Doug Ford’s Attack on Workers is a Canadian Tradition Taken to New Extremes
It’s called the Keeping Students in Class Act. The title of the bill, which passed Ontario’s legislature Thursday, is a weak attempt to make it seem like Premier Doug Ford is protecting public education in the province. In reality, Bill 28 is draconian legislation that removes the rights of 55,000 education workers to collectively bargain and to take meaningful job action.
The bill prevents workers from accessing the labour board, which is an independent third party that resolves disputes between employers, employees and unions. Most controversially, the bill also pre-emptively uses Section 33 of the Charter of Rights and Freedoms – commonly known as the Notwithstanding Clause – to block the union from challenging the constitutionality of the bill in court. If workers contravene this heavy-handed legislation by going on strike, they could be fined $4,000 a day, and their union $500,000.
The Progressive Conservatives (PCs) went to extreme lengths to pass the bill before education workers would be in a legal position to strike Friday (November 4). Ford’s government shortened the length of time the bill was debated in the legislature; started debates as early as 5 a.m.; extended the legislature’s sitting hours until midnight; and prevented the bill from going to committee, a normal part of the legislative process, when members of the public and stakeholder groups get to comment on the proposed law. These actions are reflective of what Tom McDowell has defined as Neoliberal Parliamentarism, whereby a government uses restrictive rules of the legislature to end democratic debate and push through draconian legislation.
In passing Bill 28, the Ontario government has effectively eliminated collective bargaining and the right to strike for these workers, and more broadly for any public sector union that threatens a strike in Ontario.
Ford Wants Workers to Fall Further Behind
While Bill 28 is rightly garnering national media attention because of the government’s pre-emptive use of the Notwithstanding Clause to block union access to the courts, the government’s assault on the freedoms of these workers goes back almost a decade. The union at the centre of this dispute is the Canadian Union of Public Employees (CUPE) Ontario School Boards Council of Unions (OSBCU). It represents over 55,000 workers. The OSBCU membership is diverse, made up of librarians, maintenance staff, custodians, educational aides and assistants, IT workers, and early childhood educators. According to a report from OSBCU, more than 71 per cent of these workers are female. And they are some of the most poorly compensated workers in their sector, earning an average of $39,000 per year.
These poverty-like wages are enough for any unionized worker to demand fair and just compensation. Yet, this is not the first time these workers’ rights have been bulldozed by an Ontario government. In 2012, the Liberal government of Dalton McGuinty passed Bill 115, the Putting Students First Act, freezing education workers’ salaries and ending any potential job action. The result was two years of zero per-cent wage increases. In subsequent rounds of bargaining, OSBCU was able to negotiate one per-cent increases, which was later mandated by legislation in 2019 by Ford’s Bill 124. Bill 124 froze wages at one per cent for an additional three years.
Like Bill 115, Ford’s 2019 act eliminated the ability of education workers to collectively bargain. According to the OSBCU, the meagre wage increases that these workers have been able to win from the government between 2012 and 2021 are 10.2 per cent below inflation over the past decade. In short, both Liberal and PC governments in Ontario have imposed poverty wages on people doing essential education work.
This economic reality framed the most current round of collective bargaining. The Ford government refused to accept the union’s demand of an 11.7 per-cent wage increase and is instead imposing annual increases of 2.5 per cent for those making less than $40,000 a year, and 1.5 per cent for those making less than $43,000. With the cost of living rising more rapidly than it has in 40 years, this means these workers will continue to fall further behind.
Back-to-Work Legislation: a Canadian Tradition
The Ford government’s refusal to make significant concessions at the bargaining table led to an impasse in bargaining. The union had authorized and taken a strike vote, which passed with 96.5 percent support. After a series of other legal hurdles were addressed, the union declared that it would go on legal strike on Friday.
Then, Ford’s government moved in a manner that has now become entirely predictable. It introduced sweeping back-to-work legislation. Since 1950, federal and provincial governments in Canada have used this legislative tool to end over 146 separate labour disputes. For labour relations scholars Leo Panitch and Donald Swartz, this move has become so familiar that they devised a concept – permanent exceptionalism – to describe these routine government actions. For Panitch and Swartz, permanent exceptionalism represents a contradiction because all governments will continually portray the situation “as exceptional, temporary, or emergency-related, regardless of how frequently they occurred or the number of workers who fell within their scope or were threatened by their example.”
Since the 1950s, and with increasing frequency by the end of the 1970s, the so-called “temporary” and “exceptional” nature of back-to-work legislation has been muddled by government insistence that it respects the foundations of labour relations but it must restrict the ability of workers to strike in order to solve a looming political or economic emergency – real or imagined – by the government of the moment.
In this manner, the Ford government is following a time-honoured Canadian tradition of running roughshod over workers’ ability to bargain and strike. And it’s weakening our labour relations system and workers’ freedom of association while doing it. But that alone wasn’t enough for the Ford government. It also had to shield itself from potential legal blowback. It had to address the reality that since 2015, workers have had a Charter right to strike.
Enter the Notwithstanding Clause
In 2015, the Supreme Court of Canada ruled in Saskatchewan Federation of Labour v. Saskatchewan that workers have a constitutional right to strike.