LEGISLATION
LÈGISLATION
LEGISLATION
LÉGISLATION
Striking Out: The New Normal in Canadian
Labour Relations?
Professor Ian Lee, PhD*
Labour relations in Canada in the summer and fall of 2011 were transformed
by strikes in Canada Post Corporation and Air Canada, because the Government of
Canada intervened almost immediately to legislate the striking workers back to
work. While the Parliament of Canada has passed back to work legislation 34 times
in the past 50 years, it was never done so quickly and decisively.
I argue that the newly elected Conservative majority government led by Prime
Minister Harper, established not only a new norm in labour relations but de facto
amended the Canada Labour Code to prevent strikes in the transportation and communications sectors while leaving the legislation untouched de jure. In so doing,
the Government of Canada established a new norm, using executive authority to
decide to effectively amend a statute of Parliament, by invoking its legislative authority as the majority party, to legislate strikers back to work.
1. HISTORY OF STRIKES AND BACK-TO-WORK LEGISLATION
IN CANADA
As can be seen from the Table below, the total number of work stoppages has
decreased by more than 60% from 1980 to 2005. This decline is mirrored in “Person-days not worked” (decrease of 50%) and “Time-Loss Ratio” (decrease of
33%). In 2008, the Government of Canada commissioned a study (Causes and Impacts of Work Stoppages in the Federal Private Sector, Peter Annison, Labour
Canada website), using OECD data. The results showed that Canada was over 4
times above the OECD average for days lost to strikes (180 v. 37 per 1000 workers).1 As seen in the Table below, the average number of hours not worked because
of strikes or lockouts has declined overall since 1976 from almost 11 hours per year
to 0.3 hour for every employed worker.
*
1
Sprott School of Business, Carleton University.
Online:<http://www.hrsdc.gc.ca/eng/labour/labour_relations/wsfps/page02aa.shtml>.
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Source: HRSDC calculations based on Statistics Canada. Labour Force Historical Review 2010 (Table 221). Ottawa: Statistics Canada, 2011 (Cat. No.
71F0004XVB).
However, the table below from the Anniston Report places Canada’s record in
an OECD context from 1997–2006. It reveals that Canada had the second worst
record across the OECD.
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2. CANADA POST
Let us examine the strike actions of 2011 that precipitated government intervention. After a series of failed negotiations between postal workers and Canada
Post, CUPW announced on June 2, 2011 that the first of a series of rotating strikes
would begin in Winnipeg.2 When these rolling strikes continued throughout Can-
2
Post Media News, Postal Workers Strike in Winnipeg, June 2, 2011.
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ada with no tentative agreement in sight, the Government served 48 hours’ notice
on June 15, 2011 that they would introduce back-to-work legislation to end the
labour dispute.3
On June 15, 2011, Minister of Labour Lisa Raitt, during Oral Question session
said:
Mr. Speaker, as the Prime Minister has just indicated, in this case, Canada
Post and the union have been unable to reach a negotiated settlement,
which is a great disappointment for us because of the effect it has on
Canadians and on the Canadian economy. As a result, tonight we will be
putting on notice legislation to restore mail delivery service for Canadians.4
On June 20, 2011, Minister Raitt introduced back-to-work legislation, Bill C6, An Act to provide for the resumption and continuation of postal services. Most
surprising to all, the legislation imposed a wage settlement lower than Canada
Post’s last offer. The settlement was 1.75% in year 1, 1.5% in year 2 and 2% in
each of the final two years,5 whereas Canada Post previously offered 1.9 per cent in
each of the first three years, followed by 2 per cent in the final year.6 CUPW estimated the difference at $875 for a full-time employee over the course of the fouryear agreement.7
After a filibuster of 58 hours8, the Bill finally passed 3rd reading in the House
of Commons and was granted Royal Assent on June 26, 2011. When Minister Raitt
was asked if back-to-work legislation would become the new norm for the Conservative Government concerning labour disruptions, the Minister replied, “If it is a
matter of national public interest, the government will intervene.”9
3. AIR CANADA STRIKES
On June 14, 2011, the Canadian Autoworkers (CAW) announced that CAW
members working at Air Canada were on strike, effective midnight, after 10 weeks
of negotiations with Air Canada.10 On June 16, Labour Minister Lisa Raitt responded by tabling back-to-work legislation, Bill C-5, An Act to provide for the
resumption and continuation of air service operations.
