Notwithstanding Rights and Freedoms

CUPE’s president, Fred Hahn, says that the union won’t be deterred from job action, setting the stage for a major showdown on November 4. “We will withdraw our labor, and we will fight back against this attempt to remove our members’ rights and to institute a collective agreement. Our members have made that decision, and we proudly support them in doing that.”

The Toronto District School Board — Canada’s largest — will close schools on November 4. While not an explicit gesture of solidarity, a statement from the board acknowledged that, if CUPE workers aren’t at work, “we cannot guarantee that our learning environments will remain safe and clean for all students.”

However, the Elementary Teachers’ Federation of Ontario and Ontario Secondary School Teachers’ Federation both called off ongoing contract negotiations with the province to protest its openly unconstitutional legislation. Ford is able to run roughshod over workers’ constitutional rights due to the notwithstanding clause, a mechanism in the 1982 Canadian Charter of Rights and Freedoms that allows governments to pass laws violating certain sections of the Charter of Rights and Freedoms.

Canada is the only constitutional democracy with a clause that cancels out the rights outlined in its constitution. The notwithstanding clause has many times over been a tool for right-wing provincial governments to pass legislation without regard for constitutional rights. Ford used the clause to unilaterally cut Toronto’s city council in half in the midst of its 2018 election campaign. The Ford government used it again last year to prevent third-party advertisers from advertising more than a year from an election.

On November 1, Liberal prime minister Justin Trudeau, who himself has a mixed record on labor issues, condemned Ford for invoking the notwithstanding clause “to suspend workers’ rights.”

What’s at Stake for CUPE Members?

CUPE is asking for a 11.7 percent annual pay increase, which works out to an additional $3.25 per hour. According to the union, its workers are the lowest paid in educational facilities, making just $39,000 a year on average. Due to years of inflation, wage freezes, and salary caps, education workers have fallen badly behind.

The union also wants to eliminate pay grids so all workers make the same wage, including casual and temporary workers, and for overtime pay to be doubled. Employees whose “core duties” are related to instruction — educational assistants and early-childhood educators — should have at least half an hour of prep time before each class, the union says. Additionally, CUPE is requesting its members get five paid days off the week before the school year begins, an early-childhood educator in every kindergarten class, and a $100 million investment in new job creation.

The most recent offer from the Ford government, proposed on October 30, is a four-year deal with an annual 2.5 percent wage increase for workers who make less than $43,000 a year and 1.5 percent for those who make more. This represents a slight increase on their original offer of 2 percent for those who make less than $40,000 and 1.25 percent for those who make more.

Education Minister Stephen Lecce, who participated in a mock “slave auction” when he was a frat boy at Western University in London, Ontario, says the government has done everything in its power to “keep students in class” by proposing “a more generous offer.” Because CUPE didn’t accept the government’s offer — which ignores the vast majority of the union’s demands — Lecce said the government has no choice but to make the offer one that educational workers can’t refuse.

Media Hacks Parroting the “Disgruntled Parents” Line

On October 31, Robyn Urback, a right-leaning columnist at the Globe and Mail, said on Twitter that parents “will be inclined to overlook a little trampling of rights” in order to ensure their children remain in school after two years of pandemic-related disruption. Urback further elaborated in a column the next day that parents “may be quietly content to see the Premier do all he can to keep kids in schools.” Urback predicts that

while plenty of education workers, their allies and regular Ontarians will be justifiably disgusted to see Mr. Ford, professed advocate of the little guy, pre-emptively snuff out education workers’ right to strike, many more Ontarians may be quietly content to see the Premier do all he can to keep kids in schools.

She reached this conclusion by citing pre-pandemic data showing Ontarians’ lack of sympathy for teachers’ unions, which are notably not threatening job action presently. “Parents are in no mood for a strike, and the province knows it. Mr. Ford’s actions might have been seen as a massive overreach at any other time, but coming off a pandemic, it’s likely a political win,” Urback added.

Urback is here using the pandemic to give what is a standard right-wing attack on education workers more heft. Of course, children shouldn’t have their education interrupted and families do need their children to be in school. This is particularly true for working- and lower-middle-class parents. Without school in session, it is often difficult for these families to find adequate childcare. However, it does not follow that educational workers should be forced to be poorly paid childcare providers. The ideas that school should stay in session and that educational workers should be paid properly are not mutually exclusive. And the notion that parents don’t support education workers when they strike is simply not true.

Anthony Furey, who recently left his job as a columnist at the increasingly far-right Toronto Sun to be the VP of editorial and content at the far-right True North Centre, acknowledged on Twitter that “some support staff are paid surprisingly low.” Still, he decried job action as a “colossal jerk move,” since this was supposed to be the first regular school year since the beginning of the pandemic.

The Sun’s Brian Lilley, whose girlfriend is Ford’s press secretary, said that even if Ford’s legislation violates the “recently invented right to strike, most parents won’t care.” He compared the strikers to the Freedom Convoy, which occupied downtown Ottawa for almost a month, claiming the issue in both cases was a violation of Charter rights.

In another bit of spin, the Liberal-leaning Toronto Star columnist Martin Regg Cohn decried both “Ford’s callousness” and “CUPE’s recklessness.”

“Thanks to a bizarrely provocative union strategy, CUPE gave Ontario’s populist premier the excuse he was looking for to come down hard — and likely emerge more popular,” Cohn wrote, labeling an 11 percent wage increase a “non-starter.”

Denying that labor struggles have anything to do with workers being paid fairly, Cohn is lazily arguing an instance of false equivalence, saying that “both antagonists [are] fighting to the last student.” This overlooks the fact that only one antagonist in this fight actually works with students.

Although Cohn depicts an 11 percent wage increase as completely unreasonable, the BC General Employees’ Union just negotiated a 14 percent wage increase over three years for 33,000 public-sector workers. The BC workers went on strike in August after rejecting an offer of 11 percent from the government.

Ford’s Dangerous Precedent

Regardless of what the pundits claim, actual experts say that Ford’s legislation is “extreme, politically fraught and unprecedented in the history of labor disputes,” as Globe and Mail reporter Vanmala Subramaniam put it.

“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,” York University labor law specialist Eric Tucker told the Globe. Unions are able to challenge back-to-work legislation in court. However, that process can take years to make its way through the courts, which isn’t of much help to workers who are struggling with being underpaid and being forced back to their jobs right now.

Alison Braley-Rattai, a professor of labor 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.” She notes that the section of the Charter is intended as a last resort and, in the wake of Ford’s gambit, she anticipates right-wing governments will use it in an increasingly brazen fashion.

If the Ford government truly wanted the best for Ontario students, it would do its utmost to fund education properly and to ensure that its education workers were paid a decent wage. Its track record on this score is dubious. Twinned with the belligerence of the notwithstanding clause, the entire affair appears not to be about education at all — the needs of students and parents are simply being used as an excuse to discipline workers.