December 6, 2012 - Vol. 2 No. 12

Repeal Putting Students First Act -- Bill 115!

Tens of Thousands of Elementary Teachers Vote
to Lead Protest Against Bill 115

Repeal Putting Students First Act -- Bill 115!
• Tens of Thousands of Elementary Teachers Vote to Lead Protest Against Bill 115
- Laura Chesnik
• Resolute and Spirited Ottawa Rally 
• No to the Criminalization of Legitimate Strike Actions!
• Minister Wants to Decide How Teachers and Education Workers Resist
• Teachers and Education Workers Have a Mandate for Their Opposition
- Enver Villamizar

Letter to the Editor
• Kill Bill 115!

Significance of Rejection of Non-Freely Negotiated Contracts
• Rejection of Government Attempts to Divide and Conquer
• Rejection of Minister's Meddling With Contracts

Coming Events
• Actions to Oppose Bill 115

Why Broten Wants Teachers and Education Workers to Limit Their Resistance
to the Courts
• The BC Experience in Challenging Anti-Labour Laws in the Courts
• Significance of Supreme Court Ruling Against BC Government and Bill 29 - TML Daily, March 3, 2008 

Repeal Putting Students First Act -- Bill 115

Tens of Thousands of Elementary Teachers Vote
to Lead Protest Against Bill 115

- Laura Chesnik -

Elementary teachers have once again put the lie to government disinformation that they don't want to challenge Bill 115 and that its just their "union leaders." From December 2 to 4, 92 per cent of over 46,000 elementary teachers voted in favour of holding a province-wide protest if Minister Broten uses the arbitrary powers the government and the PCs bestowed upon her in the Putting Students First Act (Bill 115) to stop one-day strikes planned by ETFO locals, or impose a contract. The vote comes following overwhelming No votes by five out of six high school teacher bargaining units to the agreements presented to them that were aimed at taking them out of the growing fight against Bill 115. At every opportunity, teachers and education workers, joined by students have shown how bogus the government' s claim is that it has the support of the people for its austerity agenda or that it is "putting students first." The question people are now asking is: besides the leadership of the Liberals and PCs, who in the province doesn't want Bill 115 repealed?

The vote was held online and had to be extended by 24 hours due to the overwhelming response.

Announcing the results, ETFO President Sam Hammond stated: "ETFO teachers, occasional teachers, education support personnel, professional support personnel, and designated early childhood educators are saying they will lead the protest against Bill 115 if the education minister denies them their fundamental rights."

"This vote affirms once again that it is our members who determine their actions through democratic processes, contrary to Minister Broten's derogatory comments about union leaders this week," added Hammond. "It is unfortunate that her government crafted a law that allows no judicial appeal in the provincial courts — a tactic rarely if ever used in democracies. Our members have been left with little recourse but to choose a political protest," he added.

"Bill 115 is an affront to the fundamental rights not only of educators but of all Ontarians. By this vote, our members are saying they are prepared to stand up for democracy," he concluded.

In related news, on December 5 it was announced that two locals of the Elementary Teachers' Federation of Ontario (ETFO) — Avon-Maitland (Stratford area) and Ontario North East (including Kapuskasing, New Liskeard and Timmins) — will be the first in ETFO's rotating one-day strikes in the province. On December 10, these two locals will withdraw all services and schools will be shut down. Everyone should stand with teachers and education workers as the strike actions begin and find ways to support them concretely, especially if the government tries to prevent their actions. As ETFO has pointed out on their billboards: If you work in Ontario this is your fight!

Resolute and Spirited Ottawa Rally

Close to 900 teachers, other education workers and their supporters vigorously demonstrated at the Ottawa Convention Centre on December 4, where Dalton McGuinty was speaking at a Liberal Party fundraiser. The demonstrators gathered to express their opposition to Bill 115 and repeatedly shouted "Kill the Bill!" Many carried placards denouncing the attacks on democracy and their rights.

The demonstration began in the late afternoon and continued for several hours, filling Colonel By Drive in front of the Convention Centre. Among the participants were teachers and workers represented by the Elementary Teachers' Federation of Ontario (ETFO), Ottawa Carleton Elementary Teachers' Federation (OCETF), Ontario Secondary School Teachers' Federation (OSSTF), Canadian Union of Public Employees (CUPE), and Public Service Alliance of Canada (PSAC).

