Students now back in class
I got the concerns of the students, their families and of the instructors who have sent e-mails. For nine years, I was one of those part-time instructors (unionized) at Ryerson. As a student, I can remember a faculty and support staff strike that affected me during the years I did my MBA out west. Some people assume the scope of the Province’s powers extend to determine the length or outcome of a labour dispute. It does not. Please read on.
Updated November 21: It’s over. Back-to-work legislation passed in a rare weekend sitting of the Ontario Legislature has sent the remaining unresolved items in the bargaining between the union and the College Employer Council to an arbitrator. Ontario college students are now back on their campuses.
The Province was not a party to the ongoing negotiations over a new collective agreement. This means representatives of the Province did not sit at the bargaining table. The two parties: the bargaining unit (OPSEU) and management (College Employer Council), met at length with mediators from the Ontario Ministry of Labour, and failed to reach a consensus. Mediators had been involved prior to the onset of the strike.
For nearly three weeks after the strike began, no request for mediation from the Ontario Ministry of Labour, by either or both parties, was made. On October 31, the College Employer Council, which represents the province’s 24 community colleges, said it asked the mediator to resume talks. Those talks between the two parties, with a requested mediator present, resumed on November 1.
The strike’s ‘end-game’
On Monday and Tuesday, November 13-14, the bargaining agent for Ontario’s colleges (the College Employer Council) put their latest offer to members of the bargaining unit, the striking instructors. The offer was rejected. During a contract negotiation, management does have the right, once during a labour dispute, to insist that its latest offer be put directly to members of the striking labour force. This procedure is done through the Ontario Labour Relations Board.
After the results of the vote were made public, the Province brought the sides together with provincial mediators. From reports of those who were in the room with the two sides, the parties could not agree on anything, except that they were at an impasse. Every effort to have the dispute resolved between the parties had been made.
On Thursday November 16, after the talks had collapsed, the Province asked the House for unanimous consent to appoint an arbitrator, and introduce back-to-work legislation. The Conservatives agreed. The NDP opposed.
Had the MPPs from all parties given their unanimous consent to introducing and passing a back-to-work bill, classes would have resumed on Monday November 20. In the absence of unanimous consent among MPPs of all parties, the government had only one option left to get students back in class: an Order-in-Council directive from Cabinet to bring the Legislature back into session on Friday November 17. An Order-in-Council cannot enact legislation; it can only bring the Legislature into session. Legislation must be enacted on the floor of the Legislature.
Had the bill been passed at first, second and third reading – again requiring consent of all three parties – classes might have resumed on Monday November 20. The NDP again refused.
As a result, the legislation (Bill 178) was debated during the weekend, of November 17-19, delaying the return to classes until Tuesday November 21. Neither the government MPPs nor the Conservatives spoke at any length on the bill. When the last NDP members chose to stop speaking, debate ‘collapsed.’ The resulting votes: second reading of the bill on Saturday November 18, and third reading on Sunday November 19, swiftly passed.
The legal threshold
Back-to-work legislation must withstand a Charter challenge. Saskatchewan Federation of Labour v. Saskatchewan, 2015, more clearly defined striking as a ‘protected act’ under section 2 of the Charter, that should only be superseded if deemed necessary under section 1 to uphold a “free and democratic society”. This principle was reinforced by the ruling in Canadian Union of Postal Workers v Her Majesty in Right of Canada, 2016.
What this means is that there are no specific requirements or “checklist” that a government must meet in order to introduce legislation. However, recent decisions in superior courts across the country as well as the Supreme Court of Canada would indicate that the societal impact of the strike must be clear and damaging (including for work in “essential services”) and the barriers to alternative resolution must be all but insurmountable to justify ending workers’ right to strike.
In this round of bargaining, the Province had one tool of intervention: back to work legislation. However, before Ontario could consider using this tool, it was legally obligated to allow both parties to use all the tools at their disposal to reach a negotiated settlement. The Ministry of Labour was in regular contact with both bargaining parties since the strike began, urging them back to the table, and participating in the creation of a task force to address outstanding issues in the sector, including workforce complement.
Despite these efforts, both parties stalled negotiations and ultimately landed in deadlock, putting students’ semesters at risk. Because of this, the Province took the next and necessary step to allow students to return to the classroom by tabling, and now passing, back to work legislation.
This vote means that faculty returned to colleges on Monday November 20, and students on Tuesday November 21.
The terms of a collective agreement will now be set by an independent arbitrator. Mediators had proposed the creation of a task force to address a number of systemic challenges and opportunities in the colleges was put on the table through bargaining. If the arbitrator includes this condition, the Province will work with the parties to establish this task force to consult with colleges, students, parents, faculty, support staff, employers, communities and other stakeholders.
The very vast majority of collective bargaining negotiations in Ontario are settled through negotiations at the bargaining table. The best, most stable, and most widely supported and respected agreements stem from discussions at the bargaining table. The Province has no jurisdiction, or ability, to unilaterally insert itself into this dispute.
Facts still matter in Ontario
Some have suggested that the strike is related to levels of college system funding. This is a lie.
- In 2016-17 the Province allocated $1.47 billion in total operating grants to colleges;
- While across the college sector enrollment has increased by almost 25 percent since 2002-03, total operating grants to colleges have increased by more than 82 percent during the same time;
- Per-student funding for colleges has increased from $4,600 in 2003 to $6,624 in 2017, an increase of 45 percent.
Common Q & A issues
Click or touch a question to see the answer.
Q: Couldn’t the Province just legislate the end of the strike?
A. Some of our neighbours have asked whether the Province (usually meaning the Cabinet) can simply legislate an end to this or any strike. In short, no. See above. The legal threshold for a government at any level to insert itself into a labour dispute is very high. The collective bargaining process must have fully run its course, and clearly failed. In the case of the college strike, it clearly did run its course and fail. Cabinet cannot issue an Order in Council to end a strike. An Order in Council is a legal order made by the Lieutenant Governor, on the advice of the Premier or a Minister. Unless there is all-party agreement, a bill to end a labour dispute must be introduced in the Legislature. Unless unanimous consent is given (which the NDP refused), a bill may not be debated on the day it is introduced.
Q: Hasn’t the Province quickly ended some strikes in years past?
A: When the strike is illegal, such as when workers in essential services walk off the job, or when workers still under a collective agreement walk off the job, the grounds exist for the Province to introduce legislation to end the strike. When a labour dispute is legal, as the recent college strike was, such action by the Province was not an option.
Q: Why won’t MPPs comment on the issue during a strike?
A: Labour or contract negotiations, court cases, police matters, issues before tribunals and other legal proceedings fall under the sub judice rule. The term sub judice literally means “under judicial consideration” or “before the court or judge for determination.” At its most basic, the sub judice rule prohibits the publication of statements which may prejudice court proceedings. Elected Members cannot, therefore, publicly or privately discuss, or comment upon, ongoing labour negotiations.
Q: To whom shall I send my opinions on the college strike?
A: To the parties at the table: the College Employers Council, and the union locals. Observations our neighbours in Lisgar, Meadowvale and Streetsville may have on the state of the negotiations, or on the position of either or both parties, should be sent directly to the bargaining unit or to management.
The Ministry of Labour had urged the parties to keep their focus on the needs of the student body, and to resolve the labour dispute at the bargaining table. The parties were unwilling to do this, and with no option left unused, only then could (and did) the Province act to end the work stoppage.