Constitutional challenge of Ontario’s wage-cap bill begins in court

Click to play video: 'Several unions take Ford government to court over Bill 124'
Several unions take Ford government to court over Bill 124
WATCH ABOVE: The Ford government is fighting several Ontario unions in court over Bill 124. The legislation limited public sector employees to yearly wage increases of one per cent. Global’s Queen’s Park Bureau Chief Colin D’Mello reports – Sep 12, 2022

TORONTO — Groups representing thousands of public sector employees are up against the Ontario government in court this week as the two sides argue over a law that has capped wages for workers.

The groups are challenging the constitutionality of Bill 124, a law passed in 2019 that limits wage increases at one per cent per year for Ontario Public Service employees as well as broader public sector workers, including nurses and teachers.

The provisions of the bill were to be in effect for three years as new contracts were negotiated, and the Tories had said it was a time-limited approach to help eliminate the deficit.

Critics have long called for the bill to be repealed, saying it has contributed to a severe nursing shortage.

The province has refused those calls, although the premier has said the government will negotiate fairly when contracts affected by the bill expire.

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The case will be heard in Toronto over 10 days, starting Monday, and involves 10 applicants — largely unions who represent teachers, nurses, public service employees, universities and their faculty and engineers, among dozens of other professions.

The groups argue the bill violates a section of the Canadian Charter of Rights and Freedoms that protects meaningful collective bargaining.

“Bill 124 imposes restrictions on all forms of compensation and has undermined nurses’ bargaining power during a crisis shortage of their skilled labour, exacerbated by a global pandemic, that would otherwise have amplified that power,” lawyers for the Ontario Nurses’ Association wrote in its factum filed with court.

The province, for its part, argues the bill does not violate the Charter.

The nurses group also argues the bill is discriminatory against women and violates sex and gender equality in two other sections of the Charter. The nursing association notes more than 90 per cent of its members are female.

“The Act has caused extensive harm to nurses including: paralyzed collective bargaining; ineffective interest arbitration awards; increasing vacancies impacting health care delivery; a demoralized workforce with crippling workloads; and backlash toward the union,” the nurses wrote in court documents.

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The union representing Catholic teachers argued the bill “uses legislative powers to avoid bargaining in good faith the most fundamental term of employment to teachers — the compensation they receive in exchange for their labour.”

The groups claim there was a lack of meaningful consultation prior to the bill being introduced in the legislature.

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The province, meanwhile, argues that the law does not interfere with meaningful collective bargaining and doesn’t prevent negotiations on compensation matters.

“The effect of Bill 124 is solely to foreclose one particular bargaining or arbitral outcome: compensation increases of more than 1 per cent per year during the three-year moderation period,” the province wrote in its factum filed with court.

“The Charter does not guarantee unlimited annual raises for public sector workers.”

The province argues it consulted in good faith with the groups between the introduction of the bill in June 2019 and second reading of the bill in November 2019.

It also argues the bill does not interfere with the groups’ ability to bargain for job security, benefits and seniority.

Click to play video: 'Peterborough & area healthcare workers rally for repeal of Bill 124'
Peterborough & area healthcare workers rally for repeal of Bill 124

The province further says the bill is not discriminatory

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“There is no evidence of a link between an employee’s sex and the application of Bill 124,” the province wrote.

It argues the law balances the interests of public sector workers who want wage increases with taxpayers who pay for those raises and the public who relies on the critical services of those workers.

The province, which wants the case dismissed with costs, argues the court should not weigh in on the matter, as it’s a political one.

“The court should decline the invitation to assume judicial control over public sector compensation expenditures,” the province says.

Ontario government lawyers further argue the bill is indistinguishable from “broad-based, time-limited compensation restraint statutes upheld by the Supreme Court.”

The groups taking the government to court want the law deemed unconstitutional, along with damages and costs. They also want an order that any affected collective agreements be set aside and returned to bargaining.

Click to play video: 'Ontario teachers’ unions launch court challenge against Bill 124'
Ontario teachers’ unions launch court challenge against Bill 124

On Monday, court heard from lawyers representing the Ontario Federation of Labour.

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Colleen Bauman described negotiations in 2019 between Mariann Home, a long-term care home in Richmond Hill, Ont., and SEIU Healthcare, which represents employees such as personal support workers, dietary aids, cooks and cleaners.

The home realized it needed to pay its workers more in order to keep up with other nursing homes. The home and the union reached a deal that would see laundry workers and dietary aids earn a six per cent raise, two per cent raises for registered practical nurses and 2.3 per cent for personal support workers, Bauman said.

She said the province’s Treasury Board “gets wind” of the agreement not long after it was signed on June 14, 2019, which was just nine days after Bill 124 was first introduced in the legislature.

The Treasury Board told Mariann the agreement “may fall afoul with the new bill.”

After the bill passed in November 2019, the government quashed the deal. Mariann Home and the union sought an exemption from the government.

“If compensation at Mariann Home does not improve beyond one per cent there will be a shortage of workers for newly created positions as people seek out homes with better terms of conditions of employment and it is the residents who will suffer,” the home wrote the government, Bauman said.

The province rejected the request and a follow-up appeal. So the two sides signed a new deal that saw one per cent raises and a loss of an increase sick and bereavement days.

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“They weren’t able to engage in that meaning free and fair bargaining they had done previously because Bill 124 dictated artificially imposed compensation levels.”

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