A call for the rally from Janet Fraser, the 1st Vice-President of the OCETF, calls on teachers, workers and citizens to stand together. "This undemocratic bill," it continues, "sets a very dangerous precedent for all workers. It is a clear attack on unions and workers." It states that Bill 115 targets education workers, "giving unprecedented power to Cabinet and the Education Minister, overriding the Canadian Charter of Rights and Freedoms, preventing access to the Ontario Labour Relations Act, precluding access to the Ontario Human Rights Tribunal [and] preventing free collective bargaining." It asks: "Who will be next?"

Speakers called for the repeal of the bill and expressed their support for the teachers and other education workers.

No to the Criminalization of Legitimate Strike Actions!

How teachers and education workers can defend their rights and how they should proceed in order to build the momentum against Bill 115 and not fall into government traps is on everyone's mind. In working this out, they now also have to contend with threats which would indicate that the Ontario government is preparing conditions to criminalize the legitimate strike actions of Ontario's teachers and education workers.

The Arbitrary December 31 Deadline

After December 31, according to Bill 115, the Minister can advise the Lieutenant Governor-in-Council to impose the Ontario Elementary Catholic Teachers' Union (OECTA) Memorandum of Understanding on teachers and education workers who have not accepted Minister-approved non-freely negotiated collective agreements. If she invokes these powers and a contract is imposed, all normally legal collective job actions can be deemed illegal because a new contract is in place. Under Bill 115 the Minister can also declare these actions illegal before December 31. If a new contract is imposed, the government can try to prohibit unions from: "calling or authorizing or threatening to call or authorize a strike by any of the employees that it represents," and "counselling, procuring, supporting or encouraging a strike by any of the employees that it represents." It can also direct the union and its members "to immediately terminate any strike that is in effect on the day the order is made." These days it is not just traditional strike action - withdrawal of labour - that is labelled a strike, but any collective job action.

Growing Opposition and Refusal to Submit

The situation for the government has become more tenuous after four out of five high school teacher bargaining units resoundingly rejected the unfreely negotiated tentative agreements the Provincial Executive of their union signed with school boards following intense negotiations, with the Minister of Education and her "team" the ultimate arbiter.

The government had hoped that members of OSSTF would take the rotten bait being dangled in front of them and agree to the Minister-approved deals presented to them. However, the rejection shows that the lesson has been learned from the way in which the Catholic Teachers' union was used by the McGuinty government early on in the process to try and divide teachers and education workers and pick unions off one by one so as not to have broad unity against the government's dictate and the theft of billions from education.

This government scheme has fallen apart with the No votes and with a number of Catholic teacher units publicly saying they oppose the OECTA MOU through their own votes.

In response to the No votes as well as impending rotating one-day strike actions by elementary teachers, the McGuinty-Hudak austerity tag team is preparing conditions to use the arbitrary powers they gave themselves in Bill 115 to criminalize any further resistance of teachers and education workers. It is unacceptable and shows that despite claims the legislation does not make strikes illegal, this is precisely what is being put in place.

Minister Wants to Decide How Teachers and
Education Workers Resist

Education Minister Laurel Broten is claiming that union leaders can oppose Bill 115, but only in a manner acceptable to her -- through the court challenge, and not through strikes. Some of the monopoly-owned media is parroting this line to try and present pure dictate as rational, even reasonable. Interestingly Broten did not say that the unions should oppose Bill 115 by defeating the Liberals and the PCs in a provincial election -- only through the courts.

Meanwhile the Hudak Conservatives are helping the Liberals to try and spook teachers and education workers into not thinking by calling on the government to use the arbitrary powers in the legislation right away. The Liberals' approach is the so-called "balanced approach:" "use the courts to oppose, not strikes" while the Conservatives' is presented as the right wing approach: "no opposition allowed; austerity must be imposed now." Both amount to the same thing - dictate to teachers and education workers what they can and cannot do in order to remove billions from education.

Teachers and Education Workers Have a Mandate
for Their Opposition

- Enver Villamizar -

Teachers and education workers' unions have democratic mandates from their membership for their actions, as expressed in the massive votes in favour of strike action by members of ETFO, OSSTF and CUPE. This shows that teachers and education workers have given their unions a mandate to oppose government dictate, both through the courts and through strikes.

