Labour Law in Harper’s Canada: New Directions, New Challenges

For much of the past decade, leftists, progressives and centrists warned Canadians of the Conservative Party of Canada’s “secret agenda.” It has been alleged that this includes a desire to undermine Canadian values, to bring Canada closer to the United States, to jeopardize publicly funded health care, to erode Canada’s social safety net and to threaten the tolerance and acceptance that have been afforded to the many diverse lifestyles and cultures celebrated in Canada. In the early part of this decade–when the Liberal Party formed the government–it was argued that the Conservatives could not be trusted to form government. In more recent years–when the Conservatives were elected with a minority government–it was argued that they should not be rewarded with a majority government. On May 2, 2011, the Conservative Party of Canada won that ever-elusive majority government, leaving many Canadians in the centre and on the left of the political spectrum wondering if Harper’s supposed secret agenda would be unleashed.

Despite all of the worry from progressives of what the Conservatives would do with a majority government, few gave thought to what a Conservative government would do to the labour movement and to labour law. Do the Conservatives have a secret agenda to undermine Canada’s unions? Admittedly few–if any–expected the Conservatives to be a ‘pro-labour’ government, but even fewer gave much thought to how a Conservative government would impact Canada’s labour movement. A mere four weeks after the 2011 federal election, two separate labour disputes would force the Canadian labour movement to think about labour law under the Harper government. A third major labour dispute, in October 2011, has pushed this important issue to the forefront of labour’s political agenda.

On June 2, 2011 the Canadian Union of Postal Workers (CUPW) launched its first in a series of rotating strikes against Canada Post, a Crown Corporation, in order to force Canada Post to abandon its demands to introduce new mail processing technologies and implement a tiered-wage system that would have reduced the wages of new hires. In response, Canada Post locked out all workers on June 14, 2011. On the same day that the Canada Post lockout began, nearly 4 000 unionized sales and service agents working for Air Canada and represented by the Canadian Auto Workers (CAW) union struck over pensions and wages.

In both instances, the government responded with a heavy-hand. A mere two days after the strike at Air Canada began, the federal government tabled back-to-work legislation that would have put an end to the strike. Although Federal Labour Minister Lisa Raitt noted that “the best deal you can have is the one they do themselves…. putting the [back-to-work] legislation [forward]….was a tool that was needed…” in order to get a settlement and, according to the government, to prevent damage to Canada’s fragile economic recovery. Although CAW President Ken Lewenza publicly commented that the union was satisfied with the collective agreement that was eventually reached, the fact remains that the threat of the impending back-to-work legislation put more pressure on the union to settle, and a better deal may have been possible with a prolonged strike. Regardless of what sort of deal could have been had, it shows the government’s eagerness and willingness to end a legal strike through coercive means.

On June 20, 2011, the government once again introduced back-to-work legislation, this time to end the lockout at Canada Post. The government’s bill not only sought to put an end to the work stoppage, it also included wage increases that were significantly below Canada Post’s last offer to the union. After a lengthy 58-hour filibuster by the opposition New Democratic Party, the bill was put into law on June 26, 2011 and mail service resumed two days later. Although the union has mounted a legal challenge to the legislation, the momentum of the strike/lockout was quickly extinguished and workers were forced back on the job.

The government’s back-to-work legislation mandated a government appointed arbitrator to resolve the dispute, despite the fact that the general tendency in the field of labour relations is for the parties to jointly agree on a mutually acceptable arbitrator. The legislation also imposed final selection arbitration, in which the arbitrator is forced to select either the union’s or management’s final offer, without allowing any room for compromise. In late October, the union won a stay of proceedings against the government’s unilaterally appointed arbitration scheme, meaning that the arbitration will now stop until the union’s challenge of the government’s hand-picked arbitrator (and his powers) can be heard in January 2012. CUPW has also launched a separate challenge against the constitutionally of the passage of the back-to-work legislation itself.

