Who Said What – Ontario’s Bill 28, the Keeping Students in Class Act

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Who Said What on Ontario’s Bill 28, the Keeping Students in Class Act

Ontario Minister of Education, Stephen Lecce

“Students are finally back in class catching up, following two years of pandemic disruptions. We are disappointed that CUPE is refusing to compromise on their demand for a nearly 50 per cent increase in compensation, representing a price tag close to $19-billion if extended across the sector,” … “CUPE has now made the decision to strike, putting their own self interest ahead of Ontario’s nearly two million children, who deserve to stay in class learning. We are delivering on our promise to parents that our government will do whatever it takes to keep students in class, so they can catch up and get back to the basics of learning.”

In the Legislature, on November 1, the PCs used their majority to try and speed passage of the Bill by passing a motion to have the Legislature sit starting at 5 am on November 2 in order to ram it through second and third reading.

Education Unions

Ontario School Boards Council of Unions Bargaining Committee

“Today the Provincial government tabled legislation that would impose our collective agreement terms and force workers further into poverty. Hours later, Stephen Lecce said the government is no longer interested in bargaining.

“The OSBCU’s central bargaining committee remains committed to negotiating an agreement that invests in workers and students. While the bill is being debated, we’re asking all workers, parents, and community members to make their voices heard by calling their MPP and joining us on the picket line on Friday, November 4.”

Elementary Teachers’ Federation of Ontario President Karen Brown

“On behalf of ETFO’s 83,000 members, I want to say that we unequivocally condemn the Ford government’s imposition of a concessionary contract on some of the lowest-paid education professionals working in Ontario’s schools. ETFO stands with CUPE members and their right to strike for better pay and working conditions, and not with a regressive government that is cloaking anti-labour legislation as being pro-education.

“Today, on October 31, ETFO had a central bargaining date. Unfortunately, today is the day the Ford government is tabling back-to-work legislation that undermines the free and fair collective bargaining process for 55,000 CUPE members. On this of all days, ETFO could not, in good conscience, sit across the table from the government, and so we ended negotiations for the day.

“In creating legislation that imposes a contract on CUPE members, the Ford government has chosen the most draconian manner of legislating away two fundamental rights protected by the Canadian Charter of Rights and Freedoms: the right to bargain collectively, and the right to strike.

“Today, the Ford government has signalled it is uninterested in reaching collective agreements that are negotiated freely and fairly. And its oppressive use of the notwithstanding clause is another flagrant abuse of power—one that continues to attack democracy by trampling on Ontarians’ constitutional rights.

“The Supreme Court of Canada has confirmed that collective bargaining, as well as the ability to strike to support bargaining efforts, are constitutionally protected rights that should not be legislated away by governments that want to avoid the inconvenience of negotiations.

“This is a move by the Ford government to curb the ability of education workers in this province to effectively advocate for much-needed improvements in public education. It is not only an outrageous assault on our CUPE colleagues, but also a blow to the morale of all education workers in this province.”

Ontario Secondary School Teachers’ Federation President Karen Littlewood

“OSSTF/FEESO, representing more than 60,000 members across Ontario, stands in solidarity with CUPE’s Members and their goal of negotiating a fair deal. The Ford government has taken away these workers’ constitutional right to bargain for improved working and learning conditions.

“The Ford government’s use of the notwithstanding clause clearly demonstrates how unfair this legislation is to CUPE’s predominantly female education workers. They make an average of $39,000 and will have now been subjected to nearly a decade of significant wage restrictions.

“OSSTF/FEESO’s focus remains on our negotiations and making progress at the bargaining table for our Education Worker and Teacher Members. We continue to call on the Ford government to work within a fair process that respects and upholds all workers’ Charter rights, and to invest in public education and negotiate a fair deal that meets the needs of frontline education workers, students, and their families.”

Ontario English Catholic Teachers Association President Barbara Dobrowlski

“Catholic teachers join in solidarity with the Ontario School Board Council of Unions’ (OSBCU) 55,000 Canadian Union of Public Employees (CUPE) education worker members, as they fight for a fair agreement that supports their frontline education workers and the students they serve, free from the Ford government’s heavy-handed legislative interference.

