Premier Doug Ford's government has passed its controversial law using the notwithstanding clause to force CUPE-represented education workers into a contract that the union didn't want.
Its passage sets up a standoff between Ontario's Progressive Conservative government and about 55,000 education support workers, whose union says they're still going to go on strike on Friday. The planned strike — made illegal for the CUPE union's members by the legislation — has led many of Ontario's schools to close for in-person learning on Friday.
Last-ditch mediated bargaining attempts between CUPE’s Ontario School Board Council of Unions and the Ford government’s negotiators hit an impasse Thursday afternoon, cueing up the government to go ahead with Bill 28. PC MPPs, which make up the majority, voted for the law. Opposition MPPs voted against.
Bill 28 imposes a four-year deal on the union, whose members include early childhood educators, educational assistants, custodians, administrative staff and more who tend to be the lowest-paid workers in the education system. Workers earning less than $43,000/year will receive 2.5 per cent annual raises, while all others will receive 1.5 per cent raises. The union originally asked for 11.7 per cent annual raises.
Bill 28 also creates fines of $4,000 on individuals and $500,000 on the union for striking.
The bill is protected against court challenges, given the inclusion of the notwithstanding clause, which overrides parts of the Canadian Charter of Rights and Freedoms, including collective bargaining rights.
Provinces’ use of the constitutional workaround is rare and the Ford government was the first in Ontario to invoke it. Bill 28 is the third time Ford has leveraged Section 33.
With PC MPPs voting to pass it, the federal government — in theory — solely has the power to stop the law. It could attempt this using disallowance powers that no federal government in Canada has touched for more than a half-century.
Prime Minister Justin Trudeau has called Bill 28’s use of the notwithstanding clause “wrong,” and his attorney general, David Lametti, suggested the federal Liberal government is looking at ways to challenge it. Ford and Trudeau spoke the night before the bill was passed, and the Prime Minister’s Office said Trudeau made clear that Bill 28’s use of Section 33 was “inappropriate.”
Neither the premier nor Ontario’s education minister would say whether they were concerned about the federal government intervening when asked on Friday.
Education Minister Stephen Lecce introduced Bill 28 on Monday, the day after CUPE’s education workers union gave its five-day strike notice.
The union gave the notice after months of unproductive talks. CUPE’s contract with the government expired at the end of August, along with Ontario’s other major education unions.
It wasn’t known, however, until Lecce tabled Bill 28 on Monday that the legislation’s unprecedented nature was shown. The notwithstanding clause has never been used before in Canadian history to settle a labour dispute.
Lecce defended its use on Thursday, saying he’s “very cognizant of the extraordinary difficulty that strikes and the pandemic” have had on children.
“This is not a normal time in society. Kids are in a different place,” Lecce said.
On Tuesday, the government’s and CUPE’s negotiations restarted after they broke off after the union gave notice of its intention of striking on Friday. Each side’s negotiating teams were holed up at the Sheraton hotel in downtown Toronto for the week, where a mediator bridged their talks.
CUPE submitted a new offer to the government on Tuesday night, halving its annual raise request to six per cent, according to the Toronto Star. The government rejected this on Wednesday.
Lecce was insistent Wednesday that the government would not entertain any CUPE offer before the union withdrew its strike notice. It refused to.
Final talks on Thursday fell through not long after noon.
The government had to pass Bill 28 before Friday to make sure it was ahead of CUPE’s planned strike. The PCs sped up its passage, using their majority of votes to shorten debate and cut committee study.
Opposition members attempted to disrupt its passage using their own procedural maneuvers. Liberal MPP Mitzie Hunter, a former education minister herself, accused Lecce of presuming the passage of Bill 28, which would violate house rules. More than half of the NDP’s 30-member caucus was kicked out of the legislature on Wednesday for their protests against the government.
The opposition’s efforts were unsuccessful. Same goes for those of some CUPE members who attempted at the last minute to get in the way of a final vote with a series of outbursts from the public galleries in the legislative chamber.
Ford’s PC majority prevailed, passing the bill around 5 p.m. on Thursday.
With CUPE’s strike going ahead, Ontario’s schools will be short thousands of workers on Friday. Laura Walton, the education workers union president, said Thursday that it was going to strike “until further notice, unless a deal is reached.”
While Lecce has said he’s asked schoolboards to do everything in their power to remain open, many have already announced plans for students to learn via online classes on Friday, for a start.
It’s simply not possible for the government to issue fines to thousands of striking workers every day. Still, CUPE’s education workers union is expected to rack up at least millions of dollars in fines in just a few days. CUPE leadership has promised to pay the fines of any of its 55,000 members.
The daily $500,000 fine to the union is apparently manageable to CUPE, its national president Mark Hancock told QP Briefing on Thursday. Hancock said the union was capable of holding out “a long time.”
“One day longer, as we say,” Hancock added — a nod to the classic union strike chant, “One day longer, one day stronger.”
Walton told reporters the union plans to fight the fines in court but can pay them if necessary.
A number of other unions, of both public and private sector workers, have expressed solidarity with CUPE — with some instructing or encouraging their members to also strike on Friday.
The Ontario Public Service Employees Union (OPSEU) said in a tweet that its 8,000 members will walk off the job “in solidarity with CUPE.” The Ontario Nurses Association urged members to join CUPE members on picket lines.
Private sector unions like the International Alliance of Theatrical Stage Employees also asked its members to join CUPE protests. LiUNA, a major construction union that backed the PC’s in the June election, denounced the government’s moves but didn’t say anything about joining in on strike actions — though one of its locals plans to picket with CUPE on Friday.
Lecce said on Thursday that the government would do "everything we can" to reduce the disruption in schools. He has said since the government's negotiations started in the summer that its No. 1 priority was to keep children in class.
"(Children) have been through so much over the past few years. I didn’t want to be here; no one wants to be here, but we will never waver from our promise to do whatever it takes to keep kids in class," Lecce said on Thursday.
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