On November 7th, CUPE (Canadian Union of Public Employees) spokespeople stood alongside education workers and union leaders from across the province of Ontario to announce a victory over a sweeping legal assault on their right to strike by the Conservative government of Premier Doug Ford. Not a week prior, a fraught contract negotiation had ground to a halt as the provincial government enacted an onerous piece of anti-strike legislation, imposing a four-year concessionary contract and threatening to strip the labour and human rights of workers across the province. This was quick work by a unified labour movement; and having affirmed and defended the constitutional right to strike, CUPE announced that they would collapse their protest sites as the Ontario government returned to the table.
It should have been a cause for celebration—qualified, even circumspect, but politically crystalline in a moment of victory. Instead, no sooner than a unified labour movement had forced the government to repeal its attack, a chorus of naysayers appeared out of the woodwork across left media to disparage the perceived weakness and conciliatory stance of CUPE before the state. Ford’s moment of defeat became a contest on the academic left in the days to follow, as a variety of onlookers ripped into CUPE leadership for its unwillingness to follow through on the portent of a general strike. Most of these commentators are considerably less invested than the masses of education workers represented by CUPE, and their zeal for the utmost actions and conclusions of a given moment tells as much.
Little more than a week later, education workers in Ontario gave strike notice once again, stating that the province has “refused to invest in the services that students need and parents expect, precipitating this escalation.”[1] At the time of writing, CUPE has reached a tentative deal with the government, to be voted on later this week, averting further walkouts.[2] There are multiple points of consideration here, and the membership may yet vote to reject a lousy deal, spurring further activity. But in order to make a sensible approach to the question of whether or not CUPE should have persisted with a strike amid the breakdown of negotiations over Ford’s Bill 28 salvo, it’s important to accurately assess the offensive of the provincial government, the historical significance of the bill, and the moment of its defeat.
In a premature postmortem of this sequence for Canadian Dimension, bemoaning the fate of a “general strike that could have been,” Martin Schoots-McAlpine bitterly asserts that “(all) we ‘won’ was a promise to repeal a single piece of legislation, and a return to the status quo.”[3] This summary glibly misconstrues the meaning of Bill 28 and, as importantly, forecloses confrontations still to come. As it stands, CUPE has defended the right to re-engage the picket with no loss of vigour or leverage, except for the morale-sapping lateral sniping of counterfactualists, proliferating fantastic scenarios in the short interim since the defeat of Ford’s initial assault. To whatever degree these commentators perceive themselves corroborated by the ongoing leveraging of strike action, their formless negativity nonetheless betrays a serious weakness on the broader left, where its self-promoted spokespeople appear more concerned with purity of tactics than with the lives or strategic input of workers.
The War Itself
As Lenin counsels, “strikes are ‘a school of war’ and not the war itself”; and where a growing portion of the socialist left responds to difficult conditions with cultivated impatience, the general strike commends itself as panacea; an epiphanic caesura in which unlikely solutions appear.[4] The strike is then mistaken for an asset rather than a tactic, an end rather than a possible means; and gradually abstracted from the balance of considerations that attend a given moment. Schoots-McAlpine, as a representative of an academic extremism that counsels strikes as it disdains labour, could stand to attend the school of circumstances rather than issue retrospective commands.
To start with a simple question, were people really arrayed for a general strike? In the 1990s, during the government of Ontario Premier Mike Harris, unions convened rotating citywide strikes throughout the province, including a near-shutdown of the city of Toronto as 250,000 workers walked off the job in protest.[5] This one-day action against Harris’s neoliberal playbook required remarkable unity across labour and grassroots movements, including a year of coordination. As Herman Rosenfeld points out in a prudent rebuttal to Schoots-McAlpine, this isn’t quick or easy work.[6] Ford has a mandate among many sectors, not to mention parents; and while it is significant that his worst reflexes have begun to erode this support, the situation is young.
There are positive signs of alignment within the present ferment, however; as Dave McKee, a participant in the Metro Days of Action points out, “when the Harris government was elected in June 1995, it was on a wave of working-class support which included an estimated 30% of trade union members. Within just six months, many of those workers (were) attending protests against Harris.”[7] Something like this is afoot today, and Bill 28’s overreach surely hastens a requisite unity. The imposing, shoulder-to-shoulder solidarity of labour against Ford’s attack might have been elaborated in this direction, but this isn’t a switch that one flips in the dark. If anything, CUPE offered a preliminary gesture towards the unification of labour against Ford at a November 7th press conference celebrating the defeat of Bill 28, when they declined to point out the unions who had previously endorsed Ford; and even this show of strength was disparaged by onlookers with a taste for division.
