In mid-June, Minister of Jobs and Families Patty Hadju asked the Canada Industrial Relations Board (CIRB) to conduct and oversee a vote. The voters are to be Canada Post office workers. They are to decide, as individuals, whether they want to accept the last offer made by their employer to their union. Their union had rejected it. If the employees, despite their union’s stance, accept the employer’s offer, a death blow will have been struck against the union. If, as one would hope is more likely, they support their union and reject the offer, Hadju will likely refer the matter to the CIRB which—as its track record indicates—will decide that the impasse cannot be resolved and that an arbitrator should settle the dispute. The union will thus have had its right to strike aborted. I expect the minister to express her and the government’s disappointment that it had to come to this, even though this outcome was engineered by that government.

This is part of a pattern of federal Liberal governments’ approach to the right to strike. They regularly use sleight of law to rob workers of their collective bargaining weapons, even as these are now protected by the Charter of Rights and Freedoms. They have had to be cunning as Canadian jurisprudence, under pressure from civil libertarians, unions and international committees who repeatedly found Canada to be in violation of international norms, has changed markedly. This requires some elaboration.

It was a trilogy of cases arising out of governmental restraints on the right to strike that led unions to the Supreme Court of Canada in 1987. They asked it whether the recently minted guarantee of freedom of association prevented a government from taking away their right to bargain collectively, a right which by necessity had to allow workers to withhold their labour in concert, that is, to strike. The court answered “no,” the freedom to associate did not prevent governments, following proper legislative processes, from taking away a statutory right to strike. The assault on public sector workers, painstakingly documented by Leo Panitch and Donald Swartz in their 1984 book From Consent to Coercion, was given an invigorating judicial green light. Unions and their supporters fought back. Finally, in 2015, the Supreme Court of Canada relented, stating that whatever it had said 28 years ago no longer applied. Governments could not use their law-making power to take away any workers’ right to strike which had been bestowed by a properly enacted statute. Workers could go to court and get judges to stop a government from trying to rob them of their statutory right to strike.

(As this is being written, Unifor members are conducting a legal strike at the CN Tower in Toronto. The Canada Lands Company, a federal Crown corporation, has responded by making its final offer and locking out the workers on strike. If this does not lead to a quick settlement, it will be interesting to see whether the federal government will resort to one of the union-busting tactics discussed in the text which follows.)

Manifestly, that judicially enforceable right to strike is not a new right. It is the same right as the one found in labour relations statutes throughout the country. Those laws permit a union certified as the bargaining agent for employees of one employer to conduct a strike after a host of costly, dilatory procedural requirements have been satisfied. They do not allow unions to use that power for political purposes, only for narrow economic ones. They do not allow unions to strike in support of people on legal strike elsewhere. They do not give statutory protection to non-unionized workers to strike. The Supreme Court of Canada did not say that it was endorsing any of these kinds of rights. All that has changed is that the rather limited statutory right to strike, first enacted in 1944, is now enforceable in the courts.

To be clear, that is a positive legal advance because governments can no longer act as capriciously as they so often did. They cannot just take away a use of the statutory right to strike which annoys them or challenges the dominant ideology or causes them political difficulties by hastily summoning a special session of the legislature and ordering the lawfully striking workers back to work. If they want to legislatively interfere with an ongoing, now Charter-protected, strike, they will have to deploy the notwithstanding clause of the Charter. This may impose a high political price as the voting public might view them as acting against the spirit of the Charter to which, public surveys tell us, Canadians are devoted. Furthermore, in the federal sector, which is our focus here, the use of the notwithstanding clause to immunize any legislation from a Charter attack is not available to the government because it has voluntarily declared that it will not use the notwithstanding clause. This has pushed our recent Liberal governments, which have not lost their hearty appetite for smashing the right to strike whenever they can, to craft new legal tools to satisfy their hunger.

The tools they are perfecting rely on a kind of annoying splitting-of-hairs or “counting angels on the head of a pin” argument. They claim to be merely applying the Canada Labour Code, even as they take away the very right to strike that the statute grants to workers under federal jurisdiction. They put themselves in a position of being able to say that they are not using their legislative power to set that governing statute aside. To the contrary: they are applying the legislation according to the way it is written. Thus, they look for provisions in that very statute, the Canada Labour Code, which give an independent agency—which has been established to oversee the Code’s operation—the discretion to end impasses by ordering that an alternate dispute settlement process (alternative to collective bargaining, that is) be deployed to settle a supposedly irreconcilable conflict. The government, as such, will not be attacking the Charter-protected right to strike, but applying the law which gives workers the right to strike.

