The latest in a growing series of Charter challenges dealing with the right to collective bargaining and to strike was just filed. Already in the works are Charter challenges by postal workers and Saskatchewan government employees raising the issue of the right to strike under Section 2(d), and I think the B.C. teachers are also gearing up. This rash of Charter challenges is a result of governments across the country taking a hard interventionist line against free collective bargaining, and of a Supreme Court that keeps writing incomprehensive decisions on the meaning of “freedom of association” that only further litigation can sort out.
We may be witnessing the beginnings of what will become a new “Labour Trilogy” on the right to strike [the old 1987 Labour Trilogy ruled that the Charter did not protect a right to strike, but that is sooo 20th century]. I suspect some of these cases will be consolidated on the way to the Supreme Court.
This one is by the Air Canada Pilots, who are challenging the recent Protecting Air Services Act. I have explained that Act before.
The application argues that Sections 2(b), 2(d), and 7 of the Charter guarantee a right to strike, which was infringed by the Bill, which prohibited strikes or lockouts, and referred the dispute to final offer selection arbitration:
The right to strike may only be restricted in the case of essential services where a work stoppage endangers the life, personal safety or health ofthe population. The right to strike is also an essential means by which employees convey information and raise awareness ofthe various issues in dispute between the parties. The impugned provisions limit both the liberty and “security ofthe person” ofpilots in a manner inconsistent with the principles of fundamental justice.
The arbitration process requires the arbitrator to consider a series of factors that on their face appear to emphasize the employer’s economic interests over the employees’ economic interests. The application challenges this model:
The impugned provisions of the Protecting Air Service Act also require ACP A to participate in binding, final-offer arbitration to determine the content of its collective agreement with Air Canada, also contrary to section 2(d) of the Canadian Charter of Rights and Freedoms. Section29(2)of the Protecting Air Service Act lists factors that must guide the decision of the arbitrator, and these factors are designed to favour Air Canada’s position in the arbitration, contrary to sections 2(d) and 7 ofthe Canadian Charter ofRights and Freedoms.
Another interesting aspect of the application is the assertion that air pilots are presently flying despite “being unfit to”. That is an explosive claim, don’t you think? The pilots are doing so because the statute being challenged imposes big fines on pilots if they strike, and Air Canada is alleging that if pilots claim they are unfit to fly (as they are required by law to do), they will be accused of engaging in an unlawful strike.
ACPA reminded its members oftheir statutory obligation not to fly ifthey feel unfit to do so, Air Canada responded by informing pilots that such actions will constitute a “strike” under the Canada Labour Code and, by implication, under the Protecting Air Service Act. As a result, Air Canada pilots are flying despite being unfit to do so out of fear of being prosecuted criminally under the Protecting Air Service Act.
Could you imagine the fallout for Air Canada, Minister Raitt, and the Federal government if (knock on wood) an accident were to occur with a pilot at the helm who had expressed concerns about fatigue, yet felt pressured to fly? Hopefully, we will not ever have to consider that issue.
So, stay tuned for another year of exciting labour law and the Charter discussions. Has a constitutional right to strike left the station? If so, what will it mean? We may soon (well, not too soon) find out…