A contentious battle over whether a strike by 55,000 education-support workers is “illegal” has dragged on into a fourth day as lawyers for the government appeal to the Ontario Labour Relations Board to shut down a “political protest” by union employees.
Lawyers for the Ford government and the Canadian Union of Public Employees (CUPE) have making their arguments at the Ontario Labour Relations Board (OLRB), since Thursday night, which will decide on a request by the Ford government to deem Friday’s walkout by union workers illegal.
The marathon hearings resumed at 7 a.m. Sunday with government lawyers arguing against the union’s claim that their walk-out is a political protest.
“They want a new deal and they don’t like the fact that the legislation has imposed a deal, and the legislation has invoked the notwithstanding clause.”
While CUPE’s lawyers have attempted to broaden the scope of the hearings to obtain government documents and calendars to determine the timeline for when the Minister of Education began considering the legislation — the government asking the board to narrow its scope and only consider the question of whether the strike is legal or whether it contravenes the government’s newly passed Keeping Students in Class Act, which outlawed a walk-out by the union.
“This board is not to consider the constitutionality of this legislation,” Basu argued.
OLRB chair Brian O’Byrne mused about the idea of sending the two sides back to the bargaining table as a remedy to the escalating situation — which was immediately rebuffed by the government’s lawyers as “uncharted territory” for the board.
O’Byrne fired back arguing the entire situation is unprecedented.
“This whole bill is unchartered terrain, we have never had a bill like this in Canadian history,” O’Byrne stated.
The government argues the Saskatchewan government imposed similar legislation in 1986 to end a strike by dairy farmers.
“It invokes the notwithstanding clause to settle a collective agreement,” Basu said of the legislation.
On Saturday, government lawyer Ferina Merji highlighted comments made by two union leaders.
She showed videos of CUPE Ontario president Fred Hahn and Laura Walton, president of CUPE Ontario’s School Board Council of Unions, in her evidence.
CUPE contends that the labour action on Friday that had 55,000 members walk off the job was a political protest rather than a strike.
Murji said that the impact of CUPE’s work action was “unique” and “significant.”
She argued that the question of an unlawful strike, however, was a “bread and butter” application, which the tribunal regularly hears.
The province argued that, since the government’s legislation imposes a four-year collective agreement on CUPE workers, the union is engaging in an illegal strike.
Workers cannot strike when a collective agreement is in place.
“Where a collective agreement is in operation, no employee bound by the agreement shall strike and no employer bound by the agreement shall lock out such an employee,” the Labour Relations Act says.
Murji highlighted CUPE’s use of the term “picket line” in its messaging to suggest a strike was taking place.
“Call it what you will,” she said, adding the labour action aligned with what is “regularly considered as strike activity.”
Murji acknowledged the legislation had been met with public backlash. She said there had been “a lot of opposition, to put it mildly,” to the province’s legislation.
Later, she summarized: “A strike is a strike is a strike.”
The legislation, tabled on Monday after CUPE issued the government with a five-day strike notice, declares the union’s strike illegal and stipulates fines for CUPE and individual members found guilty of breaking its terms. It also imposes a contract on CUPE workers and relies on the notwithstanding clause to shield the government from court challenges.
At the labour board, the province alleges two union leaders counselled members to go on an unlawful strike.
CUPE argued in its board filings that the goal of its members’ action is “to express opposition through political protest to the (province’s) decision to trample upon employees’ constitutionally protected right to collectively bargain and right to strike.”
Steven Barrett, representing the union, said that if the board denied the government’s motion, it would be “respecting fundamental labour law principles.”
In particular, he pushed back against the suggestion CUPE workers have a collective agreement since a contract was imposed on union workers through the government’s legislation.
“We have entered an Orwellian landscape,” he said. “This is not a collective agreement.”
Later he added, “the bill is punitive.”
CUPE’s legal team argued that when the union said it had “no choice” but to stage its action and walk off the job, that was because a contract had been imposed upon it and the union was without other avenues.
The union’s lawyers also outlined changes to CUPE salaries and benefits imposed under the new legislation.
CUPE had called for both education minister Stephen Lecce and deputy minister Andrew Davis to testify. However, the board ruled that Lecce was protected by parliamentary privilege and only Davis would be required to give evidence.
Hours later, CUPE said it would not call Davis.
Thousands walked out Friday and appeared at protests and on picket lines across the province. A significant rally was held on the lawns of Queen’s Park on Friday, as CUPE members and other Ontario unions voiced their anger at the Ford government.
The action closed several school boards – including the Toronto District School Board – although the province has ordered boards to make “every effort” to stay open. Those that are unable to keep classrooms accessible to students have been told to introduce virtual live learning as quickly as possible.
CUPE said its job action would continue “until further notice.”
—With file from The Canadian Press