Front Burner - A high-stakes labour fight in Ontario

Episode Date: November 3, 2022

For many people, Ontario Premier Doug Ford’s showdown with CUPE education workers has become about much more than one fight with one union. Experts say that what the Ontario government chooses to do here — and how the public responds — could have ripple effects for labour disputes, and the right to strike, across the country. That’s because the Ford government introduced legislation this week that would prevent these workers from striking before they even start, and do it using the highly controversial notwithstanding clause, which allows provinces to temporarily override some parts of the Charter of Rights and Freedoms. Today, we’ll first speak to Bea Bruske, president of the Canadian Labour Congress, about what’s been happening on the ground in Ontario. Then we’ll speak to Charles Smith, an Associate Professor in the Department of Political Science at the University of Saskatchewan’s St. Thomas More College, about whether this could set a precedent for labour fights across the country.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hi, I'm Jamie Poisson. We're talking over a million parents that would take work off because you want to feather the nest of the heads of the union. That's unacceptable.

For many people, Ontario Premier Doug Ford's showdown with education workers has become about much more than one fight with one union. Experts say that what the Ontario government chooses to do here and how the public responds could have ripple effects for labor disputes and the right to strike across the country. That's because the Ford government introduced legislation this week that would prevent these workers from striking before they even start. And they would do it using the highly controversial Notwithstanding Clause, shielding them from future constitutional challenges. The Notwithstanding Clause is, in essence, a kind of trap door in the Canadian Charter of Rights and Freedoms

that allows provinces to override certain parts of the charter for up to five years. Experts say it was only supposed to be used in very special circumstances, and if governments start using it to stop workers from striking, it could transform labor relations in Canada. A little later in today's episode, we're going to get into the precedent that this could set and why many labor experts see it as really dangerous. But first, we're going to break down what's actually been happening on the ground in this particular conflict between the Ontario government and the CUPE union. For that, I'm joined by Bea Bresk, the president of the Canadian Labor Congress.

joined by Bea Brask, the President of the Canadian Labour Congress. Hi Bea, thank you very much for coming on to FrontBurner. Thank you for having me, Jamie. I want to start with the basics here. Can you just tell me who these education workers are? Sure, these are the education workers that are really the backbone of the Ontario education system. They're the librarians, the social workers, the janitors, the custodians, the folks that are trades folks that are keeping the buildings running. They're also the early childhood educators, as well as the cafeteria workers, and workers that work with children with additional disability issues that rely on some additional help every single day that they're in school.

And on average, how much have these workers been making? How much do they make a year? The average worker in this particular category makes $39,000 per year. And what have they been asking for from the Ontario government? What is it that they'd like? So they need a significant wage increase because we know the cost of living is skyrocketing. Not only year over year, regular type of inflation that we've seen over the years, but as we know, over the last year, the price of groceries has risen by 10 percent and the price of absolutely everything has gone up. And these are the lowest paid education workers in this province. And so they need a significant increase. They're also fighting for things like, you know, maintaining their sick leave benefits, maintaining various health and safety protocols in their collective agreements and for proper staffing levels. And these are all important aspects that determine what kind of services children in Ontario can rely on.

Minister Stephen Lecce said the deal that they have been offered would give them a 2.5% annual raise to workers making less than $43,000 and 1.5% for all others. And so why was this not sufficient for them? Well, we have to remember that back in 2019, this government also passed Bill 124, which suppressed wages for public sector employees, including these employees. We're here to protest Bill 124. So Bill 124 is supposed to be for fiscal responsibility for the province by cutting or capping wages by 1% increase for the next three years.

It actually exempts municipalities, police, fire, and MPP surprisingly, they got a raise before the bill was even passed. It's essentially sexist because it only really encompasses nurses and teachers. So these are employees that are already way behind in terms of where they need to be as compared to where our cost of living is. And so 2.5, quite frankly, is not nearly enough when you're making $39,000 a year and you're trying to pay the rent. We have workers that are working in the sector

who have to use food banks. We have workers working in the sector who are stretched absolutely beyond the limit and who are going into debt to continue to do the work that they're doing. And so unless we can substantially increase wages in the sector, we're going to have recruitment and retention issues, and that's going to lead to other problems in our school systems.