On June 15, 2011, when questioned in the House of Commons on the Govern-
3
4
5
6
7
8
9
10
Globe and Mail, June 15, 2011, Steve Chase, Barrie McKenna and Brett Jang, Strike
two: Ottawa steps in to end Canada Post labour dispute.
Parliament of Canada, 41st Parliament, 1st Session, Edited Hansard, Number 009, June
15, 2011.
Parliament of Canada, 41st Parliament, An Act to Provide for the Resumption and Continuation of Postal Services, Royal Assent, June 26, 2011.
Toronto Star, Tory bill legislates Canada Post wage rates, June 21, 2011.
Toronto Star, Tory bill legislates Canada Post wage rates, June 21, 2011.
Globe and Mail, June 25, 2011, Postal back-to-work bill becomes law; mail could resume Tuesday.
Globe and Mail, June 25, 2011, Postal back-to-work bill becomes law, mail could resume Tuesday.
www.caw.ca, CAW out on strike after negotiations with Air Canada break down, June
14, 2011.
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ment response, Prime Minister Harper answered:
Mr. Speaker, the two parties in both the Air Canada dispute and the Canada
Post dispute have thus far been unable to reach a settlement. Due to their
inability to reach a settlement, they are threatening greater damage on
other parties in the Canadian economy. That is not acceptable to the government. This government will act to ensure that the Canadian economy and
the wider interests of the Canadian public are protected.11
Later that same evening, Minister Raitt discussed the 2 strikes on CTV, stating
that:
There’s a point in time where the innocent third parties affected . . . It’s one
thing to withhold your services to a company in order to make them hurt
economically so that they come back to the table. It’s quite another thing to
withhold services from the Canadian public so that they cause an economic
difficulty for the entire nation in order to get their way. And that’s just not
acceptable.12
On June 19, 2011, CAW announced that it ratified the tentative deal reached
with Air Canada on June 16. CAW National President Ken Lewenza criticized the
Government of Canada for its hasty involvement; only 16 hours after a strike had
been announced:
We were able to reach a negotiated settlement with Air Canada and it is
with absolutely no thanks to the federal government who were only too
happy to strip workers of their collective bargaining rights . . . No worker
or union member anywhere in the country should take this kind of extreme
interference lightly. I would urge new Federal Labour Minister Lisa Raitt to
instead start acting in the best interest of both sides and allow parties to
resolve their conflicts through the collective bargaining process.13
But labour disputes at Air Canada in 2011 were not over. Flight attendants had
been without a contract since March 31, 201114 On October 10, 2011 flight attendants rejected a second tentative deal and served strike notice. It was the second time
the flight attendants turned down a tentative agreement, having turned down a previous offer in August.15 CUPE announced they would be able to walk off the job as
early as 12:01 a.m. on October 13. Thereupon, a spokeswoman for Labour Minister
Raitt stated the Government would intervene if Air Canada flight attendants walked
off the job:
We will be clear that a work stoppage is unacceptable in this time of fragile
11
12
13
14
15
Parliament of Canada, 41st Parliament, 1st Session, Edited Hansard, Number 009, June
15, 2011.
CTV.ca, News Staff, Power Play, June 15, 2011.
www.caw.ca, June 19, 2011, New Deal at Air Canada Gets Approval of Union Leaders, Workplace Representatives.
Online: <www.cupe.ca>, September 16, 2011 Press Release, Air Canada flight attendants serve strike notice.
Globe and Mail, October 10, 2011, Globe, Air Canada work stoppage unacceptable,
Ottawa says.
