Collective bargaining is the negotiation process between a union and an employer to reach a collective agreement. Going on strike can be a way to increase pressure on the employer, giving the union leverage in the negotiations. 

This article looks at the circumstances in which unionized employees may strike in Ontario. We also look at the unusual current events taking place in the negotiations between the Ontario Government and the Canadian Union of Public Employees (“CUPE”) over the terms of employment for education workers. 

Labour Relations Act imposes a range of conditions on work stoppages

Unions and employers regulated under the Labour Relations Act (the “LRA”) must comply with several conditions before engaging in a work stoppage. However, when a collective agreement is in operation, employees cannot strike and employers cannot lock out employees. 

Procedural requirements when a collective agreement is being negotiated

Where there is no agreement in place, employees can strike, provided the procedural requirements are satisfied. First, the union must meet with a conciliation officer appointed by the Ministry of Labour, Training and Skills Development. 

The Minister might appoint a board of conciliation. If it does, the union must wait to receive the conciliation board’s report. If not, it is provided with a no-board notice.

Employees may strike after a specified number of days after the notice or report is issued. However, for most industries (excluding construction), the union needs to hold a strike vote where voting occurs in secret. The majority of those voting must be in favour of the strike.

Some sectors are subject to different rules

Some employees and employers in essential service sectors cannot engage in a strike or lock-out. Instead, they must resolve disputes by way of the interest arbitration process. This applies to ambulance workers, hospital employees and police services employees, amongst others. 

What is currently happening in relation to Ontario education workers?

Education workers have recently been on strike in Ontario. Let’s take a look at the events that led to this. Please note that the situation is rapidly evolving and the information below was up-to-date at the time of writing. 

Union sought an 11.7% annual raise for education workers 

In collective agreement negotiations, the CUPE initially sought an 11.7% annual raise for 55,000 education workers, in response to a period of low wage increases. An agreement between the union and employer could not be reached. 

CUPE held a strike vote. Over 80% of its education worker members voted and over 96% voted in favour of going on strike. Subsequently, CUPE provided notice of a strike to commence on November 4, 2022.

Ontario Government proceeded with a bill to respond to the strike threat

The Government responded by introducing Bill 28. The Keeping Students in Class Act (the “Act”) became law on November 3, 2022. It explains its rationale as:

“The negative impact of the COVID-19 pandemic on student learning and their mental health and well-being requires all education partners to work together to provide stability and to ensure that after two years of pandemic disruptions and learning loss there are no further interruptions to learning… CUPE has taken steps to initiate strike action in early November 2022, two months into the school year. Such action would destabilize the school experience for Ontario’s students and threaten their learning recovery.”

The Act removed the legal ability to strike

The Act requires the union and employees to terminate any strike that was in effect prior to it becoming law. It also prohibits employees from striking and the union from calling or authorizing a strike. Failure to comply constitutes an offence under the Act, with a maximum fine of $4,000 per day for an individual and $500,000 per day for the union. 

The Government has attempted to safeguard the provisions from legal challenges. For example, the Act states that it is declared to operate notwithstanding the Canadian Charter of Rights and Freedoms (the “Charter”). This is important as the right to strike is protected under the right to freedom of association in section 2(d) of the Charter. Section 33 of the Charter allows provincial legislatures to expressly declare that a statute shall operate notwithstanding certain Charter rights.  

The Act also imposed a new collective agreement

In addition, the Act imposes a new collective agreement between CUPE members and school boards. It commences on November 3, 2022 and expires on August 31, 2026. At a basic level, the new agreement includes:

  • new central terms set out in a Schedule to the Act;
  • the local terms set out in the prior collective agreement (with certain exceptions); and
  • the terms and conditions that are deemed to be included by virtue of the LRA and School Boards Collective Bargaining Act.

The union proceeded with a strike and the Government offered to repeal the Act

Passing Bill 28 ended the hostilities between CUPE and the Government. Employees proceeded with the strike, which resulted in some schools closing across the province. The Government commenced proceedings at the Ontario Labour Relations Board (the “OLRB”), seeking a determination that the strike was illegal. 

Before the OLRB could hand down a decision, the Government offered to repeal the Act if education workers returned to schools. CUPE agreed and schools subsequently reopened. Collective agreement negotiations between the Government and CUPE will resume. 

The battle rages on.

Contact Grosman Gale Fletcher Hopkins LLP in Toronto for Advice on Collective Bargaining and Ontario Labour Relations Board Proceedings

Grosman Gale Fletcher Hopkins LLP has been advising employers on labour relations issues for over 35 years. Our lawyers can help you to resolve workplace issues or disputes, including those relating to collective bargaining. We also regularly represent our clients in all matters arising before the OLRB, including illegal strikes and lock-outs. Our knowledgeable labour lawyers assist employers in moving forward expediently. Contact us online or call us at 416.364.9599 to schedule a consultation.