It's maybe worth noting here that the 11.7% pay raise that they are asking for, that's what they've been asking for, has been contentious and quite a bit higher than other wage increases this year for unionized workers. And so how would you respond to that? Well, I would respond by saying wages are one thing. The collective agreement as a whole is another thing entirely. This employer, this government still has concessions on the bargaining table of takeaways that they're demanding from these workers. And so you cannot just look at the wage component when they're also asking for you to give up your sick time at a time when we've just come through a pandemic and these workers need to be able to rely on those kinds of things. You know, you have to look at a collective agreement as a package, not as a one item component. So I just want to recap how this controversy this week kicked off. These negotiations have been going on for about five months.

Then over the weekend, the union representing these workers, CUPE, they issued this five-day strike notice. So meaning they're saying, look, like we're going to walk off the job by Friday if a deal isn't reached with the government. if a deal isn't reached with the government. Then on Monday, Ontario's education minister introduced this new piece of legislation called the Keeping Students in Schools Act. And Anne, explain to me the basics of what's in this bill. So this bill is extremely egregious. It's a complete overreach by this government to basically strip the union of bargaining rights and the right to strike. And on top of that, on imposing an actual collective agreement.

Sometimes when employers or when governments want to deal with a difficult issue and they can't resolve an issue at the bargaining table, we often hear of a binding arbitration solution to outstanding labour relations matters. This employer isn't even offering that. What they're saying is if you do not sign on the dotted line and sign a subpar collective agreement, we're going to impose the entire collective agreement on you, including concessions that we're asking for, as well as the wages that we believe that you should be paid. And if you choose to go out on strike after that,

it would be illegal because we're using the notwithstanding clause to override your rights to free and fair bargaining. So it's extremely egregious. It's beyond the pale, beyond what any other provincial government has done to date in terms of utilizing that clause. And it's completely trampling on workers' rights to free and fair collective bargaining. I might also note there's also a large fine for workers who strike, right? $4,000 per day? Absolutely. Yes, it's up to $4,000 per day. Yeah. Does the union bear some responsibility here for issuing a strike notice rather than continuing to sit at the table and negotiate? At some point during the bargaining process as a union, you have to make a determination as to whether or not there's any value in continuing to negotiate. If there's absolutely no value in continuing to

negotiate because the employer continues to want to impose concessions and is not coming to the table to meaningfully address your concerns, then the only leverage that you have as a worker is to withdraw your labour, and that means going out on strike. And so, you know, this is not a quick decision that people come to. This is many months in the making. These parties have been at the bargaining table for many months. And for employees to decide to withdraw their labor, that is a significant personal decision that they're making. That is not a decision that's made lightly, especially when you're already the lowest paid education workers. And now you're going to take a hit on your pocketbook by walking a picket line. So this is a final act of we are completely frustrated. We need to

get this done. Please give us a decent offer or we have no other choice. And this employee group, I would argue, is being the government had no other choice but to introduce this legislation in order to keep kids in class and that kids need to catch up on their learning, which we do know from studies that kids' learning is behind right now because of pandemic setbacks. So what's your response to that? This government is telling us that they have more than $2 billion surplus right now. And they're telling us that this is incredibly important that kids are in school. And I think every parent, grandparent, all of us would agree with that.

But they have a choice. They have a choice to get to the bargaining table, take their concessions off the table and offer a decent wage increase and we can avoid a strike. And look, Bea, just before we go, we've seen a huge response from unions across the country, Unifor, United Steelworkers, the Canadian Federation of Nurses Unions, a whole lot of other unions have put out statements supporting these Ontario education workers. But if it gets really ugly, do you think these other unions will stick by them? Because many of them have their own negotiations going on, right? going on, right? Every single union has a giant task in front of them in terms of representing their members every day and bargaining collective agreements every single day. But every single union in Canada recognizes the importance of this and recognizes the egregious overreach that this

government has tabled in this legislation. And so we all understand collectively that this needs a significant response and that all unions will be fighting in solidarity and using every tool at our disposal to fight this particular legislation. That is how serious this is. Okay. Bea, thank you. Thank you for your time today. You're very welcome. Thank you for having me. In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization. Empowering Canada's entrepreneurs through angel investment and industry connections.