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economy,16
The Minister herself also publicly mused that it may be time for the Canada
Labour Code to be revised, given that two tentative deals had been rejected by
union members. She said:
“There’s something wrong in this case, and does that mean there’s something wrong in the code?” she said. “And if there is, what do we do about
it? But the beginning part is analyzing the facts at hand to see if it’s a oneoff . . . or is it a case where the code, which is 100 years old, has to be taken
a look at . . . If we do have a problem and maybe it is a flaw in the system,
we should discover it now and if we need to make changes we can make
changes.”17
The House of Commons was not sitting at the time and speculation was rife
concerning whether the House would be recalled to deal with emergency back-towork legislation. However, Minister Raitt once again surprised everyone and referred the matter to the Canadian Industrial Relations Board (CIRB). This cleverly
prohibited the flight attendants from striking (even with a legal mandate) while the
matter was before the Board.18
The Minister also asked the Board to determine whether the rejection of two
tentative agreements by Air Canada employees “created conditions that are unfavourable to the settlement of the industrial dispute at hand.”19 She referred the
matter to the Board, pursuant to section 107 of the Canada Labour Code which
states:
107. The Minister, where the Minister deems it expedient, may do such
things as to the Minister seem likely to maintain or secure industrial peace
and to promote conditions favourable to the settlement of industrial disputes
or differences and to those ends the Minister may refer any question to the
Board or direct the Board to do such things as the Minister deems
necessary20
Minister Raitt explained the Government’s position to CBC TV by stating:
From our perspective, the government gets engaged when we see that
there’s going to be a nationally significant effect either on the economy or
on the general public,21
The union and Air Canada subsequently opted for binding arbitration, agreeing that the decision of federal arbitrator Elizabeth MacPherson, the chair of CIRB,
would be the final agreement. On October 20, 2011, Ms. MacPherson imposed the
16
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18
19
20
21
Globe and Mail, October 10, 2011, Globe, Air Canada work stoppage unacceptable,
Ottawa says.
CBC.ca, October 10, 2011, Air Canada strike could lead to labour code change.
CTVNews.ca, October 11, 2011, Raitt Moves to Block Strikes by Air Canada Workers.
iPolitics, CUPW takes Harper government, Canadian labour’s future to the courts, October 12, 2011.
Parliament of Canada, Canada Labour Code, R.S.C., 1985, c. L-2, Section 107.
ROB, Economy Lab, Barrie McKenna, September 20, 2011Is Ottawa putting the right
to strike at risk?
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earlier tentative deal which had been rejected by union members.22
Speaking with reporters on October 21st, in reaction to news of a settlement
between Air Canada and its flight attendants, Raitt seemed to reject her earlier consideration of revamping the Canada Labour Code:
Well, you know, we were just talking in general about whether or not there
was a difficulty in ratification this time. We referred it to the CIRB. But I
don’t expect we’re going to get anything from the CIRB on the matter because they settled their differences and they found a process that worked so
I’m very content with the Labour Code that it’s working as the way it should
so it’s not priority for me at all . . . You know we went through a process of
taking a look at the Code in general and I met with both labour and we met
with employers and the Minister before me did the same thing. It’s working
in today’s situation. It worked in this case and I’m very happy with the way
that it worked out. I think what I was referencing is just we were going to
use the Code in a different way by having Section 107 reference to the CIRB
and that’s what I was indicating we were thinking of and that’s what we did.
And it worked very well so we’re happy with it.23
4. ANALYSIS
It is not that Canada never used back-to-work legislation before the Harper
Government in 2011. Indeed, this mechanism has been used 33 times since 1950,
although it must be noted that all but two (which were federal public servants)
involved strikes in the transportation and communications sector, suggesting that
since the 1950s, governments have legislated these two sectors back to sector while
Parliament never legislated any other sector back to work.24 Labour experts have
noted that back-to-work legislation is being used in a novel fashion by the Harper
Government.
In the past, back-to-work legislation was adopted after a lengthy strike, when
it became apparent that a stalemate had been reached. Yet, in the First Session of
the 41st Parliament, Bill C-6, dealing with mail delivery operations, took only 6
days to get from First Reading to Royal Assent, despite its having been filibustered.25 This was not the first time that the Harper Government had intervened so
quickly. In 2009, the Government drafted back-to-work legislation just 11 hours
after locomotive engineers began their strike against Canadian National Railway
Company.26
Eric Tucker, professor of law at York University, stated:
Historically, back-to-work legislation was usually only enacted after a
strike had gone on for at least some period of time and there was some
22
23
24
25
26
TheStar.com, November 7, 2011, Arbitrator imposes deal that Air Canada’s flight attendants rejected.
