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Union court victory will be hollow if not used to mobilize teachers

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Teachers protesting Bill 115 in downtown Toronto in 2012

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Remember the "Putting Students First" bill? It was one of Dalton McGuinty's final acts as Premier. It crushed collective bargaining for Ontario teachers and imposed a contract that many argued was a bad deal.

Yesterday, the Ontario Superior Court ruled that the Putting Students First Bill (115) violated the Charter. As ETFO's lawyers point out, the judge wrote: "in its desire to reach an end it had defined, Ontario ran over the rights of the employees."

During the debates over Bill 115, voices in support of the unions and the teachers warned that this would happen. The Liberals repealed Bill 115 on January 21, 2012.

Through Bill 115, the Liberals eliminated the right of teachers to collectively bargain, and imposed a contract. Then, they repealed the legislation. All that remained was the terms of the contract, which remain in effect.

At the time, I wrote,

"The repeal of Bill 115 -- after contracts were forced on education workers -- makes it clear that this legislation and what it allowed is unfair and likely unconstitutional because it restricted collective bargaining rights. Bill 115 didn't allow for appeals to the Labour Board or a third-party arbitrator. Now that it no longer exists, nothing can be done to challenge it, or the forced contracts the legislation allowed."

A legal challenge was a no-brainer. Bill 115 was a dubious powerplay at best. Today, the teachers and their unions are vindicated.

The judge, on the request of the parties, does not outline what should be the next steps. Instead, the remedy is left up to the two sides to negotiate.

And here is the limitation of fighting for bargaining rights through the courts alone: is it reasonable to expect fair negotiations with a side that has literally just been found to have acted in bad faith? If there's no compromise, what would the judge impose as a remedy?

It's critical that unions engage legally to uphold the rights of unions and workers to collectively bargain, but union activists have to be honest: we can't rely on the legal system to guarantee workers our rights. Because, as governments show time and again, they often don't respect labour law enough to uphold it.

How can these unions turn a moral victory into a tangible one?

First, an aggressive campaign should be launched that explains to educational workers across Ontario what has just happened. The unions can't rely on media reports to communicate this information alone: members also need to hear this from their union representatives.

Second, there should be an emphasis on organizing to expose the negative outcomes from the imposed contracts. While workers' rights were trampled on, history has also shown that teachers were bargaining in both their own best interests and the best interests of the system. We now know that there have been huge financial implications from the Ontario government's decision to force a regime change to sick days.

Despite the fact that teachers were smeared as being unreasonable for wanting to hold onto their banked sick days, there was a logic to the program, rooted in system-wide cost savings. Anyone who looked at the numbers could see the potential costs that would mount as a result of the program change, but it made for good politics and helped to demonize teachers in the media.

In 2012, I warned, "sick days will now cost double what it used to pay them out (when factoring in the cost of sick day usage and paying for supply teachers)." I was wrong: the cost is going to far exceed the "double" that I had projected.

The change in teacher sick days saved the province $1 billion. What has replaced it though, costs nearly $1 billion annually. As long as this regime exists, the costs will continue to add up and far exceed double the original liability.

In the aftermath of the Superior Court decision, it's possible that the remedy that will be reached will be to revert to the old sick days system. It would make a lot of sense.

But teachers were burned by the government during the saga of Bill 115 and it would be unwise to not use this victory for on-the-ground organizing: building the capacity and strength of the rank-and-file to be able to defend teachers both during bargaining and in general.

Teachers, like so many public service workers, are on the front lines. For throwing their body into building the future of our society, they're often denigrated and targeted by politicians and other right-wing forces.

This is why it's not good enough for the unions to rest on this legal victory. The right to strike is only useful if it's used and it can only be used when your membership is mobilized.

The next round of negotiations has to exit the boardroom.

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Image: Flickr/andres musta

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