Hi, it's Ramit Sethi here. You may have seen my money show on Netflix. I've been talking about money for 20 years. I've talked to millions of people and I have some startling numbers to share with you. Did you know that of the people I speak to, 50% of them do not know their own household income. That's not a typo. 50%. That's because money is confusing. In my new book and podcast, Money for Couples, I help you and your partner create a financial vision together. To listen to this podcast, just search for Money for Couples. Okay, so now we're going to expand out and look at what one labor expert believes is at stake in this fight. Charles Smith is an associate professor in the Department of Political Science at St. Thomas More College, University of Saskatchewan, where he studies unions, politics, and the law. Hi, Charles. Thank you for being here.

Hi, nice to be here. So governments ordering public sector employees back to work is nothing new, of course. Newfoundland did it after its public servants went on strike in 2004. B.C. did it for container truck drivers in 2014. Federally, Stephen Harper forced rail workers back on the job in 2012. And even the Trudeau government, which has been very critical of this Ontario bill, used it against Canada Post employees. What do you see as different about what the Ontario government is doing here? You're right. This has been a tool that governments have

used with increasing frequency since the 1980s. The first instance was in the 1950s. And governments of all political stripes, New Democrat, conservative and liberal, have used it in various times when they're in power in the provinces or at the federal level. So the back to work aspect is important to note because it does strip the ability of workers to effectively bargain or to withdraw their labor, which in a free society all workers should have the right to do. On the other hand, separately, is that now the government is using the notwithstanding clause within the Charter of Rights and Freedoms, which shields itself from any future litigation, which could have led to some remedial relief for these workers.

And I think those two things together make this dispute unique. The government is using a legislative hammer. And on the other hand, they're shielding themselves from future litigation, which would challenge the constitutionality. They're using this ability in a quite draconian method to basically end all discussion and to give itself all the cards in the poker game, as it were. And when you talk about the use of the notwithstanding clause as like a shield, it might be important to note probably that like unions in Canada have won compensation through the courts after back to work legislation in the past, right? That's right. Yeah.

Yeah. In BC, the Gordon Campbell liberals and the Clark liberals were forced to spend upwards of a billion dollars in hiring new teachers because in 2002, the BC liberals took away the ability of teachers to bargain on classroom size. That was ruled to be unconstitutional. And the court remedied that by trying to bring the parties back to where they would have been had this been able to be bargained since that time. It did result in 15 years of litigation and labor disputes, so it wasn't a perfect solution. But nevertheless, what the notwithstanding clause usage does in this case, and I mean, it seems to me, I mean, I'm not a constitutional lawyer, and I'm sure you could get two constitutional lawyers in the room and they could argue different sides. But nevertheless, you could foresee that the court

might see this as a heavy handed attempt to undermine the union's collective bargaining rights or their ability to strike. And the courts could have remedied that by ordering some sort of a monetary award. And this makes that impossible to do. Does CUPE have any legal tools at their disposal at this point? Like, I saw one expert say they're screwed, basically, from a legal standpoint. Yeah, I saw that quote, too. I admired the frankness of it. No, they have no real, they have no other clause other than to do what labor historically has done, which is to protest. I mean, they certainly have the ability to withdraw their labor, although that would be

an illegal action under our labor relations model. The government has taken away the ability to withdraw their labor, although that would be an illegal action under our labor relations model. The government has taken away the ability of the union to use any of the labor relations institutions that historically have been used. So if you read the bill closely, they can't apply to the labor board for any kind of relief. They can't apply for mediation or conciliation. The government has closed all legal avenues. So the only real solution would be a political one. In Ontario, there's all kinds of public sector negotiations that are coming forward in the next few years, specifically with the teachers and the broader

public service. And they all have to be seeing this as a shot across the labour relations bow. And this is very much the Ford government saying we're not going to tolerate unions trying to increase their costs to their wages through a cost of living allowance. I mean, one of the things we always see historically is that when inflation is high and the economy is precarious, labor strife tends to increase because workers are also facing the threat of inflation and the cost of living. And this is affecting them directly. So we're going to be seeing more of this, I suspect, and not less. In that context, we've talked about on the show before how the notwithstanding clause is being used more. We've talked about how it's been used mostly in Quebec in relation to their recent religious freedom and language laws. The Ford government has also used it before.