A few weeks before CUPW’s request for a stay of proceedings was granted, the federal government once again took a heavy-handed and coercive approach in the collective bargaining process, once again in a dispute involving Air Canada. In this instance, flight attendants represented by the Canadian Union of Public Employees (CUPE), were threatening a strike after twice rejecting offers from Air Canada. At issue were wages, as well as the desire to create a low-cost Air Canada affiliate, which would have paid lower wages than those currently paid to Air Canada’s flight attendants.

After rejecting two previous offers, the flight attendants planned a legal strike, only to have Minister Raitt enact a procedural move which would have made the strike illegal. CUPE called off the strike following Raitt’s referral of the dispute to the Canada Industrial Relations Board (CIRB). Citing concern about whether the flight attendants provided an essential service, Raitt referred the dispute to the CIRB to determine if the health and safety of the nation would be placed in jeopardy in the event that flight attendants went on strike. The union’s right to strike is suspended when the minister raises concerns about essential services and asks for a determination by the CIRB, even if the workers possess a legislative right to strike under normal circumstances. In effect, Raitt’s clever - albeit underhanded move - made a strike illegal in the short-term and interfered in the collective bargaining process.

Fearing the repercussions of waging an illegal strike against the Harper government, CUPE determined that it would not engage in a workplace stoppage and quickly agreed to binding arbitration with Air Canada to resolve its contract dispute. In addition to delaying the strike by raising the question of essential services, Raitt also asked the board to consider unilaterally imposing a settlement or sending the dispute to binding arbitration, thus further jeopardizing the union’s right to strike. CUPE President Paul Moist referred to Raitt’s tactics as example of “outrageous interference by the Harper government” in the collective bargaining process, while Ontario Federation of Labour President Sid Ryan accused the government of “abusing the Canada Labour Code just to jerry around with the system,” and wondered aloud: “Who knows what they’ll do once they get into Parliament? Will they find some other little trick to pass legislation before they even go out on strike?”

Ryan alluded to an important question: the future of collective bargaining and the right to strike in industries under federal jurisdiction. On three occasions since their election in May 2011, the Harper government has employed coercive measures to frustrate the process of collective bargaining and to impede the legislative right of workers to engage in a strike. What do these actions tell us of labour relations under the Harper government? Are labour relations under the new government likely to be any different than relations under previous governments? Does the government’s quick response to the work stoppages or proposed work stoppages at Air Canada and Canada Post represent a new direction in labour relations, or is it merely a continuation of the past? The threat of back-to-work legislation to end a legal strike and the usage of back-to-work that mandated a wage settlement less than what was being offered by the company is nothing new and in many respects is a continuation of the status-quo of the state’s relations with organized labour.

Indeed, a joint-study produced by the National Union of Public and General Employees and the United Food and Commercial Workers has found that since 1982, governments at both the federal and provincial levels - representing all political parties - have passed 194 pieces of legislation that have restricted, suspended or denied collective bargaining rights for Canadian workers. These legislative intrusions into the free collective bargaining process have denied workers the fundamental right to join a union, restricted the right to strike, imposed collective agreements on workers, and allowed employers to engage in a variety of union-busting activities. The Harper government’s passage of back-to-work legislation against CUPW, threat of back-to-work legislation against the CAW, and clever usage of the CIRB in an effort to delay a strike by CUPE represented even more statistics to be included in the growing frequency of legislation or government action that has restricted the rights of trade unions and their members.

What then can the labour movement make of the Harper government? Does it have a “secret agenda” to undermine the already declining strength of the Canadian labour movement, or will it simply continue on with the status quo? The real fear, for organized labour, should not be the imposition of back-to-work legislation, something that striking unions have faced a total of 91 times between 1982 and July 2011 or similar coercive action that intrudes on trade union freedoms. The most pressing concern should be a radical departure from the existing post-war compromise between labour and the state and an overhaul of Canadian labour law.

