April 21, 2016
The Ontario government’s legislation restricting collective bargaining and the right to strike of hundreds of school board employees, including teachers and administrative workers, violated those workers’ right to collective bargaining and to strike. That was the finding of the Ontario Superior Court of Justice in an important decision released yesterday.
Here is the decision, known as OPSEU v. Ontario.
The legislation in question is Bill 115, with the cute spin title, Putting Students First Act. Bill 115 was passed in 2012 and it required among other things that any collective agreement bargained by a school board and a union
be consistent with an agreement the government had earlier negotiated with union representing English catholic school teachers. Otherwise the government would impose an agreement. The statute also allowed the state to prohibit the right to strike. This effectively restricted all other unions involved in negotiations to be accept the terms of an agreement bargained by another union, even though their members had different interests and concerns. Students of labour law and the evolving Charter jurisprudence should know by now that anytime a government imposes a collective bargaining straight jacket like this, the government is swimming in very dangerous Charter waters.
Does Bill 115 Violate Section 2(d)’s Guarantee of Freedom of Association?
The decision is fact intensive. The discussion of the law does not begin until paragraph 120. The bargaining was extremely complicated, and the facts are important to the outcomes. However, the bottom line is that the government imposed a bargaining structure that effectively prevented a group of unions from bargaining over topics of interest to their members and instead imposed terms bargained by another union.
The court provides a nice summary of the development and recent expansion by the Supreme Court of Canada of the scope of section 2(d) freedom of association (FOA) in the Charter. The Court notes that the 1987 Labour Trilogy (FOA protects neither a right to collective bargaining or to strike) has been supplanted by the New Labour Trilogy (FOA does protect both a right to collective bargaining and a right to strike). The New 2015 Labour Trilogy consists of the cases: Mounted Police Association of Ontario v. Canada (A-G) (2015); Meredith v. Canada (A-G) (2015); and S.F.L. v. Saskatchewan (2015).
Those three cases developed the SCC’s new approach to FOA. They confirmed that FOA includes a right to a meaningful process of collective bargaining and any law that substantially interferes with that right will violate s. 2(d) of the Charter. The Ontario court ruled that the structure of bargaining, imposed by the government, prevented meaningful collective bargaining. The government imposed substantive restrictions on what each union could bargain with the school boards, but it refused to meet separately with each union or to account for the fact that the unions had different interests. For example, CUPE members were not teachers, but they were required by Bill 115 to accept substantially what Catholic teachers had accepted, even though their members had other priorities.
[ 153] Counsel of Ontario may see the process as ‘improvised and imperfect’. To my mind, it was ill-conceived.
The Court finds that Bill 115 substantially interfered with the right to meaningful collective bargaining and therefore violated Section 2(d). It found also that the restriction on the right to strike found in Bill 115 was a “constituent of a process that as a whole substantially interfered with the right to collective bargaining”. In this way, the court side-stepped the question of whether every statute that restricts the right to strike violates section 2(d). That question remains a live one after Saskatchewan.
Section 1 Analysis
Section 1 of the Charter permits a Charter violation in some circumstances. [See my ‘Beginner’s Guide to the Charter and Work Law for an explanation] However, the violation of Section 2(d) in this case was not saved by Section 1 of the Charter. The Court accepted that Bill 115 addressed a pressing and substantial issue: the need to address the economic crisis the Ontario government was comforting at the time. However, Bill 115 failed the ‘rational connection’ test: the process was not carefully designed to address the pressing and substantial concern. Rather it was haphazard and ‘arbitrary’. Crucial information was withheld from the unions, and the bargaining model designed by the government “failed entirely” to ensure all the unions could engage in meaningful collective bargaining.
The government’s bargaining model also failed the minimal impairment test. Rather than legislatively impose terms on the unions and restrict the right to strike, for example, the government could have imposed a temporary freeze on wage increased until a deal was bargained.
No remedy was ordered because the parties asked for an opportunity to bargain a resolution first.
Law of Work Cross-Reference
There is a Chapter on the Charter and Collective Bargaining Law in part IV of the text The Law of Work. Part IV will be published in early 2017. In the meantime, you can read my Beginner’s Guide to get an overview of the development of the law in this complex area.