Impact of international law on labour rights diminished by mediation of charter: Expert
For the third time in a year, the federal government has involved itself in labour negotiations between Air Canada and its employees.
Two weeks ago, it passed back-to-work legislation on the eve of the spring school holiday season, sending the airline to binding arbitration with its pilots’ union and machinists’ union — representing more than 11,000 workers between them.
The introduction of another bill aimed at averting a labour disruption has raised the question for some of whether the federal government is infringing on the right to strike.
It’s a question that’s not easy to answer, according to Kevin Banks, an expert on domestic and international labour law at Queen’s University in Kingston, Ont.
Unlike its European and Latin American counterparts, Canada is a “dualist” nation. This means there are two levels of law at play: domestic labour laws and International Labour Organisation (ILO) conventions it has ratified.
In many other countries, those ILO conventions, once ratified, automatically become part of domestic law.
Not so in Canada.
While ILO Convention 87 affords workers a direct right to strike, that right only exists in Canadian law through the Charter of Rights and Freedoms, says Banks.
“The ILO derives the right to strike independently, not just as a support for the right to bargain collectively,” he says.
Several decisions over the past decade — including a recent decision by the Court of Queen’s Bench in Saskatchewan — have supported the right to strike under section 2(d) of the charter.
It’s somewhat of a qualified right, though, according to Banks. As long as employees have an alternate mechanism to achieve their workplace goals aside from a strike — in this case binding arbitration — then intervention by the federal government may still be seen as respecting the right to bargain collectively, he says.
“If the only thing the government is imposing is taking it to arbitration, that’s not necessarily a violation of the right to strike,” he says. “The question then is whether it’s a truly independent arbitrator.”
That said, the courts in Dunmore, B.C. Health Services, Fraser and now the Saskatchewan decision have all made reference to Canada’s obligations under ILO conventions, Banks notes.
In the most recent case, the Saskatchewan Federation of Labour, supported by 25 organizations and unions, argued the province’s essential services legislation infringed on workers’ freedom to organize, bargain collectively and strike. It prevents certain public workers — not limited to emergency workers — from going on strike during a labour dispute.
Court of Queen’s Bench Justice Dennis Ball ruled the legislation is unconstitutional, saying Saskatchewan had gone far beyond other Canadian jurisdictions in this area.
In 2008, National Union of Public and General Employees (NUPGE) also filed a complaint against the legislation with the ILO, which later ruled that bill and one other violated ILO Convention 87. The ILO directed the province to rewrite its laws.
“To the extent that Canadian law is open, the ILO is helping us interpret and shape laws set in domestic politics,” Banks says.
Aside from determining whether government intervention infringes charter rights, he says there is a concern around whether government action is good industrial relations policy.
“If it keeps interfering, both sides will hold back knowing they’re going to arbitration anyway,” he says.
Employment lawyer David Yazbeck, an expert in charter litigation with Raven, Cameron, Ballantyne & Yazbeck LLP in Ottawa, agrees.
The concern going forward is that both sides may fear they’ll be forced to settle — or risk the federal government introducing legislation, Yazbeck says.
“The problem with that is that the negotiation becomes artificial,” he says. “It exerts a power that’s not normally there and it’s unfair in general terms.”
Yet, he says it’s time-consuming and expensive for unions to launch a charter challenge against the federal government.
“They would need substantial resources,” Yazbeck says. “They have to be very picky about which cases they pursue.”
Meanwhile, the Canadian Union of Postal Workers (CUPW) has launched a court challenge to the legislation used by the federal government to force them back after a lock-out in June.
