Tuesday, June 21, 2011

On back to work legislation. Whoa, deja vu.

So, another conservative (note the small "c") government, another round of back to work legislation. Canada violates its international obligations yet again, and is again grouped with such shining lights of liberty as Colombia. It's the same old song and dance.

I've commented here before about back to work legislation, and I won't rehearse the arguments in their entirety. Back to work legislation is a violation of basic rights. While documents like the UN Universal Declaration of Human Rights include the right to join a union, to strike, and to bargain collectively as explicit rights, it's really not necessary. The right to free association, which is guaranteed by the Charter of Rights and Freedoms, already entails these rights. If I am free to associate with whomever I choose, then I am free to choose the terms of association such that the group works on my behalf to improve my working conditions. Similarly, I am free to choose such terms such that, when the group decides through some agreed-upon process to withdraw labour, I am obligated to do so as well. To force a union member back to work is a violation of that member's right to associate with other people on terms that he or she chooses. It's a bit of simple logic which only a lawyer could evade.

It's worth noting that even lawyers aren't evading it as much as they used to. In 2007, the Supreme Court of Canada, in the BC Health Services case, overturned much prior labour law in favour of reading a right to collective bargaining into the Charter right to freedom of association. (As yet, no right to strike. Baby steps.) This implies that, if governments intervene in labour disputes, that intervention must not "substantially interfere" in the ability to collectively bargain over workplace issues.

I should also point out that back to work legislation is hardly a panacea. In most labour disputes, a back to work law is passed as a "cooling-off" period -- both sides having gotten a little entrenched, the government sends everyone back to business as usual for a time, and then allows them to resume bargaining. The reason for doing this is that a back to work bill which remands everything to binding arbitration doesn't settle the underlying conflict between employer and union. It just boils up again as soon as the collective agreement expires.

Furthermore, there's always the possibility that the union will simply defy the order. (I don't know of a case where an employer defied the order to allow employees to come back to work. Which says something about whose interests are usually favoured by such legislation.) My favourite case of this was the BC Ferry and Marine Workers Union, back in the early 2000's. The union was required to maintain service at a certain level under essential service legislation, and, after calling the strike, got into a dispute with the employer about exactly what level was essential. Both sides went to the labour board to figure it out; and the Campbell government legislated them back before they got out of the meeting.

So, the ferry workers shut down all the ferries between Vancouver Island and the mainland. The parties eventually proceeded to binding arbitration.

But the point remains: once a government has committed to back to work legislation, it really has nowhere to go except calling in the police or (more usually) huffing and puffing. Even the fines imposed by back-to-work legislation are, in practice, difficult to enact and rarely used. Certainly, they are almost never used against individual union members; it's more common to fine the union than any individual defying such legislation. So, if a back to work bill turns against the government -- if the union winds up winning the public relations battle -- then the government is well and truly screwed. There is no good option left. Hence why most (sane) governments opt for cooling-off periods, mediation, and sending things to binding arbitration after months of labour action. (Except for transit strikes, for some reason. I suspect it's because it would be very hard for a transit union to win a public relations battle, so governments figure they can get away with it.)

With that as background, the current two cases -- Canada Post and Air Canada -- have some interesting features. There has been some talk that both labour actions, and the government's response thereto, are examples of the "austerity agenda" coming to Canada. I tend to think this conclusion silly. The austerity agenda is already here, and has been for some time.

I'll start with the Air Canada strike. Air Canada is not a public institution -- I've heard that mistake being made -- and is not even a Crown corporation, but is entirely private (as of 1988). For the government to intervene in a labour dispute in the private sector is not, to my knowledge, unprecedented, but is rare. The closest example I can think of would be a rail strike, but I don't off-hand remember the last time that they went on strike.

The justification for intervention would have to be, thanks to Health Services, that the intervention does not substantially interfere with the constitutionally-guaranteed right to collective bargaining. As the CAW willingly wilted, and the government called off the back-to-work bill, I think it's fairly clear that the "substantial interference" bar has not been cleared.

The question I have, though, is why the CAW gave up so easily. Remember, this is a local that removed four of its own executive members when going into bargaining. There's clearly a divide between the membership and the executive. So, this one may not be over yet -- or, possibly, the union doesn't have the appetite for a protracted fight. We'll have to see; I don't believe there's been a ratification vote as yet. But there is, as yet, no guarantee that the government won't legislate an end to the strike; should that happen, we'll have to see if the bill is as extreme as in the Canada Post action.