The government, on the other hand, has no mandate for its actions despite McGuinty's bogus claims that everyone supports what he is doing. McGuinty said nothing about any austerity schemes -- which were already being planned in secret -- during the provincial election. When it became clear that his government was hell bent on attacking teachers and education workers and imposing a broad austerity agenda, the public gave a fitting reply with the defeat of both the Liberals and the PCs in the Kitchener-Waterloo by-election.

Given all this, it is not teachers and education workers or their unions, but the government which is undermining the rule of law with its arbitrariness and operating outside of any mandate it claims to have. It is using its hold on power and the fact that the legislature has been eliminated to create a situation of anarchy where no one knows what to expect and no pre-existing norms and rules apply; where only the government has rights, while the people who provide education to the youth are set up to be criminalized for exercising their rights. The government's insistence that teachers and education workers should only use the courts is a set-up to try and undermine their effective opposition. This is made clear when one considers: 1) the government acknowledged they knew the legislation would likely be challenged in the courts and surely wrote it to prepare for this, and 2) the legislation tries to shield itself from legal challenges, showing it is also aimed at limiting the powers of labour and human rights bodies and the lower courts during a period when the law is being constitutionally challenged.

The set-up is to have teachers, education workers and their unions give up their mandates so as to just watch the courts and the American Idol-style spectacle of the Liberal leadership race in hopes that a non-existent saviour will emerge that will save them. No way!

Letter to the Editor

Kill Bill 115!

If the government is serious about wanting to avoid strikes it should repeal Bill 115, simple as that. If the government does not, teachers and education workers, along with the entire working class in Ontario should continue to mobilize everyone to stand as one against the use of the powers in Bill 115 so as to make the law ineffective. This includes working out how to defeat both the Liberals and PCs in a general election.

If the law is repealed or made ineffective, things can be sorted out in a more rational manner through negotiation without a gun to anyone's head. This will favour the rule of law, the education system, students and parents and the society. It will also show that governments can and must be held to account.

Significance of Rejection of Non-Freely Negotiated Contracts

Rejection of Government Attempts to
Divide and Conquer

At information meetings prior to ratification votes on the non-freely negotiated collective agreements, in social media and other venues, members of OSSTF have expressed a strong desire to stand with their counterparts in the Elementary Teachers' Federation of Ontario who will shortly begin rotating strikes as the Minister of Education issues threats to order an end to or even pre-empt them. One of the reasons OSSTF members gave for calling for the tentative agreements to be voted down was that their colleagues in ETFO should not be abandoned to fight on their own; that the government's divide and conquer approach to the sector would only be defeated by everyone standing together in defence of their rights.

Rejection of Minister's Meddling With Contracts

On December 4 the Teachers' Bargaining Unit of OSSTF District 17 -- Simcoe announced it does not have a tentative agreement to present to its members for ratification because language was added to the tentative agreement during the Ministerial "pre-approval" process that was not signed by the bargaining team. "This event occurred as a direct result of Bill 115 and restrictions imposed through a process lacking transparency that interfered with local bargaining as per the Labour Relations Act," the release stated. "We understand this may upset some parents and students" said the president of the bargaining unit, adding "We hope this can be used as a learning opportunity so that students can realize that the fight for democracy and democratic rights should be supported and not be taken lightly. We are fighting for their future rights and the rights of all working Ontarians. We will continue to fight for the repeal of Bill 115."

Coming Events

Actions to Oppose Bill 115

Why Broten Wants Teachers and Education Workers to Limit
Their Resistance to the Courts

The BC Experience in Challenging Anti-Labour
Laws in the Courts

Teachers’ and education workers’ unions in Ontario have launched a court challenge to the Putting Students First Act. Although the contents of the challenge have not yet been made public the main argument appears to be that the legislation violates the right to collective bargaining which is protected in the Charter of Rights and Freedoms. The challenge is an important aspect of the all round opposition taking place in Ontario to the McGuinty government's anti-worker and anti-social agenda.

Since the introduction of the legislation, and likely before, the McGuinty government has been very conscious of the fact that the legislation would likely be challenged in the courts. When this was raised in the legislature McGuinty responded that "The Supreme Court of Canada has set out some basic rules that you have to follow to ensure that ultimately we can hit the pause button on public sector pay. So we started back in January..."

One of the experiences of the Canadian working class which is important to consider to understand McGuinty's arrogance regarding the legislation and the extreme measures his government is taking to steal $2.19 billion from education is the experience of the British Columbia health care workers. In 2007 they brought an appeal of the Health and Social Services Delivery Improvement Act (Bill 29) passed by the Campbell Liberals in 2002 to the Supreme Court of Canada.

