Whatever happened to the “right to strike”?
By Greg McGinnis
This was a question that union counsel put to me yesterday in the course of a hearing at the OLRB. He was commenting on the announced plans to implement return-to-work legislation in relation to the Canada Post and Air Canada disputes (admittedly, at this point the Canada Post dispute is a lockout, but it started with rotating strikes).
Whether or not they would admit it, unions must be disappointed by an apparent reversal of the trend toward “constitutionalizing” Canadian labour law in the April 2011 decision of the Supreme Court of Canada in Ontario v. Fraser. So these new interventions that ostensibly further diminish unions’ bargaining rights are a source of alarm, or so it seems.
It will be interesting to see what the terms of the proposed return-to-work legislation are (see update below), because both of these employers face significant challenges and are looking for what the unions regard as concessions. The typical return-to-work case in the past has seen the strike come to an end and the dispute resolved through mandatory interest arbitration, the results of which have generally (in this author’s opinion) appeared to favour the unions.
A cynic might say that unions make a good show of objecting loudly to return-to-work legislation as though it were a dagger pointed at the heart of their raison d’etre, while at the same time tacitly accepting a resolution that typically grants at least market-level improvements. For a flavor of the kind of objections one from unions, check out the press release issued by the CAW.
Some might argue that interest arbitration has taken many parts of the public sector (and quasi-public sector) to otherwise unprecedented levels of job security and pension and benefit entitlements, without the cost and pressure of labour disputes … so from a union’s perspective, what’s not to like?
This particular author wonders if, at the very least, unions and their supporters aren’t somewhat ambivalent on the issue of exercising the “right to strike” in this type of dispute. One wonders whether, if unions appeared too willing to go along with return-to-work legislation, people might figure out how good interest arbitration awards have been for the unions in many instances, and how much it was costing the taxpayer or consumer.
We shall see what the federal government does the next short while.
UPDATE: On June 16, 2011, the Federal Government introduced a Bill C-5, the Continuing Air Services for Passengers Act, which provides for the resolution of the labour dispute by means of “final offer selection” by an arbitrator appointed by the Minister of Labour, using the following criteria for assessing the competing offers: “the need for terms and conditions of employment that are consistent with those in comparable airlines and that will provide the necessary degree of flexibility to ensure the short- and long-term economic viability and competitiveness of Air Canada and the sustainability of its pension plan.“ (See section 8)
Moments later, the parties announced that they had reached agreement on all but issue of pension benefits for new hires, which is to be remitted to private interest arbitration. The terms of the arbitration are not public at this time.