Monday, 7 January 2013

A Lesson in Abusing Power to Curtail Labour Rights

With the recent enactment of Bill 115, otherwise known as the Putting Students First Act, the Ontario Liberals officially joined the ranks of union detractors. The Act, which came into effect on January 3, 2013 is retroactive to September 1, 2012 and will expire on August 31, 2014[1]. The Act eschews the collective bargaining process and imposes new 2-year collective agreements on teachers in Ontario’s public and secondary school systems.  Unions cannot strike whilst under a collective agreement. The Act, then, severely restricts the rights of unions to strike in opposition to these statutory impositions. It is pre-emptive back-to-work legislation and represents a shameful abuse of power by the Ontario Liberals to circumvent the rights of organized labour.

When the necessity of new contracts for the teachers was looming, the government had two golden opportunities. Most obviously, the situation presented the government with the chance to show respect for teachers’ unions and for organized labour generally. A less apparent but no less important opportunity arising from the need for new teacher contracts was the opportunity for the government to demonstrate diplomacy skills through good faith negotiations that could yield agreements satisfactory to all sides.

Unfortunately, these opportunities were not seized and the governing Liberals chose to legislate new contracts for Ontario’s teachers. These new contracts impose fresh hardships on Ontario’s teachers, not least of which is the introduction of reductions to benefit packages, wage freezes, and the reduction of allowable sick days.

Education Minister Laurel Broten has stated that the statutory imposition of new contracts was a necessary tool to stop strikes and combat the province’s $14.4 billion deficit[2]. However, there are already useful tools in place to prevent strikes and the Act was not needed to achieve these ends. Ivan Rand created the “Rand Formula” over 60 years ago expressly to avoid strikes (the Rand Formula is discussed in more detail in our post from Dec.19, 2012). Rand understood that the best way to avoid strikes was to empower each side of a labour dispute. He understood that power imbalances can lead to abuses of power and foster acrimonious labour relations. The Rand Formula respected the legitimacy of unions and employers, achieving a delicate balance which enabled either side to enter into meaningful negotiations to protect their interests. Through mutual agreement, unions and employers could reach agreements acceptable to each side and thereby negate any need for strike or lockout action.

Broten’s actions, however, ignore the practicality of balancing the power of unions and employers and demonstrate a deficit in her sensitivity to labour relations well below that displayed by Rand. Far from Rand’s delicate solution to labour disputes, the Ontario Liberals have legislated an uneven playing field in the governments favour and have shown the political acumen of a totalitarian regime.

The Act avoids strikes, not through negotiations, but through active and coercive suppression of the right to strike. The government has enacted these anti-strike measures in spite of the fact that the right to bargain collectively and to strike are protected by the Charter. Charter considerations, however, do not seem to influence Broten, who has stated that she was left with no “reasonable” option but to use her authority under the Act to impose the new collective agreements on all school boards that did not reach collective agreements on their own accord as of Dec. 31, 2012[3]. The Charter protected rights of the unions be damned.

As a gesture of “goodwill” the Liberals plan to repeal the Act by the end of the month. Such repeal will not alter the newly imposed contracts or the severe restrictions they place on the right of teachers to strike. While it is heartening to know that the extraordinary anti-labour powers afforded by the Act will expire in two years’ time, the damage to goodwill between Ontario’s teachers’ unions and this government will already have been done. For Broten to now present the intention to repeal the Act as some sort of olive branch is disingenuous at best and is akin to offering someone a Band-Aid after you’ve cut their arm off – it’s simply not good enough.

Teachers are trained to educate Canada’s youth, and by almost any measure have done so with great care and skill. In blaming unions for the escalating labour dispute, in restricting the right to strike, and in imposing new collective agreements which, despite Broten’s assertions to the contrary, are neither fair nor balanced one has to wonder what Broten is teaching Ontario’s youth. If the lesson is that it is good and proper to curtail constitutional rights rather than respect a process of meaningful negotiation, or perhaps that dealing with financial deficits is more important than recognizing democratic rights, then Broten is indeed an excellent teacher. The only problem is that the teachers of Ontario are the ones with the lessons actually worth learning.

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