Edmonton-St. Albert MP Brent Rathgeber

With locked-out postal workers being forced back to their jobs last night by the Harper Conservatives, I was surprised and interested to learn that Brent Rathgeber, the usually well-behaved Conservative Member of Parliament for Edmonton-St. Albert, recently used his blog to criticize his own party for its approach to resolving labour disputes.

Does this indicate a sudden epiphany by Rathgeber that as an Alberta MP who isn’t one of Prime Minister Stephen Harper’s closest cronies he’s unlikely ever to be considered cabinet material, or is he merely showing a slightly independent streak now that he’s been comfortably re-elected?

Regardless, Rathgeber stated in the June 22 edition of his blog that he is philosophically troubled by back-to-work legislation. “As a former Labour Lawyer (Management Side), I do actually subscribe to the concepts of the right to collective bargaining and the right to withdraw services after the expiration of a collective agreement to demonstrate one’s resolve,”  Rathgeber stated.

Perhaps I am reading too much into a simple comment, but in the context of Harper’s Ottawa, Rathgeber’s turn of phrase is interesting: “…I do actually subscribe to the concepts of the right to collective bargaining….” It almost sounds as if Rathgeber is acknowledging that such a sentiment is unusual, perhaps even unique, among the current unprogressive Conservative caucus in Ottawa.

And I can tell you that whatever he is, Rathgeber is no dummy. He’s a pretty sharp guy who knows how to parse a sentence for specific meaning as well as any of us. He is also, it should be noted, the MP for the riding in which I reside.

“At a more practical level,” Rathgeber went on, “I am leery of Back to Work Legislation because I cynically suspect that many unions favour such legislation, believing they will fare better under binding arbitration than they would at the bargaining table.”

While Rathgeber’s suspicion is by no means warranted in all circumstances and with all unions — especially here in Alberta, where the dice are usually loaded against working people in such processes — it must be conceded that there is enough truth to what he says to make it dangerous.

It is true at least that if the arbitration process is fair, and an employer is particularly unreasonable and intransigent, the process can be made to defend the interests of working people. Alas, unmentioned in Rathgeber’s blog, the arbitration process set out in the government of Canada’s back-to-work legislation, which was passed Saturday night, cannot be described as fair.

A useful exegesis of this ugly piece of legislation by Fred Wilson on rabble.ca explains that the final-offer selection process proposed is biased on its face against unions. Since the Canada Post bargaining position contains a number of outrageous demands for major concessions from the Canadian Union of Postal Workers, including two-tier wages and two-tier retirement benefits designed to exploit younger workers, it will be impossible for the union to propose a fair agreement in the context of the bogus saw-off required by the process.

Indeed, in final-offer bargaining, from the company’s perspective, the more outrageous its bargaining position, the better. As Wilson writes, “unions are forced to present an offer that is usually just a more ‘reasonable’ version of what the employer is demanding. The union then becomes complicit in what can be very unfair results for workers.”

As Wilson further notes, Ottawa’s legislated approach is actually worse than that because it forces the arbitrator to effectively act as an agent of the employer through a rigged process by demanding, for example, that he or she consider wages in comparable postal industries, whatever that may mean. The Flyer Force?

The legislation also sets lower pay rates than Canada Post had offered CUPW in its last offer. The Conservatives’ Rathgeber concludes, therefore, that “it will be difficult for the Union to reject Canada Post’s final offer and then be subject to a legislated settlement that is less favourable.”

In other words, if his suggestion is correct (and, as a Conservative insider it is reasonable to assume that Rathgeber is doing more than idly speculating), it is clear that the intention of the Harper government’s foray into collective bargaining is to interfere on the side of an employer, not to protect the economy as the government maintains.

Indeed, Rathgeber seems to agree with this assessment, expressing his doubts about the significance of the economic impact of the Canada Post labour dispute and referring to “protection of the fragile economic recovery” as “the purported purpose of the Back to Work Legislation at Canada Post.” (Emphasis added.)

This kind of thing hardly indicates that Prime Minister Harper’s hold on his caucus is weakening. Still, it’s mildly encouraging to hear a Conservative MP suggest that his government’s policies may not be the best for Canada.

Meanwhile, although the reaction from organized labour to the government’s legislation was mostly one of wounded outrage, it seems to me that Canadian unions would be smarter to get cracking and challenge the constitutionality of this law.

Rathgeber, the sometime employer-side labour lawyer didn’t mention this in his blog, probably because he doesn’t wish to commit immediate political suicide, but the law is pretty clearly unconstitutional if the ruling of the Supreme Court of Canada in June 2007 has any meaning.

That case stemmed from a bill passed by the government of British Columbia that like this weekend’s postal back-to-work legislation clearly was designed to bypass the process of free collective bargaining and impose a punitive and unjust collective agreement on a group of public employees, in the British Columbia case, hospital workers.

The Supreme Court ruled that the right to bargain collectively is included under the freedom of association provisions of the Charter of Rights and Freedoms, and that the B.C. bill interfered with bargaining “either by disregarding past processes of collective bargaining, by preemptively undermining future processes of collective bargaining, or both.”

Sound familiar? This pretty fairly describes the intent and the action of Ottawa’s back-to-work law.

There’s no point wailing about the fact Stephen Harper and his Walmart Party of Canada government are anti-labour. We knew that before the election, and it’ll be a few years before they can be challenged in the courts.

So labour would be smart, in my view, to attack this disgraceful legislation in the only remaining branch of the Canadian government where the idea of the rule of law still holds sway — to wit, the courts.

This post also appears on David Climenhaga’s blog, Alberta Diary. Please donate to rabble.ca!

David J. Climenhaga

David J. Climenhaga

David Climenhaga is a journalist and trade union communicator who has worked in senior writing and editing positions with the Globe and Mail and the Calgary Herald. He left journalism after the strike...