When it comes to the Canada Post strike plus lockout (getting very tired of headline writers who don't understand that the two terms are not synonymous), it's not at all clear to me that the government has lived up to its constitutional obligations. The full text of the bill is here. Most of it is standard attempts to load the dice in the employer's favour -- the arbitrator has to consider Canada Post's long-term viability, the arbitrator is confined to certifying either the union's or the employer's last best offer, so far, so legal in Canada. Cagey arbitrators can get around some of these provisions, too -- long-term viability, for example -- but last best offer is a really mean way of sending things to arbitration.

The part that surprised me, though, is Section 15:
15. The new collective agreement is deemed to provide for the following increases to salaries:
(a) effective February 1, 2011, salaries in effect as of January 31, 2011 are increased by 1.75%;
(b) effective February 1, 2012, salaries in effect as of January 31, 2012 are increased by 1.5%;
(c) effective February 1, 2013, salaries in effect as of January 31, 2013 are increased by 2%; and
(d) effective February 1, 2014, salaries in effect as of January 31, 2014 are increased by 2%.
Either the government is gambling that CUPW won't take them to court -- or, possibly, gambling that they can stack the court in time and well enough to reverse or limit Health Services -- or they have really shitty lawyers drafting their bills. (Or, I suppose, they didn't bother to check the constitutionality of this. Harper's arrogant enough; I would have thought the Ministry of Labour had some competent bureaucrats vetting these things, though.) As far as I can tell, this does amount to "substantial interference" in the collective bargaining process. A key issue in workplace bargaining is wages. The government's bill not only legislates wages, but does so at levels that are well under either the union's last offer or Canada Post's. Section 13 (3) seems to eliminate even the arbitrator's power to change the salaries. Once this bill becomes law, then no one, save the Supreme Court, could change that contract term.

The only possible justification I can see the government offering here is a section 1 justification under the Charter -- that the infringement of the right to bargain collectively is a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society. But this takes us back to the liberty arguments, and the aspects of international law which are universally in favour of a right to collectively bargain, to unionize, and to strike.

If CUPW chooses to fight this legislation in court, the government could be on its way to an long-lasting and colossal error that will have significant impact on labour relations in this country. Health Services was decided because the Gordon Campbell government in BC massively overreached -- it launched an all-out war on labour in the province (a general strike was being discussed as a possibility at one point), went too far, and got the Supreme Court to limit the power of governments to intervene in labour disputes. Harper may be the next right-winger to go too far, and force the Court to limit the power of governments even further.


JoVE said...

Interesting. Thanks.

You may also want to consider that OCTRanspo (Ottawa public transit) were legislated back to work after their last strike with binding arbitration. Their contract is now expired and the union is refusing to negotiate a new one until all the terms of that binding arbitration are met. Apparently, the employer has not done some of the things they were supposed to under the arbitration agreement.

Skinny Dipper said...

My problem with the government's back to work legislation attempts is that the government is sending a message that it not tolerate any strike by any federal public sector union and by any union representing workers in a federally regulated business.

The Harper Conservative government should understand that the unions will adapt to constant back to work legislation. Generally, Canadian unions have picketed at primary targets such as on the edge of their employers' properties. Canada's unions can adapt by protesting on the streets, thereby blockading them. They can protest at border posts to stop or slow goods and people from entering and leaving Canada. These scenarios usually occur in France where strikes are short, but their impact is immense.

One final problem with an federally imposed settlement is that the workers/employees may take their job requirements diligently, and only perform the work that is required by them. Customer service will become secondary. It also means that unionized workers may file grievences for every minor infraction that could normally be resolved directly between the employer and specific employee. The relationship between the employers and employees will become antagonistic during the next four years.

ADHR said...

JoVE: That's hilarious. Good for them. I'm surprised they wouldn't sue, though, given that a contract is supposed to bind both sides.

SD: Yep, you're right. Working to rule is a perfectly legal -- and unpreventable -- tactic that federally-regulated unions might use, as is ridiculous abuse of the grievance process.

I'm not sure that there would be much change in strike tactics, though -- in my experience, Canadian unions don't have a taste for crazy stuff. (Except for CAW. I know of at least one case in the last ten years or so where a CAW local picketed a 401 highway off-ramp.) Street protest is more likely; when CUPE 2278 was legislated back by the Campbell government in the late '90's, that was our response -- some members even camped up in a big tent in a main area of UBC and draped it with signs.

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