Objection to back-to-work legislation would push boundaries for court: legal experts
Legal experts say a decision by the Canadian Union of Postal Workers to challenge the federal government’s return-to-work legislation could have far-reaching consequences for labour relations if it goes ahead.
CUPW’s 15-member national executive board has decided to file a legal challenge after 50,000 Canada Post workers were ordered back to work under settlements arranged by the federal government.
The union says Canada’s Charter of Rights and Freedoms protects their right to belong to a union and bargain collectively.
Kevin Banks, a law professor at Queen’s University who specializes in labour law, says the 2007 Supreme Court decision on B.C. Health Services is likely the basis for the challenge.
In that decision, the court found the Charter right to freedom of association protects collective bargaining. It also says the government must not “substantially interfere” with the ability of the parties to consult and engage with each other to settle their differences.
Banks says the court could argue CUPW and Canada Post had ample time to bargain before the negotiations escalated to rotating strikes and eventually a lockout. He notes the B.C. Health Services decision differs in that it centered around that province’s decision to impose changes on existing agreements.
Banks says the issue for the courts with Canada Post will be to determine if the government substantially interfered or not.
“If it’s an important public service, at what point is the government justified in stepping in?” he says. “The hard question is to distinguish what is the basic level to make collective bargaining meaningful and what should be left to the legislators to deal with. The courts need to come to a conclusion about what is a ‘meaningful’ right to collective bargaining.”
Peter McLellan, a partner with Stewart McKelvey in Halifax, says it will be “an uphill battle for CUPW to say the government interfered too early” in the collective bargaining process.
He says the union’s position would have to argue that the right to collective bargaining includes the right to strike, a decision the courts are unlikely to take.
“I don’t believe the courts would go that far,” he says. “That would be quite a leap forward and would say the state has no control to end a strike.”
This could have negative consequences on federal and provincial essential services legislation.
“You would also have to look at Section 1 of the Charter which asks ‘Is this a reasonable limit in a free and democratic society?’” McLellan says. “The court has to look at whether the protection of Canada Post is an essential service.”
He adds there are a number of options available to both parties in the absence of the right to strike — including a cooling off period, conciliation, mediation and arbitration.
“A totally legislated end to a strike may be in violation of the Charter,” says McLellan, “but if the agreement is to be resolved through arbitration, for example, the court may be gentler.”
What could tip the case in the union’s favour is the issue of wage settlements. CUPW says the court challenge will target the government legislated wage increase of 1.57 per cent, which is lower than the 1.9 per cent that Canada Post had put on the table earlier in negotiations.
“That is the area where the (return-to-work) legislation is most suspect,” says McLellan. “They chose one aspect of the issue and took a position — and not even the position of Canada Post.”
He cautions against using the courts alone to decide the course of labour relations in Canada. He says the Wagner model is only one option and that the parties can be “surprisingly imaginative” when left to bargain without interference.
Banks says the courts should make more use of international labour law, particularly Convention 87, has a lot to say about ‘meaningful’ labour relations.
