No. 3

November 15, 2022

Update on the Fight of Ontario Education Workers

• Government Repeals Keeping Students in Class Act

Education Workers Standing By, Not Standing Down

For Your Information

• Unifor National President Appeals to
Prime Minister to Use His Constitutional Police Powers to Disallow Ford Government's Abuse of Its Constitutional Police Powers


Update on the Fight of Ontario Education Workers

Government Repeals Keeping Students in Class Act

On November 14, the Ontario government repealed Bill 28, the Keeping Students in Class Act, 2022 one week after it had stated it would do so, by passing Bill 35, the Keeping Students in Class Repeal Act, 2022. The bill was introduced by the government House Leader, Paul Calandra. There was no debate or discussion, and it passed through the three readings and votes unanimously by the 100 MPPs present out of a total 124 MPPs. Education Minister Stephen Lecce, who had put forward Bill 28, was not present during the passing of Bill 35. The Keeping Students in Class Repeal Act, 2022 passed Third Reading and is awaiting Royal Assent for it to become law.

Bill 35, the Keeping Students in Class Repeal Act, 2022 states:

"His Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

"Repeal of Act

1. The Keeping Students in Class Act, 2022 is repealed and is deemed for all purposes never to have been in force.

"Collective agreements:

2. For greater certainty, the collective agreements that were deemed to be in operation under subsection 5 (1) of the Keeping Students in Class Act, 2022 are deemed for all purposes never to have come into operation.

"Commencement

3. This Act is deemed to have come into force on November 3, 2022."

No statement was issued by the Premier or Education Minister on the occasion of the repeal of the legislation.

The Canadian Union of Public Employees - Ontario School Board Council of Unions (CUPE-OSBCU) issued a statement which said:

"Today was a win for education workers, students, families and the people of Ontario. While we were happy to be present at the moment Bill 28 was unanimously repealed, what was really missing was each of you -- the workers on the front line who stood bold and brave in the face of a government who imposed a collective agreement and stripped you of your rights. With the Bill gone it's time to focus on achieving a deal that will respect you, your students and the communities you proudly serve."

CUPE OSBCU also informed later in the day that its bargaining team has remained at the table since Bill 28 was repealed. "The government’s position has minimally changed since last week. Our commitment remains to achieve a freely negotiated agreement that respects workers, students and families. At the request of the mediator we will not be providing a full update until [November 15]," CUPE OSBCU said.

CUPE Ontario said that the labour movement's historic pushback showed the government that workers are ready to rise up together in the face of injustice and fight for what is right.

President, Karen Brown of the Elementary Teachers' Federation of Ontario (ETFO) said: "The Keeping Students in Class Act, Bill 28, was an unprecedented attack on collective bargaining rights, the likes of which had not been seen in Ontario's history. Today, we celebrate the repeal of this oppressive bill, which was accomplished through the courage of CUPE education workers and the collective power of workers and families across Ontario.

"Had the labour community and our allies not stood up in steadfast solidarity to defend workers' constitutional rights, the Ford government would have moved forward with its draconian legislation. The strength, power and unity of the labour movement should never be underestimated. May this serve as a reminder that the workers, united, will never be defeated.

"Premier Ford was pressured into making the right decision to walk back Bill 28. We hope that, after the events of these last few weeks, the Ford government will focus on negotiating fair agreements that protect public schools, and support students, educators, and other education workers.

"ETFO is prepared to sit down at the bargaining table to 'get it done,' but not at the expense of students and educators in this province. We are prepared to fight for our schools and our future.

"ETFO will continue to advocate for investments needed to maintain our high-quality public education system. We need smaller classes, better supports for students with special education needs, and improved mental health supports.

"One thing is clear: when we take action together, we win.

"There's a lot of work ahead of us, but today, let's celebrate this historic victory for our CUPE colleagues and the working people of Ontario."

The Ontario Secondary School Teachers' Federation (OSSTF) said, "Today, Ford is expected to introduce legislation to #RepealBill28! A huge win for labour rights. We have shown the power in our collective voice! And we will continue to defend public ed as we bargain for a fair deal for workers."

Provincial and National Unions and Federations

The Ontario Federation of Labour (OFL) declared: BILL 28 IS OFFICIALLY REPEALED! "Thank you to everyone who showed the Ford government what workers' power looks like. Our work is far from done, but we have seen what is possible when we work together. When we fight, we win."

The president of the Canadian Labour Congress (CLC) who also called on Prime Minister Trudeau to use the police powers of his office and invoke the disallowance clause of the Constitution Act 1867, said that "Canada's unions showed up in force when workers' rights were attacked under Ontario's Bill 28. Our voices were heard, and today the bill has officially been repealed. But we'll be standing by, just in case."

