"back to work legislation is needed"
Maybe, maybe not. It is a question of point-of-view. But whatever law is enacted, it must be constitutional. Let's not repeat the mistakes of the Harper government.
In April 2016 the Ontario Superior Court released its reasons in Canadian Union of Postal Workers v. the Attorney General of Canada. This much-anticipated ruling is the first to apply the Supreme Court of Canada's seminal Saskatchewan Federation of Labour v. Saskatchewan (SFL) decision in a constitutional challenge to back-to-work legislation.
The facts leading to the CUPW Charter challenge were as follows. In 2011, CUPW and Canada Post were attempting to negotiate a renewal collective agreement. They reached an impasse. CUPW launched a series of rotating strikes, while undertaking to ensure delivery of social assistance and other government cheques. Canada Post responded by ordering a national lockout. That same day, the government announced its intention to introduce back-to-work legislation. In short order, the Harper government enacted the Restoring Mail Delivery for Canadians Act. The act did the following:
- Restored the expired agreement
- Ordered the postal workers back to work
- Provided heavy fines for any union activity that might encourage employees not to return to work
- Banned all strike activity
- Established by fiat the wage increases to be inserted in, and the duration of, the next collective agreement
- Decreed that a rare form of arbitration, ad hoc final offer selection (FOS), would settle all other terms in the next collective agreement, unless the parties reached an agreement first
- Empowered the Minister to unilaterally appoint the arbitrator
- Directed that the arbitrator be “guided” by factors that were tailor-made to favour Canada Post's agenda - such as what comparator groups would be considered, and a ban on any terms that would worsen the solvency ratio of the pension plan.
The act dramatically shifted the balance of power. Canada Post began to table offers less favourable than those it had already made. CUPW cut back its demands rather than risk the outcome of such a lopsided arbitration process. Under those conditions, CUPW did negotiate a new agreement, which was ratified by a bare majority of the small group of members who actually voted. But CUPW also launched a Charter challenge to the Act.
As these events unfolded, no Canadian Court had recognized a constitutional right to strike. The then-popular view was that the Charter protected only the right to join a union, and the right of the union to negotiate to an impasse; but not a right to strike, nor a right to any other method of resolving impasses.
Then along came the Supreme Court of Canada's decision in SFL. It held that the Charter does protect the right to strike; that this right can be taken away only in limited circumstances; and that where it can be taken away, it must be replaced by an alternate dispute resolution that is “impartial, effective, adequate and fair”.
Applying that precedent in the CUPW case, Justice Firestone found that the provisions banning CUPW strikes violated both freedom of association under ss.2(d), and freedom of expression under 2(b) of the Charter. He found a second violation of freedom of expression in the provision that banned, and made punishable by hefty daily fines, any union conduct that might encourage employees not to return to work. He ruled that none of those violations were saved by s. 1 (which sanctions Charter violations that are “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”).
Justice Firestone's decision will assist two other constitutional challenges in the pipe.
Reference: http://www.labouroflaw.ca/e/another-constitutional-win-for-unions.cfm
"so back to work legislation is perfectly legal,"
I would not be so quick to reach that conclusion.
Many postal strikes in Canadian history (regardless of party in power; this is not a partisan issue) ended up with legislation forcing workers back to work. Yet, something must be wrong with that formula if we need to go back at it every four/five years.
Postal workers do have a legal right to strike, whether we like it or not. That is recognized in law (see Supreme Court ruling). Civil service has a legal right to strike, so do teachers and most medical practitioners.
A government cannot be arbitrary and force workers back to work without letting them strike in the first place. A preemtive legislation would be anti-constitutional.
Maybe a solution would be using clause 1 of the Charter of Rights and remove the right to strike by all government workers (all levels) and replace it by something else. Would that solve the problem?
It would eliminate the inconvenience suffered by the Canadian public (and businesses) when public employees strike. Could it be made fair, could it work? I do not have an answer to that question. It has been asked for a very long time, ever since we gave government workers the right to strike.
"What would happen if Canada Post was declared "An Essential Service"?"
That is the problem.
While "lettermail" could be considered an "essential service" to all Canadians and Canadian businesses, there is no way one could honestly consider the "parcel" division as 'essential" as it competes with many other services, locally, domestically and internationally.
UPS workers do have the right to strike, Fed-Ex workers do have the right to strike, etc... to remove that right from postal workers does not make sense, does it?
Canada Post may have to divide itself in two:
1) an essential service, controlled through a Crown Corporation, providing mail service to all Canadians
2) a parcel delivery service, owned by private interests with no link to the government. Since such company would have to compete with UPS, FedEx, Canpar, etc I suspect their workers eventually would earn comparable wages with comparable benefits. I do not think current postal workers (with superior wages and benefits) would be too happy!
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