Samantha Seabrook and Rebecca Meharchand
We are management-side labour and employment lawyers. Always have been. However, as lawyers, we first must be true to the rule of law, and in this case, the rule of law favours allowing a strike action by CUPE members. Using the notwithstanding clause is an unwarranted circumvention of the constitutional rights of CUPE members to strike. The notwithstanding clause should be a last resort. The Ford government has turned the notwithstanding clause into a first strike.
On November 3, 2022, Minister of Education Stephen Lecce imposed Bill 28, the Keeping Students in Class Act, 2022, which essentially mandates that education workers unionized with CUPE 4400 return to work. It also makes any strike action commenced by these workers or their union illegal. The Bill imposes fines of $4,000 per day on workers who participate in an illegal strike. It also imposes a fine of $500,000 on the union per day that an illegal strike continues.
The Bill was in response to an impasse the parties reached during collective bargaining. CUPE education workers, who make on average $39,000 a year, are generally the lowest paid in schools and had been seeking annual salary increases of 11.7 per cent.
The government originally offered raises of two per cent a year for workers making less than $40,000 and 1.25 per cent for all others. Bill 28 imposes a four-year deal that would give 2.5 per cent annual raises to workers making less than $43,000 and 1.5 per cent raises for all others.
The Right to Strike and its Legal Protections
The right to strike is a constitutionally protected right under section 2(d) of the Canadian Charter of Rights and Freedoms (the “Charter”). At law, the right to strike is supposed to be granted the same kind of respect and protection as other fundamental freedoms such as freedom of speech and freedom of religion.
However, the Charter also has section 31, the “notwithstanding clause”, which allows a province to opt out from the protection of certain constitutionally protected freedoms. It allows a provincial government to suspend rights under section 2 or section 7 for a period of five years at a time.
Passing Bill 28 is, on its face, a violation of education workers’ Charter protected right to strike. However, by invoking section 31, the province has overridden this right and imposed a deal upon CUPE 4400 members across the province.
Why this Matters
The notwithstanding clause has not been used frequently in Canadian history. In fact, in Ontario, it has only ever been invoked twice, both times under the Ford government. The first time was to enforce caps on third-party election financing. This time, however, appears to be an unprecedented attempt to limit workers’ right to collectively bargain and strike.
A strike is a last resort option for workers – it is not a goal or desire of either negotiating party to engage in a strike. It is a tool for unions and working people to use in the event that an employer is unwilling to budge on their proposed offer.
By refusing to return to the bargaining table and refusing to consider other bargaining options (ie: having both parties submit to binding arbitration), the Province has taken a strong-arm approach to diminishing the rights of education workers across Ontario. It is unclear at this time why the Province has elected to take such an approach, and CUPE leaders have suggested that Bill 28 has been in the works for weeks – long before the parties reached this impasse.
The use of the notwithstanding clause to curb public employees’ right to strike is unprecedented in Canadian history. In addition to attacking workers’ constitutionally protected right to collectively bargain and their right to strike, the proposed legislation tries to eliminate the prospect of any oversight by the courts, tribunals and administrative boards or arbitrators. This fundamentally shakes the core of our labour relations scheme in Ontario and in Canada.
We will continue to monitor the situation carefully. Please reach out to us at Seabrook Workplace Law to discuss this unprecedented move by the Ford government.
