Sunday, 16 September 2012

What's Really Being Put First?

This week saw two important and rather divergent developments in North American labour law. In Ontario the Putting Students First Act, 2012 S.O. 2012, c. 11 was brought into law and a Wisconsin judge struck down as unconstitutional a similar law passed by that State’s legislature. (For a report on the Wisconsin case, see here.)

Even without the Wisconsin case, questions about the constitutionality of the Putting Students First Act, previously Bill 115, were being asked. And, it should be noted, not only was the Wisconsin decision decided under American law, it was also only a trial level decision, meaning that there are still many levels, and years, of appeals to be had.

Returning then to this side of the border, do I feel that the PSFA is constitutional?

I have found myself answering this question in two ways: I don’t know, and I don’t care. 

The reason that I don’t know is because Canadian courts have been taking a rather interesting, process-based approach to collective bargaining as of late, with the result that, on that interpretation the law may not infringe the right to association guaranteed by the Canadian Charter of Rights and Freedoms

The reason I don’t care is because I find it ridiculous that instead of investing money in the education system, an act that would put students first and “restrain measures in the education system” (the actual name of the law), the provincial government is content to spend it on constitutional challenges. One has to wonder how much money will be spent fighting the constitutionality of the law; my estimate would be in hundreds of thousands if not more.

What the PSFA Does

In order to determine if the PSFA passes constitutional muster one must first consider what it is that the law actually does. Much has been written about the law, but the best source for the what the law does is the law itself.

As is set out in the Explanatory Note to the PSFA, the act is designed to establish a two-year “restraint period during which the requirements and processes set out in the Act apply to boards, employees of boards, employee bargaining agents and collective agreements in the education sector.” Although the “restraint” contemplated by the government was ostensibly fiscal, as one can see what is actually being “restrained” is the ability of school boards and teacher bargaining units to collectively bargain collective employment agreements.

On this point, the Explanatory Note continues by explaining that:

The Act sets out requirements for terms that must be included in employment contracts and collective agreements that apply during the restraint period. Some terms that must be included in employment contracts are terms providing that compensation must not be increased during the restraint period and terms eliminating the accumulation of sick leave credits after August31, 2012. Collective agreements must include terms that reflect either the Memorandum of Understanding entered into between the Ministry of Education and the Ontario English Catholic Teachers’ Association, or the Memorandum of Understanding, if any, entered into by the employee bargaining agent negotiating for the collective agreement.

The PSFA also requires that all proposed collective agreements be presented to the Ontario Ministry of Education. The Minister then has the power to make orders, including that various terms and conditions be included within the collective agreements negotiated between the school boards and the local bargaining units.

The Constitutionality of the PSFA

By no means am I the first to comment on the potential constitutionality of this law. So far the best analysis of the law that I have seen comes from Professor David Doorey of York University. In his post Can a government legislatively freeze its employees’ wages? Professor Doorey attempts to answer, from a legal perspective, whether the Ontario government’s actions will be upheld by the court.

Professor Doorey, if I read him correctly, postulates that the PSFA may be found to be constitutional if the court adopts the reasoning set out in the 2012 Court of Appeal for Ontario decision in Association of Justice Counsel v. Canada (Attorney General), 2012 ONCA 530 (CanLII). In that case the court held that the right constitutionally protected only protects only a process of collective bargaining; not any particular outcome and not a right to strike.

On this point, Justice Robert Sharpe, writing for the Court, held that:

[39] Although the ERA [Expenditure Restraint Act, S.C. 2009, c.2, s. 393] had the effect of taking wages off the table for the arbitration, that does not, standing alone, amount to an infringement of s. 2(d).
[41] ... Further negotiation may be possible after the constitutionally protected phase of the process of bargaining has concluded but that possibility, a remote one on the facts of this case, does not expand the scope of the protected right. Fraser makes clear that s. 2(d) has limits: it does not guarantee any dispute resolution process after the parties have reached an impasse and it does not guarantee any particular outcome. In my view, the validity of the ERA must be assessed on the basis of whether, at the time it was enacted, the parties had had the opportunity for a meaningful process of collective bargaining. If they had, s. 2(d) is satisfied. The faint hope of further negotiations in the shadow of a dispute resolution mechanism not protected by s. 2(d) cannot expand or extend the reach of s. 2(d) beyond its core guarantee. [Emphasis added.]
[42] I conclude, accordingly, that the AJC has failed to demonstrate that the ERA infringed the rights of its members to engage in a meaningful process of collective bargaining and that the claim under s. 2(d) must fail.

As Profesor Doorey argues,

This decision appears to provide a road-map for governments on how to impose wage freezes or wage fixing legislation, or any other collective agreement term, without running afoul of the Charter, does it not?
It seems to find that, as long as a government employer sits and listens to public sector unions’ bargaining proposals, nodding along and offering the odd comment here and there, it can then eventually walk away from the table and legislate whatever contract terms it wants.

I cannot help but be inclined to agree with Profesor Doorey's, somewhat cynical, conclusion.

Where Does This Analysis Leave Us?

Where does this analysis leave us? Confused is the short answer. The unanswered question at this time is what is the scope of the right protected by section 2(d) of the Charter? Does the right confer a right to bargain indefinitely and the right to ensure that all issues can be placed before an arbitrator, if such a step is necessary? Or, as the Court of Appeal for Ontario held, does the right only confer the right to try?

My impression is that the PFSA will be found constitutional for two reasons. (1) The PFSA does not preclude or prohibit the process of collective bargaining, even if it is illusory; and (2) the ostensible two-year time limit [although that remains to be seen] would appear, in my opinion, to bring the law within the "reasonable limits" by which the government can infringe on constitutional rights.



As I stated at the outset of this post, a good part of me does not care if the law is constitutional or not. I do care, but my interest is mostly academic and driven by professional interest.

My preference, however, would have been for the law not to have been passed at all. I fail to see why collective agreements could not have been negotiated without these restrictions being forced upon the parties. What if a School Board was, somehow, awash in cash? Why is that Board precluded from giving its employees a wage increase? What if a Board found other efficiencies or budget restraints? I simply do not get it.

Is the law constitutional? I don’t yet know and I wish I didn’t have to find out.

Sean Bawden


  1. "the validity of the ERA must be assessed on the basis of whether, at the time it was enacted, the parties had had the opportunity for a meaningful process of collective bargaining. If they had, s. 2(d) is satisfied."

    But in this case, the parties - school boards and bargaining units - had little opportunity to bargain, specifically due to interference by the Minister of Education. She wrote PPMs to the school boards directing them NOT to negotiate.

    1. If same could be proven in evidence, then that would certainly beg the question of the bone fides of the "negotiations."

    2. You are also correct. On the facts of Ass'n of Justice Counsel there had been some sixteen rounds of negotiations over several years. Not quite the same as what happened here.

      My understanding is that Ass'n is going to the Supreme Court in any event, such that it is yet to be seen what truly happens.