I noted the other day that Minister of Labour Lisa Raitt had used her favourite power on the Canada Labour Code again, the ‘reference’ under Section 87.4(5), to suspend any lockout or strike at Air Canada. The Minister was forced to act by the notice of strikes and lockouts by the parties this week. For policy reasons that aren’t really clear to me, the structure of the Code is such that a reference under Section 87.4(5) only suspends a work stoppage if it is submitted to the Board by the Minister before the work stoppage begins. Since a notice to lockout the pilots on Monday had been served by Air Canada, the Minister was forced to get the application in immediately. Of course, Air Canada knew that too, so it’s notice of a lockout was not a ‘real’ notice of lockout. Everyone knew the Minister would file this reference the moment notice to strike or lockout was served.
Section 87.4(5) of the Code is the section that is supposed to deal with an emergency threat to health and safety that could arise due
to a work stoppage. No one really believes that Air Canada provides emergency services to Canadians as Raitt claims. I doubt even she does. Raitt is no dummy. This section was never intended to apply to the Air Canada situation. But Canadian law does not have a provision for a government to stop a work stoppage at a private business because it would piss of March Break travellers or because it would harm the economy. So the Minister has to pretend that Air Canada is like a really expensive ambulance and medical services company. It’s all rather unbecoming of an elected official, but it achieves the government’s objective of stopping work stoppages.
It prevents a work stoppage for as long as it takes the CIRB to hear evidence and decide if there is an immediate threat to health and safety of Canadians posed by a work stoppage. By that time, the government hopes that the parties will have reached a deal. If they don’t, then the government will just use its majority powers to ram through back to work legislation. News is the legislation is already in the works. The reference power is useful to Raitt because she does not need to present any evidence that a work stoppage in fact would cause a threat. All she needs to do is say it might, and that is enough to suspend a work stoppage. Brilliant.
The other benefit of using this reference power is that it is unlikely to cause a Charter challenge as would back to work legislation. It’s possible to argue that Section 87.4(5), and this Minister’s unusual and frequent use of it, amounts to interference with freedom of association, but I have not heard any rumblings of a Charter challenge against it (yet). The reference is less messy. Fewer of those irritating little Constitutional rights issues to worry about.
The References
Here is the Minister’s Reference relating to the Pilots.
Here is the reference relating to ground crew (Machinists)
What do you think about Raitt’s use of a essential medical services provision to inject the state into a private collective bargaining situation?
Do you support this approach, or not?
Should the government pass a law permitting the Minister to ban a strike or lockout at a private business whenever she likes, for whatever reason? Why or why not?
I will be on CTV News at noon tomorrow talking about Air Canada, if you are bored.