Update – November 3, 2022
Bill 28 went up for both its second and third reading votes, passed with the PCs voting in favour and everyone else voting against, and was granted Royal Assent.
Update – November 2, 2022
Michael Parsa proposed a Motion that, when Bill 28 next comes up it go directly to its second reading vote. The Motion would also see Bill 28 skip the committee phase, go to its third reading debate, then immediately go to its final vote.
Oh boy here’s a fun one. Bill 28 is using the Notwithstanding Clause to override CUPE’s constitutional right to collective bargaining to legislate a new collective agreement for them. There’s also measures in here to ensure no legal action can be taken against the government for passing this, no compensation needs to be handed out to anyone affected by it, and that any strikes must immediately end when Bill 28 takes effect. Note that the last bit of this Bill is the new collective agreement, which is a bit outside the scope of what I’m aiming to cover so I’ll be skipping that part. (I’m sure we’re going to hear plenty about what’s in the new agreement shortly anyway)
So first up I apologize if I’m a little harsh on this Bill. I’m extremely against the Notwithstanding Clause and any Bill that uses it should be fought on the basis that it’s an attempt to suppress our Charter Rights. If the Bill is good legislation it can go through the normal channels and be passed that way. Arguments can be made in court whether or not it goes against the Charter and the people in charge of interpreting the Charter can make the decisions. Nobody should have the ability to simply skip all the checks and balances put in place to protect us.
Anyway, on with the summary.
Definitions
Just to make it clear, the definitions for this Bill clearly state that CUPE is the group it’s targeting. It uses terms like “bargaining agent” and “employee bargaining agency” but the definitions for those are specifically CUPE. I just want to point this out as I’ll be referring to CUPE in this summary, and want to make it clear that it isn’t me trying to summarize the Bill based on its effect on the current situation. Bill 28 is all about CUPE.
School board as employer
Nothing here changes the status of the school board as the employer and does create an employment relationship between the Crown and school board employees.
Application of School Boards Collective Bargaining Act
The School Boards Collective Bargaining Act continues to apply, except for the changes made in this Bill. Also in the event of a conflict between this Bill, the School Boards Collective Bargaining Act, the Labour Relations Act, or the Education Act, this Bill overrules whatever the other Act says. Nothing trumps Bill 28, it takes priority over everything.
New collective agreements
Once this Bill passes CUPE is considered to be under a new collective agreement. This agreement counts as a collective agreement under the School Boards Collective Bargaining Act and the Labour Relations Act.
No further changes to compensation terms
No decision, order, award, or other determination made by any court, tribunal, or arbitrator under the Canadian Charter of Rights and Freedoms or otherwise that affected CUPE respecting compensation between September 1, 2019 to August 31, 2022 shall change the amounts payable as compensation under the new agreement.
This bit’s a little confusing to me but if I’m reading it right then this is ending any compensation rulings that were previously made benefiting members of CUPE. The compensation listed in the new contract is what they’re getting, and no previous decisions are affecting that.
Nullification of local terms, Local terms modified by new central terms
So these bits are a little confusing to me as I can’t seem to find anything that clearly defines “local term” and “central term”. I’m just going to assume that “local term” is something that affects a particular group within CUPE (let’s say the Toronto branch) while “central term” refers to CUPE as a whole.
So first up any local rules that limit the ability of school boards to implement a program to support employee attendance is null and void.
Second, any changes to a local term, or nullification or substitution of a local term, that is needed under the new central terms is deemed to have been made.
Strikes and Lock-outs
Lots of fun here. To start this applies if any strike or lock-out is in effect immediately before Bill 28 receives Royal Assent.
Every school board will be required to use all reasonable efforts to resume operations interrupted during any strike or lock-out caused by CUPE.
All school boards and CUPE will be required to end any lock-outs and strikes that might be in effect. Every member of CUPE will also be required to immediately end their participation in any strikes and return to work.
No member of CUPE will be allowed to call for, authorize, or threaten to call for a strike or lock-out during the term of the new contract. Nor shall any officer, official, or agent of CUPE counsel, procure, support, authorize, threaten, or encourage a strike or lock-out by members of CUPE.
Any person involved in these strikes or lock-outs can be fined $4,000/day, while any organization involved can be fined up to $500,000/day. These fines override the fines in the Labour Relations Act. (In the LRA individual fines are $2,000/day and organization fines are $25,000/day)
Any strike or lock-out will be declared illegal for the purposes of the Labour Relations Act. The School Boards Collective Bargaining Act requires the Minister to seek approval from a school board before making a complaint about an illegal strike under the LRA, Bill 28 removes this requirement in the case of CUPE. The Minister will be allowed to simply declare that there’s an illegal strike.
Rights of Labour Act
Nothing in the Rights of Labour Act prevents enforcement of Bill 28 against anyone.
Human Rights Code
With the use of the Notwithstanding Clause, this Bill applies despite the Human Rights Code.
Legal Restrictions
The Ontario Labour Relations Board won’t make a decision on whether or not Bill 28 is constitutional, nor will they make any decisions regarding the actions of the Crown or any member associated with the Crown. (Ministers, agents, etc)
Arbitrators are under this same restriction.
No legal action can be taken against the Crown as a result of the enactment, amendment, or repeal of any part of this Bill.
No proceeding in “contract, restitution, unjust enrichment, tort, misfeasance, bad faith, trust, fiduciary obligation, or otherwise” that is based on anything in this Bill may be brought against the Crown and any former or current members of it.
Any proceedings that begin before Bill 28 comes into force are to be dismissed.
Nothing in Bill 28 counts as an unfair labour practice under the Labour Relations Act or the School Boards Collective Bargaining Act, and no applications can be filed with the Ontario Labour Relations Board declaring otherwise.
Nobody is entitled to any compensation for losses or damages of any type caused by Bill 28.
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