The Decibel - Why Doug Ford backpedaled in the dispute with CUPE

Episode Date: November 9, 2022

In an abrupt reversal, Ontario Premier Doug Ford promised to repeal the legislation that revoked the right to strike for educational workers in the province. That wrapped up the walkout by CUPE members after two days.But negotiations between this union – and others – continue with the province and so questions remain in terms of how both parties will find a way out of this dispute without another work stoppage. Jeff Gray is one of The Globe’s correspondents at the Ontario legislature and he explains what factored into the swift change of events.Questions? Comments? Ideas? Email us at [e-mail]

Hi, I'm Mainika Raman-Welms, and you're listening to The Decibel. After a two-day walkout, the Ontario government and a major union for education workers, CUPE, are back to the bargaining table. Today, we're talking to our Ontario provincial politics reporter, Jeff Gray. He'll explain how Doug Ford's government reversed course and if more labor stoppages are on the horizon. This is The Decibel from The Globe and Mail. Jeff, thanks so much for joining me today. Thanks for having me. Last time we covered the labor dispute, which was just last week, CUPE workers had just begun the job action. But now, just a few days later, kids are back in class, workers are back in schools. Is there anything that you can point to that was like the kind of key thing, I guess, that helped resolve the protests?

Well, I think in the words of the national president of CUPE the other day, Doug Ford blinked. The government lost its nerve. It took this extraordinary step, unprecedented step of invoking the Constitution's notwithstanding clause preemptively to strip the union of its right to strike and impose a contract on that union. And then just a few days later, the premier comes out and says, we're not going to do that. We'll take it back. If the government stated goal, which they repeated over and over again, it's a different time, the pandemic, all the disruptions. We want the kids in class. Well, the kids weren't in class anyway, because the union was walking out anyway. And in the face of these fines and so on that the

legislation would have imposed on them. So the government stepped back from the edge and said, fine, we'll take this stuff back. And when we say take this stuff back, this is repealing the legislation then? Bill 28, yeah, which imposes the contract, bans the right to strike for this union, and uses the notwithstanding clause in the constitution to get out of the sticky problem of a charter challenge that would say well hold it a minute this union has the right to strike and you can't take it away so they use that get out of jail card and so they've they offered to pull it all back uh it was a bit of uh kind of a back and forth there the premier said we'll pull it all back if you guys come back to work.

And CUPE said, just a little while later at their press conference, thanks for pulling back your legislation as a gesture of goodwill, we'll go back to work. So there was a bit of a back and forth there. But clearly the government

was the one that was stepping back. Okay. And just to be clear, the repealing of the bill hasn't actually happened yet. Do we know when that is going to happen? No, that's the back. Okay. And just to be clear, the repealing of the bill hasn't actually happened yet. Do we know when that is going to happen? No, that's the other strange thing. Yeah, the union got something

in writing from the government and we don't know what precisely was said on that piece of paper, but the government has said it's going to recall the House on Monday and pass a bill that would undo this bill. They are on an off week. This is a week when they'd all go back

to their ridings. And it is Remembrance Day coming up. So traditionally, they wouldn't sit this week. But there doesn't seem to be any real reason why they couldn't be called back more quickly. But everyone seems to be taking the Premier at his word that the House will be back in session Monday, and this will be on the agenda. Okay. This, I mean, this, as you said, this seems to be a pretty drastic change in tone and approach on Ford's part and Ford's government's part. I guess, what should people make of that change? In this case, I mean, there were a couple things that changed over the weekend. One is which we had a bunch of other labor unions standing up and saying, we're with CUPE, including labor unions in the construction industry that had backed the premier. This is Liuna.

Liuna, but a bunch of other in the construction trades world had been backing the government. It had made a number of policies that appealed to them. And Liuna actually had sided with Doug Ford, backed him for quite a while now. And they stood up and said, well, hold it a minute. We still believe in the right to strike and collective bargaining and all that. So that happened. And then also there was a poll. We don't know. The government has its own polling, so we don't know to what extent. There was a publicly published poll that suggested a lot of Ontarians blamed the government for this mess, did not like the use of the notwithstanding clause.

