Legislation ending college faculty strike unconstitutional, says union president

The strike may be over, but the battle is not.

The Ontario Public Service Employees Union (OPSEU) is challenging the Ontario government’s back-to-work legislation in court. Bill 178, the Colleges of Applied Arts and Technology Labour Dispute Resolution Act, 2017, which was passed on Nov. 19, put an end to the five-week strike by the province’s college faculty. 

OPSEU is making a similar argument as the Canadian Union of Postal Workers successfully used against the federal government when the union challenged back-to-work legislation enacted on 2011. The Ontario Superior Court found that the legislation was unconstitutional as it violated the postal workers’ freedom of association and expression, which is guaranteed under the Canadian Charter of Rights and Freedoms 

“The right to join a union, the right to associate with a union assures you a right to strike,” said OPSEU President Warren (Smokey) Thomas. “It’s all been protected in the Charter Of Rights, so there‘s been cases that’s protected.”

The government brought the back-to-work legislation forward the same day it was announced that 86 per cent of college faculty had rejected the colleges’ last contract offer. Ontario Premier Kathleen Wynne then gave the two sides three hours to settle the dispute, which ultimately failed. 

Thomas has claimed that final negotiating window was actually a mechanism to provide “legal cover” for the legislation. 

“That’s our opinion. Again, we’ll have to convince a judge somewhere,” he said.

A spokesperson from the ministry of advanced education and skills development said that the ministry could not comment as the matter is going before the courts. 

While the challenge is being prepared, questions remain what a legal victory for the union will mean. McMaster University school of labour studies professor Wayne Lewchuk acknowledged that the case could have an impact.

“It really depends what the decision is. If the courts rule that OPSEU’s right to meaningful collective bargaining has been denied then they need to go back to the bargaining table.”

Of significant interest to students is any possibility of another work stoppage. Thomas said there should be no worry on that front.

“(Faculty) are back to work. They’ll go through the arbitration process. This won’t interfere in any of that,” he said. “I don’t know how long this will take but it will take a lot longer than the school year, let’s put it that way.”

When it was passed on Nov. 19, Bill 178 gave OPSEU and the colleges 90 days to settle the current contract dispute at arbitration.