Emerging from Bill 124
Last fall, the Ontario Superior Court of Justice declared the Protecting a Sustainable Public Sector for Future Generations Act (formerly Bill 124) violated the Canadian Charter of Rights and Freedoms, on the grounds that the legislation interfered with collective bargaining rights. The Honourable Markus Koehnen delivered the decision.
OCUFA member organizations have called for changes to their collective agreements, now that the restrictions placed on wages and other bargaining rights have been struck down.
Recent bargaining successes
QUFA is the first faculty association to fully avoid wage restraint under Bill 124. Annual across-the-board (ATB) increases of 3.5 per cent, three per cent, and three per cent were achieved retroactive to July 1, 2022. Even more significant compensation gains were attained for contract faculty, whose base stipends increase prior to the ATB rates being applied, and who will receive a two per cent increase to pay in lieu of benefits (from six to eight per cent).
TUFA was the first association to reach a deal after Justice Koehnen’s decision to strike down Bill 124, after having already served the bulk of its moderation period under the previous agreement. Salary increases included an immediate increase of an additional 1.75 per cent for January 1, 2023, cutting short the union’s moderation period by six months. Three per cent increases were achieved for the second and third years, applied on July 1.
The WLUFA full-time unit was successful in recapturing a $900 lump sum that was precluded while Bill 124 was in force. The university has now provided eligible members with the Ontario System Adjustment amount.
King’s University College
The King’s University College Faculty Association (KUCFA) has successfully negotiated a wage increase on top of the one per cent that they were restricted to under Bill 124. The new ratified agreement provides a 2.95 per cent wage increase retroactive to May 1st, 2023. This change reflects a 1.95 per cent increase in addition to the one per cent increase KUCFA negotiated under duress due to the wage restraint legislation. KUCFA was in a good position to negotiate this adjustment because they had included a “re-opener” clause in their existing collective agreement that could be activated should Bill 124 be revoked, or amended, for the 2023-24 academic year.
Toronto Metropolitan University
Adding to the list of successful changes to collective agreements after Justice Markus Koehnen’s decision to strike down Bill 124 in 2022, the Toronto Metropolitan University Faculty Association (TFA) has ratified a “re-opener” for their 2020-23 agreement, introducing an additional 0.75 per cent, two per cent and 2.5 per cent on top of the previously negotiated one per cent increases for each year of the agreement. This amounts to total wage increases of 1.75 per cent, three per cent and 3.5 per cent over the three years of the agreement. TFA negotiated directly with the employer for this increase although, in the 2021 arbitration decision for their agreement, Arbitrator William Kaplan had also stated that he would remain available to consider the matter of re-opening compensation in the case of a successful charter challenge.
University of Waterloo
The Faculty Association of the University of Waterloo (FAUW) have also successfully used the “reopener” clause in their 2021-2024 Memorandum of Salary Settlement, to negotiate an increase. In July 2023, faculty actively employed on May 1, 2021 will receive an increase in two phases. In Phase One, they will receive a first adjustment of two per cent of base salary as of April 30, 2023. In Phase Two, they will receive a second adjustment of two per cent which includes the normal salary conversion currently in place for May 1, 2023 (one per cent) plus an additional one per cent to be included on top of the Phase One adjustment. They will also receive a one-time lump sum payment of $2,500 each. Faculty actively employed as of May 1, 2022 (but not in May 2021) will receive an increase of one per cent on the base salary as of April 30, 2023, in Phase One. In Phase Two, they will receive a second adjustment of two per cent (one per cent plus the previously negotiated increase of one per cent) as well as a one-time lump sum payment of $1,250 each.
On July 1, 2023, members of the McMaster University Faculty Association (MUFA) received a $1,050 across-the board increase to base salary, in addition to the one percent increase agreed to under duress during the Bill 124 wage restraint period. According to a clause in MUFA’s 2022-2025 Memorandum of Settlement, this additional increase was contingent upon the absence of a government directive or law in draft or in effect prohibiting the increase. As a result of Bill 124 being nul and void as of July 1, MUFA was successful in achieving this gain.