That was an abacus data poll that was 62%, I believe, of people surveyed said they blame the government for this then. Yeah. So one of the things that people say about the premier is, you know, he's a populist in the truest sense of the word. He actually does want to be liked, even though he does have this kind of persona

as a scrapper, as a fighter. It might've changed his mind over the weekend. We don't know exactly what happened in there, but the tone from last week to this week was dramatically different. Yeah, I guess I'm just struggling to understand the strategy here a little bit because he had the intention. He introduced this notwithstanding clause as well in this Bill 28, which was a pretty dramatic move. I guess what's the point of doing all of that if he was just going to repeal the legislation, you know, after essentially just one day of protests? Yeah, one might ask. You're assuming there is some sort of strategy. It is bewildering, I think, to everybody watching this. This should have been easy to see that this would happen,

that if you're going to do that, take this drastic step like no other premier in Ontario history had ever used the notwithstanding clause ever until Doug Ford. And, you know, the premier has still said even today he's not ruled out using it again. He calls it a tool. And it's a tool that that that is out there. So I said right from the get-go, I'll use every tool at our disposal to make sure the kids are in class. And I just hope the kids will stay in class and we can get a negotiation. And I mean, as the Civil Liberties Association, others have pointed out, it's a tool that cannot just strip you of your right to strike. Many, many of the rights in the charter can be stripped away.

Free speech, freedom of religion, a whole bunch of criminal law stuff, search and seizure, torture, all these things are all in there. So it is interesting how casual they seem to be about using it. All right, so while this walkout has ended, CUPE workers are still without a collective agreement.

So what is actually happening with the contract negotiations that launched all of this in the first place? Like, where do they stand now? Well, talks are back on as of Tuesday morning. And the premier, of course, came out Tuesday morning also with his education minister and said that they were making a new offer, a more generous offer than their previous offer that they tried to use the notwithstanding clause to impose on the union and that they hoped that the union would also compromise. And so judging from the way they spoke there, it suggests to me that there will be talks, there'll be back and forth and that this wasn't a sort of another final offer that they were going to impose on the union. So we'll have to see how those talks go. As of Monday, the union will again be in a legal strike position under Ontario labor law, the notwithstanding clause and all that

stuff will be gone. So it's not impossible that talks break down again. And as would be normal in a normal negotiation, the union could then walk out again. and I don't know, then we get Section 33 again. I don't know. But that's down the road. That's the moment they're at the table, they're talking. And their positions were moving closer together. There was a compromise proposal from the union. There was another one that we didn't hear much about from the government. There's been a bit of back and forth. So we'll have to see where they land. And when you say they're in a legal strike position, what exactly does that mean? So under Ontario labour law, when you are in a unionised workplace, your contract expires or it's about to expire, you enter negotiations. And after a certain point,

one of the parties can invoke what's called a no board. At that moment, the clocks are sticking on when you can go to a strike or a lockout. So often it's done as things get down to brass tacks in a negotiation. You'd want to set that clock going. The employer could lock us out for the union. The union knows we could go on strike. So both sides know that there's a cost there. And they'd like to get a deal done at the table. And often the deal gets done, you know, at the 11th hour before midnight strike deadline.

In this case, it's an education union. They also have built in a five-day warning. So that doesn't mean talks need to stop, but it does mean there's this other five-day clock that they had. And then you're allowed to go on strike. Other unions aren't allowed to go out with you, though. The government has said over and over again, we didn't want a strike. It's the pandemic, the disruption to students.

Okay, well, that's a fair point. But the system is still set up this way. The only way to really change it is to change it to the way we do nurses or cops or is you end up before an arbitrator and they decide what the contract is. So you don't walk out. Trouble with that is if you're the government, an arbitrator might not agree with you on

how little you want to give the workers. We'll be back in a moment. You mentioned a general strike, Jeff, and we heard talk about that over the weekend. What was that about? Well, unions were talking about that. There were people saying, you know, this is such an outrageous attack on the rights of unions to strike and the right to collective bargaining and all that. So the idea that was being tossed around was that maybe a whole bunch of unions would walk out. And I know that workers united will shut this province down whenever we need to. Of course, now that's moot, although a lot of people are pointing out that the labor movement had been divided. Some people describe this sort of the labor movement as a family that has its own quarrels and so on.