“The Ford government’s decision to use legislation to impose a collective agreement violates the Charter rights of OSBCU members to free, fair, and meaningful collective bargaining. Furthermore, the use of the notwithstanding clause to further trample workers’ constitutional rights is shameful, but not unexpected. This is a government with a long history of repeatedly and deliberately neglecting students, families, education workers, and teachers, turning its back on all Ontarians.

“The Ford government failed Ontarians during the pandemic, when its irresponsible mismanagement led to the longest in-person learning disruption in North America. It failed Ontarians when it previously invoked the notwithstanding clause for the first time in the province’s history through Bill 307 to silence Ontarians, in an attempt to shield itself from legitimate criticism. It failed Ontarians when it prioritized $365 million in one-time payouts, instead of the real investments students desperately need for a robust learning recovery. And it failed Ontarians by doubling down on plans to shortchange students by underspending on education by almost $6 billion over the next five years, as recently uncovered in a report by Ontario’s Financial Accountability Office (FAO). The same FAO report projects a budget surplus this year, and further surpluses for the next five years, eventually growing to $8.5 billion – raising questions as to why the Ford government keeps prioritizing austerity at the cost of student well-being and success.

“The Ford government’s decision to legislatively impose a contract on OSBCU education workers, and to invoke the notwithstanding clause for the second time in Ontario’s history, is another flagrant abuse of power.

“As Catholic teachers, we remain committed, as always, to working throughout the bargaining process to realize a fair agreement that achieves the best for our students, teachers, and families, recognizing that educators’ working conditions are our students’ learning conditions.

“But we need a partner in government that values publicly funded education and the collective bargaining process – the free, fair, and meaningful exchange of ideas that strengthens schools, improves learning conditions, and respects workers’ rights.

“Ontario’s educators know what students need to succeed. It is past time that the government listened to and respected educators’ voices, which is why we urge Premier Doug Ford to immediately abandon this draconian legislation and to commit to working collaboratively to achieve fair agreements that support all educators and students.”

l’Association des enseignantes et enseignants franco-ontariens President Anne Vinet Roy

“AEFO opposes the bill introduced today by the Ford government against CUPE members who are part of the support staff of schools in the province. We stand and will stand in solidarity with CUPE members. Although this deplorable bill seems to affect only CUPE bargaining, we believe that its impact could be felt by the other education unions in the province, including the AEFO.

“In fact, instead of following a collaborative negotiation process, based on mutual interests, the government is ready to unleash heavy legislative artillery to interfere with the constitutive rights of a union and prevent it from using legal and legitimate means of pressure. The bill specifies that no legal recourse is permitted for the next four years. If this bill becomes law, the law would be applied despite the provisions of sections 2, 7 and 15 of the Canadian Charter of Rights and Freedoms and despite the Human Rights Code.

“We deplore the government’s strategy to achieve its ends, which does nothing to strengthen the publicly funded education system, and we urge Premier Doug Ford to immediately drop this punitive bill.

“The AEFO will continue to negotiate in good faith, in a fair and equitable manner, and expects the government to do the same for the renewal of the collective agreements of Franco-Ontarian education workers. The academic success of students and the stability of the education system must continue to be at the forefront of the concerns of everyone at the central negotiating table.”

Provincial and National Unions and Federations

Ontario Federation of Labour President Patti Coates

“Today is a dark day for Ontario workers. By introducing this legislation before education workers have even exercised their Charter-protected right to strike, the Ford government is attempting to short-circuit the bargaining process and strip workers of a fundamental freedom,” said Patty Coates, Ontario Federation of Labour President. “Doug Ford and his government are once again telling workers across the province that their rights don’t matter.”

“The labour movement calls on the government to withdraw this legislation, get back to the bargaining table, and negotiate in good faith. Education workers deserve a fair deal, not a contract imposed on them by law,” added Coates.

“The Keeping Students in Class Act is an attack on every union member, every worker, every student, and every parent in this province. If we allow Doug Ford to get away with it, all other workers will face the same threat: contracts imposed by law instead of free collective bargaining. We won’t let it happen. We will defend the right to fight for our schools, good jobs, decent wages, and a better life.”

President of the Canadian Labour Congress Bea Bruske

[…] “Ford’s legislative attack on workers is relentless. The Ontario government is well aware that this legislation is a direct violation of the rights of workers. Using the notwithstanding clause to rob workers of the right to free and fair collective bargaining is despicable.

“Canada’s unions urge the Ford government to get back to the bargaining table and offer these workers the fair deal they deserve. We stand in solidarity with CUPE members ready to go on strike this Friday, in their battle for long overdue wage increases and better working conditions.”

