Bill 124 Broadens the Anti-Social Offensive Against the Public Sector and Its Workers

The Ontario PC government tabled Bill 124 on June 5. Known both as Protecting a Sustainable Public Sector for Future Generations Act, 2019 and An Act to implement moderation measures in respect of compensation in Ontario's public sector, the act takes aim at the public sector and its employees.

Bill 124 seeks to impose government dictated "moderation" periods of three years for non-union and unionized employees of the Ontario government and its Crown agencies as well as the broader public sector and a whole range of other organizations. In addition to public servants employed directly by the government, the moderation periods apply to sectors such as K-12 education, post-secondary education, health care including long-term care homes, the Ornge air ambulance service, Children's Aid, Ontario Provincial Police, Ontario Power Generation and any other "authority, board, commission, corporation, office or organization of persons that is not-for-profit or received at least $1,000,000 in funding from the Government of Ontario in 2018."

The moderation period does not apply to a municipality, a local board as defined by the Municipal Act, 2001, any entities appointed by or under the authority of a municipality, or an organization that operates for profit. The bill would permit the government to also exclude employees or classes of employees by regulation.

The PC majority government says once Bill 124 becomes law it will take effect back to the day of its tabling, June 5. This means any collective agreements negotiated or arbitration awards issued after June 5 would be subject to the act's dictate and provisions, and the approval of the President of the Treasury Board. If an employee group is negotiating a collective agreement as of June 5, the moderation period will begin the date the agreement begins and last for three years.

Moderation Period Imposes Limitations on Salary Increases

During the moderation period "salary increases are limited to one per cent for each 12-month period of the moderation period." The limit of one per cent per year also applies to "existing compensation entitlements and new compensation entitlements." Compensation is broadly defined to include "anything paid or provided, directly or indirectly, to or for the benefit of an employee, and includes salary, benefits, perquisites and all forms of non-discretionary and discretionary payments."

To enforce this limit on investments in public services and social programs the government has given the President of the Treasury Board extraordinary powers to decide if a collective agreement or arbitrated award fits the government's parameters. If the Minister decides it is not consistent with the act then the agreement or award becomes null and void. A union representing workers or an employer may appeal the President's decision but the act explicitly states that the President has the sole discretion to decide.

The legislation gives the government broad ability to obtain any and all personal information it demands from an employer on its employees or operations "that the Management Board of Cabinet considers appropriate for the purpose of ensuring compliance with this Act."

The authority to obtain personal information under Bill 124 is deemed to be in compliance with the Freedom of Information Act and the Protection of Privacy Act. The government seeks to exempt itself from provisions of those two acts, which require that an individual be informed their personal information has been requested and provided. The section "No notice to individual required" of Bill 124 states: "(4) Subsection 39(2) of the Freedom of Information and Protection of Privacy Act and subsection 29(2) of the Municipal Freedom of Information and Protection of Privacy Act do not apply with respect to any personal information disclosed or collected under the authority of a directive."

Measures to Avoid Government Accountability and
to Violate Rights with Impunity

To shield itself from any accountability for violating workers' rights, the government is attempting to limit the ability of any body below it to slow or stop the application of the act. Neither the Ontario Labour Relations Board nor an independent arbitrator would be permitted "to inquire" or make a decision on whether any provision of the act is constitutionally valid or violates the Ontario Human Rights Code.

Going further, in an attempt to prevent the courts from rendering any verdict on any violation of rights carried out using the legislation, the bill asserts that no legal action or "proceeding" can be taken against the Crown or current or former ministers, agents, appointees and employees or an employer to whom the act applies, or a current or former director, officer, or employee to whom the act applies. Having learned from the experience of the McGuinty/Wynne Liberal government which faced a court ruling against it for similar legislation violating collective bargaining rights, the bill goes even further, seeking to specifically limit any legal action that would require a remedy or relief or any other form of damages as a result of the violation of rights in the act.

In other words, the Ford government clearly knows the legislation violates rights and is setting out to do so, and has included within the act measures to ensure no legal recourse is available for those whose rights have been violated. This amounts in practice to a form of opting out of the government's legal duty to be accountable to the people for its actions and violating the rights of public sector workers with impunity. The act uses a variation of the fraud of reasonable limits on people's rights and the notwithstanding clause found within the Canadian Constitution and its Charter of Rights and Freedoms.

This article was published in

Volume 49 Number 25 - August 31, 2019

Article Link:
Bill 124 Broadens the Anti-Social Offensive Against the Public Sector and Its Workers


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