The Right to Strike and the Canada Labour Code
Class war in Canada takes on slightly different forms from government to government. The current attack on workers includes undermining the right to strike.
A month or so ago, the federal government launched a very unserious and very dangerous review of the Canada Labour Code. The goal of the review is to eliminate the threat of strikes on the federal transport sector.
The corporate wish list is to replace the current federal sector bargaining process with one that appears in the USA's rail (and airline) sector, one where there is no right to strike or bargain effectively.
The USA Railway Labor Act is probably the most regressive labour law found in a liberal democracy. No surprises there.
The law makes it essentially impossible to get to a strike by imposing a labour negotiations regime that shepherds the parties from direct bargaining to mediation to "cool-off" periods to Presidential Emergency Board to an imposed contract by Congress if no deal is reached at any previous stage.
The US Supreme Court calls the law "almost interminable."
- Minor railway disputes: subject to binding arbitration, immediate injunctions possible, strikes are illegal.
- Major railway disputes: impossible to get to strike position.
Final offer selection used more often than interest arbitration.
For Canada's federally regulated industries, the current process is already difficult to get to strike action. There is a process that takes weeks of imposed conciliation, cooling-off periods, and days of notice of strike action. The result is a process where all parties know exactly when and how a strike (or, more likely these days, lockout) will occur.
The employers launched a campaign months years ago complaining that the labour disruptions in the federal sector are a major threat to Canada's economy. "Critical Infrastructure" is their phrase to highlight how critical their oligopoly position in the economy of supply chains are.
Unions, for their part, have their own complaints about the Canada Labour Code, mostly to do with getting a first collective agreement or navigating a complex bargaining process that can end in a Sec 107 if you are not strategic.
It is a process that usually involves large workplaces, spread across the country, with members in different regions dealing with slightly different issues. The bargaining also involves some of the world's largest and most profitable corporations.
There is a balancing act in federal labour negotiations. These employers usually hold a lot of power, can plan for years to restructure their operations to avoid affect of a labour dispute. Recently, the employers are quick to use lockout to force the government to intervene and force workers back to work and impose a settlement process.
For labour's side, unions tend to find it expedient to demand the State get involved because of frustrations with an unmovable employer. The fact that labour asks for the State to get involved means that unions look to be talking in contradictions when demanding both the right to strike and free/fair collective bargaining and demanding a process of State-supported conciliation through the Federal Mediation and Conciliation Services.
That is, unions demand no Sate interference in bargaining through a forced arbitration process, but also demand that a forced arbitration process exists.
However, this is not a contradiction, this is the result of a dynamic process where the battles with the employer are determined by the rules of the game through the Canada Labour Code.
There are at least two things that should be separated for unions to make their argument that they want free and fair collective bargaining with the right to strike and they want a clear State process to help bargaining to establish a contract:
- first contract arbitration
- agreed-to arbitration process when the process fails.
I am not a lawyer, so I don't know an legality between first contracts and post-first CA bargaining, but they seem objectively different in practice.
One seeks to extend an established democratic/Constitutional practice to a new workplace, the other seeks to advance the standard through a protected process.
For example, there is rarely an expectation that novel language is gained at first contract. The point of the first contract is to fully establish the right to that part of the law that only extends to unionized workplaces and establish at least the minimum standards in a new CA.
After the right to bargain is established (with the CA being adopted), the goal is to move the needle forward for each successive round.
Forced arbitration for a first contract is simply facilitating a right. Its worst outcome is still a contract and access to that right, even if the contract is the absolute minimum standards in the sector.
For the second contract, the worst outcome of forced arbitration is the direct undermining of the right to bargain.
Incentives and process
The first goal of any process for bargaining (in a liberal democracy) should be the avoidance of incentives that undermine a free and fair bargaining process.
While in some cases arbitration for settlement is likely necessary, from time to time, in the real world, there needs to be a distinction between arbitration being the default route and when it is the exception in bargaining.
Saying that an appeal to reason for the intervention of the State or private third party from one of the bargaining parties (and a process to conclude there is no undermining of rights in an imposed process) when all attempts at bargaining fail is not a contradiction to the right to bargaining, it is an acknowledgement of the reality of the war between labour and Capital being messy. That sometimes there are real blocks to getting a deal, but those blocks are not so large as that they should end the right to bargain forever (through things like closure or the employer or forever strike by the employees and break-up of the union).
But, that's a little different from a process that relies on a foregone recommendation from a State-appointed mediator to avoid any true dispute. Such a process undermines any real incentive to bargain by either party.
This process where there are no real bargaining and no real strike action is what the government is trying to impose.
Employer silliness
Do any of these arguments even mean anything? Probably not. The federal sector employers know that this government is on their side. The Liberals have always been opposed to the right to free collective bargaining because they are ideologically opposed to labour disputes. They think that strikes and lockouts are bad and are where the bargaining process has "broken down".
This is nonsense of course. Strikes are older than capitalism and are a way for workers to actually engage in bargaining. There is no effective bargaining without the right to strike, so a bargaining process that results in no strikes is not a free and fair bargaining process.
It is also funny how the employers' solution to their complaint that increased risk from supposed unknown timing of labour disruption is imposing a process that increases unworkability of timelines of a strike.
The "solution" being floated is seven months of potential delays of differing length and unknown deadlines with the very real possibility of strike action being usurped by imposed arbitration.
Delays, shifting timelines, and the moving deadlines for strike action are the opposite of what was ostensibly being sought by the employers.
This creates neither a predictable timeline for bargaining nor a balanced power dynamic.
Of course, this works as a "solution" only because the employer (and government) assumption is that the new process actually eliminates the risk of strike action, it doesn't just delay it.
This is the brilliance of the USA Railway Act. There is just no way to get to strike action, imposed solution is the expectation, and if you do somehow run the gauntlet to the end, the ability to organize democratic outcomes has been eliminated and you just get the option you were trying to avoid imposed.