Canada fears legislation to force end to strikes: experts

At a time of increased strike activity and the growing power of trade unions, according to labour experts, it is not surprising that there are increasing calls for government intervention in certain sectors, such as transport.

What is new, experts say, is the fact that the government does not intend to hastily pass regulations on returning to work.

For decades, companies in federally regulated industries such as airlines, railroads and ports have generally relied on government intervention through back-to-work legislation to end or avoid work stoppages, according to Larry Savage, a professor of labor at Brock University.

“While this helped avoid prolonged strikes, it also undermined free and fair collective bargaining. It undermined trust between management and the union in the long term and created deep-seated resentment in the workplace,” he said.

Barry Eidlin calls it “the Canadian tradition.”

“Canadian governments, both federal and provincial, have been among the most willing to make risky decisions … when it comes to back-to-work legislation,” said Eidlin, an assistant professor of sociology at McGill University.

Savage said the use of back-to-work laws peaked in the 1980s, but their decline was largely due to strikes becoming less frequent as unions’ bargaining power weakened.

However, since the right to strike was enshrined in the Canadian Charter of Rights and Freedoms in 2015, the government appears to be more reluctant to use back-to-work legislation.

Eidlin agrees.

“The bar for violating the right to strike with the passage of back-to-work legislation has been raised significantly,” he said.

But experts say the federal government appears to have found a way around the problem.

In August, Canadian National Railway Co. and Canadian Pacific Kansas City Ltd. closed their doors to more than 9,000 workers, but federal Labour Minister Steve MacKinnon soon stepped in, asking the Canadian Industrial Relations Board to order them back and order binding arbitration, which it did.

The government’s decision, based on section 107 of the Canada Labour Code, is “very controversial,” Savage said.

Section 107 of the Code provides that the Minister “may take such action as may seem to the Minister to be conducive to maintaining or securing industrial peace and to promoting conditions conducive to the settlement of industrial disputes or differences, and for this purpose the Minister may refer any questions to the Board or direct the Board to take such action as the Minister considers necessary.”

“The reason this is a worrying circumvention is because there is no parliamentary debate. There is no vote in the House of Commons,” Savage said.

Eidlin fears the government’s use of Section 107 could set a precedent similar to that seen under decades of back-to-work legislation: removing the incentive for employers to reach a negotiated agreement.

“This has a devastating effect on collective bargaining,” he said.

Eidlin noted, however, that the Teamsters union, which represents rail workers, is challenging the government’s decision.

The extent of the government’s power under Section 107, he said, “is something that the courts will have to decide.”

If the courts rule in the government’s favor, the status quo could essentially return to what it was before 2015, Eidlin said.

The rail suspension is not the first time in recent memory that the federal government has used Section 107 to intervene in a labour dispute.

When British Columbia port workers went on strike last summer, then-federal Labour Minister Seamus O’Regan used the provision to order management to determine whether a negotiated solution could be reached and, if not, whether a new agreement should be imposed or final binding arbitration ordered.

The government recently rejected Air Canada’s request to intervene in negotiations with pilots before the two sides reached an agreement at the negotiating table last weekend.

The last few years have been a real test of that 2015 shift, Eidlin said, as workers have become increasingly reluctant to settle for weak collective agreements and employers “still have a back-to-work reflex.”

The recent uptick in strikes, Savage said, “will of course lead to increased interest in government intervention in labor disputes.”

This report by The Canadian Press was first published September 16, 2024.