The University of Western Ontario Faculty Association (UWOFA) has now settled further increases to base salary as part of their Bill 124 re-opener negotiations for their 2022-2026 collective agreement. These increases apply to full-time and contract faculty. Further increases include a two per cent increase applicable July 1, 2023, plus a $1,750 addition to base salary, one per cent applicable July 1, 2024, and one per cent applicable July 1, 2025. A $5,000 promotion bonus for full-time faculty will also now apply for the duration of the agreement (previously it was only available for the last year of the agreement).
For contract faculty members, an additional 2 per cent applicable July 1, 2023 as well as July 1, 2024, and an additional 1.5 per cent applicable July 1, 2025. UWOFA’s re-opener clause indicated that the parties could renegotiate wage increases if Bill 124 was struck down and all appeal proceedings exhausted, and the union pushed the employer to engage in discussions given the timing of their tentative agreement just weeks prior to Justice Koehnen’s declaration that Bill 124 was unconstitutional.
In early July, the Ontario College of Art and Design Faculty Association (OCADFA) was awarded an additional 5.5 per cent on top of the three per cent agreed to under Bill 124, phased in over the last two years of the collective agreement. Specifically, OCADFA received increases of one per cent effective July 1, 2021, one percent effective January 1, 2022, 1.75 per cent July 1, 2022, and 1.75 per cent effective June 30, 2023. The Award further makes clear that, if Bill 124 is upheld on appeal at either the Court of Appeal or the Supreme Court, the university will not seek repayment of monies paid under this award. In his 2021 Award for OCADFA Arbitrator Kaplan stated that he would remain available to reopen compensation issues should outstanding constitutional challenges prove successful.
Ontario Tech University
The University of Ontario Institute of Technology Faculty Association (UOITFA) successfully negotiated an increase to compensation following the declaration that Bill 124 was unconstitutional, based on a letter of understanding permitting such a “reopener” signed as part of their 2021-2024 collective agreement. Members received a three per cent across-the board (ATB) increase (instead of the previous one per cent) for 2023-2024. This increase further applied to salary floors and career development increment (CDI) ceilings. The newly signed Memorandum of Agreement (MOA) also extended the collective agreement for another year, to end June 30, 2025, with ATB, salary floor, and CDI increases of three per cent for 2024-2025. The terms of the new agreement are without prejudice to any remedy that may be awarded by the courts following the challenge to the constitutionality of Bill 124 and/or any appeal outcomes, and the Arbitrator remains available to consider an appeal of such an award by either party, or any dispute over the implementation of the new MOA.
Ford Government appeal of Bill 124
Despite recognizing that Bill 124 “doesn’t exist,” the Ford government has filed an appeal of Justice Koehnen’s decision, using public dollars to run this fight through the court system. OCUFA supports the Superior Court’s declaration of Bill 124 as null and void, and opposes the government’s decision to file an appeal.
In its factum to the Ontario Court of Appeal, legal counsel for the Ford government dismissed Justice Koehnen’s conclusion that Bill 124 caused substantial interference of collective bargaining. The government’s argument rests on the claim that Bill 124 did not prevent the ability of unions to proceed with meaningful and good faith negotiations simply because their wage increases were restrained to one per cent per year.
The Ford government also claims that Justice Koehnen failed to recognize unions’ ability under Bill 124 to seek an exemption from the salary cap, and pursue the right to strike. However, the Justice’s decision states that the legislation was detrimental to labour rights, including the utility of the right to strike, and was thus unconstitutional.
Key dates in the appeal process:
- March 10 – The government’s written factum was submitted
- May 9 – The unions’ responses will be filed
- June 20-23 – The scheduled hearings at the Ontario Court of Appeal
OCUFA has been monitoring the situation closely and continues to do so.