Unifor National President Lana Payne

“Minister Lecce must meet [CUPE] at the table, not unlawfully revoke their right to strike,” said Lana Payne, Unifor National President. “Unifor will be behind these workers and all workers who stand up against the Ford government’s unprecedented attempt to diminish worker’s rights to bargain better working conditions.”

“This is a dark day for workers’ rights in Canada. Workers must have a say in our own working conditions. Without the right to strike, we are all subject to the whim of the boss, or in this case, of Minister Lecce, to set our working conditions,” added Naureen Rizvi, Unifor Ontario Regional Director. “Unifor members across Ontario are preparing to stand with CUPE workers as they demand that Lecce negotiate instead of legislating.”

Ontario Public Service Employees Union President JP Hornick

OPSEU/SEFPO stands with CUPE as they take this historic action against the Ford government. Hornick called on members to take action.

“It is important to fight back against a government who would rather divert $365 million from desperately needed classroom funding to make small, one-time payments to parents for private tutors. That money should be invested in schools and programs – and the education workers who support students at school,” Hornick said.

Ontario Nurses’ Association

“The Ontario Nurses’ Association (ONA) stands in solidarity with Ontario’s education workers and the Canadian Union of Public Employees in their pursuit of a respectful and fair new collective agreement.

“ONA believes the Ford government’s repeated use of the Notwithstanding Clause demonstrates a wanton disregard for the rights of union members to freely and fairly negotiate; it is a chilling and arrogant move by a government that has repeatedly shown its disdain for female-dominated professions and the vital work they do. The government’s decision to pre-emptively legislate these workers back to work, impose a contract and prevent them from taking job action undermines a long-respected and legal process.

“This is yet another example of this government attacking historic basic labour freedoms in this province. ONA encourages all unions and all workers to join the fight to defend these basic rights and freedoms.”

Lawyers and Legal Experts

Noa Mendelsohn Aviv, the executive director of the Canadian Civil Liberties Association, said in a statement that the notwithstanding clause was “never meant to be used in contract negotiations, or as a casual tool to disrupt basic human rights safeguarded in our Charter.”

“This misuse, and the flagrant disregard for individual rights is wrong and it is dangerous to our constitutional democracy” he added.

Rich Appiah, a principal at Appiah Law Employment and Labour Counsel in Toronto said, “If the public is sympathetic to the government [in this case], then the government’s actions will have set a significant precedent for years to come.” “It’s taking away a constitutionally protected right, and it’ll be up to the people to decide whether they are on side with that,” he said.

David Doorey, a York University professor specializing in labour and employment law, said “there has been only one other Canadian use of the notwithstanding clause in back-to-work legislation — in Saskatchewan in the 1980s. But the law has changed dramatically since then.”
“Today, the charter protects a right to collective bargaining and to strike,” “As a result, the Ontario government requires the notwithstanding clause to protect itself from a lawsuit.”

Andrew Monkhouse, a managing partner at Monkhouse Law in Toronto, said “I imagine that in a world where unions felt that historical compromise was not being followed, they might choose to resort [to] what would be called a wildcat strike,” he said. “If they’re not going to follow what [Unions] see as the law, we won’t either,” said Monkhouse. He said further fallout from the decision will depend on how far the provincial government is willing to go. “I mean, are they really going to be putting labour organizers in jail for going on a strike when they’ve been legislated back to work under the notwithstanding clause?” He said once the government opens the “Pandora’s box” of using the notwithstanding clause during collective bargaining, it will be difficult for unions not to consider it part of every negotiation -— including seeking assurances in their collective agreements that it will not be invoked.

Paul Champ, a constitutional and labour lawyer in Ottawa, said the Supreme Court of Canada made it clear in 2007 and 2015 that the right to collective bargain and to go on strike can only be infringed on in very serious circumstances — and that that hadn’t happened yet in this case.
“There hasn’t really been a fundamental breakdown in negotiations,” he said before it was clear the province would use the notwithstanding clause. “The province hasn’t tried to come up with some other way to arbitrate their disputes.” Champ noted the case of the B.C. Teachers’ Federation in which “the province [of BC] was ordered to compensate teachers going back years, not only for the value of what their collective agreement could have been, but also other damage through the mitigation of their charter right.”