MACLEANS.CA, Aaron Wherry-Friday, October 21, 2011, Air Canada.
CBC News, Kazi Stastna, October 13, 2011 Government’s recent labour interventions
highly unusual, experts say using back-to-work law in unprecedented ways.
www.parl.gc.ca/ParlInfo/Compilations/HouseOfCommons/legislation/LegislationBackToWork.aspx.
FP, June 14, 2011, Scott Deveau, Ottawa to introduce back-to-work legislation for Air
Canada employees.
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evidence that the public interest was being seriously affected in a negative
way,27
The second manner in which back-to-work legislation was used differently by
the Harper Government was in who it was used against. Laurel Sefton MacDowell,
a labour historian at the University of Toronto said:
It tends to be mostly the public sector because although the public is affected by all work stoppages, more of them are affected more directly with
public services.28
Anil Verma, Professor of industrial relations at the University of Toronto,
pointed out that Air Canada, is a private company, which is not viewed as holding a
monopoly or providing an essential service.
Unlike the ports or the railways, there is ample competition in the airline
industry both domestically, with WestJet Airlines Ltd. and Porter Airlines,
and abroad with any number of international carriers, he said. “Air Canada does not fit the category at all.”29
However, Minister Raitt disagreed:
As history will show, in the history of airlines, in the history of rail and the
cases of port matters, where it’s going to effect the economy, the government, regardless of the stripe of it, is going to act.30
A nationwide opinion poll, conducted by Forum Research on the back-to-work
legislation for postal workers found that 70 per cent of Canadians supported the
action.31
However, these labour scholars and various other pundits missed the pattern in
the Harper Government actions that is notable. Every strike terminated by back to
work legislation since 1950 (except two public servant strikes) involved firms in
the transportation and communications sector. The second related point is that the
Harper Government merely accelerated the timing of the interventions in these two
sectors.
As the late scholar, Harold Innis (and his protégé, Marshall McLuhan) understood deeply, in The History of the Canadian Pacific Railroad (his doctoral thesis),
The Fur Trade in Canada, Empire and Communications and the Bias of Communications, one cannot comprehend the development of this vast, harsh land without
understanding the centrality of transportation and communications.
In the words of the scholar Charles Lindblom, “there is an intelligence in democracy”. Indeed, from 1950 to the present, successive Parliaments experienced no
27
28
29
30
31
CBC News, Kazi Stastna, October 13, 2011 Government’s recent labour interventions
highly unusual, experts say using back-to-work law in unprecedented ways.
CBC News, Kazi Stastna, October 13, 2011 Government’s recent labour interventions
highly unusual, experts say using back-to-work law in unprecedented ways.
FP, June 14, 2011, Scott Deveau, Ottawa to introduce back-to-work legislation for Air
Canada employees.
FP, June 14, 2011, Scott Deveau, Ottawa to introduce back-to-work legislation for Air
Canada employees.
The Hill-Times, June 21, 2011, Tim Naumetz, Most support feds’ back-to-work legislation on Canada Post workers: Forum Research.
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evident existential difficulties or qualms in legislating workers back to work 31
times. Whether the Parliamentarians even knew who Harold Innis was, is of no
importance, for they understood intuitively about the nature of Canada what Innis
understood deeply.
From the foregoing, we can only conclude that the current Government of
Canada has formalized the tacit understanding of past parliamentarians regarding
the centrality of transportation and communications to Canada, by establishing a
precedent, a de facto amendment to the Canada Labour Code, which designated
workers in these two sectors as essential services, thereby establishing a “new normal” in labour relations in Canada.
FEDERAL BACK TO WORK LEGISLATION 1950 TO DATE
The first Canadian back-to-work law was passed in 1950. (Price, Adam Robert
William. Back-to-work legislation [microform]: an analysis of the federal and Ontario governments’ increased propensity to end strikes by ad hoc laws, 1950–1978.
Ottawa: National Library of Canada, 1981. Thesis (M.A. — Queen’s University,
1980).
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