The decision of the court in that matter affirmed that collective bargaining is protected under the Charter of Rights and Freedoms. This was an affirmation of the right of workers to organize collectively to defend their interests. It is likely this is the precedent upon which the challenge in Ontario will in part base itself. In addition to this affirmation however, the decision of the Court affirmed the Liberal government’s justifications for the "crisis of sustainability" and the necessity to impose anti-worker measures as a solution. The Supreme Court in the BC case took issue with the way in which the anti-worker measures were imposed, rather than the content of its attacks. This is likely why McGuinty is very conscious of trying to promote the Provincial Discussion Table (PDT) discussions as a consultative process in which the government tried to get the unions to "understand" the "crisis" Ontario is in and voluntarily accept the anti-worker measures. No doubt the deal with the Catholic teachers' union at the PDT will also be cited as proof that "some" unions understood the crisis and accepted the bitter medicine. It is also likely why McGuinty has been so vicious in trying to claim that the legislation is aimed at defending "gains in the classroom" and presenting teachers and education workers’ unions as threats to Ontario's financial well-being. He is trying to present anti-worker, anti-social measures as reasonable to "protect children" through programs such as full day kindergarten, the same way the Campbell government argued that its measures were required to defend healthcare from a "crisis of sustainability." This will no doubt be cited as the high ideals of the government in court to justify its violation of rights as reasonable under the circumstances of a crisis of the government’s own creation.

For your information, Ontario Political Forum is reprinting excerpts of the article: "Significance of Supreme Court Ruling Against BC Government and Bill 29" originally printed in The Marxist-Leninist Daily on March 3, 2008.

Significance of Supreme Court Ruling Against BC Government and Bill 29

- TML Daily, March 3, 2008 -

In 2002, the Campbell Liberals in BC as part of their anti-social offensive brought Bill 29, the Health and Social Services Delivery Improvement Act, which removed or rewrote contracting out, seniority and other provisions of health care and community social services collective agreements. The legislation also imposed restrictions on the right of the workers to collective bargaining, as well as excluding health care and community social services workers from successorship provisions of the BC Labour Code (rules whereby a new employer can be obligated to bargain collectively with the existing union at the newly acquired facility). Health care unions challenged Bill 29 all the way to the Supreme Court of Canada.

On June 8, 2007 the Supreme Court of Canada issued its decision in the Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 case, the appeal of Bill 29 brought by the health care unions. The Supreme Court allowed in part the appeal and ruled Sections 6(2), 6(4), and 9 of the Act (Bill 29) unconstitutional. The declaration was suspended for a period of 12 months to give the BC government one year to deal with the repercussions of the ruling and permit the government and the unions to negotiate a settlement. The unions have recently reached an agreement on a settlement with the government and are now seeking ratification from their membership.

The decision was a blow to the Campbell government, stating that governments could not simply tear up collective agreements at a moment's notice and declare their duly negotiated provisions null and void. This action violated the right to collective bargaining, the court stated. On this basis key sections of Bill 29 were declared unconstitutional and a violation of the Charter of Rights and Freedoms. In this sense it was a clear victory for the unions.

The Supreme Court clearly addressed the rights of workers and the aim to uphold the dignity of labour. It stated:

"The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work."

"Collective bargaining also enhances the Charter value of equality."

"Finally, a constitutional right to collective bargaining is supported by the Charter value of enhancing democracy."

With such fine words, one would expect redress based on these principles to reverse the illegal, anti-worker and anti-social actions by the BC government where the Campbell government illegally tore up collective agreements, fired thousands of workers, guaranteed big profits to the mainly foreign monopolies who benefited hugely and put patients at risk. It would seem a no-brainer that justice required that the contracts would be cancelled, the workers re-hired, lost wages paid and wages rates restored. But this is not what the Supreme Court ordered. The government was given one year to go back to the negotiating table, forced to make some restitution to the fired workers and collective agreements were restored. But the workers are still fired, the monopolies are still making huge profits from health care and the patients remain at risk from dirty hospitals and poor infection control. It is like a robber who is found guilty being directed by the court to negotiate with the victim concerning what portion of the money stolen would be returned and then told, "you are free to go."

Can workers accept that this decision represents justice and that their rights will be upheld provided that labour laws are brought into conformity with the Supreme Court decision if they are not presently in conformity? The Supreme Court says yes. The procedural right to collective bargaining has been restored and recognized. Outcomes are not the issue.

