding clause,” also referred to as the override power, allows provincial legislatures to override certain sections of the Charter for a period of five years – including section 2(d), freedom of association.
If passed in its current form, Bill 28 will also:
- Override the Ontario Human Rights Code;
- Limit the ability of the Ontario Labour Relations Board, a mediator, or an arbitrator, to determine if Bill 28 is unconstitutional or in conflict with the Ontario Human Rights Code; and
- Block any legal action against the Crown as a result of the introduction of the Act.
Despite the introduction of Bill 28, CUPE announced in a recent press conference that its workers will protest the government’s actions on Friday, November 3, by walking off the job. It is expected that CUPE will also launch a Charter challenge against the proposed legislation; although at this time, it is unclear what mechanism the union could use to commence any such litigation.
Why this matters
The “notwithstanding clause” is rarely invoked, and the events of the past few days trigger an important conversation around whether the “notwithstanding clause” can (or should be) used to block bargaining rights.
Ten years ago, the Ontario government introduced the Putting Students First Act, 2012, which sought to ensure that the collective agreement reached between the Ontario government and CUPE would be substantially similar to the collective agreement reached between the Ontario government and the Ontario English Catholic Teachers’ Association. This Act was subsequently declared unconstitutional in 2016, and the Ontario government was ordered to pay CA$103.1 million as a result of this declaration. It is possible that the current Ontario government is pre-emptively triggering the “notwithstanding clause” to avoid a similar outcome.
The introduction of Bill 28 also leaves stakeholders with more questions, including how the Ontario government will seek to recover the fines detailed in Bill 28, and whether this situation sets a precedent for the use of the “notwithstanding clause” in future collective bargaining disputes between the Ontario government and the unions that represent its workers, and possibly in other circumstances where the government may consider back-to-work legislation such as the construction sector or public transit.
For the time being, the proposed legislation and its use of the notwithstanding clause are likely to create shockwaves in public sector bargaining in Ontario and possibly in other Canadian jurisdictions.
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