Ford government backtracks on attempt to utilize the notwithstanding clause to prevent CUPE exercising Charter rights
Over the past few months, negotiations between the Canadian Union of Public Employees (CUPE) and the Ontario government over the issue of wage increases for Ontario education support workers spiralled into a moment of crisis with consequences for labour rights across this country. At the time of publication, a tentative offer will soon be voted upon by members of the union, with a result of the vote to be released on December 6, 2022.
CUPE represents roughly 55,000 Ontario education workers, including librarians, early childhood educators, and custodians. In anticipation of the end of the 2019 collective agreement between CUPE and the Ontario government, negotiations began in July of this year. A major point of contention was the issue of wage increases. CUPE sought annual increases of 11.7 percent for all workers, but the Ontario government instead offered a 2 percent raise for workers making less than $40,000 per year, and a 1.25 percent raise for all other workers.
In response to the lack of agreement, 96.5 percent of CUPE workers, totalling 45,433 members, voted in favour of striking on October 3. On October 30, CUPE issued a strike notice that support workers would hit the picket lines on November 4.
In response, the Ford government passed Bill 28, the Keeping Students in Class Act, 2022 (“the Act”). This legislation imposed a four-year contract on CUPE members, restricted applications under the Human Rights Code, and utilized the section 33 notwithstanding clause of the Canadian Charter of Rights and Freedoms (the Charter) to nullify CUPE member’s sections 2, 7, and 15 Charter rights. The Act marked the second time the notwithstanding clause was enacted under the Ford government.
In response, CUPE members walked out in protest on Friday, November 4, along with members of other unions, such as the Ontario Public Service Employees Union and Unifor, and supporters from the public. Large rallies occurred outside of Queen’s Park, as well as the Education Minister’s constituency office in Vaughan, Ontario. Ultra Vires was present at the protests, where representatives from a variety of unions spoke to the public about the importance of an active public in holding the government accountable.
Following these demonstrations, the government applied to the Ontario Labour Relations Board to have the demonstrations by CUPE declared an illegal strike under Bill 28. However, this argument became irrelevant on November 7, when CUPE agreed to end the walkout in exchange for the Ontario government repealing Bill 28. The repeal of Bill 28 has been celebrated as the result of inter-union coordination and public support for labour rights. CUPE declared the agreement to repeal Bill 28 as a massive victory for organized labour and workers’ rights. After some delay, the legislation was repealed on November 14 under Bill 35, while negotiations resumed on November 8 with the Ford government promising an improved offer.
On November 20, CUPE representatives announced that a tentative offer had been reached with the Ontario government which will provide wage increases of $1 per hour in each year of a four-year collective deal. The offer would result in annual wage increases of 3.59 percent on average across the bargaining unit, amounting to approximately 15.2 percent compounded over the four years of the agreement. CUPE represented workers began to vote on the tentative offer November 24, with results to be released on December 6.
