Tuesday, 21 June 2011

Conservative back to work legislastion breaks the law and could result in lasting consequences

To Ride, Shoot Straight and Speak the Truth: On back to work legislation. Whoa, deja vu.
It's worth noting that even lawyers aren't evading it as much as they used to. In 2007, the Supreme Court of Canada, in the BC Health Services
case, overturned much prior labour law in favour of reading a right to
collective bargaining into the Charter right to freedom of association.
(As yet, no right to strike. Baby steps.) This implies that, if
governments intervene in labour disputes, that intervention must not
"substantially interfere" in the ability to collectively bargain over
workplace issues.

I should also point out that back to work
legislation is hardly a panacea. In most labour disputes, a back to work
law is passed as a "cooling-off" period -- both sides having gotten a
little entrenched, the government sends everyone back to business as
usual for a time, and then allows them to resume bargaining. The reason
for doing this is that a back to work bill which remands everything to
binding arbitration doesn't settle the underlying conflict between
employer and union. It just boils up again as soon as the collective
agreement expires.
[The Conservative back to work legislation regarding the postal strike:]
The part that surprised me, though, is Section 15:
15. The new collective agreement is deemed to provide for the following increases to salaries:
(a) effective February 1, 2011, salaries in effect as of January 31, 2011 are increased by 1.75%;
(b) effective February 1, 2012, salaries in effect as of January 31, 2012 are increased by 1.5%;
(c) effective February 1, 2013, salaries in effect as of January 31, 2013 are increased by 2%; and
(d) effective February 1, 2014, salaries in effect as of January 31, 2014 are increased by 2%.
the government is gambling that CUPW won't take them to court -- or,
possibly, gambling that they can stack the court in time and well enough
to reverse or limit Health Services -- or they have really
shitty lawyers drafting their bills. (Or, I suppose, they didn't bother
to check the constitutionality of this. Harper's arrogant enough; I
would have thought the Ministry of Labour had some competent bureaucrats
vetting these things, though.) As far as I can tell, this
amount to "substantial interference" in the collective bargaining
process. A key issue in workplace bargaining is wages. The government's
bill not only legislates wages, but does so at levels that are well
either the union's last offer or Canada Post's. Section 13
(3) seems to eliminate even the arbitrator's power to change the
salaries. Once this bill becomes law, then no one, save the Supreme
Court, could change that contract term.

The only possible
justification I can see the government offering here is a section 1
justification under the Charter -- that the infringement of the right to
bargain collectively is a reasonable limit prescribed by law as can be
demonstrably justified in a free and democratic society. But this takes
us back to the liberty arguments, and the aspects of international law
which are universally in favour of a right to collectively bargain, to
unionize, and to strike.

If CUPW chooses to fight this
legislation in court, the government could be on its way to an
long-lasting and colossal error that will have significant impact on
labour relations in this country.
Health Services was decided
because the Gordon Campbell government in BC massively overreached -- it
launched an all-out war on labour in the province (a general strike was
being discussed as a possibility at one point), went too far, and got
the Supreme Court to limit the power of governments to intervene in
labour disputes. Harper may be the next right-winger to go too far, and
force the Court to limit the power of governments even further.


Sixth Estate said...

Interesting analysis, on a subject I was curious about.

If I recall correctly (and I may not, I have to admit), the Health Services decision was 6-1, with the 1 disagreeing more on details than on the general principle. There's going to have to be a lot of "stacking," if that's what they have in mind.

But, and this is an important but, I doubt they've actually thought that far ahead. More likely they simply haven't considered and don't care about constitutionality. This is not a government with a good track record on its awareness of Constitutional issues.

kirbycairo said...

This will end in court. However, Harper will soon have a majority there too and we cannot depend upon the SCC to stand up for the law instead of ideology. The HEU decision was clear and the fact that the government thinks that they can so blatantly violate that court decision demonstrates that they care not a whit for the law.

Fern said...

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Anonymous said...

That Section 13 is crazy. Real conservatives would be up in arms over that language.

What? You want to participate in the free market by hiring somebody at a wage you both agree on? Sorry. Daddy Steve Government decides those things for you now.

At best a new collective agreement might be able to have a salary increase retroactive to Janurary 30, 2011 to set a new base for wages, but even that requires a legal time machine and both parties are still locked into an unalterable plan for increasing wages. I wonder how bonuses would factor into this too: would this make them illegal?