Potential legislation prohibiting labour lockouts and strikes

One of today's top headlines is the potential passing of a bill by the Ontario government which would prohibit approximately 55,000 education support workers, including custodians, administrative staff, and educational support workers, from walking off the job or face significant fines.

The Background:

This proposed legislation arises as a result of contentious negotiations between the Canadian Union of Public Employees ("CUPE") and the Ontario government regarding the collective agreement governing CUPE workers. CUPE is requesting an 11.7% annual raise for its workers, premised in part on the significant increase in inflation this year and years of stagnant wages for its workers, among other things. The Ontario government was not prepared to grant CUPE's requests and negotiations broke down.

On Sunday, October 30, CUPE announced its attention to strike on Friday, November 4, complying with its obligation to provide 5-days advanced notice.

In response, on Monday, October 31, the Ontario government announced Bill 28, Keeping Students in Class Act, 2022. This precedential legislation would impose a four-year collective agreement on CUPE workers that would limit annual salary increases to between 1.5-2.5%, and, critically, would prohibit any strikes or lock-outs from the date the legislation is passed until the end of the collective agreement. The legislation contemplates significant fines for individuals who fail to comply, including:

• Employees could be fined up to $4,000 per day;
• School board officers who support or assist lock-outs could be fined up to $4,000 per day;
• Unions could be fined up to $500,000 per day; and
• School boards cold be fined up to $500,000 per day.

Bill 28 is currently before Ontario's legislature, with the expectation that it will be passed before end of day today, November 3, in advance of CUPE going on strike.

Significance of Bill 28:

Aside from the significance of Bill 28 for school boards and CUPE workers, Bill 28 has generated significant controversy because the Ontario government has invoked the "notwithstanding clause" to say the legislation would apply notwithstanding s. 2, 7 and 15 of the Canadian Charter of Rights and Freedoms (the "Charter") and will apply despite the Ontario Human Rights Code.

It is well established that the freedom of association under s. 2 of the Charter includes the right to collective bargain and the right to strike. As a result, the Bill prima facie breaches CUPE workers' Charter rights. The Ontario government is seeking to overcome this hurdle by relying on the "notwithstanding clause" which is included in s. 33 of the Charter. This is the first time an Ontario government has attempted to rely on this exceptional clause to pass labour legislation.

The Potential Impact:

Bill 28, if passed, will make it much more costly for CUPE to strike, but it does not actually prevent a strike from occurring. In fact, the CUPE president has indicated that CUPE workers will strike on Friday, November 4, regardless of whether the Ontario government passes Bill 28. In light of this, many school boards across Ontario have issued notices advising they will be closed if the strike does in fact go ahead.

Takeaways:

The outcome of Bill 28 and the looming strike affects not only CUPE workers and school boards. Many employees may be impacted if schools shut on Friday or for longer. For employers, this raises consideration as to what measures can be taken to accommodate employees who are unable to attend work due to sudden, unexpected childcare obligations. Under Ontario's human rights legislation, employers are required to accommodate employee's family status needs up to the point of undue hardship. In these circumstances, it very well may mean allowing the employee to work remotely, work on a modified schedule, or even take a day off work in order to care for their kids while schools are shut.

The circumstances in which Bill 28 is being tabled are unique, including the significant impact on the education sector, however, the more interventionist approach to employment and labour matters is not. Over the last year or so, we have seen a number of significant pieces of legislation passed which further regulate employment matters. For example, in April 2022, Bill 88, Working for Workers Act, 2022 was passed into law and in December 2021, Bill 27, Working for Workers Act, 2021 was passed into law. Among other things, these two pieces of legislation introduced new policy requirements for employers, prohibited non-compete agreements, as well as provide for comprehensive new rights for digital platform workers, once enacted. For further information on these legislative changes, please check out Bill 88, Working for Workers Act, 2022, passed into law and Working for Workers Act, 2021 – Changes to Ontario's Employment Laws.

Employers and employees across all industries, unionized or not, would do well to take the time to bring themselves up to speed on the major changes to the employment law landscape over the last few years, if they have not done so already. Lee Workplace Law would be happy to schedule a time to discuss and make sure you're up to speed on your employment rights and obligation.