School support staff across the province say they will walk off the job Friday, defying legislation introduced by the education minister to avert a strike while also imposing a four-year contract on them.
The protest would leave hundreds of thousands of students in the GTA out of school, with both the Toronto public and Catholic boards cancelling in-person learning for the day.
The Canadian Union of Public Employees called for the job action after the government introduced back-to-work legislation that included the Constitution’s notwithstanding clause to override the Charter of Rights — and despite the hefty fines that could come with such a strike.
It is unclear if the 55,000 CUPE members — who work in most boards across the province — will continue to protest beyond Friday given the job action comes at a steep price: a $4,000 fine per worker for each day off work, plus a $500,000 daily fine for the union. The union has said it will cover members’ fines, which could total $220 million a day.
This is the first time in Canada since 1986 that the notwithstanding clause has been used to pass labour legislation, and the second time that Premier Doug Ford’s government has invoked it to forward his agenda.
“The government has been left with no choice but take immediate action,” Education Minister Stephen Lecce told reporters after introducing the legislation. “… We believe what we brought forth not only is constitutional, but ensures stability for children” and keeps them in class in case of any legal challenges by the union.
“It’s quite unfortunate that it has come down to this situation,” Lecce said, adding the government acted after union refused to withdraw its strike threat. “… But nearly two million students have been through too much over the past two years (during the pandemic), and we owe it to them to stand up for their education.”
CUPE national president Mark Hancock called the use of the notwithstanding clause “unbelievable.”
“Basically, they know this is a violation of the Constitution,” Hancock told the Star in a telephone interview. “This is a violation of our human and our labour rights. They don’t care, and they are going to squirm this through come hell or high water.
“This is an amazingly brutal approach by Premier Ford and his government.”
The Toronto District School Board announced Monday night that, like the Toronto Catholic board, it would close its schools to in-person learning — although allow day cares to remain open, with shortened hours — but it was unclear if students would be learning virtually.
The Simcoe County and Halton public boards both said they plan to keep schools up and running.
Laura Walton, president of CUPE’s Ontario School Boards Council of Unions — which represents the education workers in most boards across the province — said the government is “using the nuclear option because a group of workers has gotten extremely strong.”
Talks between the two sides resumed briefly Sunday after Lecce requested they return to the table, where the government presented its final offer.
Mediated talks were set to resume Tuesday through Thursday, and CUPE says it will modify its proposals especially around wages, but Lecce appeared uninterested, saying the government is instead moving ahead with the legislation, entitled the Keeping Students in Class Act.
Hancock said in the last two rounds of bargaining, deals were reached right before the strike deadline, adding that as in the past, “we assumed that this week would be crunch time.”
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Paul Cavalluzzo, a constitutional and labour lawyer, called the government’s move “shocking — because what we have now is draconian, anti-democratic legislation, which is imposing a contract without the employees having the right to arbitrate” which the Supreme Court established in 2015.
“I know that the notwithstanding clause, which they’re obviously relying on, was never intended to be used in such situations,” he said.
Cavalluzzo said the government has “absolutely no respect for the rule of law … they’re almost making Ontario into a Charter-free zone while they govern. And the problem is the more you use the notwithstanding clause, the less respect people will have for it.”
The government had warned Sunday it would table the back-to-work legislation and impose a contract to avoid more turmoil in schools should the 55,000 custodians, early childhood educators, educational assistants and clerical staff walk off the job.
Earlier that day, CUPE had given the required five days’ notice of strike action.
The government’s final offer to CUPE increased its wage offer slightly, to 2.5 per cent each year for those earning less than $43,000 and 1.5 per cent for those earning more. That was an increase from the original offer of two per cent for those earning less than $40,000 and 1.25 per cent for all others. Benefits and pensions would remain largely unchanged.
CUPE, which represents support staff in all boards across Greater Toronto, is seeking roughly 11 per cent in annual wage increases. Its members are typically the lowest paid in schools, averaging $39,000 a year — although that includes part-time workers. An educational assistant in the Kawartha Pine Ridge board makes almost $35,000 a year, whereas a maintenance-trades worker in Hamilton earns more than $56,500.
The union is also seeking increased pay for overtime, as well as more support staff and guaranteed staffing and service levels for students in schools.
In solidarity with CUPE, the Elementary Teachers’ Federation of Ontario called off its talks with the government on Monday.
Interim Liberal Leader John Fraser said the government is repeating a mistake his party made with education workers and Bill 115 a decade ago while in power.
The Liberal government under Dalton McGuinty imposed contracts, freezing pay, but was later found to have violated education union bargaining rights and had to pay more than $210 million to unions for the breach.
“You can learn from your mistakes,” Fraser said. “That’s what good governments do. I wish they learned from ours. I wish they learned from ours, courts in this country frown on infringing on people’s rights to bargain. It’s clear, we know that happens.”
The “notwithstanding clause” is a constitutional provision giving governments power to override some Charter rights that conflict with a legislative agenda.
The Ford government used it for the first time in the province’s history last year, after a judge ruled that legislation limiting election spending by third-party groups was unconstitutional.
With files from Rob Ferguson
Kristin Rushowy is a Toronto-based reporter covering Ontario politics for the Star. Follow her on Twitter: @krushowy
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