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In an age of increased strike activity and union power, labor experts say it is not surprising to see more calls for government intervention in some sectors such as transport.

What is new, say experts, is the fact that the government is not jumping to legislate back to work.

Instead, the federal labor minister has recently instructed the Industrial Labor Board of Canada to intervene in major disputes – although the government has been prevented from choosing to step in over a possible strike at Air Canada after reaching a tentative deal on Sunday.

Brock University labor professor Larry Savage says companies in federally regulated sectors such as airlines, railroads and ports have effectively relied on government intervention through back-to-work legislation to end or avoid work stoppages .

“While this helped avoid protracted strikes, it also undermined free and fair collective bargaining. It eroded trust between management and the union over the long term, and created deep resentment in the workplace,” he argued.

Barry Eidlin calls such intervention a “Canadian tradition.”

“Canadian governments, both federal and provincial, have been among the happiest governments to trigger… in terms of back-to-work legislation,” said Eidlin, an associate professor of sociology at McGill University.

Savage said the use of back-to-work legislation peaked in the 1980s, but its decline since then had less to do with government policy than fact strikes becoming less common as union bargaining power eased. .

But since the Supreme Court upheld the right to strike in 2015, Savage says the government seems more reluctant to use back-to-work legislation.

Eidlin agrees.

“The bar for breaching the right to strike by adopting back-to-work legislation went much higher,” he said.

However, experts say the federal government seems to have found a solution to the problem.

In August, Canadian National Railway Co. and Canadian Pacific Kansas City Ltd. locked out more than 9,000 workers – but federal labor minister Steve MacKinnon soon stepped in, asking the Canadian Industrial Relations Board to order them back and order binding arbitration, which it did. he did

The government’s move — using Section 107 of the Canada Labor Code — is “very controversial,” Savage said.

Section 107 of the code states that the minister may “do such things as it appears likely that the minister will maintain or secure industrial peace and promote conditions favorable to the settlement of industrial disputes or differences and to to that end the minister can refer any question to the board or direct the board to do things that are necessary in the minister’s opinion.”

“The reason why it is a worrying solution is that there is no Parliamentary debate. There is no vote in the House of Commons,” said Savage.

Shortly after the railway work ended, the government was called upon to intervene in the impending strike by Air Canada pilots. The airline said it would need a government directive for binding arbitration if it could not reach a deal before the strike.

However, Prime Minister Justin Trudeau said the government would only intervene if it became clear that a negotiated agreement was not possible.

“I know every time there’s a strike, people say, ‘Oh, you’ll get the government to come in and fix it.’ We’re not going to do that,” Trudeau said Friday.

The airline and the union representing its pilots reached a tentative agreement on Sunday.

Although Air Canada is asking for the same treatment as the rail companies, Eidlin said the Liberals seem to recognize it would have been a politically unpopular move.

Since the rail dispute, the NDP has torn up its agreement to support the minority Liberals, and Eidlin thinks government intervention was one of the reasons for the decision.

“That really left them with this minority government which is much more vulnerable. And so I think they have a much more delicate balancing act politically,” he said.

Section 107 was never intended as a way for governments to bypass Parliament and end strikes “simply by sending an email” to the labor board, said David J. Doorey, associate professor of labor and employment law at York University, in email.

For the Liberals today, Doorey said that using Section 107 to end the rail work stoppage was much simpler than back-to-work legislation — partly because Parliament was not in session, but also because the Liberals were maintain a minority government and back support. legislation to work from the Conservatives and the NDP would be far from guaranteed.

Eidlin is concerned that the government’s use of binding arbitration to end the rail stoppage could set a precedent similar to what decades of back-to-work legislation has done: removing the employer’s incentive to reach an agreement in bargain.

“This has a detrimental effect on collective bargaining,” he said.

The Teamsters union representing railway workers is challenging the government’s move.

The breadth of the government’s power under Section 107 is “something the courts will have to decide,” Eidlin said.

If the courts rule in favor of the government, the status quo could essentially return to the way it was before 2015, he said.

But Doorey believes the labor minister’s directive to the board to end the rail strike will be found to have breached the Charter of Rights and Freedoms.

The railroad shutdown was not the first time the federal government had used these powers during a recent labor dispute.

When workers at BC ports went on strike last summer, then-federal labor minister Seamus O’Regan used the department to direct the board to determine whether a negotiated resolution was possible, and if not, either to set a new agreement or set a final binding. arbitration.

The past few years have been a litmus test for that change in 2015, Eidlin said, as workers are increasingly reluctant to settle for sub-par collective agreements and employers “still have the recoil reflex to that work.”

With an increase in strike activity, “of course, there will be more interest in government intervention in labor disputes as a result,” Savage said.

This report was first published by The Canadian Press on September 16, 2024.

Companies in this story: (TSX:AC, TSX:CNR, TSX:CP)