(Photos: TML, OECTA, C-L Paul)

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Education Workers Standing By,
Not Standing Down


Political protest at Queen's Park November 7, 2022, the day the Ford government announced it would repeal Bill 28.

Since the Ontario government announced on November 7, 2022 that it was repealing the Keeping Students in Class Act, and again after it was repealed by the Ontario Legislature on November 14, The Canadian Union of Public Employees (CUPE) education workers and their leadership made it clear that they are not giving up their right to strike, nor their actions in defence of their rights, while they attempt to negotiate with the government. The government proceeded with repealing the legislation on November 14 when the Legislature resumed sitting again after a week break.

Already, on November 9, the government officially requested that the Unlawful Strike Application, filed by the Minister of Education with the Ontario Labour Relations Board (OLRB), be withdrawn. OLRB Chair Brian O'Byrne accepted the request and terminated the application. CUPE had made it clear they were prepared to continue their protests even if they were declared illegal by the OLRB, while the government was seeking to force the OLRB to do its bidding by rubber stamping its imposed contract as legal, despite it being illegitimate. In this sense, the withdrawal of the application, like the repeal of the legislation, has saved the government from an open political challenge to its legitimacy in the form of mass protests and defiance of its use of the notwithstanding clause in the Constitution.

Despite repealing the legislation and withdrawing its application to the OLRB, the Ontario government has done nothing to acknowledge that its use of the notwithstanding clause was wrong. It is clear that the government will try to get the outcome it wants in other ways.

Meanwhile, reports circulated that mediation between CUPE and the government got underway on Tuesday, November 8. On November 9 CUPE announced its commitment to limit its comments in the media in order to 'better direct [...] efforts to reaching a freely negotiated agreement and called on the government to do the same in order to focus on achieving a deal." This came following a government press conference on November 8 in which Premier Doug Ford focused on trying to divide education workers in the face of growing unity. According to Ford, his plan to humiliate CUPE was not about breaking unions and using funds from the public education pocket to pay the rich, but rather about protecting the public purse from an agreement that would set a pattern for the teachers and other public sector workers. He argued that he really does want to look out for the lowest paid workers.

In his press conference, Ford said that increases for CUPE could lead to "tens of billions of dollars" of increases to teachers, and he needs to watch Ontario's bottom line. "That's money we need for schools, health care, transit, and infrastructure," Ford said. "It's money we need for vital services that hard-working people of this province rely on."

Such attempts to cut off support of teachers and all Ontarians for the just claims of the lowest paid workers in Ontario for wages and working conditions which they need are despicable. The people of Ontario are in no mood to accept them but the exchange of information and consultation with rank and file education workers and the teachers remains of utmost importance and a demand of the base.

If a deal is reached at the negotiating table, a significant matter is the process for CUPE members to decide on the deal. CUPE's Ontario School Boards' Council of Unions (OSBCU) structure requires a simple 50 per cent plus one member vote.The other education unions that have established voting processes for tentative agreements require a majority of the individual members of the provincial union and a majority of the locals or districts in the provincial union to vote in favour of an agreement. 

All of this and more was raised between November 8 and 10, when CUPE, joined by other education unions, organized various online and in-person mass meetings across Ontario to address the unfolding situation. Many of the meetings had been originally convoked to announce and plan for the province-wide shutdown that was being prepared had Ford not agreed to repeal Bill 28, the Keeping Students in Class Act. Despite the government standing down on the legislation, many unions went ahead with these meetings. For CUPE's part, the meetings informed members about what had taken place, the plans for the following week and emphasized that the union was not giving up its right to strike.

In other education unions, meetings brought members up to speed on what had transpired over the weekend and how the various unions had come together to stand with CUPE and demand the repeal of Bill 28. At a number of these meetings, members gave their views and asked questions about where things are heading and what should be done. One concern on the minds of many was how to build practical solidarity amongst teachers and education workers in advance of whatever the Ford government might try to do to break the unity that has been established. Another issue was how some school boards that closed schools during the protests swiftly shifted to online learning as a means of keeping schools running. Many raised this as something to be addressed going forward so as to make sure remote online learning cannot be used to carry on "business as usual" during strikes or political protests.

Others raised the demand to oppose fraudulent claims by the government that there is only so much money in the pot as a way to break the unity of teachers and education workers by pitting them against each other by presenting the matter of everyone fighting for a bigger slice of a limited pie. Who sets the budget in the first place and determines the size of the pie has become a central issue and all the pay-the-rich scams get covered up and then wrong-headed ideas are floated such as an alleged need for the people to pay higher taxes to fund education and social programs.

Overall, what the exchanges with rank and file teachers and education workers have revealed is that the members of the various education unions want the broadest possible unity of all teachers and education workers, and not to permit anyone to be isolated or targeted by the government as the government has done by targeting CUPE with the use of the notwithstanding clause.

