Tuesday, 27 November 2018

Postal workers sent back to work

In response to the ongoing labour dispute with the Canadian Union of Postal Workers (CUPW) and the rotating walkouts of postal workers, the federal government has passed back-to-work legislation in the House of Commons. Bill C-89, or An Act to provide for the resumption and continuation of postal services, was passed in the Senate, putting an end to the rotating strikes of CUPW members.

What’s wrong with this picture?

Back-to-work legislation is an affront to the rights of Canadian workers. In Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, the Supreme Court ruled that the right to strike is guaranteed by s. 2(d) of the Charter. Bill C-89 presumptively curtails that right.

The government, however, insists that Bill C-89 does not violate the Charter on the basis that forcing postal services back to full function is important to the economy and to Canadians in especial need of postal services. As reported, the government has stated:

…the Bill is introduced only following unsuccessful efforts to bring the collective bargaining process to a satisfactory conclusion for all parties. The government has taken significant steps to promote the collective bargaining process by encouraging a negotiated resolution of the parties' dispute.

The trouble with this statement is that rotating walkouts and the right to strike are essential to the bargaining power of unions. Legislating an end to work stoppages does not promote the collective bargaining process. Anything but. As Canadian Labour Congress president, Hassan Yussuff, is reported to have said:

The right to strike is an integral part of the collective bargaining process….Without it, an employer has no incentive to bargain in good faith, and workers have no recourse to demand a fair process.
 
To simply legislate an end to the work stoppages of postal workers when there’s difficulty reaching a deal deprives the CUPW of their strength in the negotiation. Not only that, it removes the need for Canada Post to bargain effectively and is bolsters the power imbalance between workers and employers.

Stripping unions of a major component of their bargaining power (i.e. the right to remove their work) is to suggest that the employer and the union enter bargaining on an equal footing and that the union should not seek to exercise its negotiating leverage through work stoppage. This, of course, is silly. As history has shown, and the Supreme Court has recognized, workers are innately less powerful than their employers, and hence the need to protect the right to strike. Labour laws have were designed to ameliorate this imbalance, as the Supreme Court has acknowledged, saying there is a:

…fundamental power imbalance which the entire history of modern labour legislation has been scrupulously devoted to rectifying. 
 
Perhaps even worse than this willful blindness to the inherent power imbalance is the basic laziness back-to-work legislation represents. To throw up its hands and resort to legislation, the government appears to be saying that it is unable to reach a fairly negotiated outcome, and it’s done trying. Though legislation will certainly get the postal services up and running at full steam again, the cost that comes from back to work legislation is too great. It trammels the rights of workers in order to resume postal services when a negotiated agreement could have the same result. The difference is a negotiated agreement would not violate workers’ rights.

Canada has a history of this sort of thing

In 2011, Canada, under the Conservative government, used Bill C-6 to end a work stoppage by Canada Post workers and to impose interest arbitration. When a complaint was made to the International Labour Organization, the Committee found Canada was in violation of its obligations under international Convention 87.

In 1972, Canada ratified Convention 87 (i.e. the Freedom of Association and Protection of the Right to Organise Convention, 1948). For all intents and purposes, Canada is meant to support the principles of that Convention, which include protecting the right to strike. Under Convention 87, it is meant to be difficult for governments to limit strikes. Strikes are to be restricted only if they disrupt essential services. Even so, the government has a penchant for back-to-work legislation, which has often put us at odds with our obligations under the ILO’s Conventions.

Canada might argue that postal services are essential services, and so the government is within its rights to legislate the workers back to work. Well, not so fast. The ILO defines “essential services” as services without which life, personal safety or health of the population would be threatened.  When the ILO considered the complaint about Bill C-6, it had this to say:

As regards the effect of Bill C-6 of ordering the postal workers back to work and thus terminating the ongoing strike action, the Committee is bound to recall that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests, and that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term, that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population…[1]
 
To put an even finer point on its disapproval of Bill C-6, the ILO committee went on to add:

In this regard, the Committee reiterates that it has always considered that postal services do not constitute essential services in the strict sense of the term.[2]
 
With Bill C-89, as with Bill C-6 several years earlier, the government has made an economic argument, justifying its back-to-work legislation, at least in part, on the basis that the disruption to the postal service is damaging to business. The ILO rejected that argument with respect to Bill C-6, and it appears likely that it would reach the same conclusion if a complaint were brought today. According to the ILO:

While it has always been sensitive to the fact that a prolonged interruption in postal services can affect third parties who have no connection with the dispute, for instance it may have serious repercussions for companies or directly affect individuals (especially recipients of unemployment benefits or social assistance and elderly people who depend on their pension payments), the Committee has nonetheless considered that whatever the case may be, and however unfortunate such consequences are, they do not justify a restriction of the fundamental rights of freedom of association, unless they become so serious as to endanger the life, safety or health of part or all of the population.[3]
 
Conclusion

Canada has an unfortunate international record of failing to respect freedom of association and the right to strike. In enacting legislation similar to that for which the ILO cited the Harper Conservatives in default of its obligations, the Trudeau Liberals are demonstrating yet again why the ILO has cited Canada for failing to live up to the obligations it accepted when it ratified Convention 87. While it’s true that the ILO does not have the power to stop Canada from passing back-to-work legislation, it does diminish the country in the eyes of the international community. Canada should be better than this. Canadian workers deserve better than this.

Negotiation is a key part of the free market that the government so enthusiastically espouses. Funny then that the government is willing to subvert the basic right to negotiate when the process is not easy, opting instead to cease the negotiation process through legislation. This is anti-free market. The government must not tout the free market on one hand and then quash the rights of unions when it deems the negotiations inconvenient. Not only is it hypocritical and logically inconsistent, it’s an insult to all workers in this country and around the world. We hope that the government will seek to preserve its reputation both at home and abroad, and do what the workers have been calling for: “negotiate, don’t legislate.”




[1] Reports of the Committee on Freedom of Association, “367th Report of the Committee on Freedom of Association”, Institutional Section, International Labour Office, 317th Session, Geneva, 6–28 March 2013, GB.317/INS/8, at p. 90, para 335. Available from: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_208542.pdf
[2] Ibid.
[3] Ibid, at p. 90, para 336.