Mission accomplished! The Liberal governments found the provisions they need. First, they weaponized a dormant provision, Section 107 of the Canada Labour Code. This gives the minister in charge the power to refer the dispute to the CIRB, when the minister deems it expedient and necessary to maintain secure industrial peace. This was done in August 2024 by then Minister of Labour Steven MacKinnon, who claimed there was no other way to end a dispute between the Teamsters’ union and CN Rail and Canadian Pacific Kansas City. The bargaining and disputation had gone on for well over one and a half years and had seen several work stoppages. The board, when it received the request from MacKinnon, determined that economic warfare had to end and that the dispute should be settled by an arbitrator. The same thing happened in the case of disputes at ports in British Columbia (where bargaining had commenced in March 2023 and had continued until November 2024) and at ports in Montréal and Québec City where the disputes had been even longer. The unions had exercised their legal right to strike sporadically during the lengthy bargaining processes, and this had led to legal attempts by the employers to have the workers declared to be “essential” (and, therefore to have limited strike rights). When that did not work, they argued that the unions were engaged in an illegal strike. That second argument was also knocked down by the courts. The employers then locked out the workers on strike and brought in scab labour. The minister referred the matter to the board and a settlement was imposed. Workers’ right to strike had been thwarted by application of the Canada Labour Code. The government had not ended the strikes by Charter-violating legislative action.

Minister Hadju, newly appointed, and faced with an ongoing strike at Canada Post, found another provision in the Canada Labour Code that might be used to curb freedom of association and the right to strike. Bargaining between Canada Post and the Canadian Union of Postal Workers (CUPW) had been going on for a long time. The former Minister of Labour, Steven MacKinnon, who had to deal with this dispute in its earlier days, had taken action after a five-week legal strike by CUPW members. He had ordered the CIRB to suspend the workers’ right to strike. Note the sleight of law: MacKinnon did not take away the Charter-protected right to strike. He merely asked that it be suspended by an independent arm of the statutory regime, not by the legislature. Annoyingly clever. The union claims that it was too clever by half and has asked a court to rule it an illegal action by the minister. The outcome of that litigation is some way down the road. In the meantime, the union’s right to strike was suspended for 90 days. That period expired in May 2025 (well after the Christmas period, of course) and then workers made legal use of their strike right once again, which led the new minister in charge, Patty Hadju, to use section 108.1 of the Canada Labour Code. Before that happened, however, another legal intervention requires attention. It had been triggered during the period when the post office workers’ legal right was suspended. Section 108 of the Canada Labour Code was invoked. Historically, this provision has very rarely been used. It allows a minister of labour to set up an industrial inquiry commission, which is what MacKinnon did.

Lawyer and arbitrator William Kaplan was appointed in December 2024 to report on the state of the dispute and on the likelihood of resolution by bargaining between the parties. He was also tasked with assessing the economic viability of Canada Post, something which the employer had put in issue to explain its tough stance during the negotiations. The commissioner was to make recommendations on how to bring about a solution. He did so, after judging that free bargaining was unlikely to resolve the issues and, crucially, by finding that Canada Post was in a hopeless financial position. Of course, this meant that he saw the employer as justified in its rejection of demands by its unionized workforce and thought management’s efforts to revive itself should be supported. This suggested strongly that CUPW members were to accept some bitter medicine. CUPW had furnished a series of plans to help Canada Post improve its financial status and which, simultaneously, would restore some of the services which the public had enjoyed in the past. Win-win, it said. Commissioner Kaplan dismissed these suggestions. All this helped Canada Post formulate its final offer to CUPW. It was based squarely on the Kaplan findings that, to survive, CUPW members had to be ready to make concessions. It was an offer that Canada Post (and the minister) must have known CUPW could not accept. This is the offer that the new cabinet member in charge, Minister Hadju, allowed Canada Post to put directly to the bargaining unit members.

This kind of provision which permits an employer to put its last offer to individual members is not unique to the federal jurisdiction. The fact that it is to be found in statutes designed to promote collective bargaining by a legitimated union speaks to the deep antagonism toward collective organizing and action by workers that imbues the dominant class, even as they have had to formally accept the legitimation of unionism. They are forever promoting the individual over the collective. They give, reluctantly, with one hand but with the other they take back, by stealth, something of what was given.

The core, unarticulated premise of these provisions which permit an employer to put its last offer directly to workers is that, even though workers are not, by law, parties to any collective agreement that is struck, they must have the power to override the union’s rights as the legal principal to, and responsible for, the signing and operation of the collective agreement. While the records show that workers generally support their union when they are presented with such a final offer, the mere fact that the process challenges respect for the union’s authority and the legitimacy of its autonomy may well lead unions to make concessions they might not otherwise make, just to avert the use of the statutory right to put the last employer vote directly to the bargaining unit’s members. It has a chilling effect on the bargaining position of unions. It is another block to free collective bargaining.

Minister Hadju, coolly and deliberately, enabled the use of this anti-union tool by a truly intransigent employer, Canada Post. At the time of writing, we are waiting for the outcome. Whatever happens, the point here is that legal manoeuvring to harass unions and curb the right to strike is standard practice for Liberal governments, whether headed by Trudeau or Carney.

