Not that anyone cares, but us labour law types have been telling the media for months that the government’s constant interference in collective bargaining is counter-productive from an employee relations’ perspective. Minister Raitt’s refusal to permit strikes and lockouts and instead channelling employee frustrations into a process the Minister has stacked in favour of employers is a recipe for a very unhappy and unhealthy workplace. Years of industrial relations scholarship suggests that employee frustration does not go away just because a government prohibits workers from exercising rights to vent steam that most other people have. Rather, those frustrations can take other forms that are not healthy for the business. That might mean a less motivated workforce, more grievances, or higher absenteeism, for example.
News reports today indicate that some Air Canada pilots, whose right to engage in a work stoppage has been suspended by the government, have called in sick, causing the airline to cancel flights. Some of the pilots are claiming stress and fatigue. If workers are banned from striking, can they call in sick? If small percentage of workers call in sick, are they engaged in a ‘strike’?
Read how the Canada Labour Code defines a ‘strike’:
“strike” includes a cessation of work or a refusal to work or to continue to work by employees, in combination, in concert or in accordance with a common understanding, and a slowdown of work or other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output;
What do you think? Are the pilots who called in sick on “strike”? We don’t know, right? Why do I say that? What does the answer depend upon?
Whether or not this is a strike, it is none of the Minister’s business. What constitutes a strike is a question clearly dealt with by the Canada Labour Code, and not a particularly complex question at that. The Code provides employers that believe their employees are engaged in an unlawful strike with a remedy. In other words, this is standard labour law question that comes up fairly regularly. Yet I wonder whether this Minister, this government, would be able to resist sticking its nose into the issue if pilots continued to experience symptoms. I wonder, for example, whether the Minister might attempt to influence the Labour Board by making comments about whether she thinks it is a strike, or about what she thinks the labour board should decide, were the employer to bring an illegal strike application.
Do you think that it would be inappropriate for a Mininster to suggest to an administrative tribunal how it shoudl decide a legal dispute within it’s jurisdiction?
How would you respond if you were Air Canada? One option is to see this as a sign of great tension and conflict, no doubt aggravated by the government’s intervention, including its non-neutral arbitration process in the back to work legislation. If you were the Director of Labour Relations for Air Canada, would you offer the union the opportunity to refer the issues to a fair and neutral private interest arbitration system, rather than the government’s distorted version, with an arbitrator agreed to by the parties and that does not include a list of mandatory criteria limiting the arbitrator’s discretion? Do you think would be perceived as an olive branch to the workers?