And, you know, aunt so-and-so is not talking to uncle so-and-so and whatever. And Doug Ford, who was trying to crush a union, has ended up actually uniting the labor movement. You know, you're hearing that now. Yeah, yeah. And that's an interesting point. And I guess I wonder, do you think that kind of solidarity on the union front, did that maybe catch the Ford government by surprise? It's hard to know what they were thinking and how they couldn't have seen this reaction coming and not had a plan to weather it. So this isn't the first time we've seen the

Ford government table a controversial policy and then walk it back when there's a public outcry. Can you remind us about some of the other times that this government has done this? Well, yeah, it is a little bit of whiplash, isn't it? Early on when I came to Queen's Park and was covering the government, early on in their mandate, they won election in 2018. Their first budget in 2019 had cuts to public health and a bunch of other things that they cost share with municipalities. Ambulance services too were included.

Municipalities, particularly Toronto, came out all guns blazing against this and they walked that back. The one that probably most people remember, if you can remember anything of the pandemic, which is all a blur, I think for many of us, but this is in April of 21, the government came out and said,

we're going to close down playgrounds for children and we're going to give police a whole bunch more powers to enforce our stay-at-home order. Remember stay-at-home orders? Yeah, remember those fun times? So there was a whole fuss over about 24 hours and Doug Ford came out and pretty much pulled it back. So what are we to make of this pattern

of the government introducing something and then pulling it back when there's a public outcry? Like what's the impact of governing like that? Well, it does, you know, it makes you ask the question, why did you do this in the first place? They're all about action and getting it done. And they have a pattern of circumventing some of the, they would call it red tape. Others would, people would call it consultations or process that often comes before big decisions like this, that both ensures the government maybe makes a better decision and be

insulates it. When there's a bad decision, you can say, well, it wasn't us. It was the, it was the blue ribbon panel or whatever it was that made it, you know,

they, they don't do that. They like to use their power and do things quickly like this when it's something they want to do. Yeah. Just lastly here, Jeff. So there are three other education unions that are negotiating with the Ford government. And CUPE, of course, still needs to negotiate this collective agreement as well. But I guess what are the lessons learned here for other public

sector unions that are already or will be negotiating new collective agreements? Well, yeah, you have to think about these are not easy negotiations to begin with. And you have inflation at the moment. And you have also some information coming out from the government's financial watchdog that says it actually has a lot of money lying around as the economy's recovered more quickly coming out of the pandemic, even if there's a recession. The financial accountability officer says there's quite a bit of money there sitting there. So you have those two inconvenient facts if you're the government. I think that what happened over the weekend, it shows that it is really a powder keg.

The reason all these cumbersome rules and the way we do labor relations exist is because it evolved over time to kind of take the – I should stick with the gunpowder, powder keg analogy and to be pulled away by this extraordinary use of the the Constitution, then why would you bother with the niceties of waiting for a legal strike? And, you know, we'll get back to the old days when strikes when all strikes were illegal, technically, and it was very messy and hard to control. Do you think we're going to see more strikes this fall and winter then? Oh, I hope not. I think my kids would actually welcome it. They were a little disappointed that they had to go back to school today. I think everybody on all sides hopes that that isn't necessary. Nobody wants kids to miss school. None of these teachers want to be out of class. None of these education assistants I talked to yesterday marching around Queens Park, they all, even just for a day or two, were missing their children. Some of them work with special needs kids. The first thing they

all said to me was, I really want to, I'm so glad we're going to be back tomorrow. If cooler heads prevail, we'll avoid other labor disruption. But it was a rocky, rocky start. Yeah. Jeff, thank you so much for taking the time to chat with me here today. Thanks for having me. That's it for today. I'm Mainika Raman-Wilms. Our producers are Madeline White, Cheryl Sutherland, and Rachel Levy-McLaughlin.

David Crosby edits the show, Kasia Mihailovic is our senior producer, and Angela Pichenza is our executive editor. Thanks so much for listening, and I'll talk to you tomorrow.