The union representing Ontario’s college faculty launched a Charter challenge against provincial back-to-work legislation that ended the five-week college strike in November.
Warren “Smokey” Thomas, the president of the Ontario Public Service Employees Union (OPSEU), claims that members of the union were forced back to work and as a result, their rights were violated.
“Our position is that there was undue interference in the collective bargaining rights of the workers,” he said. “What will remain to be seen in the Charter challenge is whether or not the government was justified in forcing people back to work.”
Bargaining between OPSEU and the College Employers Council stalled and the government chose to intervene. Arbitrator William Kaplan established a contract that gives teachers academic freedom without reprisal, job security for full and part-time employees, as well as a 7.75 per cent raise over four years.
A task force studying precarious employment and staffing levels at the colleges is expected to release an interim report in May.
However, the issue is not with the resulting contract but how it was imposed. OPSEU believes the government’s legislation to close the deal was an improper act against the workers that had the right to strike.
“We are hoping the court will tell the government that they acted improperly,” Thomas said. “This might be the leverage we need to get a system that’s more productive and more conducive to getting a collective agreement without a strike in the future.”
Thomas says that the efforts behind the union’s Charter challenge under Section 2(d), which protects the freedom of association, is to improve labour relations and aim to fix what may be wrong with it. However, challenges such as these are time-consuming and require a great deal of legal work.
Alison Braley-Rattai, assistant professor of labour studies at Brock University, said there is little case law on the issue of a right to strike so it is hard to predict its outcome.
“Charter rights can be violated under certain circumstances, but the government must be capable of justifying the violation by, for example, demonstrating that it has a ‘pressing and substantial’ reason for the legislation and that the legislation does not overly restrict Charter rights all things considered,” Braley-Rattai.
“In this case, the reason for the legislation was to save the students’ year,” she said.
More than 500,000 students were affected by the strike in the fall. Of the 250,000 full-time students, a significant amount chose to withdraw from their semester and receive a refund rather than continue on with their condensed semester.
The OPSEU argument is that the Liberals could have intervened but didn’t to direct the College Employer Council in a way that would likely have averted a strike. Braley-Rattai said that it is unlikely the courts will view back-to-work legislation as unconstitutional because teachers are not a strictly essential service and it may not mirror what international labour law has to say about it.
“In the end, I do think that there is scope for this to go either way, but if I had to choose, I would say that the union will have a tough time making its case,” Braley-Rattai said.