A possible overhaul of labour law would be most damaging to the labour movement in two areas: the erosion of union-security provisions contained in collective agreements, and the introduction of a mandatory secret ballot vote during union certification drives. If the Harper government does, in fact, have a “secret agenda” to unleash on the labour movement, it would be an alteration to these vital features of labour law. The erosion of union-security provisions contained in collective agreements and/or the imposition of a mandatory vote during union certification drives would severely undercut the strength of the Canadian labour movement, and their passage is certainly not out of the question.

Labour law at the federal level is governed by two pieces of legislation: the Canada Labour Code for workers in the private sector and the Public Service Modernization Act for those employed in the federal civil service. Under both pieces of legislation, union dues are automatically deducted from all employees’ pay-cheques in any instance in which this is requested by the union, so long as the union is certified and supported by a majority of employees. The money is deducted by the employer and transferred to the union. Automatic union dues check-off, more commonly referred to as the Rand Formula, provides unions with an important sense of financial security and ensures that all workers who benefit from the existence of a collective agreement pay the union in exchange for the benefits it provides to them, thus avoiding any ‘free riders’ who would benefit from the collective agreement and its provisions while not paying the union for its services.

The legality of automatic union dues check off was challenged in the early 1990s in Ontario, where automatic union dues check off also exists. In a case known as Lavigne v. OPSEU, the appellant–college professor Merv Lavigne–argued that compulsory union dues violated his freedom of association rights guaranteed by the Canadian Charter of Rights and Freedoms. Ultimately, the Supreme Court of Canada ultimately ruled a secure financial base for unions is important because it allows them “…to participate in the broader political, economic and social debates in society, and to contribute to democracy in the workplace” and added that if union dues were not mandatory–and instead optional–it would “seriously undermine…the spirit of solidarity so important to the emotional and symbolic underpinnings of unionism.” Importantly, however, the Court did not rule that automatic union dues check off itself was mandatory, but simply that a right to ‘opt out’ of paying them did not exist. In short, a government could end the current scheme of automatic union dues check off and unions would have no legal recourse to prevent this.

As it stands now, automatic union dues check off exists at the federal level in any instance in which it requested by a union supported by a majority of its members. It is not an issue that unions must bargain over with management. Unions should be vigilant in ensuring that the Harper government does not seek to remove the automatic dues check off from the fabric of Canada’s labour laws and make it an issue that unions must bargain with their employer to have included in a collective agreement, as is the case in Alberta, PEI, New Brunswick and Nova Scotia. Furthermore, Canadian unions must be vigilant in ensuring that individual employees are not given the ability to opt out of paying union dues, as is the case in many southern US states. The effect of this not only severely weakens the political strength of trade unions; it also severely decreases union density.

That automatic union dues check off could be an element of labour law that the Harper government seeks to change is not out of the question. In the aforementioned Lavigne case, the appellant’s legal challenge was financed by the National Citizens’ Coalition (NCC), an organization that Stephen Harper was the president of between 1998 and 2002. Interestingly, the NCC currently has a feature on its website arguing against the payment of ‘forced union dues.’

Recently in Alberta–a province that does not make automatic union dues check off a mandatory feature of collective agreements–the UFCW has argued that a failure to incorporate the Rand Formula into a collective agreement is in fact a violation of the freedom of association guaranteed to unions by the Charter. This case is currently making its way through the legal system and gathering some public attention. The point, simply, is that the issue of automatic union dues check off is becoming an increasingly politicized issue, and one that if the Harper government wished, could become a target for reform. Such action is not out of the question, and would significantly impede Canadian unions.

