by Jeff Shantz
The Conservative government in Canada’s largest province, Ontario, took the extraordinary step of introducing legislation suspending fundamental human rights on October 31, in an effort to preemptively stop an education workers’ strike.
The heavy-handed attack on workers’ rights, which circumvents Canada’s Charter of Rights and Freedoms, poses a serious threat to labour movements and could set a precedent for dismantling the foundations of collective bargaining.
It could be a pivotal moment in working-class struggles in Canada.
‘Keeping Students in Class Act’
The Keeping Students in Class Act invokes the “notwithstanding clause” to prohibit a strike and impose a contract (enterprise agreement) on education workers. The clause, Section 33 of Canada’s Charter of Rights and Freedoms, gives provincial legislatures or federal parliament the capacity, through passage of a law, to override portions of the charter for a five-year period.
In this case, the Conservative government is invoking the clause to protect its “back-to-work” legislation from legal challenges that would overturn it under regular circumstances because education workers are in a legal strike position.
A day before the anti-worker legislation was introduced, education workers — including educational assistants, custodians and early childhood educators, but not teachers — members of the Canadian Union of Public Employees (CUPE) gave the required five days' notice for industrial action. This put them in position to go on strike as early as November 4.
The government was clearly ready to test new methods to strike break before the fact. As the president of CUPE’s Ontario School Board Council of Unions Laura Walton said on the evening before the legislation was tabled: “Today, the [Doug] Ford government's lead negotiators summoned me to a meeting. We went to the meeting optimistic that this government would recognise and respect our right to negotiate. Instead, they gave us an ultimatum. They threatened to introduce legislation to dictate the terms of our next contract as early as tomorrow.”
Showing their animus toward workers, the government followed up the draconian legislation by announcing that CUPE members would face fines of $4000 per day for participating in any strike. This would cost the union $250 million per day. In addition, the union would face a $500,000 daily fine.
These penalties far exceed anything brought by the government against employers guilty of workplace deaths, for-profit long term care operators where COVID-19 deaths were concentrated or companies found to be price gouging during the pandemic.
As if to put an exclamation point on the government’s targeting of unions, Ford later stated that the labour movement needs to find new leadership. Presumably a more compliant, non-leadership.
Others have asked how far the provincial government is willing to go. Toronto-based lawyer Andrew Monkhouse asked: “Are they really going to be putting labour organisers in jail for going on a strike when they've been legislated back to work under the notwithstanding clause?” The answer for this Conservative government is undoubtedly, yes.
CUPE education workers, among the lowest paid in Ontario’s educational system, are seeking a yearly wage increase of $3.25 per hour (A$3.73/hour, or 11.7%), early childhood educators in every kindergarten class, five additional paid days before the start of the school year, 30 minutes of paid daily preparation time, a rise in overtime pay, and a $100 million investment in new job creation.
The government had countered with a two-tiered system of raises, clearly unacceptable to workers’ needs for fairness and equity — raises of 2% a year for workers making less than $40,000 and 1.25% for all others. CUPE reports that its members make an average $39,000 per year.
Education workers in Ontario have been without a contract since August 31. The government’s legislative move shows they have no interest in bargaining and are motivated to have a showdown with a relatively small public sector workforce (55,000 members across the province) to test their harsh union busting strategies.
Other unions have been quick to express solidarity with CUPE members. The Elementary Teachers' Federation of Ontario (ETFO), which includes 83,000 Ontario teachers, said on October 31 it “unequivocally” condemned the Conservative government’s actions.
The union took it a step further, ending its own negotiations with the government that day, saying it could not “in good conscience, sit across the table from the government. ETFO stands with CUPE members and their right to strike for better pay and working conditions, and not with a regressive government that is cloaking anti-labour legislation as being pro-education”.
The Ontario Secondary Schools Teachers' Federation with 60,000 members across Ontario, also issued a statement, saying the legislation was “effectively undermining and disrupting their rights to free and fair collective bargaining”.
The Ontario Federation of Labour, the largest labour federation in Canada, called an emergency “Hands off Workers’ Rights” rally for November 1, at the provincial Ministry of Labour.
The challenge for unions in Canada
The government’s decision to use the notwithstanding clause is a cynical one that goes against the spirit of the clause. The Supreme Court of Canada confirmed in 2007 and 2015 that the right to collectively bargain and to go on strike can only be infringed on in very serious circumstances. Those circumstances were nowhere near present in this case.
In a statement released in response to the government’s move, Noa Mendelsohn Aviv, the executive director of the Canadian Civil Liberties Association (CCLA), stressed that the clause was “never meant to be used in contract negotiations, or as a casual tool to disrupt basic human rights safeguarded in our Charter”. The CCLA called the application of the clause a “misuse”, saying “the flagrant disregard for individual rights is wrong and it is dangerous to our constitutional democracy”.
It is also a clear threat to the labour movement, unions, and working-class collective action — one that will only be turned away by militant mass action. The Charter protects a right to collective bargaining and to strike, but use of the notwithstanding clause erases that. Labor is put back in a context of organising much like when unions were illegal.
Then, like now, the union’s only options are political. CUPE will need to build solidarity among working-class people in other unions and workplaces and in communities, including non-unionised and unemployed workers.
In this context, their action is that most primary of labour weapons — the wildcat strike. CUPE has already announced that its members will not be at work on November 4, the original strike date — effectively a wildcat action. The Toronto District School Board (TDSB) has already decided to close schools to in-person learning that day in light of the CUPE day of action. As for whether the industrial action will run longer than one day, union officials said that remains to be seen.
The suspension of human rights in Ontario could set a precedent for anti-worker governments across Canada looking for new ways to break working-class movements and organisations. As labour lawyer Rich Appiah put it: “If the people allow this to happen, I think it will send a signal to other provinces that they have the upper hand in negotiations with educational institutions, as well as other public institutions.”
The stakes are high. In Appiah’s view: “It’s taking away a constitutionally protected right, and it’ll be up to the people to decide whether they are on side with that.”
Even more, the Ontario case could pull the rug out from under the historic post-war compromise between unions and employers, which has made strikes legal but contract bargaining predictable. Ironically, this could prove a benefit to working-class organising, returning the wildcat strike to the regular working-class toolbox. Wildcats have been largely discarded by official unions and most write clauses into contracts prohibiting wildcats during the period of each contract — to the detriment of more militant, and effective, labour action.
If legal collective bargaining is rendered meaningless, or entirely subservient to government or capital, there is no reason for unions to accept the charade. And strikes become de facto wildcats. At the very least the spectre of the notwithstanding clause will frame and shape all negotiations. If governments will not follow the law, why should workers?