Here’s Why Ontario’s Back-to-Work Legislation May Be Unconstitutional

Last week, the government of Ontario forced 12,000 public college professors, instructors, librarians, and counsellors to end their strike and return to work. While many students breathed a sign of relief, the government’s back-to-work-legislation was not welcomed by the workers, who had voted 86% in favour of continuing the strike just days before.

Now, the Ontario Public Service Employees Union has launched a legal challenge against Bill 178, arguing the law violates their constitutional rights.

Are they right? Is Ontario’s back-to-work legislation unconstitutional?

Here’s why the law could be in their favour.

Why Back-to-Work Legislation May Be Unconstitutional

Section 2(d) of the Canadian Charter of Rights and Freedoms protects the right of freedom of association. This right has been interpreted to include the right of workers to form a union and conduct meaningful collective bargaining with their employers.

The Supreme Court’s decision in Saskatchewan Federation of Labour v. Saskatchewan states that striking is protected so long as it contributes to the meaningful process of collective bargaining. So while the freedom of association doesn’t necessarily guarantee a freedom to strike in every circumstance, it protects the strike as a productive means of collective bargaining.

Of course, like all our constitutional rights, the freedom of association is subject to reasonable limitations, and the government can limit the freedom of association if that limitation can pass the scrutiny of the Oakes test. That means back-to-work legislation can be constitutional.

The test for whether back-to-work legislation interferes with freedom of association is whether it law amounts to substantial interference with collective bargaining. Substantial interference means it disrupts the balance between employees and employers that freedom of association seeks to achieve.

Harper’s Back-to-Work Legislation Failed. Will Wynne’s Pass the Test?

A good illustration of this test is the case of Canadian Union of Postal Workers v. Her Majesty in Right of Canada, which concerned the Harper government’s back-to-work legislation against Canada Post workers.

Among other things, the workers in that strike sought a wage increase from their employer (Canada Post/the Canadian government). Harper’s strike-breaking law imposed a wage increase on the workers, but the increase was lower than what Canada Post had initially offered. The other issues up for debate were sent to an arbitrator, who was given the authority to impose a decision on both parties.

That didn’t fly with the court. A judge of the Federal Court found that the legislation violated the postal workers’ freedom of association and freedom of expression, and that it did not pass the Oakes test for a reasonable limitation.

Why?

The law hit the mark for the first part of the test. The government’s objective with the law, which was to prevent postal service disruption to protect Canada Post and the wider economy, was pressing, substantial, and rationally connected to the legislation. In other words, the law addressed an urgent and significant issue in a way that would actually resolve it.

Where the law failed was in the second part of the test: minimal impairment. When a law limits people’s rights and freedoms, it has to do so with a light touch – there must be no more impairment than is absolutely necessary. That was not the case with Harper’s back-to-work legislation. Since it took the matter of wages entirely off the table, and paid no heed to the postal workers’ position, it substantially interfered with the right to collectively bargain.

This is where the Wynne government’s back-to-work legislation could fail as well.

Hours before the Liberals announced the bill, the OPSEU workers voted to reject the employer’s offer and continue the strike by an overwhelming 86% majority. The government’s decision to step in that this point severely undercut that vote, essentially giving the employer an ‘out’ to ignore the vote instead of responding to it with a new offer.

It could certainly be argued that this tipped the scales in favour of the employer and interfered with the OPSEU’s collective bargaining.

 

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