The second part of a possible reformation to Canadian law by the new government would be to alter the formula under which employees governed by federal labour law organize into unions. Under the current set-up, there are two ways in which non-unionized employees can unionize their workplace. The first is known as card check certification, and occurs when over 50% of employees have signed membership cards stating their intention to join a union. If the Canada Industrial Relations Board confirms that a majority of employees have independently chosen to sign a union card free of any coercion and wish their workplace to become unionized, the Board issues a certificate, thus making the workplace unionized. The second way that a workplace can become unionized is through a secret ballot election. In instances in which more than 35% of employees but less than 50% of employees have signed a card stating their desire to unionize their workplace, the Board orders a secret ballot election to allow all employees to determine if they wish their workplace to become unionized. If a majority of those who cast a ballot vote in favour of the union, then the Board issues a certificate and the workplace becomes unionized.

While the secret ballot election approach exists in all ten provinces, only four provinces (Manitoba, Quebec, New Brunswick and PEI) allow for unions to be certified through the card check certification process. In Manitoba, however, 65% of employees must sign a union card before the workplace becomes automatically unionized without a vote. In Ontario, between 1948 and 1995, employees wishing to unionize had the option of using the card check certification procedure. However, after coming to power in 1995, one of the first things that Mike Harris did was to alter Ontario’s Labour Relations Act to mandate that every union be certified through a secret ballot election, even if 100% of employees had signed a card stating a desire to have their workplace unionized.

A move away from card check certification to a mandatory secret ballot election would impede the efforts of unions to organize new members. A study by Sarah Slinn of Osgoode Hall Law School traced the effect of such a move in Ontario during the 1990s. Her study found that eliminating the option of card check certification had a considerable impact of unions’ success. Prior to the introduction of a mandatory vote, unions were successful in almost 73% of certification applications. However, following the elimination of card check certification and the introduction of a mandatory secret ballot vote, the success rate of union certification drives dropped considerably and they were successful in just over 64% of certification drives. She also noted that a mandatory secret ballot election also had other adverse effects on union organizing, including a reduction in the number of private sector workplaces being organized, a reduction in the number of smaller bargaining units being organized, and a reduction in the number of bargaining units consisting primarily of part-time employees. The data from Ontario suggests that unions would face significant challenges in organizing new members if the federal government were to make all union certifications subject to a secret ballot election and end the possibility of certification through card check certification.

Will of these changes actually happen? It remains to be seen. Certainly such changes would be welcome by the Conservatives’ allies in the National Citizens Coalition, the Canadian Constitutional Foundation, and the in broader business community. Of course, changes to automatic union dues check off and card check certification are, at this point, merely speculative and allude to a possible “secret agenda” against the labour movement. However, labour law has become increasingly important in the era of neo-liberalism, and changes to labour law in Ontario were at the top of the Harris governments’ agenda in the 1990s. Clearly these changes would significantly hamper the political clout and institutional strength of Canada’s labour movement. As a result, Canadian unions must be vigilant of any possible reforms to the Canadian labour law.

While the events of June and October 2011 illustrate that the new government is likely to continue with the status quo of using coercive measures such as back-to-work legislation to end legal strikes, this should not be the real worry of Canadian unions, although it is a major issue. The real worry of Canadian unions should be the possibility of an overhaul of federal labour law. This is not to suggest that unions are helpless against the new government, though they should realize that they may not make much progress and that work stoppages (or even the threat of one) are likely to be dealt with swiftly. Furthermore, renewing collective agreements in the federal civil service may also present challenges. Despite this, an overhaul of federal labour law- in the form of ending automatic union dues check off and card check certification are real possibilities facing the labour movement, and ones that- if passed- are likely to have disastrous effects on the strength of Canada’s unions.

Perhaps the silver lining in Canada’s decentralized federalism is that labour law is generally within the jurisdiction of provincial governments. Only those workers covered by federal labour law would be impacted by the changes that the Harper government could make. These workers include those in the federal civil service, telecommunications, international or interprovincial transportation, banking, and other federally regulated industries. While this amounts to roughly 10% of Canada’s workforce, the fact remains that with a majority government, federal labour law could easily be changed, and the results would likely be disastrous for Canadian unions. One thing remains certain though, the rights to bargain collectively and to strike for those governed by federal labour law are in jeopardy.

Brad Walchuk, York University

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