Canadian HR Reporter

March 2020 CAN

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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Page 22 of 47 23 F E A T U R E S A coalition of unions has launched a charter challenge against Ontario's Bill 124, which they say unconstitutionally restricts broader public sector workers' rights to free collective bargaining. The Protecting a Sustainable Public Sector for Future Generations Act, 2019 affects more than one million workers in Ontario's broader public sector, and it was enacted on Nov. 7. It imposes a three-year "moderation" period where salary increases, for both union and non-union employees, are capped at one per cent in each of the three years. "Taking action to ensure increases in public sector compensation reflect the province's fiscal reality is part of our government's balanced and prudent plan," said Peter Bethlenfalvy, president of the Treasury Board. "Moderating compensation growth to protect front-line services for the people of this province is the right thing to do." 'Contracts must be negotiated' A coalition of public sector unions — including those from the Canadian Union of Public Employees (CUPE), the Public Service Alliance of Canada (PSAC) and the United Food and Commercial Workers (UFCW) Local 175 — launched the challenge on Dec. 17, along with several other unions, including the Ontario Nurses' Association (ONA) and the province's four teachers' unions. "It enforces compensation on public sector and broader public sector workers, without going to the table to have those discussions," says Patty Coates, president of the Ontario Federation of Labour (OFL) in Toronto. "[Contracts] must be negotiated at the table and not with legislation or regulations that restrict that bargaining, and that's what's happened with Bill 124." This bill must be repealed, she says. "It's not about the compensation part of it at all; it's about our right to be able to collective bargain at the table." Unlikely win for government? The prospect of the provincial government winning a challenge is unlikely, says Daniel Sheppard, an associate at Goldblatt Partners in Toronto. says Sheppard. "By putting in these restrictions, it essentially legislates compensation reductions for thousands of workers, given that the one-per-cent caps are below the rate of inflation." The bill was enacted to address Ontario's estimated $353.7-billion net debt by the end of 2020, by curtailing salaries in the public sector, which totalled $72 billion per year, according to the government. But, says Sheppard, those numbers have been challenged. "When they introduced the legislation, the government predicted that they had a budget deficit that was at $11.7 billion for 2018-19. And by the time they passed the law, their own Financial Accountability Office (FAO) — the non-partisan entity designed to review budgetary matters — had said those numbers were in fact wrong," he says. "They were 37-per-cent lower than what the government said it was. When the government is going to attempt to justify it on the basis of budgetary restraints, the reality is that the fiscal situation in the province is quite different than it claimed it to be when it first enacted the law." The final card for the government might be the notwithstanding clause, if the current bill is defeated. "Had you asked me this question a few years ago, I would have laughed in your face. And then the Bill 5 case with respect to the Toronto city council happened. I was counsel on that case myself and so we have seen this government willing to use the notwithstanding clause — something that is very much outside of the historical norm, certainly for Ontario and, frankly, quite unusual in Canada as a whole," says Sheppard. "It is a very rarely used device. Everyone believed it should only be used in truly extreme circumstances. But now we have a government that is apparently willing to pay very little heed to constitutional rights." CHRR CHALLENGING BILL 124 Several unions have launched a Charter challenge against Ontario's Bill 124, which moderates salary increases for public sector workers. John Dujay looks into the issue, as well as the likelihood of a government win L A B O U R R E L AT I O N S "In the past, when governments have attempted to impose these types of restrictions, the labour movement has raised constitutional challenges to it under the right to freedom of association. The closest comparison to this was back with respect to the old Bill 115, which was brought in during a previous round of collective bargaining with teacher unions in Ontario," he says. "That was a challenge that was ultimately successful, and it was ruled to be unconstitutional." When the government imposed a cap on wage hikes, it impinged upon workers' "constitutional rights to collectively bargain, [which] is all about the ability for people in the workplace… to govern themselves," "The reality is that the fiscal situation in the province is quite different than it claimed it to be when it first enacted the law." Daniel Sheppard, Goldblatt Partners

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