An Unprecedented Legislative Move
This week, Bill 28 was repealed and the collective bargaining model in Ontario stands. Why was it such a big legal deal?
The recent strike by education workers in Ontario made headlines for reasons beyond the usual disruption to parents’ and kids’ everyday lives. On October 30, 2022, the Canadian Union of Public Employees (CUPE) in Ontario gave notice to the province that the education workers it represents would strike in 5 days.
On November 3, the province responded by introducing Bill 28, which enacted the Keeping Students in Class Act, 2022, unilaterally imposing a new collective agreement, outlawing the impending strike, and invoking the “notwithstanding clause” in the Charter of Rights and Freedoms to do so. This type of legislation is unprecedented.
CUPE education workers went on strike November 4 anyway and remained on strike November 7 when the Ontario government put forward a “good faith” offer to repeal Bill 28 if CUPE ended their strike and returned to the bargaining table.
Some Background on the Structure of Bargaining in Education
Under the School Boards Collective Bargaining Act, 2014, certain terms of work are bargained or negotiated “centrally”. CUPE’s Ontario School Board Council of Unions, the Council of Trustees’ Associations (CTA), and the province are in the midst of negotiating new central terms.
The Ontario School Board Council of Unions is the bargaining representative for education workers across Ontario (such as early childhood educators, caretakers and custodial staff, lunchroom supervisors and special needs assistants) who are represented by CUPE and the Council of Trustees’ Associations is the bargaining representative for school boards across Ontario.
The Crown, or the provincial government, is required to participate in central bargaining. This centralized process helps ensure similar key terms of work for the same jobs across the province. Remaining terms are bargained at the local level between individual union locals and school boards and the Crown is generally not entitled to participate at the local level.
Employee wages is one of these central terms. CUPE came to the bargaining table with the province calling for an 11.7% annual salary increase for its employees, noting its employees are the lowest paid workers in education and that their salaries need to better reflect the current economic realities.
After five months of negotiations, a conciliation, and a mediation, the parties were in a position to be able to strike or be locked out.
Why Was Bill 28 So Significant?
Bill 28 enacted the Keeping Students in Class Act, 2022, which was uniquely significant for two reasons:
- The Act unilaterally imposed new central terms by providing 2.5 per cent annual raises to workers making less than $43,000 and 1.5 per cent raises for all others for a set term of 4 years.
- The Act quashed workers’ Charter-protected right to strike by outlawing the impending strike and imposing severe fines on individual workers and the union for striking.
The right to strike has been read into the Canadian Charter of Rights and Freedoms by several Supreme Court of Canada decisions over the past few decades, which makes it a constitutionally-protected right.
In order to get around this, the province also invoked the s. 33 of the Charter, also known as the “notwithstanding clause”. This is a clause that permits the legislature to override certain Charter-protected rights, which historically has been used quite sparingly.
Strikes are one of the most persuasive tools in a Union’s toolbox. It causes a huge disruption to our education system and puts significant pressure on school boards and the province to compromise on key issues for the Union. Under the Ontario Labour Relations Act, unions are only permitted to strike at a certain point in the collective bargaining process to limit this disruption. In exchange for giving up the right to strike at any time, employers are required to bargain with unions in good faith.
Bill 28 Backfires
By quashing workers’ right to strike, the province wielded its power to legislate and hoped to tip the balance of rights provided for under the Labour Relations Act in their favour. By unilaterally imposing new central terms and preventing the Union from using its most powerful tool for pushing back, the province attempted to essentially gut the education workers’ negotiating power – a fundamental Constitutionally-protected element of collective bargaining.
Recognizing the threat this posed to the very foundation of unionization and collective bargaining, CUPE ignored the new legislation prohibiting their impending strike and proceeded anyway with a groundswell of support from unions across the country.
What Does All This Mean for Unionized Workplaces?
On November 7, the province agreed to repeal Bill 28 if CUPE ended the strike that proceeded despite the Act’s prohibition. They are now back at the bargaining table.
The action between the province and CUPE last week shows our current model of collective bargaining actually remains fairly stable: the province’s attempt to disrupt the model and undermine the collective bargaining process failed.
The Crown is not involved in most collective bargaining processes, which typically occur between a union local and an individual employer. For those employers, collective bargaining will likely proceed as usual, though CUPE’s recent win may embolden unions in local collective bargaining.
SpringLaw provides strategic legal advice to unionized employers through the collective bargaining process. Get in touch if you have questions about your unionized workplace.
