BILL 124 ruled Unconstitutional (Nov 29, 2022)
Dear Members
Bargaining: Bill 124 Update
As per my last communication to you in September regarding the Constitutional challenge of ”Bill 124” taking place in the Ontario court, the court’s ruling was released this afternoon. “Bill 124” was declared unconstitutional by the Ontario Court and has been struck down. I will continue to update you as more information comes forward and what it means to our collective agreement with the wage reopener clause, barring an appeal by the current provincial government.
In Solidarity,
Nigel Edwards (He/ Him/ His)/ il/ lui)
President
OPSEU/SEFPO Local 565
HIGHLIGHTS of decision
A decision by the Superior Court of Justice, J. Koehnen, that was released this afternoon on charter challenge of Bill 124, and was found to be unconstitutional. Please see attached.
[362] As a result of the foregoing, I have found the Act to be contrary to section 2(d) of the Charter, and not justified under s. 1 of the Charter.
[363] Given that the entire purpose of the act is to implement the 1% limitation on wage increases in the broader public sector, there is no purpose served in reviewing the Act section by section. While it may be possible that some sections, standing entirely in isolation from each other do not violate any Charter rights, those sections have no purpose apart from enforcing the overall wage limitation that the Act imposes. As a result, I declare the Act to be void and of no effect.
[364] All parties have requested that I defer the consideration of any remedy as a result of the Act having been in effect since June of 2019 to a further hearing. I remain seized of the matter to address the issue of remedy and any other ancillary issues arising from these reasons.
[365] Finally, I would like to thank all counsel for their extraordinary effort in this matter. The written and oral submissions of all parties were of exemplary calibre as was the approach of counsel to each other and the court.
Update #2 to Bill 124
Dear Members
Per my last communication I informed the constitutional challenge to Doug Ford’s Government 1% wage-cap legislation (Bill 124) started hearings on Monday in Ontario’s Superior Court of Justice and I would provide updates as they become available.
The unions argue the legislation is unconstitutional because its curtailing of bargaining rights has undermined public sector sustainability, rather than protect it.
“We are here today to take our next step in our legal challenge against Bill 124,” said CUPE Ontario president Fred Hahn. “We will not stop fighting back in every possible way to repeal Bill 124, both through the courts and by organizing in our communities. We will not stop until we ensure no government ever even considers advocating and legislating such a harmful violation of our fundamental rights again.”
Here is what is happening inside the courtroom:
The lawyer representing the Ontario Federation of Labour, Steve Barrett, laid out the unions’ argument that Bill 124 violates the Charter of Rights and Freedoms’ protection of the right to assembly, which the Supreme Court has ruled protects the right to bargain collectively.
He also argued the province has failed to establish that the law addresses a “pressing and substantial” government concern, which is part of the legal test for curtailing Charter rights required by the Supreme Court of Canada.
Barrett noted the legislation’s stated purpose is to “protect the sustainability of public services,” in a way that is “consistent with the principles of responsible fiscal management.” Barrett told Justice Markus Koehnen that since the law — and its one-per-cent annual wage cap for public sector workers — was enacted, it has done the exact opposite of protecting the sustainability of public service.
“If anything, Bill 124 has served to undermine the sustainability of public services by imposing these compensation restrictions, particularly in the midst of a pandemic, “ said Barrett.
“The overwhelming [majority], hundreds of thousands of employees, to be affected by Bill 124 were affected by mid-2021 onwards. That’s relevant because that means for most employees affected by Bill 124, it has applied during a pandemic, during a recruitment and retention crisis … and during a time of growing inflation. That makes the impact on the ability of unions to bargain protections for their members even more profound.”
Another lawyer for the labour federation, Colleen Bauman, argued Bill 124 “substantially interferes with meaningful collective bargaining,” resulting in employers being unable to raise wages beyond one per cent to address staffing shortages even when they want to do so.
“It prevented unions and employers from responding to the COVID-19 crisis,” said Bauman. “Normally, collective bargaining is very responsive to the context on the ground and is able to negotiate changes to terms and conditions for work in order to respond to the needs of the employers and employees. But because of the constraints of Bill 124, this cannot happen.”
Although the unions believe this badly undercuts the government’s claim that it is using the law to address a pressing and substantial concern, Barrett said if the unions lose that argument, they also plan to contend that Bill 124 is not a proportional response to that concern — another part of the legal test.
Nurses, teachers and power worker unions among groups to present
Each of the other unions involved in the lawsuit will get their chance to give evidence in the coming days.
Today, attorneys for the Ontario Nurses’ Association will make a presentation on the law’s impact on nurses. They will also lead off on one of the other central arguments the unions are making: that Bill 124 violates the rights of female workers by perpetuating sex discrimination.
