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Over the past 12 months, a number of pundits, academics and pollsters have suggested that support for unions and the labour movement is on the decline in Canada. Capitalizing on this perceived shift in attitude, Conservative members of both federal and provincial legislatures have taken the opportunity to advance their own agenda and arguably weaken the bargaining power of Canadian unions relative to employers. Some actions, such as repeated use of back-to-work legislation by Federal Labour Minister Lisa Raitt have left many wondering what the future of collective bargaining will look like in Canada and whether or not workers will have a “right to strike” going forward.

Back-to-work legislation in Canada

Since 1950, the federal government has imposed back-to-work legislation a total of 36 times — five of these instances were in the past five years alone (Air Canada — June 2011 and March 2012; Canada Post — June 2011; and Canadian National Railway — November 2009 and April 2007). In what has clearly become a trend, Harper’s government tabled back-to-work legislation on Monday afternoon for the sixth time in five years, this time in relation to workers at Canadian Pacific Railway (Bill C-39).

There is no question that the federal government has employed similar measures in the past to “prevent further disruption to the economy,” particularly in relation to striking postal workers or railway workers; however, the frequency and timing of back-to-work legislation by Harper’s government is cause for alarm. Lisa Raitt has taken to pre-emptively declaring that workers will be sent back to work before a strike has even occurred or to tabling legislation mere days into a strike. This undermines the ability of the parties to fairly negotiate a collective agreement by creating a power imbalance. The union’s bargaining position will be seriously hampered if the employer knows that the employees cannot strike or that any strike will be quickly curtailed. The resulting back-to-work legislation, once passed, also forces the parties into binding arbitration before an adjudicator likely chosen by the government and risks that both the employer and worker will end up with a deal they are unhappy with. Having an agreement thrust upon you is rarely the best solution.

Is there a “right to strike” anyway?

The recent and frequent use of back-to-work legislation raises the question: do Canadian workers have a right to strike and is it protected by the Charter of Rights and Freedoms (Charter)? The short answer: Yes and No.

Canada has ratified two key international legal conventions which recognize a worker’s right to strike: the International Labour Organization (ILO) Convention No. 87 (Convention 87) and the United Nations International Covenant on Economic, Social and Cultural Rights. Although Canada signalled its intent to be bound to these agreements by ratifying them, they do not have any real effect unless and until they are implemented into domestic law. Regardless, domestic laws can and should be interpreted so that they are consistent with our international legal obligations.

Section 2(d) of the Charter guarantees “freedom of association,” but what does this mean? Freedom of association currently includes the right to form a union, join a union and to certain collective bargaining rights. Last year, the Supreme Court of Canada clarified that that the right to collective bargaining included “the right to a general process of collective bargaining” but “not to a particular model of labour relations, nor to a specific bargaining method.” This means that our highest court has not yet explicitly recognized the right to strike — although, the question has not been put squarely before it. This might be about to change.

In February 2012, Justice D.P. Ball of the Saskatchewan Queen’s Bench ruled that the province’s essential services legislation, the Public Service Essential Services Act, was unconstitutional because it was too broad and that the right to strike was in fact a fundamental freedom protected by section 2(d) of the Charter. This landmark decision is currently under appeal to the Saskatchewan Court of Appeal and will hopefully be heard by the Supreme Court of Canada in due course for its final word on the issue.

Pursuant to ILO Convention 87 and its interpretation by the ILO Committee of Experts (Committee), the right to strike is limited for those who provide essential services. This has been defined as services where the interruption of their performance would “endanger the life, personal safety, or health of the whole or part of the population.” According to the Committee, the right to strike should never be prohibited for non-essential services such as post, transport or education and the impact of the strike on the economy should not be used as justification for such action. Requiring minimal service is always an option. Despite our agreement to Convention 87, the Canadian government has routinely limited the right to strike for non-essential services where there would be inconvenience to the public or where there would be an impact on the economy.

The charter challenge in Saskatchewan, if successful, may lead to an increase in charter challenges of back-to-work legislation or essential services legislation elsewhere in the country. Indeed in March 2012, Air Canada’s pilots launched a charter challenge of their own in Ontario after being legislated back to work, albeit because the pilots’ own health and safety was also in question.

The recent trend at the federal level to push back on labour rights appears to be reflected at the provincial level in Ontario as well. Take for example the unique determination last year that the TTC provides an essential service, or, more recently, the introduction of Bill 84 by Progressive Conservative MPP Randy Hillier, which, if passed, would usurp the authority of the Ontario Labour Relations Board as an expert tribunal to make final decisions, by introducing a right of appeal to the courts.

Similarly, the introduction of Bill 77 last month seeks to make it easier to impose binding arbitration in first contract situations and has the effect of further limiting the worker’s right to strike or employer’s right to lock out.

These are interesting times in Canada with respect to labour rights. Advocates should seize all opportunities to challenge anti-labour legislation in the court system and to ensure that the collective bargaining process is not rendered ineffectual. Neither employers nor employees will benefit should that occur.

Note: Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

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Pro Bono

Pro Bono is a monthly column written by lawyers and legal experts at Iler Campbell LLP that explores the murky legal waters activists regularly confront in doing their work.

Priya Sarin

Priya Sarin

Priya Sarin is a contributor to rabble’s Pro Bono column. She is a lawyer with the Toronto firm Iler Campbell, where she practices in the areas of civil litigation, labour and employment, and...