Political Parties in the Legislature

Ontario New Democratic Party

NDP Education critic Chandra Pasma said “Doug Ford and Stephen Lecce have brought us to the brink of disruption in our schools, and they’re the only ones who can stop the clock on this countdown. All they have to do is come to the table with a fair offer that respects the hard work of our lowest-paid education workers, who make $39,000 on average.

“The people who drive school buses and clean classrooms are being forced to use food banks while Mr. Ford racks up multi-billion-dollar surpluses and schemes to shortchange education by billions more. Our kids need more support in school to catch up after the pandemic, not less. But our kids will have less support if Mr. Ford keeps chasing education workers away with low wages. Mr. Ford created a staffing crisis in hospitals by holding back people’s wages, and now he’s doing the exact same thing in our schools.

“Education workers deserve a decent wage, and our children deserve a government that invests in ensuring there are enough caring adults in their schools. Ford and Lecce must offer a fair deal to stop disruption to our kids’ school year.”

Ontario Liberal Party

Mitzie Hunter, MPP for Scarborough–Guildwood and Ontario Liberal Education Critic said “It is unacceptable that some of the most important workers in our education system, who are among the lowest paid in the sector, are struggling to put food on the table – at the same time the government posts a $2.1 billion surplus and is on track to underfund our education system by a further $6.0 billion.

“Doug Ford has made it very clear he will go to any length to undervalue and underpay our critical frontline workers,” said John Fraser, MPP and Interim Leader of the Ontario Liberal Party. “The evocation of the notwithstanding clause to prematurely end negotiations is an egregious abuse of power and an overt assault on our democracy.” He added “The trampling of charter rights has become a standard practice in Doug Ford’s Ontario,” “Ontario Liberals will do everything in our power to end the government’s attack on working people and defend the rights of education workers.”

Green Party of Ontario leader Mike Schreiner said the bill “takes a chainsaw to the Charter rights of education workers” by invoking the Charter’s notwithstanding clause to impose a contract on education workers. He said, “These education workers do extraordinary work under difficult conditions,” “But it is hard to do that work as well as they can because these workers are struggling so much in their own lives to pay the rent and put food on the table with some earning as little as $39,000 a year.” “Half of these workers have to work a second job to make ends meet, many rely on food banks to eat.” “I want schools to be open, education workers want schools to be open, and we want those schools to be safe, clean and staffed by fairly paid workers who can and will focus on student support and success.” “That won’t happen with a government attacking education workers’ Charter rights and forcing them to live on wages that don’t pay the bills.”

Federal Government

Prime Minister Justin Trudeau told CBC News that “using the notwithstanding clause to suspend workers’ rights is wrong,”

“The suspension of peoples’ rights is something that you should only do in the most exceptional circumstances, and I really hope that all politicians call out the overuse of the notwithstanding clause to suspend peoples’ rights and freedoms.”

Newspaper Editorials

Toronto Star

“No doubt, we all want to spare students, teachers and all education workers any more classroom interruptions.

“But the virtue of that objective doesn’t justify this offensive overreach by the Ford government. It’s a cop out. And the invocation of the notwithstanding clause is an admission that the government knows it’s wrong and that its legislation likely wouldn’t survive a legal challenge.

“The give-and-take of negotiations are an essential part of a unionized workplace. Strike deadlines are part of the bargaining process. They focus negotiations, and bring the pressure that is often necessary to spur talks, force moderation of demands and bring about the compromises needed for agreement.

“In 2012, then Premier Dalton McGuinty’s Liberal government imposed a contract on teachers’ unions to avoid a strike. That legislation was challenged in court. In 2016, Justice Lederer ruled that the provincial government had “substantially interfered” with teachers’ right to collective bargaining.

“The Ford government would do well to avoid making the same mistake. Lecce claims his government had “no other choice.” Lecce and his cabinet colleagues do have a choice. They need to stop their bully tactics.

“The union says it will go ahead with a protest on Friday in defiance of the proposed legislation. Obviously, no one wants a strike. With CUPE workers among the lowest paid in schools, and after a pandemic in which education workers were exposed to enormous risk and upheaval, surely now more than ever government and the union should be doing all it can to negotiate in good faith.

“We know the pandemic and the time away from classes took a heavy toll on students, their academic performance and their mental health. That should be all the motivation the government and the union need to resolve this labour dispute — at the bargaining table.”