Howard Levitt: Why Doug Ford's attempt to block the education workers' strike is a smart political play

Ontario’s Ford government this week launched a torpedo into the main artery of the union movement, passing legislation to remove education workers’ right to strike immediately before they were about to walk off the job.

Politically speaking, it was a brilliant strategic move.

To understand why, you have to appreciate the difference between private and public sector strikes.

In the private sector, market discipline prevails. A union bargains for as much as it can get, subject to not asking the employer for such high wages that it becomes uncompetitive, goes out of business and its workers lose their jobs. Similarly, an employer bargains to pay as little as possible, subject to not negotiating such low wages that it is unable to attract and retain its workforce, particularly important when there is a labour shortage, as there is today.

I have bargained collective agreements for employers, where the employees voted to strike, and the union refused to support it since they realized that the company had offered what it could and a strike would be ruinous for both it and its members.

Public sector strikes are entirely different.

Unlike in the private sector, governments have deep pockets (those of taxpayers) and are not subject to market discipline. That is why public sector workers earn dramatically more, on average, than their private sector comparators, not only in wages but in benefits, job security and vacation time.

Let’s take the education workers’ situation. It is not their employer, the government and school boards, which would be damaged by their striking, but parents, who have to stay home to look after their children, and employers in the wider economy who would lose their workers accordingly. Most of those parents would be forced to use up limited vacation time or stay home unpaid. Human rights law requires employers to accommodate parents staying home from work to look after their children, although they are not required to pay them.

But the actual victims of an education workers’ strike — parents and employers — are not at the bargaining table, creating a fundamental disequilibrium.

From the Ford government’s perspective, using the notwithstanding clause of the Charter to deem a strike illegal and impose new terms of employment helps gain the favour of parents and employers, while antagonizing the union movement, which was not its natural base in any event.

Needless to say, there are far more parents than there are education workers or even union members. So, it is a brilliant move politically and prevents large portions of the population from having to stay home from work, just as the economy is already imperilled.

The left is saying that this use of the notwithstanding clause is the thin edge of the wedge and that the government will use it increasingly to remove union and other rights or in a myriad of other ways.

This argument is fundamentally flawed. This instance is only the second time Ontario has ever invoked the notwithstanding clause and the idea of union rights is sufficiently firmly entrenched in our polity and civil society that even employers would react adversely to a wholesale deprivation of those rights in other contexts. Education workers are a group, many would agree, that because of the ruinous impact of its strike on society as a whole, should not have the right to strike and should be declared an essential service.

• Howard Levitt: The stigma around ‘going after the victim’ is fading in harassment cases

• Howard Levitt: Sometimes doing the right thing is the wrong thing for employers

• Howard Levitt: Why it’s better to be fired in Ontario than in B.C.

• Howard Levitt: Harassment allegations turning into weapon of office politics

That would not be a hardship. The fact is that arbitrators, who decide what increases unions will achieve if the parties cannot come to an agreement, have historically awarded larger wage increases than employees obtain who have the right to strike. In other words, essential service workers who cannot strike have been financially better off, not worse off, as result of their alternate process.

There is much talk of legal challenges to this legislation. That is bunk. In patriating the constitution, the Charter had a notwithstanding clause allowing any government to override the Charter on the basis that elected representatives, not unelected judiciary, should ultimately be paramount. That cannot be challenged legally.

The union nevertheless walked out Friday and the province appealed to the labour board to declare the strike illegal. The government, after all, cannot countenance illegality, let alone on a wholesale organized basis. It has threatened fines of up to $4,000 per worker. Although that is unrealistic, serious sanctions against those union leaders advocating an illegal walkout (which is what an illegal strike is) would be in order and minor but increasing fines against those who illegally strike would be the only way for the government, short of capitulating, to show that it is serious. And most parents would applaud it.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.