Say ministerial intervention in labour dispute may be justified under certain circumstances, 'it must remain exceptional'
Two of the country's largest human resources professional bodies are asking Ottawa to tighten the rules around the labour minister's power under section 107 of the Canada Labour Code to end strikes and lockouts.
The Ordre des conseillers en ressources humaines agréés du Québec (CHRA) and CPHR Canada have filed a joint brief with the House of Commons committee studying Bill C-39. Strengthening Accountability and Clarifying the Scope of Exceptional Measures to Preserve Balanced Labour Relations contains eight recommended amendments, all aimed at Part 3 of the bill, which rewrites large portions of the labour relations regime for federally regulated workplaces.
That regime covers sectors such as banking, transportation and telecommunications, along with Crown corporations, involving about 1,020,000 nationwide, including roughly 187,000 in Quebec.
"While ministerial intervention in a labour dispute may be justified under certain circumstances, it must remain exceptional and be exercised in accordance with the freedom of association protected by the Canadian Charter of Rights and Freedoms," said Manon Poirier, CRHA, CEO at the CRHA.
The proposed legislation passed Second Reading on Oct. 8
A rarely used power, until recently
Section 107 has been part of the Code since 1984, and the two organizations say they identified three attempts by labour ministers to invoke it between 1996 and 2023, none of which ran its course because the parties settled first:
- a 1996 dispute involving Canadian Airlines International
- a 2011 Air Canada flight attendants' dispute
- the 2023 standoff between the British Columbia Maritime Employers Association and the International Longshore and Warehouse Union.
That changed beginning in 2024, the brief says. It counts eight uses of the section since then, seven of them under former labour minister Steven MacKinnon, and notes the power was used not only to order a return to work but also to extend collective agreements and impose binding arbitration.
The brief describes this as a "political interventionist tendency" in labour relations and points to a string of legal challenges that followed. According to the document, the Teamsters Canada Rail Conference is contesting the use of section 107 in court, and flight attendants represented by the Canadian Union of Public Employees refused to comply with a return-to-work order in 2025. The brief also notes that the Federal Court, in a stay application brought by the Port of Quebec longshoremen's union, found the legality of such a ministerial directive raised a serious question, without ruling on the merits.
What Bill C-39 would change
The bill would replace section 107 with a version that, for the first time, sets conditions on the minister's power to intervene in a lawful strike or lockout, according to the text of Bill C-39. Under the proposed wording, the minister could direct the Canada Industrial Relations Board (CIRB) to order a resumption of operations, extend a collective agreement or impose binding arbitration only after considering a report from a newly created "special mediator," and only if the minister believes the work stoppage adversely affects, or may adversely affect, the national interest.
In weighing the national interest, the bill says the minister may take into account factors including any significant impact on the Canadian economy, any serious social disruption, and whether the direction affects freedom of association.
The special mediator would be appointed by the minister no later than the 75th day after a conciliator is appointed, for a 21-day mandate, according to the bill. The mediator's report, which must assess the issues in dispute, the parties' positions and participation, and the likelihood of a deal, would be released publicly. The bill states that the process is meant to wrap up before a strike or lockout can begin, with at least 10 days between the report's publication and any work stoppage.
The International Trade Union Confederation (ITUC) sent a letter recently to Prime Minister Mark Carney saying that Bill C-39's right-to-strike restrictions could put Canada in breach of a labour treaty it ratified in 1972, the Canadian Labour Congress (CLC) shared.
'Vague' limits with proposed legislation
The CRHA and CPHR Canada credit the government with trying to set boundaries on section 107, but have concerns: “Although it adds a framework that did not exist until now, this definition remains vague and thus appears insufficient with regard to the fundamental principles that govern healthy labour relations.”
The groups also argue the bill would lock in recent practice, saying that the amendment “would enshrine the broad scope given by Minister MacKinnon in recent years in law, thus formalizing this practice.”
Their central concern is that "national interest" is undefined, leaving its interpretation to whoever holds the labour portfolio. Because the bill says the minister may consider the listed factors, the brief argues, the minister would still face few constraints.
The groups also take issue with the wording of the factors themselves. By requiring a "significant" economic impact but a "serious" social disruption, the brief says, the bill tilts toward intervention on economic grounds. They want the two thresholds harmonized.
Among their recommendations, the organizations ask that the minister be required to consider freedom of association and at least one of the economic or social factors; that key indicators for measuring economic and social impact be set out in regulation; and that the minister publish a report justifying any use of section 107 at the same time the directive is sent to the CIRB.
"Our recommendations aim to ensure that government intervention in labour disputes is limited to situations where it is necessary, while safeguarding the independence of the special mediator provided for in the bill and establishing a clearer definition of the national interest when decisions are made," said Rola Helou, CEO of CPHR Canada. "These measures are intended to ensure that section 107 is applied in a non-partisan manner."
Recommendations for Bill C-39
The brief describes the special mediator as a central player in the new process, whose report could shape both public opinion and the minister's decision. Because the bill gives the minister the power both to appoint the mediator and to set their pay, the groups argue that the perception of independence could suffer, even if the mediator acts impartially.
They propose that the CIRB, whose membership includes employer and labour representatives, appoint the special mediator when the minister asks for one.
The remaining recommendations address other changes in Part 3. The brief welcomes a new requirement, in proposed section 50.1, that certain parties begin bargaining between 200 and 180 days before their agreement expires, but argues that mandatory involvement of the Federal Mediation and Conciliation Service should not apply to parties who reached a deal on their own after a strike or lockout. It makes a similar argument about a proposed post-dispute relationship mediation requirement in section 105.1.
On first collective agreements, the groups support the bill's nine-month trigger allowing either party to seek binding arbitration from the CIRB, but recommend deleting a new provision that would suspend the right to strike or lock out once the Board orders arbitration. The brief points to Quebec's Labour Code, under which pressure tactics remain available until an arbitrator declares an impasse, as a model.
The brief also notes that Parliament already has the option of passing special back-to-work legislation, citing the 2021 Port of Montreal law, which it says moved through all stages in the House in four days despite a minority government.
