Is back-to-work legislation unconstitutional?



This article was originally published on The Conversation.

By Alison Braley-Rattai, Assistant Professor, Brock University


Bill C-89 recently passed third reading in the Senate, its final hurdle before becoming law. The bill ended the rotating strikes that the Canadian Union of Postal Workers had engaged in for more than a month and sends the labour dispute to third-party, binding arbitration after a specified mediation period. The bill was briefly held up over concerns that it was unconstitutional. The union says Bill C-89 is “a clear violation of workers’ Charter rights.” The Senate was ultimately unpersuaded. It is accepted wisdom among labour relations scholars that freely negotiated settlements lead to better outcomes than imposed settlements. Whatever the labour relations wisdom of this bill, the question of whether it violates the Charter remains.
The Charter right to strike
In 2015, the Supreme Court of Canada expanded the scope of freedom of association under the Charter to include striking in support of collective bargaining. Those arguing Bill C-89 is unconstitutional refer to the fact that postal service is not “essential.” They also cite a 2016 court ruling in which a similar bill (C-6) introduced by Stephen Harper’s Conservatives in 2011 was deemed unconstitutional. While both of these facts are relevant, neither determines whether the present bill is unconstitutional.

Essential services

Federal Labour Minister Patricia Hajdu claims the postal service is “essential” and the rotating strikes were harming small and medium-sized enterprises.

Labour Minister Patricia Hajdu is seen during Question Period in the House of Commons on Nov. 22, 2018. THE CANADIAN PRESS/Adrian Wyld

Under international labour law, “essential services” are defined narrowly. Previous attempts to expand the definition of essential to include economic harm caused by a strike have been decisively rejected by the International Labour Organization’s Committee on Freedom of Association. And the Supreme Court of Canada has explicitly endorsed the restricted definition of “essential services” found under international labour law.

When it comes to labour law, the term “essential” is a loaded one. And it isn’t obvious whether the minister intends for the term to be understood in its legal, or some other, sense. And maybe it doesn’t matter.

That’s because in 2016, the court determined that even strikes in non-essential services could be restricted.

Different than previous bill?

Hajdu maintains, in fact, that Bill C-89 is different from Bill C-6, ruled unconstitutional in 2016. Under Bill C-6, terms that were central to the bargaining impasse were removed from the arbitrator’s purview and imposed by the government. Additionally, Bill C-6 allowed for the unilateral appointment of the arbitrator by the government’s labour minister at the time, Lisa Raitt.

Bill C-89 appears to avoid both problems. First, it “does not impose immediate outcomes.” It does provide a list of “principles” that an arbitrator must consider in its determination, but that’s not unusual. Moreover, these principles acknowledge the concerns of both the union and the corporation.

Bill C-89 allows for the unilateral appointment of an arbitrator only in the event that both parties cannot agree upon one, and even then, only after consultation with the chair of the Canadian Industrial Relations Board.

Contrast this to the previous unilateral appointment process, whereby two successive appointees were challenged by the union. The first recused himself, and the second was ordered to do so by a federal court judge owing to a reasonable apprehension of bias.

Bill could still face uphill battle

The fact that strikes may be restricted even in non-essential services, and that the arbitration process might pass constitutional muster, doesn’t mean that other Charter principles don’t apply. The government must demonstrate that its legislation has a pressing and substantial purpose, and that it is proportional.

In 2016, Bill C-6 was considered unconstitutional because it failed one aspect of the “proportionality” analysis — that is, it impaired the Charter rights of the striking workers more than was necessary to achieve its purpose.

Much depends upon how a court defines the government’s “purpose” and how it chooses to understand the relationship between that purpose and the requirement to only minimally impair Charter rights.

Among other things, a court might consider that the strike activity itself was minimal given that the union had very purposely chosen rotating strikes rather than a complete labour withdrawal.

The court might also consider that Canada Post is not a monopoly and that consumers and businesses have alternatives available to them. This could weigh against the notion that the total prohibition on strikes required by Bill C-89 is minimally impairing.

For these reasons, a constitutional challenge could still prove successful. In any event, a court tasked with determining whether Bill C-89 violates Charter rights should be very careful about what a low bar for government intervention it could be setting, all things considered.

Strikes not all bad

Strikes are necessarily inconvenient. But they also have benefits. Aside from providing a means to address workers’ legitimate concerns, those benefits often ripple beyond the union membership itself.

Notably, the postal worker strike in the early 1980s won for union members expanded maternity rights, which in turn pressured the government to follow suit.

And when faculty strike over class sizes or to highlight their precarious employment, the potential effect is to improve the learning conditions for all students.

While not every strike might carry with it far-reaching positive implications, we should be very circumspect about intervention into the bargaining process, and skeptical about government claims that intervention is the best way to protect the public interest.

This article was originally published on The Conversation. Read the original article.

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  1. As a former union treasurer/steward, I still consider myself to be relatively unbiased. There is no doubt that the Union chose “the perfect storm” as its time to strike: the Christmas season; coupled with a massive influx of marijuana mail orders, could not have been better. And as noted, they then attempted to curry favour with the public by employing rotating strikes.
    It is, however, somewhat disingenuous to suggest that other modes of mail delivery are comparable. Courier delivery, in general, is cost-prohibitive, and bus delivery remains inexpensive (but unadvertised). Also, Canada Post has a monopoly on marijuana delivery.
    Regarding the stated reasons for the strike; pay equity for the rural mail deliverers (mostly female), and their safety, why not just have them strike (without the avenue of receiving rural mail at the local post office)? BECAUSE, behind Door #3, they are also requesting yet another wage increase (YAHTZEE!). And, generically, most folks feel that the posties are well compensated for the work that they perform.
    “Aye, there’s the rub.”

  2. Nobody seems to have commented on the fact that the “flyer delivery company” known as Canada Post has been delivering less and less mail each and every year. This despite the introduction of some new delivery options and the generally friendly and helpful staff. It seems that, at least in my business, the package delivery companies and the internet have taken a huge bite out of what Canada Post used to do each and every day.

    A decade ago a parcel delivery truck in my yard was rare. Today they are a daily occurrence.

    Just two years ago about 80% of my business bills and payments were delivered by Canada Post. Today I would estimate maybe 10%, the vast majority being over the internet now.

    The delivery times have gradually become longer. In the 60s it was somehow possible to read a Toronto Star in the morning of the same day it was published, at my home, delivered by Canada Post. Today I don’t believe such delivery is even possible and if it was it would be several days late and at an expense so high as to not be desirable.

    Just a few decades back, Canada Post had a virtual monopoly lock on all deliveries in Canada. Today they seem to be rapidly becoming a minor player. If one projects this trend a decade or so into the future, Canada Post will be a quaint memory, suitable for one of those Hallmark cards that will probably be delivered electronically.
    I don’t really think a Marijuana monopoly will save them from their fate. Nor do I think arguing about the constitutionality of their jobs and strike actions will help either. I suspect that in a few more years it will all be someone like Fedex or Amazon who delivers all mail.

    This is a bit sad as for some crazy reason I still look forward each day to the visit by my friendly rural route delivery person.

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