Speaking at an Ontario Labor Relations Board hearing that will determine the legality of the walkout of 55,000 members of the Canadian Union of Public Employees, Ferina Merji urged the board’s president to act. “Ensuring that an illegal strike is not permitted to continue is a very important industrial relations purpose and if you did not exercise your discretion to do so, it would significantly undermine the very clear prohibition of strike activity which is a key feature of the Labor Relations Act,” Merji said. He said the government’s conduct at the bargaining table is irrelevant to an illegal strike request, and is instead the subject of an unfair labor practice complaint. “Instead of what is supposed to be a quick and limited factual inquiry into the work stoppage, there would be a broad inquiry into the history of the employment relationship between the applicant and the respondent,” Merji said. Thousands of education workers, including teaching assistants, custodians and librarians, walked off the job on Friday to protest the government’s passage of legislation banning strikes and imposing a four-year contract. Merji said such a strike is illegal because the Labor Relations Act prohibits work stoppages during contracts. Merji also alleged that CUPE leadership knowingly advised teachers to join an illegal strike. He played video of CUPE-Ontario President Fred Hahn saying the union will provide the same benefits to workers it does in any strike. Merji also shared a video of Laura Walton, president of the CUPE Ontario School Board of Unions, comparing the walkout to one planned in 2019. CUPE maintains that the industrial action is a political protest and not a strike. It argued in its board filings that the goal of its members’ action is “to express opposition through political protest to (the province’s) decision to trample on workers’ constitutionally protected right to collective bargaining and the right to strike.” Thousands of education workers, including teaching assistants, custodians and librarians, walked off the job on Friday to protest the government’s passage of legislation banning strikes and imposing a four-year contract. “Regardless of what label one puts on the activity, Mr. President, it is a work stoppage. And a work stoppage, by any other name, still amounts to a work stoppage and therefore a strike, period,” Merji told the hearing. The job action has closed several schools and the union said the strike could continue indefinitely. “I accept that Bill 28 is written. But it’s not a voluntarily negotiated agreement,” said CUPE lawyer Stephen Barrett, who called the legislation “Orwellian”. “It is considered to be a collective agreement under Section 5 … but to call this a mid-contractual withdrawal of services, as if it were a freely negotiable collective agreement, is a fundamental absurdity.” Barrett told O’Byrne that if he deems the strike legal, the job action could continue until the government repeals the new legislation or until the union and government negotiate an end to it. “But that’s not what you’re interested in,” Barrett said to the chair. “The works council’s job is to oversee the collective bargaining system and in doing so implement Charter values and Charter rights. There are many ways the government could have prevented students from going to school … they certainly didn’t have to provoke the reason we’re here now, in terms of bringing in this unprecedented, appalling legislation.” CUPE had originally called for both Education Minister Stephen Lecce and Andrew Davis, the assistant deputy minister, to be called to testify before the council. Board President Brian O’Byrne ruled that Lecce is exempt from testifying because of parliamentary privilege, but said Davis could be called to testify. But after hours of delays, a CUPE lawyer said he would not ask Davis to provide evidence because documents he also wanted the union to submit as evidence could not be made available. The government’s new law has set fines for breaking the ban on strikes of up to $4,000 per worker per day – which could rise to $220 million for all 55,000 workers – and up to $500,000 per day for the union. CUPE said it would fight the fines, but pay them if necessary. The British Columbia Federation of Teachers’ representative assembly voted to send $1 million to CUPE Ontario to help pay fines, the union said in a post on its Twitter account. The donation comes a day after Unifor pledged to send $100,000 as a show of support for CUPE. The Progressive Conservative government has included the non-applicability clause in its education worker legislation, saying it plans to use it to protect itself from constitutional challenges. This report by The Canadian Press was first published on November 5, 2022.
