How will CUPE afford to pay fines?

CUPE Ontario members and supporters demonstrate outside the Queen’s Park Legislative Building in Toronto on Nov. 4.Cole Burston/The Canadian Press

The Canadian Union of Public Employees has vowed to cover any financial penalties imposed on its members during its current standoff with the Ontario government, but how long the union can afford to continue its walkout, which the government is characterizing as an illegal strike, is unclear.

On Friday, thousands of members of CUPE’s Ontario School Board Council of Unions walked off the job and began gathering at rallies and picket lines across the province. OSBCU represents educational support staff, including early child-care educators and school maintenance workers.

CUPE has said it intends to stand behind the walkout “as long as it takes” for the provincial government to meet OSBCU’s main wage demand: a 6-per-cent annual pay increase for each of the next four years. But, under back-to-work legislation the government passed on Thursday, each worker faces a fine of $4,000 for each day they spend off the job. The union could be fined $500,000 a day.

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Theoretically, a single day of an illegal strike could cost the union $220.5-million. But whether the walkout is illegal is a matter of dispute: In a submission to the Ontario Labour Relations Board, the union argues the job action is not a strike but rather a “legitimate political protest” against the government.

CUPE’s financial statements show that the national union had about $135-million in a strike fund as of Dec. 31, 2021. That money is usually used for strike pay, which union members receive instead of their salaries while a labour disruption continues.

In a document provided to OSBCU’s members, the union said each worker will be paid $300 a week for 20 hours of walkout duties. If all 55,000 workers were to remain off the job for a full week, the union would use $16.5-million from its strike pay fund.

Union rules suggest the fund can only be used for strike pay, and to cover insurance premiums so that workers are entitled to health benefits while on strike. There is no indication that the union has used these funds to cover financial penalties from an illegal strike in the past, or that it intends to do so this time.

When asked how CUPE plans to pay any fines, union spokesperson Hugh Pouliot said the union is in a “strong position,” and intends to support its members “to the hilt,” but did not offer specifics.

Unions generate the bulk of their revenue from dues paid by members. CUPE represents more than 700,000 public-sector workers nationally. According to its December, 2021, financial statements, the union has about $27-million in cash, and $512-million in total assets, which include non-liquid investments, investments restricted for future employee benefits and tangible assets, including buildings it owns.

Unifor, Canada’s largest private-sector union, said on Friday that it would donate $100,000 toward paying any fines incurred by CUPE members.

Andrew Monkhouse, a Toronto-based labour and employment lawyer, said both the union and the government are in uncharted territory. The government’s legislation, he noted, deploys the rarely used notwithstanding clause of the Charter of Rights and Freedoms to prevent the union from disputing the law in court.

“I think we have to remember that illegal strikes do not commonly happen, and it is rare that heavy fines are imposed on unions for it. So it is hard to tell how long the union intends to be on strike for and how much they can afford,” he said.

Workers who participate in the walkout could be violating the Provincial Offences Act. If they receive fines, they will either have to pay them or fight them in court, said Patrick Groom, a labour lawyer with McMillan LLP.

“It will be like getting a ticket for speeding. But it is difficult to see how the government is actually going to ticket 55,000 people daily.”