The federal government’s repeated use of the Canada Labour Code to force picketing employees back to work has undermined its ability to end strikes while setting it up for a fight with Canada’s labour movement, union officials and experts say.
Their comments come days after federal Jobs and Families Minister Patty Hajdu’s failed move to send striking Air Canada flight attendants back to work and have the Canadian Industrial Relations Board (CIRB) step in and arbitrate their dispute with the airline.
The union representing the airline’s 10,000 flight attendants defied the CIRB, saying its members would remain on strike until Air Canada returned to the table to continue negotiating.
“The fact that we didn’t back down — the government and the company got the message that we weren’t going to react to their demands, their threats, legal action, jail time, whatever it was,” CUPE national president Mark Hancock told CBC News.
“When they finally figured out that the only place a deal was going to be found was at the table, that’s when they came back to the table.”
Hancock noted that while eight months of negotiations between the airline and the union couldn’t land a deal, once it was clear the union was not going to respect the CIRB order, both parties came to an agreement in just seven hours to end the strike which began Aug. 16.
Federal labour ministers can exercise their authority under Section 107 of the Canada Labour Code to direct the CIRB to end a strike and take over arbitration of a labour dispute.
Section 107 has been a part of the code since 1984 and was rarely used, but in the last year the Liberal government has invoked multiple times.
It used the provision to end a labour dispute between the union and Canada’s two largest railway companies, a labour disruption at ports in Montreal and Vancouver, and to send striking Canada Post workers and the Crown corporation into binding arbitration.
“The last couple of years [Section 107] seems to be the government’s go-to when a difficult round of bargaining is occurring,” Hancock said. “I think this experience this past week has shown them that 107 is not effective.”
Canadian Labour Congress president Bea Bruske told CBC News that she thinks the Liberal government made a mistake in using Section 107 so often, and will now have to face the consequences of an emboldened labour movement.
“They underestimated the workers’ demand for a fair collective agreement, and the fact that they were prepared to defy an order by the CIRB in order to make that happen,” she said.
“The union’s defiance of the directive from the CIRB means that Section 107 effectively is dead,” Bruske added. “It means that workers understand that the employer always has a better deal to offer” and will push for it.
Gilles LeVasseur, a professor of law and management at the University of Ottawa, told CBC News that ignoring a CIRB notice to get back to work and the bargaining table is unlawful.
Section 107 and the Air Canada strike, explained
Individual union members could be fined up to $1,000 a day and unions could face fines of up to $100,000 a day for refusing to comply.
But to enforce the order, LeVasseur said, either Air Canada or the CIRB has to file it in federal court — something the CIRB said “would be unduly punitive and not conducive to harmonious labour relations and constructive collective bargaining.”
LeVasseur said when the CIRB announced it would not file the order in federal court, it made it easy for flight attendants and the union to refuse to comply.
Going forward, LeVasseur said, the unions know they have the advantage. He said that in future, the CIRB could go to court to enforce a Section 107 order, but that might just result in opposition to the provision rising to the next level.
“Other unions may say, ‘Well, let’s put it all together and make it a national strike for all these unions,’ he said. “That’s the danger.”
Bruske said the failure of Section 107 has sent a message to employers that they should forget about the federal government using the measure to bail them out of labour negotiations.
She said that when Parliament resumes, the Canadian Labour Congress, an umbrella organization for labour unions across the country, will work with unions to ensure Section 107 is taken out of the labour code.
“Everybody in the labour movement, regardless of what union you come from, whether you’re private or public sector, or you’re a trades union, we are on the same page,” Bruske said. “Section 107 is a high priority and it’s got to go.”
Hancock agrees, saying that at least if a union is legislated back to work, there is a democratic process because it’s debated and voted on in Parliament, whereas Section 107 avoids that step by giving power directly to the minister.
LeVasseur points out that is particularly handy during minority parliaments when the party in power may not have the votes to get back-to-work legislation passed, but it comes with the criticism that Charter-protected rights are being violated.
“In this case … very few people decided to take away our members’ rights to free collective bargaining in this process,” Hancock said.
“We will continue to work with others in the labour movement to make sure Section 107 is never used again in any union in and around bargaining.”