Since the decision was reached, four unions in Alberta have issued Charter challenges to the Alberta labour law, which is also clearly in contempt of the right of workers to organize themselves and take collective action. Other challenges will undoubtedly follow as unions fight on the legal front against anti-labour laws which criminalize workers and their resistance. Does this signal a change in the legal recognition of workers' rights and if so, what is the change? Would conformity with the Supreme Court ruling bring justice to workers? This is a very important question for workers to deliberate on and draw conclusions about.

What the Court Said

When the Campbell government in BC tore up the collective agreements in place for hospital workers, it declared that it faced a "crisis of sustainability." Thus, in the name of preserving health care, it introduced and passed Bill 29 within three days, neither consulting nor negotiating with the affected unions. The legislation de facto imposed concessions on the workers by wiping out provisions in the collective agreement limiting the employers' right to contract out services and gave a free hand to health care authorities to fire the workers whose jobs were being contracted out.

The court in no way questioned this claim of a "crisis of sustainability" and repeated it without any inquiry whatsoever. Far from it, the court simply accepted the entirely specious argument of the Campbell government that its objective was to "improve health care delivery" and its anti-social offensive carried out under the guise of a "crisis of sustainability," when the objective was clearly to slash wages and provide lucrative contracts to the monopolies demanding expansion of opportunities to make profits from the health care system. By accepting the notion of a "crisis of sustainability" the Campbell government's abdication of its social responsibility for the health and well-being of its citizens which it is undermining through its attacks on the workers, and the negation of public right by monopoly right are also unquestioned.

The court further stated in its decision that "exigency and urgency affect the requirement to consult and bargain." It accepted the government's claim that it was facing a situation of exigency at face value. It then objected to the course of action taken on the basis that "the record does not show that the government made any effort to deal with the situation by less intrusive measures." Had the Campbell government consulted the union and made a pretense of "negotiating" while holding a gun to the union's head, would the record then show that the government had indeed tried to use less intrusive measures? The implication is clear that had it done so, the court might well have made a different determination.

The decision then clarifies that in upholding a procedural right to collective bargaining, it is the process and not the outcome which is protected. This is an extremely important point. The historic social contract which came into being following the Second World War provided legal recognition for the unions. It was the result of the resolute stand taken by the working class to defend its rights. This was a compromise on the part of the unions in which the state was allowed a very large say in how unions were organized. For the first time contracts stated that everything not explicitly covered in the agreement was a "management right." As legalistic and complex contract language and grievance procedures were established, a growing layer of experts in the form of union officials and lawyers grew up and workers had less and less direct involvement and say-so in the running of their unions and the decisions taken affecting their lives and futures. The agreement was that employers would get labour peace and in return workers would receive a Canadian standard of living including wages, pension, health care and other social programs. Process and outcome were linked and inseparable in the post-war labour peace.

The Supreme Court decision severs the tie between the collective bargaining process and outcomes, leaving only the "process." Even that is reduced to the lowest possible level requiring only a process of "good faith negotiation." The Employer has to meet and commit time to the process. In this case the employer, the government, did not do that, the court says.

The court also made it very clear that the case did not include the right to strike. It quotes former Supreme Court Justice Bora Laskin's definition of collective bargaining which states:

"Collective bargaining is the procedure through which the views of the workers are made known, expressed through representatives chosen by them, not through representatives selected or nominated or approved by employers. More than that, it is a procedure through which terms and conditions of employment may be settled by negotiations between an employer and his employees on the basis of a comparative equality of bargaining strength."[1]

The decision quotes Laskin approvingly yet it provides no insight into how the court can conclude that "comparative equality of bargaining strength" can exist particularly when the action and resistance of the workers is declared "illegal."

The concept of collective bargaining as set out by the Supreme Court has to be viewed from the reality facing workers today and in the sober light of day. At a time when such perfidious anti-worker deals as the Magna-CAW pact are taking place, or when the company can simply recognize a willing accomplice like the Christian Labour Association of Canada (CLAC) and declare that the right to collective bargaining has been fulfilled, the conditions require increased vigilance and organization by the working class and its allies. It is time to reaffirm that our security lies in our fight for the rights of all.

Note
1. "Collective Bargaining in Canada: In Peace and in War" (1941), 2:3 Food for Thought, p. 8

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