Postal workers sent back to work

In response to the
ongoing labour dispute with the Canadian Union of Postal Workers (CUPW) and the
rotating walkouts of postal workers, the federal government has passed
back-to-work legislation in the House of Commons. Bill C-89, or An Act
to provide for the resumption and continuation of postal services
, was passed in the Senate, putting an
end to the rotating strikes of CUPW members.

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Back-to-work legislation
is an affront to the rights of Canadian workers. In Saskatchewan
Federation of Labour v. Saskatchewan, 2015 SCC
, the Supreme Court ruled that the right to strike is guaranteed
by s. 2(d) of the Charter. Bill C-89 presumptively curtails that right.

The government, however,
insists that Bill C-89 does not violate the Charter on the basis that forcing
postal services back to full function is important to the economy and to
Canadians in especial need of postal services. As reported, the government has

…the Bill is
introduced only following unsuccessful efforts to bring the collective
bargaining process to a satisfactory conclusion for all parties. The government
has taken significant steps to promote the collective bargaining process by
encouraging a negotiated resolution of the parties’ dispute.

The trouble with this
statement is that rotating walkouts and the right to strike are essential to
the bargaining power of unions. Legislating an end to work stoppages does not
promote the collective bargaining process. Anything but. As Canadian Labour
Congress president, Hassan Yussuff, is reported
to have said:

right to strike is an integral part of the collective bargaining
process….Without it, an employer has no incentive to bargain in good faith, and
workers have no recourse to demand a fair process.

To simply legislate an
end to the work stoppages of postal workers when there’s difficulty reaching a
deal deprives the CUPW of their strength in the negotiation. Not only that, it
removes the need for Canada Post to bargain effectively and is bolsters the
power imbalance between workers and employers.

Stripping unions of a
major component of their bargaining power (i.e. the right to remove their work)
is to suggest that the employer and the union enter bargaining on an equal
footing and that the union should not seek to exercise its negotiating leverage
through work stoppage. This, of course, is silly. As history has shown, and the
Supreme Court has recognized, workers are innately less powerful than their
employers, and hence the need to protect the right to strike. Labour laws have
were designed to ameliorate this imbalance, as the Supreme Court has
acknowledged, saying there is a:

power imbalance which the entire history of modern labour legislation has been
scrupulously devoted to rectifying. 

Perhaps even worse than
this willful blindness to the inherent power imbalance is the basic laziness
back-to-work legislation represents. To throw up its hands and resort to
legislation, the government appears to be saying that it is unable to reach a
fairly negotiated outcome, and it’s done trying. Though legislation will
certainly get the postal services up and running at full steam again, the cost
that comes from back to work legislation is too great. It trammels the rights
of workers in order to resume postal services when a negotiated agreement could
have the same result. The difference is a negotiated agreement would not
violate workers’ rights.

has a history of this sort of thing

In 2011, Canada, under
the Conservative government, used Bill C-6 to end a work stoppage by Canada
Post workers and to impose interest arbitration. When a complaint was made to
the International Labour Organization, the Committee found Canada was in
violation of its obligations under international Convention 87.

In 1972, Canada ratified Convention
(i.e. the Freedom of
Association and Protection of the Right to Organise Convention, 1948
). For
all intents and purposes, Canada is meant to support the principles of that
Convention, which include protecting the right to strike. Under Convention 87,
it is meant to be difficult for governments to limit strikes. Strikes are to be
restricted only if they disrupt essential services. Even so, the government has
a penchant for back-to-work legislation, which has often put us at odds with
our obligations under the ILO’s Conventions.

Canada might argue that
postal services are essential services, and so the government is within its
rights to legislate the workers back to work. Well, not so fast. The ILO
defines “essential services” as services without which life, personal safety or
health of the population would be threatened. 
When the ILO considered the complaint about Bill C-6, it had this to

As regards the effect of Bill C-6 of ordering
the postal workers back to work and thus terminating the ongoing strike action,
the Committee is bound to recall that
it has always recognized the right to strike by workers and their organizations
as a legitimate means of defending their economic and social interests, and
that the right to strike may be restricted or prohibited: (1) in the public
service only for public servants exercising authority in the name of the State;
or (2) in essential services in the strict sense of the term, that is, services
the interruption of which would endanger the life, personal safety or health of
the whole or part of the population…[1]

To put an even finer point on its disapproval of
Bill C-6, the ILO committee went on to add:

In this regard, the Committee reiterates that it has always considered that postal
services do not constitute essential services in the strict sense of the term

With Bill C-89, as with
Bill C-6 several years earlier, the government has made an economic argument,
justifying its back-to-work legislation, at least in part, on the basis that
the disruption to the postal service is damaging to business. The ILO rejected
that argument with respect to Bill C-6, and it appears likely that it would
reach the same conclusion if a complaint were brought today. According to the

it has always been sensitive to the fact that a prolonged interruption in
postal services can affect third parties who have no connection with the
dispute, for instance it may have serious repercussions for companies or
directly affect individuals (especially recipients of unemployment benefits or
social assistance and elderly people who depend on their pension payments), the
Committee has nonetheless considered that whatever the case may be, and however
unfortunate such consequences are, they do not justify a restriction of the
fundamental rights of freedom of association, unless they become so serious as
to endanger the life, safety or health of part or all of the population.[3]


Canada has an unfortunate
international record of failing to respect freedom of association and the right
to strike. In enacting legislation similar to that for which the ILO cited the
Harper Conservatives in default of its obligations, the Trudeau Liberals are
demonstrating yet again why the ILO has cited Canada for failing to live up to
the obligations it accepted when it ratified Convention 87. While it’s true
that the ILO does not have the power to stop Canada from passing back-to-work
legislation, it does diminish the country in the eyes of the international
community. Canada should be better than this. Canadian workers deserve better
than this.

Negotiation is a key part
of the free market that the government so enthusiastically espouses. Funny then
that the government is willing to subvert the basic right to negotiate when the
process is not easy, opting instead to cease the negotiation process through
legislation. This is anti-free market. The government must not tout the free
market on one hand and then quash the rights of unions when it deems the
negotiations inconvenient. Not only is it hypocritical and logically
inconsistent, it’s an insult to all workers in this country and around the
world. We hope that the government will seek to preserve its reputation both at
home and abroad, and do what the workers have been calling for: “negotiate,
don’t legislate.”

[1] Reports
of the Committee on Freedom of Association, “367th Report of the Committee on
Freedom of Association”, Institutional Section,
International Labour Office, 317th Session, Geneva, 6–28 March 2013,
GB.317/INS/8, at p. 90, para 335. Available from:—ed_norm/—relconf/documents/meetingdocument/wcms_208542.pdf
[2] Ibid.
[3] Ibid, at p. 90, para 336.

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