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Bill 124 is back in the courts. The Government’s appeal will be heard by three judges of the Ontario Court of Appeal from June 20-23.
The Government will go first because they are bringing the appeal. That will take most of the first day. The unions will then respond on Wednesday and Thursday.
Unifor’s team is confident and prepared to defend members’ constitutional rights once again. We expect that we will have our turn on Thursday morning.
What’s the Government’s argument?
The Government says that the Superior Court of Justice got it wrong in finding Bill 124 unconstitutional for a variety of reasons, including saying that Bill 124 did not violate the constitutionally protected freedom of association, and if it did violate the constitution, that violation was justified.
What’s the union’s position?
We say the decision of the Superior Court should stand. Bill 124 is a blatant and insulting denial of workers’ rights of freedom of association and meaningful collective bargaining, and has done significant damage to workers’ wellbeing and our public services.
Does this mean that Bill 124 is back in effect?
No. Bill 124 was struck down in November 2022 when the Ontario Superior Court of Justice, which ruled that Premier Ford’s wage restraint law unduly infringed on workers’ rights. That remains the case.
Bill 124 was in the news this week. What happened?
Just this week, Arbitrator Kaplan saw the unjust effect Bill 124 had on CUPE and SEIU hospital workers and reopened their Bill 124 collective agreement to award strong wage gains using a re-opener clause. Unifor has bargained many of these re-opener clauses into our own collective agreements. We have been, and will continue to demand the same gains in our own bargaining units.
What’s next?
Just like during the last hearings, Unifor will send out daily summaries to keep you informed and engaged in this process.
Day One: June 20, 2023
Members,
On the first day of the appeal, government made its case before the Ontario Court of Appeal.
Here’s what was argued:
Government argued that Bill 124 did not violate the Charter-protected freedom of association, arguing that Bill 124 was necessary to protect the sustainability of public services in Ontario.
Ontario argued Bill 124 did not interfere with a meaningful process of collective bargaining, because it was time limited and applied broadly across the broader public sector without focusing on any group or sub-sector. Ontario also argued that Bill 124 did not interfere with the right to strike.
They said that even if it did violate the freedom of association under section 2(d) of the Charter, Ontario argued that Bill 124 was a justifiable infringement of unionized workers’ rights.
Government lawyers argued it would have been “more draconian” to apply a wage freeze or to roll back already opened collective agreements than to apply the 1% wage cap in Bill 124. They argued that the province faced serious economic and social circumstances and wanted to avoid job cuts, and that the benefits of Bill 124 outweighed the negative consequences.
Workers know that Bill 124 was bad enough as-is. The law was extremely limiting on collective bargaining and the lasting effects continue to leave a devastating impact on the broader public service and the province’s already underpaid healthcare workers.
Ontario will finish its case Wednesday morning, and then the Ontario Federation of Labour and some of the other unions participating in the challenge will take the podium for the rest of the day.
Unifor is still scheduled to present on Thursday morning.
Day Two: June 21, 2023
Members,
On the second day of the Bill 124 appeal, government finished its submissions.
Government argued that even if Bill 124 did infringe the freedom of association in a way that was not justified, the Superior Court should have struck down only the specific offending provisions, not the whole law.
Then the rest of the day belonged to labour.
The Ontario Federation of Labour (OFL) kicked things off for the union side.
The OFL argued that Bill 124 had an enormous impact on the freedom to bargain, as it restricted wages to well below what was being bargained freely (even before inflation rates ran rampant in 2020). Bill 124 further restricted what could be awarded by interest arbitrators, and meant that bargaining units were unable to trade wages for other terms important to them.
The OFL also pointed out that Bill 124 had a disproportionate effect on lower wage workers in the social services sector.
After the Elementary Teachers Federation of Ontario (ETFO), the Ontario Secondary Schools Teachers Federation (OSSTF) took the podium to argue that the right to strike was a “powerhouse” essential to the freedom of association, and that Bill 124 interfered with that powerhouse in an unconstitutional way.
Next the Ontario Nurses Association (ONA) took their turn. ONA pointed to the evidence that the vast majority of workers impacted by Bill 124 were women, and particularly racialized women working in highly female dominated sectors such as health, education, and social services. They pointed out that wages are already lower in these sectors as a result of systemic historical discrimination.
The Ontario Public Service Employees Union (OPSEU) started its argument at the end of the day.
Still to Come:
On Thursday June 22, OPSEU will have 15 minutes to finish its submissions and then Unifor will have 35 minutes to make our argument. After Unifor, the remaining unions will make their submissions.
On Friday, the Court will hear from the two remaining interveners, LEAF (the Women’s Legal Education and Action Fund) and the Canadian Civil Liberties Association, and Ontario will have the right to reply to some of what was said by the unions and interveners.
After that, we will have to wait for the Court of Appeal to make its decision.
Premier Ford and his Government have done too much damage to our public services and health care already, and we’ll fight this appeal every step of the way.
In solidarity,
Naureen Rizvi
Unifor Ontario Regional Director
