In a bill that purports to relate to the budget, the Tories have taken the opportunity to cram in measures that restrict the right of public servants to strike and allows the government to encroach on areas of labour that have worked quite well without the government’s excessive involvement until now. The changes contained in the bill are nothing more than thinly veiled efforts by this government to disempower workers and assert its authority over the lives and rights of Canada’s working men and women.
A case in point is the bill’s proposed changes to the definition of “essential services”. The bill repeals the definition of “essential services” in section 4(1) of the Public Service Labour Relations Act(PSLRA), which presently reads:
“essential service” means a service, facility or activity of the Government of Canada that is or will be, at any time, necessary for the safety or security of the public or a segment of the public.
In section 294(2), Bill C-4 aims to repeal and replace this definition with the following:
“essential service” means a service, facility or activity of the Government of Canada that has been determined under subsection 119(1) to be essential.
The difference is subtle, but substantial. Bill C-4 gives the government the exclusive power under s. 119(1) over determining whether or not a service is essential. The proposed changes contained in Bill C-4 have the potential to grossly increase the number of public service workers who are not permitted to strike. As essential services are already severely limited in their ability to strike, this change could severely hamper the ability of unions to conduct job action and weaken their bargaining powers.
Legislating a right to define “essential service” which leaves the power to define this term in the hands of a Government that has often been anything but friendly to organized labour, threatens to undermine the bargaining power of unions. Enabling the Government to define “essential service” would limit the use of binding arbitration to resolve disputes. Under the provisions of Bill C-4, arbitration would only be available to bargaining units where a minimum of 80% of the positions have been designated as “essential”, or if both parties agree to submit to arbitration. If the government is one of those parties, the odds of it submitting to arbitration are highly unlikely.
Some have expressed concerns that the Government may simply declare all services “essential” and so strip public service workers of the power to strike. In an attempt to allay concerns, Tony Clement has said there’s no cause for concern and that the he would be bound by law and principles of judicial review to act reasonably in making designation decisions about the extent of “essential service”.
But it’s hard to take any comfort in Mr. Clement’s assurances. When pressed on how he intended to use the new powers Bill C-4 would confer on him, if passed, Mr. Clement is reported to have said the bill has to pass before any of us would get a chance to see how he intends to use the new powers. He is reported to have told the CBC that: "I am waiting for this legislation to pass and then details will come forward “.
The bill also aims to expand the role of government in health and safety matters for workers. Specifically, the bill removes power from health and safety offices under the Canada Labour Code and transfers these powers to Ministers.
NDP MP, Alex Atamanenko, has expressed concern over Bill C-4, saying:
Once again, the Conservatives are trying to cram through major changes without sufficient study by Parliament. What is disturbing is that the biggest and most objectionable change found in this piece of legislation, changes the rights of Canadians’ health and safety in the workplace.
That the Conservatives have crammed these unrelated provisions into a supposed budget bill that is in excess of 300 pages is unsurprising. Cramming them in limits the opportunity for debate. And when the government tries to take away the rights of workers, the last thing it would want is debate. This was recently demonstrated when the Conservatives moved to limit Second Reading of the bill and forge on ahead.
With such sweeping changes to the PSLRA and workplace health and safety, Bill C-4 should rightly be split into separate bills that would allow time for thorough study and thoughtful debate in the House of Commons. The NDP has been demanding the bill be split. If the opposition is successful in having the bill split, they may just be able to protect workers from the repressive measures proposed in Bill C-4, and even to preserve some semblance of the democratic process while they’re at it.
 SC 2003, c 22, s 2 .