But to what extent do you see this case, particularly the use of the notwithstanding clause, as potentially precedent setting here? Like, could we see other provinces start to bring out this tool to force employees back to work? Oh, absolutely. I mean, governments understand what's happened in the past, which the court has been, you know, critical of governments that end or unilaterally end the ability of workers to bargain or to strike. So and that's what this bill does. And governments that have done that, some of them have had to pay later for these actions. So if there's no immediate political implications for the Ford government, i.e. public opinion doesn't massively turn against them. And it might not, right, given the circumstances of, you know, hundreds of thousands of children

not being able to attend school. I mean, that's how the government is trying to frame its decision. And, you know, I think they're gambling that the vast majority of parents will be on board. I mean, that may be true, but then we have to ask the broader question, you know, is it right? And is it just? And I'm not sure if we dig beneath the surface that you'd have that kind of support. But in the immediate circumstances, if governments see that the foreign government gets away with this politically, then what would stop any future government from using the same tools to end its public sector negotiations when unions are asking for, when workers are asking for, you know, legitimate cost of living allowances? Like, let's not forget what these precarious

workers are asking for is catch up after a decade of, you know, ones and zeros in contract negotiations. And these are some of the most vulnerable workers in the education sector. These are not, you know, the sort of big, bad, powerful labor unions that are trying to squeeze more and more. You know, these are workers who are struggling and making, you know, some of the lowest wages in the public sector. So they're using this legislative hammer against these workers. What would stop them to do it against teachers or nurses? I just, you know, I don't see what would stop a government if they're able to do this.

So yes, I am very concerned. In the broad arc of the fight for labor rights in Canada, I know this is something you look very closely at. So how big a deal do you think this moment is that we're seeing unfold right now? Yeah, I think it's a really big one in the sense that in 2015, when the Supreme Court ruled that workers had a constitutional right to strike, that was separate from the 2007 decision of the constitutional right to bargain, I think many labor observers thought that these types of actions would become rarer, that governments would have to sit down and actually think about ways to come to fair agreements and negotiations in a way that they

couldn't in the past. But what we're seeing is that governments are upping the ante, especially governments that historically don't have close connections to the labor movement. But using the notwithstanding clause in this way to override those court rulings, I think does up the ante. And as your earlier question alluded to, the fact that governments in the future might use this as a way to shield their own actions of unconstitutional behavior. I think all Canadians have to be somewhat concerned that governments could so easily use a section that undermines key segments of the Charter of Rights and Freedoms directly, given that when this clause was passed in the 1980s, it was a compromise by governments that were concerned that, you know, conservative judges might undermine some

of the core collective freedoms that we enjoyed, like, say, the collective right to health care. It was always seen as a last resort and something that would be used rare. And that's exactly what they said at the time. No one envisioned it would be used to end a labor dispute in this way. So I think it's worth paying close attention to what freedoms governments are willing to ignore, what constitutional freedoms are willing to ignore to pass legislation or to do certain things. And that is something we need to take seriously. Okay, Charles, thank you so much for this. No problem. Happy to talk to you. Okay, so before we go today, yesterday afternoon, during a furious debate about this bill in the Ontario legislature, 16 NDP MPPs were kicked out for the day for disruptive behaviour and for using what the Speaker called unparliamentary comments,

including accusing Ford and his ministers of lying. Speaker, when will the Premier and his ministers stop lying about the damage they're doing to the education system? Order. Order. The member will withdraw his unparliamentary comment. I will not withdraw. I'm telling the truth. They're lying. Take a seat. Member will take his seat. Speaker. Speaker. Order. I will ask the member once again to withdraw his unparliamentary comment.

My remarks were accurate and true. Ministers are lying. You will be named. Mr. Tabbins, you are named. You must leave the chamber for the day. As of this recording on Wednesday evening, CUPE says it's still planning to go ahead with a strike on Friday. That's all for today.

I'm Jamie Poisson. Thanks so much for listening to FrontBurner, and we'll talk to you tomorrow.