Is Kathleen Wynne Putting Ontario Citizens And Its Justice System At Risk?

A recent proposal by the Ontario Liberal Government, if implemented, could throw

Ontario's Justice System into chaos while jeopardizing the health and safety of Ontario's
citizens as well as its own employees. These are the risks Kathleen Wynne's government is
apparently willing to accept in the name of: 1) hard-line bargaining, and; 2) a general
reluctance to unilaterally amend bargaining legislation now under a microscope due to a
recent Supreme Court Decision.
The Government of Ontario and the Ontario Public Service Employees Union
(OPSEU) have been in Contract negotiations for almost a year. The vast majority of this time
has been spent negotiating Emergency and Essential Service Agreements (EESAs) for those
public service positions the Employer deems essential only during strikes or lock-outs.
EESAs are unusual agreements legislated upon a segment of workers in specific
classifications of a bargaining unit. Surprisingly, these are workers who have the "right to
strike" while simultaneously being declared "essential" in anticipation of a strike or lock-out.
Traditionally, the end result has always been a fractured bargaining unit with a meaningless
"right to strike". Comparatively, no private sector union would tolerate such a strike wherein
their Members must cross their own picket line.
Critics assert this system has overwhelmingly weighted collective bargaining in the
government's favour for decades. This dysfunctional bargaining structure flows from the
Crown Employees Collective Bargaining Act (CECBA). While it has ironically been the source of
much strife, long-awaited change to this imbalance potentially threatens public and employee
safety.
On January 30th, 2015, the Supreme Court of Canada (SCC) released a Decision in
Saskatchewan Federation of Labour v. Saskatchewan. As a case wherein Ontarios Attorney
General formally assisted the unsuccessful Saskatchewan government, this Decision has been
recognized nationally, and even internationally, as a game-changer in collective bargaining.
Briefly, the Decision states the following: i) The act of striking MUST be allowed to be
effective; ii) "Freedom of Association" rights enshrined in Canada's Charter of Rights and
Freedoms affords individuals with the "right to strike", the right to do so in concert with ALL
members of his or her bargaining unit; iii) Governments retain the right to determine which
public services are fully "essential"; iv) Any loss of the "right to strike" MUST be replaced by
a "meaningful mechanism" to fairly and effectively resolve bargaining impasses. i.e binding
arbitration.
This Decision appears to outlaw implemented EESAs in Ontario - at least as far as they
have been historically understood. Yet the Government's official position is: i) As written,
CECBA legislation is not in conflict with the Decision, therefore; ii) Correctional workers ARE
NOT TO GOING TO BE CLASSIFIED AS A FULL-TIME "Essential Service".
Yet in spite of this assertion, the Government appears reluctant to ratify "drafted"
CECBA Reform Group Media Release:

October 25, 2015

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EESAs. Instead, completion of EESAs has suddenly become a complex, time-consuming task.
This is quite a conspicuous departure from past experiences. Many suggest this is a deliberate
hesitation.
Anticipating that the Government and OPSEU might fail to act accordingly on their
behalf, Correctional employees responded by forming an ad-hoc interest group called CECBA
Reform Group (CRG) and hiring a labour lawyer. Acting independently, their goal is to
pressure the Ontario government into securing the Charter rights of its public servants
through amendments to CECBA, or by launching a Charter challenge based upon the recent
SCC Saskatchewan Decision.
Emboldened by this, Correctional employees demanded that they be afforded their
NOW Charter-sanctioned COMPLETE right to strike. In response, OPSEU unexpectedly
succumbed to over-whelming pressure from their Members and advised the Government that
their new negotiating position on EESAs was that Correctional employees SHOULD be given
a COMPLETE right to strike.
This change was unprecedented. EESA negotiations in previous contract efforts had
offered ESSA numbers as high as 60% staff deemed essential. Now OPSEU was suggesting
to the Government that "zero" was the right number of staff to be deemed essential.
Surprisingly, five weeks later, the Employer actually agreed to the "all-out" proposal.
However, it was not without notably objectionable exceptions.
The Government attempted to reserve a few services it deemed "essential" during any
strike or lock-out. Clearly, the Employer was reliant on a judicial body viewing these
exceptions within an allout EESA as not interfering with their employee's "right to strike".
From this juncture forward, the situational issues quickly devolved.
Notwithstanding this debate, the EESA proposal distressingly suggests a willingness on
the part of the Government to risk allowing the bulk of its professional Correctional staff to
withdraw services during a strike/lock-out. The impact of this on Ontarios safe and secure
offender management system would be huge!
At best, environments within most of Ontario's correctional facilities are publically
criticized as deplorable. They are reputedly under-staffed with living conditions cited for
failures in basic services and medical treatment. In fact, some magistrates have started
reducing offender sentences, due to recognized levels of depravation in certain facilities.
Under these alarming circumstances, Premier Wynne's decision to risk an almost complete
withdrawal of professionally trained bargaining staff would be completely reprehensible.
Moreover, during such a strike, many staff in these jails would likely be unqualified
replacement workers - as CECBA currently allows. This is a sure recipe for disaster!
As such, Ms. Wynne's approach might satisfy a legal application of CECBA. However, it
certainly lacks ethical regard for the health, safety, and security of correctional staff,
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October 25, 2015

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incarcerates, and the community. In the aftermath of any calamitous event, Ms. Wynne would
surely be the highest ranking person held fully accountable.
Along with these massive safety and security risks, there would also be significant
disruptions within the administration of Justice. In the past, pandemonium has often ensued
within the Courts as incarcerates missed their warranted scheduled appearances. Under these
conditions, delays may precipitate mistrials and play havoc with the Justice system. Finally,

should an offender involved in community supervision victimize society while

being "supervised" by a struggling probation and parole program crippled by a
complete or almost-complete right to strike, there would be significant public
outrage.
Work within a corrections environment arguably satisfies the Ontario governments own
definition of essential. Essential workers do not have the right to strike. Most
Correctional employees believe it is unethical for them to have the right to strike. In lieu of
negotiating a time-consuming essential services agreement with OPSEU, Ms. Wynne could
use her legislative majority to assert her "right to manage" and: i) Amend CECBA legislation
to comply with the January 30, 2015 SCC Decision; ii) Reclassify ALL Correctional workers as
"Essential Service", and; iii) Agree to binding arbitration to settle bargaining impasses.
These reforms would represent a long overdue alternative to the potential threats
currently facing EVERY stakeholder related to, and reliant on, safe, secure, and professional
offender management in Ontario. Ontarios citizenry, Correctional workers, and even
offenders, have a basic right to enjoy the healthy, safe, and secure benefits of a properly
managed correctional system. The government MUST do what is morally and ethically right.
The Premier, as Employer, has exclusive "right to manage". Her majority government
provides unimpeded legislative options to immediately enact changes to this situation!

Kathleen Wynne needs to take Executive Action NOW!

CECBA Reform Group Media Release:

October 25, 2015

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