Once again, Minister of Labour Lisa Raitt and her Conservative Party colleagues have been found in violation of international law.
This time, it is for imposing back to work legislation in a Canada Post collective bargaining dispute in 2011. The legislation was Bill C-6. It ended a work stoppage, and imposed a restrictive interest arbitration process and wage rates below what Canada Post had already offered the workers. The union filed a complaint with the ILO, alleging that Bill C-6 violated Convention 87 and the robust right to strike that has been read into that Convention. The Committee’s findings can be read here (starting at page 65), or you can read here.
What the ILO Expert Body Said About Bill C-6
Canada has ratified Convention 87, so it is expected to bring into effect the principle of that Convention, including protecting the right to strike as defined in the Convention 87 case law. Under Convention 87, strikes can only be restricted only when they threaten essential services, defined as services without which life, personal safety or health of the population would be threatened. Postal services do not qualify as ‘essential services’, as the ILO Expert committee explained:
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 [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 521 and 576]. 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.
The Feds argued that interruption to postal services posed an economic threat, an argument that the ILO dismisses, on the basis that the exercise of “fundamental rights of freedom of association” trump concerns about disrupting business:
While 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
Lisa Raitt was chastised by a federal judge for her appointment under Bill C-6 of an Anglophone arbitrator with no labour relations experience. The judge said Raitt’s decision lacked “common sense”. The ILO also chastised the Canadian government, reminding it that interest arbitrators must be considered respected and considered impartial to both sides of the dispute
the Committee wishes to recall that, in mediation and arbitration proceedings, it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but, if the confidence of both sides, on which the successful outcome even of compulsory arbitration really depends, is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned [see Digest, op. cit., para. 598].
What this Means for the “Right to Strike” Cases Under the Canadian Charter
The Bill C-6 is presently the subject of a Charter challenge, one of several cases working their way the courts that raise directly the question of whether the Charter of Rights and Freedoms protects a right to strike in Canada. The ILO’s finding that Bill C-6 is inconsistent with Convention 87 and its protection of the right to strike could be important in these cases. That’s because the Supreme Court of Canada told us in B.C. Health Services that Section 2(d) of the Charter (Freedom of Association) should be interpreted so as to protect “at least the level of protection” guaranteed by international conventions Canada has ratified, such as ILO Convention 87:
Supreme Court of Canada: 70. Canada’s adherence to international documents recognizing a right to collective bargaining supports recognition of the right in s. 2(d) of the Charter. As Dickson C.J. observed in the Alberta Reference, at p. 349, the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified.
Canada has ratified Convention 87. Convention 87 protects a robust right to strike, and prohibits back to work legislation for postal workers, and other non “essential” (defined narrowly) occupations. It follows as necessary logic that if the ILO rules that back to work legislation violates Section 87, then so to must that legislation violate the Charter. The only way out of this box for the SCC is to say it was wrong when it linked Section 2(d) to the bundle of rights the ILO has said are protected by Convention 87. Last year, a Saskatchewan judge ruled last year that the Charter does guarantee a right to strike. The judge quoted extensively from the ILO Committee’s findings on how a Saskatchewan law limiting strikes violated Convention 87.
Questions for Discussion
Do you think that the Supreme Court of Canada will apply its own directive in B.C. Health Services and find that Section 2(d) protects a robust right to strike comparable to that reocognized by the ILO’s expert bodies under Convention 87?
If not, how will the SCC reconcile its assertion that Section 2(d) must protect “at least” the level of protection for freedom of association as protected by ILO Convention 87?