The Ford Government's use of the Notwithstanding clause will weaken and ultimately negate the Canadian Charter of Rights and Freedoms. It will also contribute to dismantling public education by silencing Trustees in fundamental employer/employee negotiations processes.
Strategic timing, silencing boards of education through short-term gains, successfully marketed disdain for education workers, and the general lack of understanding of the long-term ramifications of using the Notwithstanding clause of the Canadian Charter of Rights and Freedoms are all factors that play into the current deteriorating scenario.
Timing
The timing of the Ford Government's introduction of the Notwithstanding clause at this time and in this application is strategic and deliberate in many ways:
- Both major opposition parties are leaderless at this time. Those leaders have even moved onto other levels of government, so they are not interested or available for what is happening. The Green leader in his lonely seat is a respectable guy, but not enough for the magnitude of this move by the government.
- Boards of Trustees are in transition right now after the municipal elections, with many new, unknowledgeable faces taking seats in the coming weeks and experienced trustees leaving, making many boards unable to criticize this move effectively.
- Using this tactic on the first education worker (public sector) contract sets a precedent to impose it on other contacts within (and beyond) education.
- Finally, with only five months into its four-year majority mandate, it suggests that the government believes that the electorate will forget, or at least forgive, its use by the time they go to the polls again.
Boards of Education
In Halton, CUPE represents different bargaining groups in the two English school boards. In the Halton District School Board, only custodial staff are part of CUPE.
Additionally, the board has a long-standing night-time cleaning contract at the secondary school level. This has allowed for job action to have less impact than at the Halton Catholic District School Board, where CUPE represents custodial staff, EAs, DECEs, ESL instructors, IT technicians, library technicians and school and board administrative office staff, among others. Each school board across the province will have different employees represented by various unions, so the impact will be distinct for each board.
Bargaining in education happens at two levels: central bargaining and local bargaining.
Central bargaining tends to be for province-wide items like raises and class sizes, while local bargaining is for board-specific items with local context taken into account during negotiations. Central bargaining happens first. Each union bargains individually at the central table, and there are many: CUPE, OPSEU, ETFO, OECTA, OSSTF, etc. Three parties sit at the central table: the relevant Union/Federation, the Crown (Ontario Government) and the Council of Trustees' Associations (CTA). The matters at this central table are typically financial, so the Crown, as the funder, takes the lead over the CTA (who is the employer) in these negotiations. The Crown is not involved in local bargaining between representatives from each local Union/Federation unit and the local school board.
The passing of Bill 28 imposes an agreement on CUPE education workers both at the central and local levels. Though boards seem content with that outcome, as the terms are favourable, they shouldn't be.
The imposition of Bill 28 using the Notwithstanding clause and an exemption for the Human Rights code negates the rights of the employer to good-faith bargaining to reach an agreement with their employees. This poisons the work environment by souring employee relations; equally important, it removes the voice of boards in the negotiation process.
Boards of Trustees do much good work and are Ontario's de-facto defenders of public education. Trustees are the only elected officials whose mandate is student achievement and well-being.
In this recent process, trustees' voices were silenced. Boards should be screaming that their employer's rights are being violated by the use of the clause by imposing a contract and demanding a return to the table and continuance of good-faith bargaining to come to an agreement.
They may not get as favourable a deal as the imposed agreement. Still, their relevance in the bargaining process and improved relationships with their employee groups are more valuable in the long term.
Marketed Disdain for Education Workers
For decades, there has been a conscious and intentional battle against education workers, often specifically against teachers.
It was evident in Mike Harris's "Common Sense Revolution" when John Snoblen, Education Minister, was open about wanting to create a "crisis in education." It was demonstrated again this spring when the current Minister began running attack ads/posts saying that teachers wish to disrupt children's education.
The Ford Government hopes the public has "consumed all of the cool-aid" about education workers and will take the government's side in the court of public opinion.
It is actually inconvenient for the government that the first contract to be negotiated is not a teacher union but with CUPE, the lowest-paid education workers, who are primarily women. It comes across like the Crown is kicking the paupers. The government recognizes the poor optics, which is why the tawdry exemption of the Human Rights Code is included in the Bill.
The fact is that all it takes is good-faith bargaining on all sides to reach agreements to avoid a strike disruption. Canadian law allows strikes only when collective agreements do not exist. This strike window is very narrow and can be avoided.
The Crown is arguing that Bill 28 imposes a collective agreement; therefore, the current walkout is illegal. This leads us to some questions.
Is a collective agreement an "agreement" if it is imposed?
Is this a strike or a protest, as picket lines were not set at the schools?
If it is a protest, is it illegal under the terms of the Bill?
Those are questions that the Ontario Labour Relations Board is currently hearing arguments about as this is written.
How are the other public sector unions to believe that when their time comes to be at the table, they will be provided with a good-faith bargaining opportunity?
Use of the Notwithstanding clause during CUPE negotiations sets a precedent to be cited and used in the future. Other unions may see the Notwithstanding clause as a runaway train with CUPE tied to the tracks and are trying not to be run over by it by endeavouring to derail it from a distance.
Public lack of understanding about the Notwithstanding clause
The general public has very little understanding of the Notwithstanding Clause within the Canadian Charter of Rights and Freedoms, and the Ford government is depending on that fact. Since the Charter was enacted in 1982, no previous Ontario Premier has invoked it. Its original intent was to provide the ability for provincial governments to punch back on untenable and egregious federal legislation.
Previous provincial governments understood that it should only be used on the rarest of occasions, as it tramples their citizens' fundamental rights. It was not intended to be used by a government to punch down at its citizens by preemptively quashing rights during routine contract negotiations.
Every time the clause is used, it sets a precedence that chips away again and again at the Charter until its worth becomes less than the paper it was written on.
We've seen it used in Ontario for limiting third-party advertising around elections and invoked in Quebec to allow for discriminating against religious symbols and language laws. Now, we see it again in Ontario to ban the right to strike and negate the right to collectively bargain by imposing an agreement without recourse through the Charter or Human Rights code.
Where are we now, and what can I do?
This week, government-supporting media have started floating the idea of charter/voucher schools as a remedy to education worker strikes.
The government is also giving hundreds of millions of dollars from the provincial education budget to any parent of K-12 students (private school, public school or homeschooling) in Ontario through Ontario's Catch Up Payments plan without any assurances that the money is being used for education purposes. These ideas and actions erode confidence in the education system. This funding could instead provide targeted learning support for students within the public education system. In the Halton District School Board, $200 per student would mean more than $13M in resources for classrooms plus the extra $50 per student with Special Education needs would start to make up for the yearly deficit the board has for the growing needs in that area.
The Ford government wants the public to focus on its messaging of "Undeserving education workers want a massive raise." The union has unfortunately taken the bait and is fighting back, saying to the public, "We are deserving of a raise!" when the message should be, "Our rights and freedoms that people fought and died for are being trampled on now, and don't be surprised if they come for yours next! We are on the front lines of a battle for the future of the Charter of Rights and Freedoms".
The use of the Notwithstanding clause goes far beyond this moment and current application. It should not become any Premier's shortcut to producing harmful legislation that cannot be challenged in court.
For Rights to be frivolously stripped during routine rounds of labour contract negotiations is a gross overreach of power. If the public does not stand up to stop the use of the Notwithstanding clause now, it should assume that it will be used again and again, negating the Charter and what it stands for altogether. This prospect must be met with a fervent and unyielding NO!
Contact your local MPP, the Minister of Education, and the Premier now to express your disdain for its attempt to break the public education system and this attempt to soften and ultimately negate the Canadian Charter of Rights and Freedoms.