In our view, intra-left sniping at CUPE for resuming negotiations as well as sending people back to work misapprehends the magnitude of the win as well as the leverage and support that remains for future actions. Moreover, a characteristically ultra-left position on labour law, the mediary of Ford’s attack, contends that its rights-based framework has only formalised a class impasse to the benefit of capital, such that one needn’t defend its affordances, including the right to strike, where worker power immediately exceeds the capacity of the capitalist class to furnish permissions. This high-minded view fails to perceive lawful affordances as the product of class struggle and an area of responsibility in themselves.
As the formalisation of labour rights correlates to the frequency with which state intermediaries profess exceptional circumstances, necessitating the override of established freedoms, we should understand these legal battles as something other than a defensive posture vis-à-vis a capricious local power; rather, from a class struggle perspective, these encounters recapitulate more fundamental antagonisms. In this instance, the ruling class’s attack on the charter is not an abstract affront to the “pompous catalogue” of rights,[8] where the right to freedom of assembly omits any cause. Rather, it is the most recent development in a longstanding experiment by the political right, this time with onerous back-to-work legislation, intended to suppress wages and to hasten sweeping privatisations. This is only an instalment in a much longer fight over the contractible terms of employment.
Ford’s devaluation of socially reproductive labour, such as CUPE members perform in many guises, transpires alongside attempts to increase productivity by swelling workload and class sizes; padding responsibilities within imposed contracts; and implementing technological stopgaps, allegedly in response to COVID-19 rather than generalised austerity. This legal assault on education workers has larger implications for the working class as a whole, for much of this work is para- rather than pre-productive, where publicly funded child care supplements the wages of the family member who would otherwise be charged with unremunerated stay-at-home care. This portion of the socially aggregate wage is under direct government orders, and easier to suppress; thus the cheapening cost of public sector labour inputs offsets the expense of private employment, too. However indirectly, squeezing educators and school support staff is good for profits, and not only where private options multiply alongside falling wages.
In further pursuit of privatisation, the Ford government even offered direct transfers to parents for private education this fall, under the guise of helping students to catch up on COVID-era learning losses.[9] This modest, individualised stipend would have cost approximately $225 million, money that the government refused to spend on better contracts for education workers whom they were otherwise too happy to fight. This subsidy to private and extracurricular education was surely meant to placate families otherwise feeling the effects of austerity; but it’s only an acknowledged instance of a transfer of public wealth to private employers that is structurally ordained. The suppression of public wages in indirectly evaluative sectors is a key facet of this wealth transfer, which Ford sought to expedite last week by force. In overview of the various mechanisms and adjustments by which the Ford government seeks the summary privatisation of education, the anti-capitalist left shouldn’t hesitate to announce labour’s victory over Bill 28, with certitude and pride. Not only will this sustain us as we rally to education workers in their coming actions, it will furnish us a precedent from which to draw strength in the battles ahead.
Bill 28
The backdrop to this confrontation is worth rehearsing in order to appreciate the stakes of the argument above. On November 3rd 2022, contract negotiations between the Ontario government and the Canadian Union of Public Employees, representing 55,000 public education workers (nearly every employee in a school who is not a teacher), stalled altogether, as Minister of Education Stephen Lecce hastened to impose an insulting contract and to legislate against an imminent work stoppage.[10] In the initial stages of this negotiation, CUPE had called for an 11.3% raise for its members, barely offsetting the erosion of real wages by inflation over the decade preceding. While CUPE lowered its initial demand to a 6% increase, the Ford government met them with contempt, offering a measly 1.5-2.5% increase.[11]
As negotiations fell apart and strike action beckoned, Ford’s government introduced Bill 28, or the “Keeping Students in Class Act.” This bill not only imposed contracts unilaterally and prohibited strike action, imposing individual fines of up to $4000 a day for strikers, but was “declared to operate notwithstanding sections 2, 7 and 15 of the Canadian Charter of Rights and Freedoms (and to) apply despite the Human Rights Code.”[12]
This override of labour and human rights is based in section 33 of the Canadian Charter of Right and Freedoms. Otherwise known as the notwithstanding clause, section 33 “allows Parliament or the legislature of a province to derogate from certain sections of the Charter,” specifically concerned with fundamental freedoms, including freedom of thought and religion, freedom of the press, and freedom of assembly; legal rights, including the right of security against unreasonable search or seizure and the right not to be subjected to cruel and unusual punishment; and equality rights, including the right to protection against all manner of discrimination.[13]