Unions will, of course, fight back against these lawyer-contrived efforts to defeat the spirit of the legislation. Indeed, the Teamsters’ union and CUPW have already launched court challenges. There will be more. I was a labour law teacher for many years and think it would be foolish to predict how the judges will react. They often like to be formalistic; that is, follow the rules as they are written, regardless of how contrary to social sensibilities they might functionally be. To explain and illustrate, the manipulations of the Canada Labour Code resemble those deployed by tax avoiders in that they too rely on strictly formal rules and on the formal, but functionally unsustainable, distinction between corporations and their controllers. This allows the rich to hide their money and to launder it. This kind of rigid adherence to a formal reading of the law, at the expense of the spirit of the law and the public purse, led President Barack Obama, confronted by the tax avoidance practices of the wealthy, to acknowledge that their legal strategies were immoral but not illegal, and he could do little about it all. It is the same story when the Liberal governments reach for loopholes in the form of sections 107, 108 and 108.1, ignoring their own fulsome declarations about their respect for unions and the legitimacy of free collective bargaining. The unions will contend that provisions such as sections 107, 108, 108.1 allow governments to escape the legal obligation the Supreme Court had imposed on them to respect the right to strike of their workers and hence should not be used by governments. But some courts, holding the view that it is not within their power to overrule properly enacted laws, may decide that they should accept the governments’ use of these valid laws. This kind of formal reading of statutory law is common. These legal tricks by government may be lawful but they are wilfully anti-union. Maybe the courts will eventually rule (recall that it took 28 years for unions to win the legally protected right to strike which now is so sneakily being diluted) that the Liberal governments abused sections 107, 108 and 108.1. By then, however, much damage may already have been done.

There is an idea in the air that unions should be contained as capitalists face a major crisis for the kind of capitalism they want to maintain. The systematic enfeebling of federal workers’ hard-won rights to withhold their labour in concert is part of a campaign to revert to an earlier time when unions were not legally or politically accepted as a necessary countervailing power to offset the advantages and privileges of the employer.

This deliberate lowering of regard for workers’ interests, especially when pursued by their freely chosen unions, is reflected in the very composition of the Carney government. Canada has never had a minister for labour, but we have had many ministers of labour. However, the Carney government does not prioritize labour issues as much as previous governments. Accordingly, there is now a secretary of state of labour (a post currently occupied by business executive and lawyer John Zerucelli). A secretary of state is described as an appointee who is to provide dedicated leadership on specific issues or priorities within the broader portfolio of a cabinet minister. In other words, a flunky for a more senior cabinet member. Minister Hadju was that more senior cabinet member when the government sought to bring an end to the Canada Post-CUPW dispute. She must be considered a very able person because her portfolio requires, on the face of it, an overwhelming variety of skills and wide-ranging knowledge. It comprises the tasks previously discharged under the direction of a specialized minister, as well as the tasks previously assigned to the minister of families, children and social development, the minister of seniors, the minister of citizens’ services and the minister of diversity, inclusion and persons with disability.

The official designation of this minister’s portfolio is that she is the minister of jobs and families. Jobs, of course, are held by individuals. What matters to these individuals is what their terms and conditions of their jobs are. By slotting in collective and individual labour issues with diversity, family, children and citizens’ issues, the symbolism is clear. The title “Jobs and Families” emphasizes that the government is there to help vulnerable individuals, children, seniors, bewildered citizenship applicants, and workers. While it is true that the portfolio encompasses former minister of labour responsibilities which had a huge focus on collective bargaining and unionism, the consolidation of these responsibilities in one enormous portfolio filled with responsibilities to look after individuals tells us that the Carney government wants to downplay the importance of collectivism as much as it can. Any suggestion that the history of momentous struggles by labour as a class to blunt the exploitation of individual workers by capitalists has been crucial to the formation of our political economy is buried as deeply as possible. Everything seems to be done to ensure that the relationship between those who invest inorganic capital and those who invest their bodies and minds is not perceived as different from any other kind of social issue, such as family disputes and welfare or matters of citizenship. There is a distinct attempt to disregard class. The work-for-wages relationship is a contentious one because it reflects a direct struggle between two classes, unlike the other social problems in Hadju’s portfolio.

Prime Minister Carney is presenting himself as a politician who has a vision of a new, more prosperous and sovereign Canada. Whatever he and his government have in mind, they certainly do not want the working class to make too many gains or to have much of a say in what kind of a society we might become. Their attacks on unionized federal workers are in line with the Trudeau governments’ hostile approach, but are actually even more focussed on blunting working class power. Their accompanying attempted marginalization of unions and what they do and stand for is intentionally demeaning. The purpose is to stiffen the backbone of employers and to tell the public, again and again, that it is greedy workers who are preventing them from enjoying the services provided by private actors, the government and private-public partnerships. It is precisely because unions have some political power when they withhold their labour in concert that they are seen as the real enemy of “build, baby, build.”

The working class has had tougher enemies. It will fight back. It always does.

Harry Glasbeek is professor emeritus and Senior Scholar of Osgoode Hall Law School, York University. He has taught in both Australia and Canada and has written 140 articles and 12 books, including Between the Lines titles Wealth by Stealth: Corporate Crime, Corporate Law, and the Perversion of Democracy, Class Privilege: How Law Shelters Shareholders and Coddles Capitalism, Capitalism: A Crime Story, and Law at Work. The Coercion and Co-option of the Working Class. He lives in Toronto, Ontario.