“The government’s draconian wage cap is out of touch with the grave nursing crisis and high demand of health-care professionals during one of the worst pandemics of the last century. The bill tramples on our members’ rights and has perpetuated discrimination on the grounds of sex against our predominantly female profession — which we say is contrary to the charter,” said ONA president Cathryn Hoy.
In their own court filings, lawyers for Attorney General Doug Downey have responded by saying that there “is no evidence of a link between an employee’s sex and the application of Bill 124.”
The nurses’ association will be followed by lawyers from the Ontario English Catholic Teachers’ Association, who will argue that a “meaningful bargaining process,” which did not take place, is required before a government can implement wage restraint legislation.
The Elementary Teachers’ Federation of Ontario will then pick up on that idea and try to punch holes in the province’s claim that it did not have the time to set up a centralized bargaining system. It will also highlight “the flaws and deficiencies” in evidence provided by an expert witness for the province.
In its filings, the province claims it consulted in good faith after the bill was introduced in June 2019.
The Ontario Secondary School Teachers’ Federation plans to dig into the particulars of what consultations the province did or did not do.
On Thursday morning, UNIFOR will focus on how Bill 124 contributed to sex discrimination in the education field while arguing that Sec. 28 of the charter requires that a “gender lens” be applied when deciding whether the law violates the right to association.
OPSEU will talk about the impacts on their members and the gender wage gap and will be followed by the Society of United Professionals and the Power Workers’ Union, which will address similar impacts in the energy sector.
The Carleton University Academic Staff Association will finish off the day with its own perspective and a statement of how Bill 124 violates freedom of expression rights.
The province’s lawyer, Rochelle Fox, and her colleagues are not expected to be given time to present their evidence and arguments until Monday afternoon.
Despite this, Barrett addressed a couple of points the government made in its court filings, including its claim that there is no constitutional right for yearly wage increases. Barrett conceded that point.
“That’s all true, of course. There’s no right to inflation protection, no right to bargain in response to the pandemic, or recruitment and retention, or to maintain historic comparability, or to try to increase the compensation of lower income for any employees,” admitted Barrett. “There’s no right to the outcome, but there is a right to an opportunity through collective bargaining. And what Bill 124 does is take away that opportunity.”
In Solidarity,
Nigel Edwards (He/Him)
President
OPSEU/SEFPO Local 565
Update #1 to Bill 124
Dear Members,
As previously communicated in our bargaining related communications and updates regarding bill 124. The constitutional challenge to the government’s wage-cap legislation (Bill 124) is now in process. The constitutional challenge began Monday in Ontario’s Superior Court of Justice and will be heard over the next 10 days.
The Union Coalition filed the challenge in 2020 arguing the bill violates a section of the Canadian Charter of Rights and Freedoms that protects meaningful collective bargaining. The Ontario Nurses Association also argues the bill is discriminatory against women and violates sex and gender equality in two other sections of the charter. The unions filed evidence in its challenge in 2021.
The coalition involves 10 applicants – Largely unions including OPSEU/SEFPO, representing teachers, nurses, public services employees, universities and their faculty and engineers and among dozens of other professions. In total more than 40 Ontario unions have filed evidence in its constitution challenge against the Ford Government over the legislation.
Bill 124 caps total public sector compensation (Salaries, benefits, etc..) at one per cent. At a time when inflation is at a forty-year high by limiting the compensation increases that can be gained through the bargaining process, the Ford government is violating the right to meaningful collective bargaining guaranteed the Charter of Rights and Freedoms.
In the event the bill is repealed under the “Wage Reopener Clause” in the Collective Agreement we will go back to the bargaining table. We will do our best to provide any updated information we receive while the process unfolds. You can also check the union website for updates.
In Solidarity
Nigel Edwards
President
OPSEU/SEFPO Local 565.
What is Bill 124?
On November 8, 2019, the Ontario legislature passed Bill 124. Bill 124 is aimed at the broader public sector, including: hospitals, crown agencies, school boards, universities, colleges, long term care homes, orange, children’s aid societies, and other boards, corporations, offices or organizations that do not carry-on activities for the purpose of gain or profit. These organizations must also have received at least $1,000,000 in funding from the Government of Ontario in 2018.
The legislation essentially imposes a series of 3 year “moderation periods”. These are salary and total compensation caps during which the salaries and total compensations are capped at 1% per year. Led by OPSEU along with other bargaining agents a Charter Challenge was filed, hearings have been scheduled to begin in the fall of 2022.
More information can be found on the local 565 website: Bill 124 – OPSEU Local 565
Your bargaining team members:
· Sandi Folkes (Eligibility Officer)- Bargaining Team Chair
· Nigel Edwards (Eligibility Officer) – Local 565 President
· Lorne Blais (Compliance Official) – Local 565 Vice-President
· Roger Yee (Lead, iGaming Compliance Assurance)
· Clint Ferguson (Compliance Official)