This little-regarded clause originates from the legitimation crises immediately (and considerably) preceding the implementation of Canada’s Constitution Act in 1982, during which process western provinces were notably wary of federal jurisdiction over natural resource development and oilfield revenues—particularly after the introduction of the National Energy Program two years prior, which tenuously sought to nationalise Canada’s petroleum industry amid a global oil crisis. Consequently, Alberta’s Tory premier Peter Lougheed lobbied successfully for the inclusion of the notwithstanding clause in order to protect provincial rights; and eventually, profits.[14] The predominantly economic debates over provincial versus federal jurisdiction resulted in stronger accommodations than far more substantive concerns over national rights, which were omitted from the new constitution as Alberta’s business lobbies led the day—a crucial political backdrop to any understanding of the right-wing “Wexit” movement (a West-Exit, so-called in reference to Brexit) soon to be mainstreamed by Alberta’s new premier, Danielle Smith, and her rumoured Alberta Sovereignty Act.[15]
Ford’s failed experiment with the notwithstanding clause then fulfils a project that began in Alberta, where the clause was deployed unsuccessfully in 1995, to cap damages owing a plaintiff sterilized at a provincial residential school for disabled youth; and again in 2000, when the province’s homophobic Marriage Act sought to override the Charter.[16] More pertinently, Lougheed’s government had been prepared to use section 33 as early as 1983 in defence of their Bill 44, which would have prevented hospital workers from striking; but the right to strike was not constitutionally protected at this time and this preemptive threat was deemed impolitic.[17] Even so, one sees how the notwithstanding clause was designed to function on behalf of ruling class interests well before the Supreme Court of Canada’s 2015 decision protecting the right to strike under the charter.[18] In recent years, Alberta’s Conservative government has expedited the passage of controversial bills protecting “critical infrastructure,” amid compelling criticisms that these laws violate charter rights of assembly and association, as well as freedom of expression; and while these bills have not used the notwithstanding clause, the Alberta Union of Provincial Employees (AUPE), in solidarity with Indigenous land defenders and other clear targets of the bill, has couched its opposition in the very language of the charter rights that the notwithstanding clause would suspend.[19]
In the fluid days since the Ontario government’s announcement of Bill 28, right-wing policy apologists have insisted upon the provisional and interdependent nature of all charter rights in support of Ford’s overreach. In a breathtaking twist of kettle logic, commentator Grant A. Brown strongly and incorrectly asserts that there is no charter right to strike; also that the Ford government’s action was justified in its attempt on this right, insofar as the charter has become a political tool of “extortionate” public sector unions.[20] Any glance at the right-wing literature on this topic confirms what unionists and social activists have always known: the notwithstanding clause is an instrument of class warfare, pointing up the necessity of a new constitution altogether, and the Ford government’s attempt on education workers has been a long time in the making.
Consequently, the declaration of Bill 28 was met with vast mobilisation, building heretofore unlikely bridges. Having collected high-profile union endorsements from the private sector during his election campaign in the spring of this year, Ford likely intended to test this legal bludgeon on the sphere of social reproduction and its comparatively undervalued workforce. To the degree that this attack transpired under cover of concern for children affected by COVID-related restrictions, Ford’s advisers clearly failed to anticipate the uptake in militancy resulting from the last several years, in which workers in health care, education, and child care have been batted about to capricious extremes. As importantly, however, all seven of the unions that endorsed Ford during the provincial election moved to condemn his government in the wake of Bill 28.[21]
This realignment was consequential; but the deep organising of the Ontario School Board Council of Unions (OSBCU) led the day as school boards shuttered on November 3rd in protest of Bill 28. This may technically have been a contract strike, but it originated and remained a clearly articulated protest of a meta-constitutional attack on the right to strike, and the long-term threat of its precedent. And in spite of the bureaucratic setting of this attack, there can be no doubt that this fight belonged to the rank-and-file as much as their leadership. This victory transpired on labour’s terms alone: even as Ford’s Tories attacked the charter, the federal government declined to use its arcane power of disallowance to reverse the decision—no doubt hesitant to act in an executive capacity while under scrutiny for the martial overreach of the Emergencies Act use in February.[22] Unassisted by any political party or opposition, Ontario’s unions beat back the Ford government’s draconian manoeuvres, forcing his negotiators back to the table.
