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The Ontario government’s use of a unique legislative provision to effectively quash the ability of education workers to go on strike is extreme, politically fraught and unprecedented in the history of labour disputes, legal experts say.

On Monday – in response to a potential strike of 55,000 education workers represented by the Canadian Union of Public Employees (CUPE) – the provincial government tabled back-to-work legislation that included a notwithstanding clause that would override the ability of CUPE to mount a legal challenge against the legislation.

The inclusion of the controversial clause in the back-to-work act means that the union can no longer use the Canadian Charter of Rights and Freedoms to argue that a worker has the right to strike, as part of the right to collectively bargain for better working conditions.

“It is a very politically fraught and highly controversial action by a government to say, ‘We don’t care if this legislation infringes on Charter rights, we are going ahead with it,’” said Margot Young, a professor of law at the University of British Columbia’s Allard School of Law.

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Prof. Young added that the five-year limit of the notwithstanding clause effectively means that CUPE and its members in the education sector would not be able to challenge back-to-work legislation for the next five years.

Unions across the country have been successfully mobilizing workers in a way that has not been seen in the labour movement for years amid a spectre of high inflation and a general sense of despair amongst workers – particularly those on the front lines of the pandemic.

And there have been significant wins on the wage front. The BC General Employees’ Union, for example, negotiated a historic double-digit wage hike of 14 per cent over three years for 33,000 public-sector workers who went on strike in September, rejecting an 11-per-cent offer from the province.

Last week, CUPE asked for an annual wage increase of 11.7 per cent for the education workers it represents in Ontario, but that was shut down by the government, prompting the union to announce a strike. The government of Doug Ford responded to that with back-to-work legislation.

Unions are lashing out at this latest move. The Ontario Federation of Labour said it was a “dark day” for workers and called on the government to withdraw the legislation and “negotiate in good faith.” The Ontario English Catholic Teachers’ Association accused the province of abusing its power to undermine the collective bargaining process.

“This is an extremely aggressive assertion from the Ford government to prevent a strike, especially in a situation involving education workers, who are usually not deemed essential unlike health care workers,” said Eric Tucker, professor emeritus at York University, specializing in labour law.

There exists legal precedent for unions to challenge back-to-work legislation, according to both Prof. Young and Prof. Tucker. In 2016, for example, an Ontario court ruled that federal back-to-work legislation imposed on members of the Canadian Union of Postal Workers was unconstitutional because it violated workers’ Charter-guaranteed freedom of association and expression.

The problem for unions is that even when they mount a legal challenge to back-to-work legislation, it sometimes takes years for the challenge to make its way through the courts. “Typically, back-to-work legislation takes force immediately and that’s the end of it,” said Prof. Tucker. “There are of course situations where unions have defied these laws and not gone back to work, but they are pretty uncommon partly because of the financial penalties for not obeying,” he added.

The Ontario government’s Keeping Students in Class Act imposes a $4,000 fine on an individual for striking – and the legislation dictates that each day that an individual breaks the law by going on strike, constitutes a separate offence. “You can imagine why workers would be inclined to comply with the law,” said Prof. Tucker.

But CUPE has said that regardless of the legislation, its members intend to proceed with a strike this Friday.

Under Mr. Ford and the Progressive Conservative Party, the Ontario government has seemingly pushed for better working conditions in some facets of employment. Over the past year, the government introduced right-to-disconnect legislation, and a law that compelled employers to disclose to their employees how they are being monitored electronically. But Monday’s response to CUPE’s strike action appears to solidify the Ford government’s anti-worker position, labour experts argue.

Alison Braley-Rattai, a professor of labour studies at Brock University, called the use of the notwithstanding clause a “nuclear option” that was “unnecessary to the stated goal of ensuring no disruption to the school year.”

Prof. Braley-Rattai told The Globe and Mail that when it came to labour disputes, invoking this clause was essentially unprecedented. “Section 33, the notwithstanding clause, is so rarely invoked that in the first few decades of the Charter, some thought it to be political suicide. But I think this has begun to change, and I anticipate seeing more of this from right-leaning governments,” she added.

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