Irrational Debate at the Ontario Labour Board

Irrational Debate at the Ontario Labour Board

Prior to the Ford government agreeing to repeal its draconian Keeping Students in Class Act, it requested a hearing in front of the Ontario Labour Relations Board to declare CUPE-OSBCU education workers political protest against the law an illegal strike. The arguments of the government reveal that irrational situation in which a government of police powers only sees its role and that of the democratic institutions to police people and their actions when they refuse to submit to attacks on their rights by those very same governments. It reveals the necessity for enshrining modern definitions of workers rights into a new and modern constitution that is based on affirming the rights of the people, not providing governments with tools to violate them “legally” which will never be accepted by the citizenry.

The hearing was held over three days from November 4-6 and, at times was joined by more than 2,300 people online, showing the active involvement of many workers in this fight. Present at the hearing were OLRB Chair Brian O’Byrne, representatives of the Goldblatt Partners, the law firm representing CUPE-OSBCU, a representative of the Crown and of the Ministry of the Attorney General, and a representative of the Council of Trustees’ Associations.

At the hearing, the lawyer for the Crown and the Attorney General argued that the OLRB had to rule the province-wide protest an illegal strike given that there was now a collective agreement in place, legislated by the Keeping Students in Class Act, 2022 that had been passed on November 3. As a result, they argued, the workers had no right to strike because a contract was in place on the day they did not attend work. The Crown further argued that it was not the place of the OLRB to decide whether the legislation was right or wrong or whether CUPE-OSBCU was right in its opposition to the government’s violation of its right to collectively bargain, up to and including the right to strike. Instead, they argued, the role of the Chair and the OLRB is to rule that the workers were breaking an agreement they never agreed to and that they needed to be forced to return to work.

At the hearing, the Crown also reviewed the websites of the CUPE-OSBCU and interviews with its leaders to claim that the protests were highly orchestrated and were prepared to continue indefinitely and that this constituted a grave and serious threat to students, parents, and the province as a whole, which needed to be ended. The Crown repeatedly pointed out that the protests were not isolated and, in fact, were taking place across the province, making it an even graver threat.

Lawyers for the union argued that the OLRB in fact had a duty not to comply with the government’s request in order to preserve the integrity of the OLRB and the principles upon which labour relations are based, mainly that labour peace comes out of a balance of rights between the workers and the employer and the recognition that workers have a fundamental right to collective bargaining that includes the right to strike. The lawyers for CUPE-OSBCU and the Chair went over a plethora of previous cases of labour relations boards to trace the evolution of the protections for collective bargaining, right to the very start of the labour relations regime. This regime was put it place following World War II to guarantee labour peace in the face of widespread industrial actions of the workers for recognition of their rights to unionize and organize.

In this case, they argued, workers were unable to participate in collective bargaining because the government legislated their contract and, in so doing, sought to prevent them from affirming their right to strike. Thus, they argued, the action of the workers was in fact a political protest against the government’s violation of their rights and not a strike according to the definitions in the Ontario School Boards Collective Bargaining Act that governs central and local bargaining in K-12 education in Ontario, or the definition in the Ontario Labour Relations Act that informs it.

As such, they argued, the OLRB did not have to declare it an illegal strike because it is not a strike, and if declared illegal, it would be interfering in political actions protected by the Charter of Rights and Freedoms.

Furthermore, they argued that if the Board were to rule CUPE-OSBCU’s actions an illegal strike it would be within the Chair’s professional discretion to decide what is to be done, based on the recognition that the government is violating the fundamental rights protected in the Charter of Rights and Freedoms, which is an integral part of the labour relations regime.

During back and forth, various things came to a head when the Chair asked different parties what they thought he could do. The government and the lawyer representing the school boards and the representative of the Ministry of the Attorney General simply wanted him to order the strike illegal and force the workers back to work. Meanwhile, the Chair continued to appear to be coming to grips with the fact that the government itself was humiliating him and his office by stripping the OLRB of all its powers to facilitate negotiations and provide a safety valve to prevent the workers’ movement from being effective. He was left with one role only — to declare the strike illegal and give credibility to the government’s violation of workers’ rights.

At one point the Chair addressed what would happen if he could not use his discretionary powers to facilitate negotiations. If he ordered the workers to work, it would not resolve any problems, but could make matters worse. If he did not order the workers back to work, he would not be carrying out the role his office had been given by the Keeping Students in Class Act, 2022.

The Crown simply repeated that Chair’s job was to rule the strike illegal. This is what the law says. He must use his powers to get the workers back to work and ‘bring labour stability.’ The Chair explained, at other points, that ordering the workers back to work without having agreed to a negotiated agreement “would leave a festering sore.”

With the government now repealing the Keeping Students in Class Act, 2022 and them confirming this would take place on November 14, the OLRB will no longer issue a ruling.

(With files from Renewal Update)