COVID-19 – Provincial Government’s Emergency Order-in-Council

Hungry for Worker’s rights - A Wolf in Sheep’s Clothing

How ironic that on the eve of the anniversary of the Charter of Rights and Freedoms, Ontario’s provincial government would introduce a so-called ‘emergency’ Order-in-Council that transparently attempts to strip unions of some of their recognition rights, a poisoned chalice, purportedly in response to the COVID-19 pandemic. The Order allows municipal employers to move bargaining unit members around, use non-bargaining unit employees and even unpaid volunteers to do exclusive bargaining unit work, thereby arguably undermining our lawful status as exclusive bargaining agent, our collective agreement (including seniority, bumping and layoff rights) and statutory rights. Incredibly and inexplicably, the Order also authorizes suspension of the grievance procedure throughout the duration of the Order. It’s disappointing, but perhaps not surprising. Conservative governments and forces have a history of creating and/or exploiting so-called natural disasters to ram through economic agendas that undermine the interests of working people. Canadian social activist, Naomi Klein explores this pattern in her brilliant book, Shock Doctrine. This has the potential to set trade unions back hundreds of years, losing the hard-fought rights earned by our ancestral brothers and sisters.

The Order-in-Council

The Emergency Management and Civil Protection Act (hereinafter “EMCPA”) provides emergency powers to the Premier and Lieutenant Governor in Council to react quickly to emergencies in Ontario. On March 17th, 2020, an emergency was declared with respect to the COVID-19 outbreak. On April 16th, 2020, the Ontario government issued an Order-in-council with respect to the redeployment of municipal employees under the EMCPA. This Order authorized all municipalities in Ontario who declared an emergency to “take any reasonably necessary measure to respond to, prevent and alleviate the outbreak of the coronavirus so as to prevent, reduce, or mitigate the effect of the coronavirus on critical municipal services”. Interesting timing considering we’re currently on the downside of the COVID curve.

Who is considered a critical municipal service?

A critical municipal service includes the following: 

  • Maintenance of municipal long-term care homes;
  • Delivery of public health services;
  • Operation of homeless shelters and the provision of services to homeless persons;
  • Provision of drinking water;
  • Waste management and sanitation;
  • Wastewater management;
  • Public transportation services operated by the municipality;
  • Provision of assistance under the Ontario Works Act1997, if the municipality is designated as a delivery agent under the Act;
  • Administration, operation and funding of childcare programs and services under the Child Care and Early Years Act, 2014;
  • Enforcement of by-laws; and,
  • Services related to the implementation of the municipality’s emergency plan. 

What are the municipality’s powers under the Order?

Under the Order, municipalities are authorized to do the following: 

  • Identify staffing priorities and develop, modify and implement redeployment plans for the municipality;
  • Conduct any skills and experiences inventories of staff to identify possible alternative roles in priority areas;
  • Require and collect information from staff, contractors, or volunteers about their availability to provide services for the municipality;
  • Require and collect information from staff, contractors or volunteers about their likely or actual exposure to the coronavirus, or about any other health conditions that may affect their ability to provide services.
  • Cancel or postpone services that are not related to responding to, preventing or alleviating the outbreak of the coronavirus or services that are not deemed to be critical by a municipality’s emergency plan.
  • Suspend, for the duration of the Order, any grievance process with respect to any matter referred to in this Order.

What is a redeployment plan?

Authority to initiate a redeployment plan includes:

  • Redeploying staff within different locations in the municipality;
  • Changing the assignment of work, including assigning non-bargaining unit employees or contractors to perform bargaining unit work;
  • Changing the scheduling of work or shift assignments;
  • Deferring or cancelling vacations, absences or other leaves, regardless of whether such vacations, absences or leaves are established by statute, regulation, agreement or otherwise;
  • Employing extra part-time or temporary staff or contractors, including for the purposes or performing bargaining unit work;
  • Using volunteers to perform work, including to perform bargaining unit work;
  • Providing training or education to staff and volunteers to achieve the purposes of a redeployment plan.

Does this Order supersede a collective agreement and other applicable legislation?

Yes. The order applies despite any other statue, regulation, order, policy, arrangement or agreement, including a collective agreement. Moreover, the Order allows the municipality to suspend the grievance procedure if the grievance relates to any matter contemplated by the Order. 

That being said, the municipality must give bargaining agents at least 24 hours’ notice before implementing a redeployment plan outlined above.

WHAT CAN/SHOULD WE DO?

As noted above, the potential adverse impact of this Order-in-Council is profound. It leaves trade unions exposed to losing the fundamental rights secured by our brothers and sisters who fought for the protections we have come to take for granted. It goes to the heart of our reason for being. If Employers are left free to undermine our exclusive bargaining rights, this could be the thin edge of the wedge. There might be apprehension to challenge this order as it appears to be ‘only’ temporary, however, labour unions need to be vigilant. If we are not on the record strongly objecting to any and all interference with bargaining rights, the next emergency declared could be the financial impact of COVID-19. 

At a minimum, here are some actions available:

  • Vociferously voice our objection to the implementation of the Order-in-Council (to your MPP, MP, Ministers, etc.) through petitions and massive letter campaigns from the membership and beyond;
  • Raise awareness about the Order and its potentially dangerous impact (both short-term and long-term);
  • File formal Submissions on the record on behalf of the Union, challenging the necessity of this measure and objecting to the Order-in-Council and its detrimental impact [N.B. While we don’t expect that submissions will cause a reversal of the Order, we do believe that it’s important for trade unions to go on record with our objections, giving voice to our concerns, ensuring a historical record to hold accountability for those who trample our hard-fought rights.];
  • File grievances for any and all breaches of our rights under our collective agreements and/or statutory rights;
  • Keep accurate records of any and all exercises of the purported authority under the Order by Employers;
  • Keep accurate records of any and all adverse impact and/or damages from implementation of the Order;
  • Ensure that any measures taken by an Employer are “necessary to respond to, prevent and alleviate the outbreak of the coronavirus”;
  • Bring a constitutional challenge under Section 2(d) of the Charter such as:
    • Freedom of association with respect to bargaining, striking, achieving workplace goals:

In Fraser, the Court articulated the test as whether a measure makes it “effectively impossible” to meaningfully associate to achieve workplace goals, thus rendering the association effectively useless by negating its very purpose. Fraser explicitly acknowledges that there are circumstances under which labour contracts can be interfered with by legislation.

  • Protection against legislative alterations of a CA:

Section 2(d) can also protect against a legislative alteration of a collective agreement. The overall question is whether there is a sufficient “disruption” of the balance of power between employees and employer necessary to ensure the meaningful pursuit of workplace goals so as to “substantially interfere” with meaningful collective bargaining. In making this assessment, the courts may consider: 

  • The Supreme Court found a violation of the right to collective bargaining where certain provisions of a British Columbia statute (dealing with contracting out, layoffs and bumping rights) invalidated existing collective agreement provisions and prohibited future collective bargaining on specific issues. These matters were of sufficient importance to union members and the interference was a substantial one, as the statute denied any possibility of consultation with the union on these issues 

If you want a more fulsome legal opinion, or to file formal submissions, or any assistance with respect to possible courses of action, please don’t hesitate to contact us 

In solidarity.

Disclaimer:

The content in this post is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Watson Labour Lawyers does not warrant or guarantee the quality, accuracy or completeness of any information contained in this post. 

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