Ontario’s Conservative government led by Premier Doug Ford set a dangerous precendent for the future of collective bargaining and worker rights in November, when they used the notwithstanding clause in the Canadian Charter of Rights and Freedoms to strip away the rights of 50,000 education workers and impose a five year contract instead of negotiating freely and fairly through collective bargaining.
The legislation was ultimately repealed after swift backlash from unions, workers and the public, workers across Canada should be concerned about the precedent this may set for other governments across the country. While the legislation failed in Ontario, that doesn’t mean that other governments like the Sask. Party won’t try it here.
What happened in Ontario can be confusing, so we’ve tried our best to cut through the legal jargon and explain what happened, and why workers should be concerned.
What is the “Notwithstanding Clause” anyway?
The notwithstanding clause — or Section 33 of the Charter of Rights and Freedoms — gives provincial legislatures the ability, through the passage of a law, to override certain portions of the Charter of Rights and Freedoms for a five-year term. At the time, it was intended that the notwithstanding clause would be used only in rare occasions and for non-controversial issues.
Has it ever been used before?
Yes. The notwithstanding clause has been used outside of the province of Quebec three times, including once in Saskatchewan, when the government used it to protect back-to-work legislation in the 1980s. Doug Ford’s legislation in Ontario was the first time that the notwithstanding clause has been used in order to impose a contract on a group of workers.
What exactly happened with CUPE education workers in Ontario?
CUPE education workers in Ontario were in negotiations with the provincial government and were focused on obtaining higher wages for their workers. Education workers in Ontario on average make $39,000 per year, which is not enough to meet the high cost of living in many parts of the province, especially in Toronto.
After the provincial government refused to move on wages, CUPE workers voted overwhelmingly in favour of a strike mandate. The Doug Ford government in Ontario responded by invoking the notwithstanding clause and imposing a five year contract on the workers, and steep fines for both the union and workers if they were deemed to have participated in “illegal” strike activity.
The legislation was deemed unjust and an overreach and there was swift backlash by unions, workers and the public. After a weekend of rallies across the province, the Doug Ford government agreed to repeal the legislation and the dismantling of workers’ charter rights. CUPE and the provincial government are still negotiating, with CUPE education workers facing a strong chance of going on strike in the near future.
What are a workers’ protected Charter rights?
The Charter of Rights and Freedoms includes a freedom of association, which includes the right to join a union and has been deemed by the Supreme Court of Canada to include a right to free and fair collective bargaining.
The Supreme Court has also ruled that it includes the right to strike when negotiations between the union and the employer break down. This was determined in a historic ruling by the Supreme Court in a case brought forward by the SFL that found the right to strike was constitutionally protected and a right held by unionized workers.
Why should workers be concerned?
Workers should be concerned because of the precedent this could set for other governments in the country. Premier Doug Ford is close with Premier Scott Moe, and the Sask. Party government has never been a friend to working people. Workers in Saskatchewan and in other provinces with conservative governments should be concerned that if they are ever in difficult negotiations, there is precedent from other governments to use the notwithstanding clause to take away workers’ rights and impose a contract on workers.
What can we do?
The most important thing workers can do is to get involved with their union. The Doug Ford government’s legislation only failed because of an outpouring of solidarity and strength from workers and unions across the province. Using our collective power as union members is the only way to stop this sort of unjust legislation.
Workers can also make sure they vote for and work to elect progressive governments to the legislature that put workers first and are committed to respecting workers’ rights and the bargaining process.
“While the legislation failed in Ontario, that doesn’t mean other governments like the Sask. Party won’t try it here.”