Locally-elected leaders made it clear that they too have been speaking up within the provincial organizations to build that unity now on a permanent basis. This has shown to be the only real power the workers have as demonstrated in the support for the protests which forced the Ford government to withdraw the anti-worker legislation.

To complete the events preceding the repeal of the anti-workers Bill 58, over the weekend of November 12-13 CUPE held regional actions at specific cabinet ministers' and parliamentary secretaries' offices across the province and phone zaps to keep up the pressure on the government.

Toronto at Premier Doug Ford's Office



King City at Minister of Education, Stephen Lecce's Office



Barrie at MPP Doug Downey's Office


Hamilton: MPP Neil Lumsden's Office



Beamsville at MPP Sam Oosterhof's Office


Strathroy at Minister of Labour, Monte McNaughton's Office


North Bay at MPP Vic Fedeli's Office


Napanee at MPP Ric Bresee's Office


Ottawa at MPP Lisa MacLeod's Office


Sarnia at MPP Robert Bailey's Office


(Photos: TML, CUPE ON, CUPE 4400, CUPE 1358, CUPE 7575, ETFO, BDLC, HDLC, Parents Action Network, F. Hahn, P. Coates, B. Nesbitt, P. Reinio, J. Parker, M. Pomfret, C. Pasma, C. Nadon)

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For Your Information

Unifor National President Appeals to
Prime Minister to Use His Constitutional Police Powers to Disallow Ford Government's Abuse of
Its Constitutional Police Powers

In a letter dated November 5, the national president of Unifor writes the Prime Minister of Canada Justin Trudeau asking him to use his constitutional police powers enshrined in the Constitution Act 1867 as the Power of Disallowance to nullify the Ontario Legislature's use of the nothwithstanding clause, a police power legally protected in the Constitution Act 1982.

The fact that the use of police powers is constitutional should worry Canadian workers from coast to coast. The fact that governments of police powers are issued an appeal to uphold rather that repeal a constitution that contains such police powers is also a matter of concern. For the information of readers and workers across the country, Renewal Update is providing the text of the letter below.[1]

Dear Prime Minister Trudeau,

In the midst of collective bargaining between CUPE education sector workers and the Ontario government, Premier Doug Ford's government this week introduced Bill 28 which enacted the Keeping Students in Class Act.

The Act expressly curtails CUPE members' Charter protected rights of expression, association and equality. It prohibits any strike action by CUPE and its members, and permits staggering fines to be imposed on the Union and individual members if they exercise their constitutionally protected right to strike. The legislation also imposes a new collective agreement on CUPE's members against their wishes. The Act therefore deprives CUPE and its members of the ability to continue their collective bargaining. It is of course now impossible to know whether a collective bargaining settlement might have been achieved without this intervention.

The measures implemented by the Act are undoubtedly and patently unconstitutional. In response to that obvious fact, the Act invokes the notwithstanding clause, and purports to prevent any court from striking down the law for violating sections 2, 7, and 15 of the Charter. The Act is a direct attempt to intimidate CUPE's members and other workers and to compel them not to use their right to strike.

Never before in the history of Canadian labour relations has a government used the notwithstanding clause to limit the constitutionally protected right to strike and the associated freedom of association. This use of the notwithstanding clause risks a collapse of the constitutional protections that our courts have recognized extend to collective bargaining and the right to strike. Its use in this instance raises critical concerns about its normalization.

These are unprecedented times. Strong and decisive action is required to protect the rights of working people.

Section 90 of the Constitution Act, 1867 authorizes your government to disallow a provincial statute. A disallowed statute is no longer a valid law and cannot be enforced. Although it has not recently been used, the power has been used upwards of 100 times to disallow provincial statutes by previous federal governments. Should there be any doubt that the provision remains in force, the Supreme Court of Canada has ruled that the power of disallowance continues to exist without limitation or restriction.

To protect the Charter rights of working people in Ontario and in other provinces whose governments may wish to follow a similar destructive path, we urge you to seriously examine the use of the federal government's section 90 power to disallow Bill 28. You must act decisively and quickly to protect the freedom of association and equality rights of CUPE's members and other workers, and to stop the further erosion of Charter values in Ontario.

Unifor's members have always understood the essential nature of freedom to organize, to bargain collectively against employers, and to strike to achieve dignified and safe working conditions. Unifor is proud to support CUPE and its members and to take a stand for the constitutional rights of workers in Ontario.

I am asking you to send a clear message to Doug Ford that his disregard for working people and for Canada's constitutional rights will not be tolerated. If you do not put a stop to it now, these brazen attacks on workers and our constitutional rights will only become more vicious.

I am urging you to use the federal government's power to disallow the Keeping Students in Class Act immediately.

Yours truly,
Lana Payne,
National President

Note

1. For further discussion of Disallowance see Renewal Update # 2, November 8, 2022.

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