Q:Canada Post workers were recently legislated back to work. How can the government do this?
A:It is a delicate balance when considering back-to-work legislation. From a legal perspective, the right to strike and seek a better collective agreement is enshrined in law.
The right to strike is designed to protect labourers from being taken advantage of, but the right to strike or protest working conditions is not absolute. There are limitations, and one limitation is that the government can legislate them back to work when circumstances dictate.
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Parliament is supreme and can enact any law as long as it does not violate constitutional rights. Alberta took a reference to the Supreme Court of Canada in 1987, where the province inquired whether unionized workers’ right to strike was one that was constitutionally protected.
The court said it was not, and that the federal or provincial legislators had the right to order workers to return to work.
While labour laws have long protected workers’ rights, if Parliament or a provincial legislature identifies a strike or lockout as jeopardizing a key segment of our economy or safety, it can intervene and pass a law directing the workers back into the workplace.
Usually, the government either imposes a type of binding arbitration on labour and management or imposes a contract. In recent years, governments have tended to favour arbitration.
Some time has usually passed and the government senses that there is little progress during contract talks. However, back-to-work legislation can also be used to bring an illegal or wildcat strike to an end.
For example, if essential services workers who do not have a right to strike go out, they can be sent back to their jobs through legislation.
Also, if workers try to strike during the time they have a valid contract, this may be an illegal strike and the government can intervene.
Federal railway workers went on strike in 1950 and were legislated back to work. Canada was far more dependent then on railroads to move goods and people, and the strike was having a crippling effect on the nation. Since then, such legislation has been used federally more than 30 times.
The last time Canada Post employees went out on strike was 1997 and the government of the day legislated them back to work.
There are many reasons for workers being subject to such legislation, few of them strictly legal in nature. The answers are more in the social and political vein.
In the Canada Post case, small-and medium-sized business owners argue that a mail strike is expensive for them. They are unable to collect on bills and cash flow suffers. A recent poll showed that more than 70 percent of small business owners supported the decision to legislate the postal workers back to work.
As well, the employer loses money. It has been estimated that the job unrest in 2011 cost Canada Post $100 million in lost revenue to date.
Breaching back-to-work legislation is not without consequences. In 1978 Jean-Claude Parrot, who was the leader of the Canada Post union, was jailed for two months after being convicted of breaching back-to-work legislation. It is a power used sparingly, but that doesn’t mean that it doesn’t have teeth.
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon. Contact: the law@producer.com
