In 2002 the newly minted Gordon Campbell Government in British Columbia introduced the Health and Social Services Delivery Improvement Act, effectively tearing up a wage hike agreement that B.C. nurses cut with the former NDP provincial government.
The nurses’ deal was considered unsustainable and nothing more than a political tactic of a failed government trying to save the furniture in the 2001 B.C. election. They didn’t save the furniture – just two seats – and Mr. Campbell’s B.C. Liberals swept to a 77-2 election thrashing of the NDP. Opposition to the nurses’ deal was part of the B.C. Liberal’s campaign strategy.
The nurses’ union took the matter to court and it wound its way through the B.C. system all the way to the Supreme Court of Canada (SCOC). In 2007 the SCOC ruled in favour of the nurses because the implications of the B.C. Liberal act were never negotiated and it effectively forced a settlement on a bargaining unit.
The ruling basically stated that Section 2 (d) of the Canadian Charter of Rights and Freedoms – freedom to associate – had been violated because the contract the nurses signed with the previous government had been ripped up without meaningful negotiation by the new government.
Now switching gears to a different ruling this time in Ontario to the Association of Justice Counsel v. Canada 2012. Justice Counsel accused government of wage fixing through legislation and therefore violating the Charter under section 2 (d).
However, in the 2012 case the Ontario Court of Appeal found that there was substantial negotiation – including some 16 bargaining sessions – and five days of mediation. Therefore the charter was not violated in the opinion of the top Ontario court. The justice counsel members sought leave to take the case to the SCOC and top court denied them.
In November, two Canadian provincial governments introduced wage-fixing legislation to deal with run away debt and deficits – Manitoba and Ontario. Yesterday various education bargaining units in Ontario announced legal action as they say Ontario Bill 124 violates section 2 (d) of the Charter of Rights and Freedoms – freedom of association.
When announcing the legal action on Thursday, Nov. 12 AEFO president Remi Sabourin said “the Canadian Charter of Rights and Freedoms guarantees us the right to negotiate a win-win agreement, (Premier Doug) Ford and is government are choosing to disregard that right,” according to Global News.
In this I believe Mr. Sabourin and the teachers are 100 per cent wrong. The charter, as demonstrated in BC Nurses, does guarantee the right to negotiation. You literally could not have turned on a news broadcast in the past four months and not watched a story of negotiations between the government and an education union.
In fact, to quote a CBC report on October 6, 2019:
“Some 55,000 education workers in Ontario will not strike Monday after successful last-minute contract talks with the provincial government, according to Education Minister Stephen Lecce.
“The Canadian Union of Public Employees (CUPE), representing a number of education support workers across the province, reached a tentative deal on Sunday evening — a move that should allow public schools to open as normal.”
Also the one-day strikes and the strike votes by Ontario high school teachers prove they have bargaining rights. An employer has the right to impose a wage on employees unionized or otherwise. The employee has the right to remove their services if they are unsatisfied.
There are questions about constructive dismissal, but if you are talking unionized work and everyone is getting the same, if a lawyer could prove that then hire them. They are basically the Wayne Gretzky crossed with Michael Jordan wrapped up in Tom Brady and Roger Federer. Ya, it would be hard to sell to prove the province is trying to constructively fire all of its teachers – though I guarantee some of them believe that.
So let’s move on. Despite Bill 124 teachers continue to negotiate with the province and still have the right to strike and remove services. Back to work legislation would come with arbitration rights and therefore the right to association is protected.
I no doubt think a lower court will rule in favour of the education unions in this matter. The Ontario Supreme Court will throw in its two cents and then the case will elevate to the SCOC.
This will give the SCOC the opportunity to finally cut a balance in Canadian public sector labour negotiations. My guess is the balance will basically maintain public sector employees do not have veto rights on wage proposals. The right to strike guarantees a public sector worker’s bargaining – even if that is unpleasant.
The court, will no doubt, also maintain that a government must consult and negotiate and proof of that will allow them to impose a wage. The nest step will be unions trying to prove that every government – not just conservative ones – are negotiating in bad faith.
The eventual outcome of the court challenge will of course take years. BC Nurses took five years.
The question you must ask is, “does the house always win?” Well in this case yes. The government will spend money fighting this as the BC Government once did. During that time the government will not be paying out exorbitant sums due to out of line wage increases. At the end of the day the education union will likely be no further ahead and the government will have saved money – that is unless they cave in face of a strike.
Now there will be an argument that across the board wage fixing legislation itself is unconstitutional and that might be right – though it shouldn’t be. Wages after all are only one part of negotiations and they are not introducing a total freeze or reduction, just a one per cent increase.
If a one-per cent wage increase is not good enough, then you are putting the courts in position to determine government spending. The SCOC has been very clear in this matter, the legislative branch, not the judicial, has power of the purse. I find it hard to believe the justices will want to challenge the constitution in that manner.
Certainly teacher’s unions who have been involved in extensive negotiations are going to have a tough time proving wage fix legislation violates their Charter rights. In five years or so they should get their answer – but I highly doubt it’ll be the one they want.
Kelly Harris is Principal of Harris Public Affairs and former Membership Chair of the Public Affairs Association of Canada (Ontario Chapter). He is a regular commentator on Global News Radio 640 and columnist for Queen’s Park Briefing. He has spent the last decade working with Canada’s credit unions and served as Director on the Board of the Canadian Credit Union Association. An internationally published journalist, he has held senior positions in the Gordon Campbell Government in British Columbia and Tim Hudak’s opposition at Queen’s Park. An avid traveller, cyclist and father to Busher, an orange tabby, named after Toronto Maple Leaf Great Harvey “Busher” Jackson.