What Next?
Once more: this legally furnished attack on workers was defeated by sheer magnitude of opposition, on the streets and over transformative conversations, even as litigation proceeded at the Ontario Labour Relations Board. This is a fantastic outcome by any measure; a result of the union’s fighting stance and the unity of public and private sector representation. The decision to resume bargaining in good faith—since unreciprocated by Ford’s negotiators—was a calculated political move in response to this clear victory, and in no discernible way squanders the possibility of strike, a persistent power immanent to labour, and a recently affirmed right.
Transforming this mobilisation into the next confrontation, and the next, requires more patience than the academic left has demonstrated so far. Flatly, what we see from onlookers such as Schoots-McAlpine, in characterizations of “labour peace” that condescend to worker militancy and its actual occasions, is an empty idealism: where the failure to construe the legal terrain on which labour, capital, and state encounter as a locus of class struggle, rather than a place of a priori compromise, places the author in a position of superiority to the merely existent workers whose tactics must yield more than untestable theses. A great deal remains to be determined in the days and months to come, but the week in which union negotiators paused to call Ford’s bluff will not have been half the impediment that idle thumbs on social media perceive. As CUPE continues to negotiate a fair contract for its many members, emboldened by a staggering moment of unity from labour, solidarity demands better attention and less fickle commentary from us all. There is no shame in calling a win a win, and in no sense does this certainty preclude the actions or the consciousness to come.
Cam Scott is a writer and organiser based in Winnipeg, Canada, Treaty 1 territory. His books include ROMANS/SNOWMARE (ARP Books, 2019) and The Vanishing Signs (ARP Books, 2022).
References
[1] Adam Carter, ‘Ontario education workers give notice to strike again,’ 16 November 2022, CBC.
[2] Sara Jabakhanji, ‘Ontario government and education workers avoid strike with tentative deal,’ 20 November 2022, CBC.
[3] Martin Schoots-McAlpine, ‘The general strike that could have been,’ 10 November 2022, Canadian Dimension.
[4] V.I. Lenin, Collected Works Volume 4 (Progress Publishers: Moscow, 1964), 317.
[5] Dave McKee, ‘Lessons from the time 250,000 workers shut down Canada’s largest city,’ 25 October 2021, People’s World.
[6] Herman Rosenfeld, ‘A first post-pandemic political victory—hardly a ‘general strike that could have been,’ 11 November 2022, Canadian Dimension.
[8] Karl Marx, Capital Vol. I (London and New York: Penguin, 1992 [1867]), 416.
[9] CBC News, ‘Ontario is pledging to pay parents to ‘help kids catch up.’ Some say that’s not the solution,’ 10 August 2022, CBC.
[10] CBC News, ‘Ontario passes bill to ban CUPE education workers’ strike after talks end with no deal,’ 3 November 2022, CBC.
[11] Michael Ranger, ‘Education workers will not accept reported ‘improved offer’ from Ford: CUPE,’ 9 November 2022, CityNews.
[12] Legislative Assembly of Ontario, ‘Bill 28, Keeping Students in Class Act, 2022’. Link.
[13] Canadian Charter of Rights and Freedoms, s 33, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[14] Peter Lougheed, ‘Why a Notwithstanding Clause?’ in Points of View No. 6 (Edmonton: Centre for Constitutional Studies, 1998), 6.
[15] Tyler Dawson, ‘How Trudeau could disallow the Alberta Sovereignty Act — and why he wouldn’t,’ 5 November 2022, National Post.
[16] Kieran Leavitt, ‘Alberta’s colourful history with the notwithstanding clause and its debatable future use,’ 11 September 2018, StarMetro Edmonton.
[17] Lougheed, 9.
[18] Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 (CanLII), [2015] 1 SCR 245. Link.
[19] AUPE, ‘AUPE seeks leave to fight Bill 1 at Supreme Court,’ 11 February 2022, aupe.org,
[20] Grant A. Brown, ‘Doug Ford’s Use of the “Notwithstanding” Clause: Keeping Ontario’s Schools Open,’ 10 November 2022, C2C Journal.
[21] Emily Leedham, ‘Five More Unions That Endorsed Doug Ford Are Now Condemning Ford’s Attack on Workers Rights,’ 3 November 2022, Press Progress.
[22] Nora Loreto, ‘Invoking The Emergencies Act Is A Dangerous Mistake,’ 14 February 2022, Passage.
Legal Form 