Doug Ford’s Progressive Conservative Government did the right thing on November 7th and stepped back from the precipice by agreeing to repeal its oppressive labour legislation aimed at low-paid Ontario education workers. The Government will now head back to the bargaining table with CUPE.
For the moment, a crisis may have been averted. However, as the president of a union of lawyers, I think it’s important for me to highlight the fundamental importance of collective bargaining, the existential threat the Ford Government’s legislation posed to it, and my continuing concern about the Government’s low level of respect for Charter rights and freedoms.
The right to collective bargaining is important and it matters. Canadians across the country realize this and reacted with outrage to the Ford attack on this right.
The right to collective bargaining is an aspect of our freedom of association, is protected by s. 2 (d) of the Charter and has been recognized by the Supreme Court of Canada. It includes the right to join a union, to benefit from collective representation and collective bargaining with an employer, and to take labour action. The Supreme Court said this right to bargain collectively reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the Charter.
A lot of us work for employers. Many people can relate to situations where they feel they are struggling under a heavy workload, not fairly compensated, not adequately appreciated and recognized, or otherwise not well treated by an employer. Employees can feel powerless or ill-equipped to effectively address these issues with an employer which typically has superior bargaining position and power.
That’s where unions come in. They strive for better and fairer treatment for workers through solidarity, collective representation and collective bargaining. As a collective, unions help to level the playing field of labour relations in a way that a singular employee could never do.
At the heart of collective bargaining is the constitutional duty to bargain in good faith which includes the obligation of a union and employer to meet, to commit adequate time to the bargaining process, and to engage in a meaningful dialogue in order to try to arrive at the best outcome – an acceptable negotiated agreement.
Sometimes the parties can’t agree and reach an impasse. The employer can lock out workers, or workers can take labour action in the form of a strike or work-to-rule. The right of workers to withdraw their services is fundamental to collective bargaining. The collective bargaining process can be challenging, but it forces the parties to focus on their priorities and where they can compromise in order to reach a negotiated settlement. The process takes time and a good faith commitment.
Unions expect employers, including governments, to be a fair bargaining partner, to bargain in good faith, and to respect the fundamental right of employees to withdraw their services as part of the collective bargaining process.
Where government is the employer and doesn’t like where a labour dispute is going, it can unfairly change the rules and rig the game. The government can use the power that no other employer has – to pass legislation to end a labour dispute and unilaterally impose a contract on workers.
Such action guts the rights of workers and ends the collective bargaining process before it runs its course. Workers are deprived of their fundamental power to withdraw their services. If a government employer uses the heavy hand of legislation to arbitrarily impose a contract on workers, they will feel they have been treated oppressively, unfairly and deprived of the opportunity to determine their own fate.
The legacy of such government action is anger, distrust, and feelings of unfair and ill-treatment, setting the stage for volatile and poisoned labour relations, an unhappy workforce, and continued labour strife in the future. In this particular case, the unfairness of the Ford Government’s legislative action was compounded by the use of the notwithstanding clause to nullify collective bargaining rights.
We should view the Ford Government’s action for what it is – an existential threat to effective collective bargaining which, left unanswered, may spread elsewhere in Canada if other governments choose to follow the Ford Government’s oppressive and irresponsible example. Collective bargaining rights would cease to have meaning if government employers can simply cast them aside for convenience or political expedience. This must never be allowed to happen.
Frankly, I’m deeply concerned about the Ford Government’s attitude toward and low level of respect for Charter rights and freedoms. Premier Ford is all too willingly – perhaps even eager – to take away the rights and freedoms of Ontarians without a reasonable and compelling justification contrary to the established political convention and doing so in a way that sets a dangerous precedent of weakening the Charter.
The notwithstanding clause in section 33 of the Charter is the nuclear bomb that governments can use to pass Charter-infringing legislation, keep it in force for five years, and perhaps even longer. A by-product of the notwithstanding clause is that it allows governments to effectively avoid accountability in the courts for Charter infringements which cannot be justified as a reasonable limit in a free and democratic society.
Until now, most of our political leaders have wisely followed the convention that use of the notwithstanding clause should only be considered in the most dire and exceptional circumstances where it is justified by extremely compelling and important reasons. For the most part, governments across Canada have accepted this approach and have not used the notwithstanding clause.
In the first 38 years of the Charter’s existence, not a single government in Ontario invoked the notwithstanding clause. But the Ford Government has no hesitation or compunction about using it or threatening to use it. The Premier threatened to use the notwithstanding clause in 2018, and his government has now used the clause twice in the last year and half. This is a sad record of oppressive behaviour and irresponsible political judgment.
The Ford Government’s liberal use of the notwithstanding clause is normalizing the violation of Charter rights and weakening these fundamental protections. Ford has set the precedent that governments can be arrogant, authoritarian and dismissive; nullify Charter rights contrary to the longstanding political convention; avoid justifying the violations as being reasonable limits; and effectively immunize themselves from accountability for their actions in the courts.
Premier Ford’s commitment to withdraw the Keeping Students in Class Act, 2022 is welcome. Let’s hope, however, that the Ford Government has a renewed respect for the Charter and collective bargaining. Let’s also hope that the Government bargains in good faith and resolves the labour dispute with Ontario education workers by negotiating a fair contract that works for education workers, students, and parents across Ontario.
David McNairn is an Ottawa lawyer and the President of the Association of Justice Counsel, the union representing 3,100 federal public sector lawyers.