Freedom is not a right or left idea, it is a cornerstone of a democratic society

November 10, 2022 by Rafael Gomez

Free, independent collective bargaining was put to the test this week in Ontario. At the tail end of a bargaining dispute between education support workers and the Government of Ontario, one party (the employer) decided to "escape" from bargaining and impose a deal on the other side (the CUPE workers). The government also prevented CUPE workers from striking - with penalties of up to $4,000 per striking worker for each day on the picket line.

As bad as that sounds, there is at least precedent for governments imposing deals on their public sector workers and also deeming their work essential and thereby preventing them from legally striking. The unions, in turn, have the right to challenge such measures - first in front of labour boards and eventually, in some cases, all the way to the Supreme Court of Canada (SCC). This has been done many times and recent cases have gone the union’s way – i.e., the SCC ruling that both collective bargaining and striking have charter protection under freedom of assembly and freedom of association provisions. 

What made this situation far worse was that the government preemptively declared that it would invoke the "notwithstanding clause" - in effect preventing any legal challenge based on protected Charter Rights and Freedoms and also perhaps permanently revoking free and independent collective bargaining from occurring in the education sector.

As of the writing of this opinion piece, the government of Ontario has since rescinded the notorious bill, CUPE workers have agreed not to strike, and both parties are back at the negotiating table.

These events, however, go beyond the education sector and public sector bargaining. They call into question the basis of our rights and freedoms (both as individuals and as part of groups in society). We need “a rule of law”, not “a rule by law” or “rule by decree”. The two concepts cannot more different.

In the former - rule “of” law - governments or anyone in authority such as a court or even a private employer -- has to abide by past precedents that are both legal in nature (derived from statute or common law principles) and moral. They do this, even though they have the power to impose their will on weaker parties (i.e., a government that is also an employer stamping out peaceful picketing or a public protest). The government, or any powerful actor, should not be able to simply use the "might makes right" rule whenever it wants to or feels threatened by a weaker party. This is the system one hopes we still have in Canada and in many other liberal democracies.

In the latter - the rule "by" law - laws are followed and enforced, but the laws are often arbitrary and contradict earlier edicts. It is all a shell game for the powerful - government or a private actor - to impose their will on another (often weaker) party. There are no minority rights protections that prevent a majority from abusing a minority. And there is certainly no room for free, independent collective bargaining.

The key to "rule of law systems" - like ours - is that they constrain all the actors to a set of rules that both the powerful and the weak have to abide by. The accumulation of precedents informs actors about “no-go areas” and decisions that if taken, will either be soon revoked, or, likewise upheld.

Our system of free, independent collective bargaining, built on tradition and precedents, is a rule of law system. It has developed great solutions to the thorniest of labour market problems (e.g. mediation before a strike if two parties can't come to an agreement; arbitration after a strike or lockout, if again the two parties can't come to a negotiated settlement).

These systems were developed at the end of a tumultuous early 20th century history - in which two world wars and a great depression thrown in between, tested and strained society and the industrial relations landscape.

 In both world wars, a war measures act was enacted that prevented free collective bargaining. Striking and public protests were also banned. In both wars, Canadians of foreign decent were declared enemy aliens and interred in concentration camps. It’s no accident that the Winnipeg General strike occurred in late 1918, at the tail end of WW1 and what had been a real frustrating time for labour.

Coming out of that experience, we created a system that allowed for the tension that arises out of the employment relationship, to be channeled in more productive ways. Through the ability for workers to join or form their own independent unions and by making a strike illegal during the term of a collective agreement, the economic system enshrined collective bargaining and achieved a modicum of labour peace. But this stability was also achieved by employers, who recognized that management by "control" had reached its limits and a new management by "commitment" was required.

So it is good that education workers and the employer are negotiating again in Ontario. It is also good that students are not losing yet more time from in person school. 

And it is also important that we all recognize that the ability for citizens (be they union workers or other groups) to let those in power know when they have gone too far, is a fundamental right that should not be lightly trampled upon. We should all  be free to pick and choose our social and political causes - we don't all have to support the same cause - but we should all stand up when that ability to protest is taken away - even from those with whom we might disagree.