The Keeping Students in Class Act

November 2, 2022

 

On October 31, 2022 the Ontario government introduced Bill 28 (“Bill 28”), the Keeping Students in Class Act. The Bill involves a broad and aggressive legislative attack on the constitutional rights of workers to engage in collective bargaining.

Bill 28 arrived in the midst of ongoing bargaining between the government and education workers represented by the Canadian Union of Public Employees (“CUPE”). The affected workers represented by CUPE include educational assistants, custodians and early childhood educators. On October 30, 2022, the day before Bill 28 was introduced, CUPE submitted the requisite five days’ notice for job action, placing the Union in a position to strike on Friday, November 4, 2022. However, Bill 28 prohibits any strike action by the Union and its workers.[1] Bill 28 also imposes onerous fines on workers and the Union if they engage in strike action. Individual workers who choose to go on strike once the legislation is enacted may face fines of up to $4000 per day and the Union may be fined $500,000 per day.[2]

In addition,  Bill 28 imposes a new set of collective agreements on education workers represented by CUPE.[3] Once the Bill receives Royal Assent, collective agreements would be in force until August 31, 2026.[4] Under the collective agreements that would be imposed as part of Bill 28  full time education workers with an annual salary of less than $43,000 (or hourly rate of less than $25.95) will receive an increase in pay of 2.5% per year from November 7, 2022 to September 1, 2025. Full time education workers with an annual salary of more than $43,000 (or an hourly rate of more than $25.95) will receive an increase in pay of 1.5% per year from November 7, 2022 to September 1, 2025.[5] The proposed increase in wages is starkly lower than the 11.7% sought by CUPE during bargaining.

Significantly, Bill 28 includes a number of provisions to preclude any legal challenges to the legislation if and when it is passed. It also invokes the notwithstanding clause under s. 33 of the Canadian Charter of Rights and Freedoms (the “Charter“) and contracts out of the Human Rights Code. More specifically, Bill 28 includes the following provisions:

• No employee can strike and no person, bargaining agent or employee bargaining agency can or threaten to call for or authorize a strike.[6] If a strike or lockout is in effect before Bill 28 receives Royal Assent, the strike must be immediately terminated once the legislation is enacted.[7]
• No employer and employer bargaining agency can or threaten to lock out, call for, authorize or require a lock-out.[8]
• No decision, direction, order or award made by a court, administrative tribunal, arbitrator, mediator-arbitrator or arbitration board under the Charter can alter the amount of compensation provided to education workers under the new collective agreements.[9]
• Despite section 45(1) of the School Boards Collective Bargaining Act, 2014, SO 2014, c 5, the Minister of Education does not need the consent of the employer bargaining agency to make a complaint regarding an unlawful strike.[10]
• Nothing in the Rights of Labour Act, RSO 1990, c R33 prevents or affects the enforcement of the Bill.[11]
• Pursuant to section 33(1) of the Charter (the “notwithstanding clause”), the proposed legislation will operate notwithstanding sections 2 (fundamental freedoms including the freedom of expression and freedom of association), 7 (legal rights: life, liberty and security of the person) and 15 (equality rights) of the Charter.[12]
• Once the Bill receives Royal Assent, it will apply despite the Human Rights Code, RSO 1990, c H19.[13]
• The Ontario Labour Relations Board, arbitrators, mediator-arbitrators, arbitration boards and administrative tribunals cannot inquire into or decide whether a provision of the proposed legislation, its terms or regulations, or any action under the proposed legislation is constitutional or in conflict with the Human Rights Code, RSO 1990, C H19.[14]
• No cause of action or any other legal basis for a proceeding can be launched against the Crown or any of the Crown’s current or former ministers, agents, appointees and employees as a direct or indirect result of the enactment of the proposed legislation or any act or omission under it.[15]
  • Note: This provision is retroactive and applies regardless of whether a cause of action or other legal basis for a proceeding occurs before the Bill is enacted.[16]
  • Likewise, no application may be made to be Ontario Labour Relations Board under this provision alleging the Crown contravened sections 17, 59 and 70-88 (the substantive unfair labour practice provisions) of the Labour Relations Act, 1995, SO 1995, c 1, Sched A or any provision under the School Boards Collective Bargaining Act, 2014.

An unprecedented attack on workers’ rights

Bill 28’s use of the notwithstanding clause to deny workers’ rights under the Charter, especially the right to strike and the right to collective bargaining under s. 2(d), is unprecedented. Bill 28 prohibits strike activity before a strike has even begun and erodes or undermines collective bargaining by imposing a collective agreement on the Union and workers.

Patty Coates, the President of the Ontario Federation of Labour, has referred to the introduction of the Bill as the government’s attempt “to short-circuit the bargaining process and strip workers of a fundamental freedom.”[17] Moreover, Coates noted the Ontario government is “the first Canadian government to use the notwithstanding clause to override constitutionally protected labour rights.”[18] On this note, David Doorey, a Professor  at York University, stated the invocation of the notwithstanding clause was not surprising because the Bill was “so obviously a Section 2(d) [freedom of association] violation.”[19]

Despite the uproar regarding the Bill, the Minister of Education, Stephen Lecce emphasized the government will pass the proposed legislation and “will not accept for one day a strike.”[20] CUPE members will continue with plans to walk off the job on Friday for a one-day protest.

As of November 1, 2022, Bill 28 is in its Second Reading and debates are ongoing.

For more information: See Bill 28, Keeping Students in Class Act, 2022, 1st Sess,  43 Parl, Ontario, 2022 (Second Reading on 1 November 2022).

 

This post was co-authored by Katherine Ferreira and Abir Shamim.

 

[1] Bill 28, Keeping Students in Class Act, 2022, 1st Sess, 43 Parl, Ontario, 2022, cl 7(1) (Second Reading on 1 November 2022). 

[2] Ibid, cl 9(1)(a).

[3] Ibid, cl 5(1).

[4] Ibid, cl 5(7).

[5] Ibid, Schedule 1 – CUPE-Part A: Central Terms.

[6] Ibid, cl 7(1).

[7] Ibid, cls 6(4) & 6(5).

[8] Ibid, cl 8(1).

[9] Ibid, cl 5(4).

[10] Ibid, cl 11(1).

[11] Ibid, cl 12.

[12] Ibid, cl 13(1).

[13] Ibid, cl 13(2).

[14] Ibid, cl 14(1).

[15] Ibid, cl 15.

[16] Ibid, cl 15(6).

[17] “Ontario Federation of Labour Calls the Ford Government’s Legislation Invoking the Notwithstanding Clause, A “Full Frontal Attack on Basic Labour Freedoms” (31 October 2022), online: Ontario Federation of Labour <ofl.ca/new-legislation-attacks-basic-labour-freedoms/>.

[18] Ibid.

[19] David Doorey, “UPDATE: Ontario Invokes Notwithstanding Clause, Crushes Labour Rights of Educational Workers” (31 October 2022), online (blog): The Law of Work <lawofwork.ca/ontarioeducationworkers/>.

[20] “TDSB to close all schools for in-person learning on Friday as education workers vow to walk off job”, CBC News (31 October 2022), online: <www.cbc.ca/news/canada/toronto/ontario-education-minister-news-conference-1.6635275>.

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