Notwithstanding clause puts 'dark cloud' over collective bargaining, union leaders warn

Leaders of the province's education and teachers' unions are expressing serious concern over the law that imposed a contract on 55,000 CUPE education workers and banned them from striking — and they're worried it could have an impact on their own contract negotiations.

Bill 28 uses the notwithstanding clause to protect against constitutional challenges — a legal mechanism that has been used only twice in Ontario's history, both times by the governments of Premier Doug Ford. Education Minister Steven Lecce said this week the government had "no choice" but to invoke the clause, so the province's two million children could stay in their classes after more than two years of disruptions in their schooling due to the pandemic.

But that argument doesn't impress union leaders like Karen Littlewood.  

"It puts quite a dark cloud over our own negotiating," said Littlewood, president of the Ontario Secondary School Teachers' Federation (OSSTF), another union currently in talks with the Ford government.

"We have three days [of bargaining] for our education workers scheduled for next week and it makes us wonder what the tone is going to be like at the table."

The Ontario School Board Council of Unions (OSBCU) represents 55,000 CUPE education workers such as educational assistants, early childhood educators, custodians and library technicians in the public, Catholic, English, and French school systems across the province.

Despite the new law and the threat of $4,000 in fines per day for each of the 55,000 union members (adding up to $220 million), workers walked off the job Friday. The vast majority of school boards across the province responded by shutting down in-person learning across the province.

New law 'hanging over our heads,' union leader says 

Ontario has four other education unions representing teachers in elementary, secondary, Catholic and French-language schools, as well as other education workers across the province.

Each is currently in negotiations with the government following the expiry of contracts on Aug. 31 of this year.

"This is hanging over our heads," said Barb Dobrowolski, president of the Ontario English Catholic Teachers' Association (OECTA).

"If they can use it against education workers, they can use it against anyone. So the threat is there, and that creates a real imbalance at the bargaining table."

Littlewood says the OSSTF has been in contract negotiations since mid-July, a process she describes as being "cordial" so far.

"We've been able to sign off on a few things. It's been slow, but there's nothing unusual about that," says Littlewood. "We are not in a position to be calling for a strike vote right now because we are progressing." 

"That doesn't mean we won't end up there."

The four education unions not currently striking have nevertheless been standing in solidarity with OSBCU.

"These are our lowest paid education professionals that are working in Ontario's schools," said Karen Brown, president of the Elementary Teachers' Federation of Ontario (ETFO).

"They really should have the right to strike for better pay and working conditions."

'Heavy-handed power'

The notwithstanding clause, which allows Parliament or provincial legislatures to temporarily override charter rights, was used previously by Doug Ford's government in 2021. The Progressive Conservatives also attempted to invoke the notwithstanding clause in 2018.

"Ontario has never used it until the last few years under this government," said Noa Mendelsohn Aviv, executive director of the Canadian Civil Liberties Association. 

"Threatening to use it three times in four years is an extremely casual way to throw it around."

Brown says there are other ways the government could have handled the negotiations without resorting to the notwithstanding clause.

"They could have gone to an arbitrator or an independent neutral third party," she said

Brown adds that the parties were in the middle of mediation, which wasn't going well, but says a third party would have been able to find a middle-ground solution without using "heavy-handed power."

"Usually, in the end, both sides aren't completely happy ... Everybody loses something, but it's a way to move forward," she said.

"It's a way to keep kids in school."

Anne Vinet-Roy, president of AEFO, the union representing French-language teachers across Ontario, says the government's use of the notwithstanding clause could potentially have an impact on her union in the near future.

She says the union's legal advisers are examining it closely.

"Obviously, we're thinking if at some point we get to an impasse, well, will the government use this manoeuvre with other unions as well?"

Other unions condemn use of notwithstanding clause

Meanwhile, other unions, including those that endorsed Doug Ford's Progressive Conservatives in the provincial election, are condemning the government's tactics.

"It is important to let the Ontario government know when we believe it is out of line," said James Barry, the secretary treasurer of the International Brotherhood of Electrical Workers Construction Council of Ontario.

"Imposing this bill without adequate and meaningful dialogue is not acceptable."

The Provincial Building and Construction Trades Council of Ontario, which represents five unions that endorsed Ford this summer, said in a statement that it "stands in support of all workers against the potential removal of collective bargaining rights."