Starting Friday, November 4, 2022, members of the Canadian Union of Public Employees (CUPE) will be on strike until further notice, unless a deal with the Ontario government is reached. In anticipation of the strike, school boards across the province, including the Toronto District School Board, York Region District School Board and Peel District School Board, have announced that their schools will be closed for in-person learning.
Approximately 55,000 education workers—including librarians, administrative staff, custodians, early childhood educators and educational assistants—are expected to go on strike. CUPE has refused the Ontario government’s final offer at the bargaining table to increase wages by 2.5% each year for education workers earning less than $43,000, and 1.5% for workers earning more. Among other things, CUPE has demanded wage increases of 11.7% per year, paid preparation time, professional development, and increased benefits and overtime pay.
Earlier this week, in anticipation of the strike, the provincial government introduced the Keeping Students in Class Act, 2022 (Bill 28). Bill 28 is currently in the second reading stage of the legislative process, where it is being debated in principle. The process has been expedited in this instance so as to ensure the Bill is passed quickly, ahead of the strike.
Bill 28, if passed, will bring an end to the negotiations between CUPE and the Ontario government by unilaterally implementing new collective agreement with a term of nearly four (4) years. The legislation would also terminate any ongoing strike and prohibit further strikes and lockouts. Further, the proposed Act includes a provision that exempts it from the application of Ontario’s Human Rights Code (“Code”), and the Act would operate notwithstanding sections 2, 7 and 15 of the Canadian Charter of Rights and Freedoms.
If Bill 28 is passed, CUPE and its members will face significant fines in the event of a walk-out. Workers may be fined up to $4,000 per day, and CUPE may be fined up to $500,000 per day.
Despite the expected passage of Bill 28, CUPE has stated that it will proceed with its plan to strike on Friday and pay any fines that are imposed on workers as a result.
These developments may impact Ontario employers in a number of ways. Important considerations include:
- Family Status Accommodation. Under the Code, employers have a duty to accommodate their employees’ family status related needs (e.g., where their childcare obligations and job duties conflict) to the point of “undue hardship”. As a result of school closures, some employees may request a leave of absence or work-from-home arrangement in order to take care of their children. Employers should treat such requests as potential family status accommodation requests. In order to assess such requests, employers should obtain reasonable information demonstrating the employee’s entitlement to accommodation, including evidence of other supports available to the employee to meet their childcare obligations.
- Contractual and Legislative Requirements. Employers who may be directly affected by school closures, such as childcare centres based in schools, should consider how their operations will be affected. If such employers do not require their employees to come in to work while schools remain closed, they should review and consider their rights and obligations related to layoffs, shift changes and related matters under their employment agreements, collective bargaining agreement (if applicable), and the Employment Standards Act, 2000.
We will continue to monitor and report on these developments in the coming days and weeks. If you have any questions about how this may impact your organization, please contact us.