By David Doorey, Professor of Work Law & Labour Relations, York University
Today, the federal Minister of Labour announced he has referred the Canada Post labour dispute to the Canada Industrial Relations Board (CIRB). I haven’t seen the referral itself so I am basing this post solely on what the Minister said in his press conference (here’s a link to the presser).
This is what he said (in part):
“I am applying a solution to create conditions favorable to resolving this labour dispute …. Today I am using my powers under the Canada Labour Code.. I have asked the CIRB, if they also determine there is an impasse, to order Canada Post and all employees represented by CUPW to resume their operations and duties, and to extend the terms of the existing collective agreement until May 22, 2025.
During this time, an Industrial Inquiry Commission will be established. Mr. William Kaplan will fill the role of Commissioner…. The Commissioner will be tasked with examining the structural issues preventing the resolution of the current labour dispute.”
Here’s some speculation about what this means.
The Minister says he has referred the dispute to the CIRB. However, as explained below, it doesn’t sound like the Minister has followed the same route he did in the case of the ports and railways. In those situations, the Minister applied Section 107 and “directed” the CIRB to end the work stoppage and refer the dispute to binding arbitration. I explained that process here. There are ongoing lawsuits challenging the use of Section 107 in this way.
This Minister’s remarks today suggest, firstly, that he has used Section 108 of the Canada Labour Code to appoint an Industrial Inquiry Commission. That IIC, led by noted arbitrator and mediator Bill Kaplan, has until May 15, 2025 to submit its report to the Minister.
In the meantime, the Minister appears also to have made a reference under Section 107, but under different terms than in the railway and ports cases. It sounds like the Minister has adopted an approach similar to that used by the Conservatives back in 2011, when the Minister referred a question to the CIRB about an ongoing Air Canada bargaining dispute.
As I explained in this post, the Conservatives didn’t direct the CIRB to end the work stoppage and impose arbitration. Rather the Conservative MOL asked the CIRB to first consider whether the fact that the employees had twice voted down proposed settlements meant that the conditions were such that a settlement was unlikely (I’m paraphrasing). If the CIRB decided that the impasse was insurmountable, then the Section 107 reference directed the CIRB to either impose a collective agreement or refer the dispute to binding arbitration.
The Minister’s remarks today suggest he has similarly asked the CIRB to determine if there is an impasse and whether a settlement is possible in the near future. IF the CIRB determines that a settlement is unlikely any time soon, THEN the CIRB is directed order the work stoppage to end and to “extend the terms of the existing collective agreement until May 22, 2025.”
Therefore, if I am interrupting his words correctly, the Minister is placing the burden on the CIRB to decide whether settlement is likely in the near future. This will require the CIRB to hear submissions and presumably evidence in some form from the parties. Perhaps that will happen on an expedited basis this weekend. If the CIRB decides that a settlement is unlikely, then the Ministerial direction kicks in to end the strike/lockout and extend the terms of the expired collective agreement until after Mr. Kaplan has completed his investigation.
Unlike the use of Section 107 in the ports and railway cases, this approach does not entirely bypass the CIRB. However, if the CIRB were to rule that it’s still possible for the parties to reach a bargained settlement in the near future, then the direction to end the work stoppage would not be triggered. At that point, I suspect the Minister would revert to the more direct Section 107 order to the CIRB to end the work stoppage that we have seen several times this year. So, a step has been added here that, theoretically at least, preserves the independence of the CIRB.
Also, technically speaking, this approach does not actually order the end of the strike. Rather, it just pauses the strike (and lockout) until Mr. Kaplan’s investigation is complete. Obviously, the government hopes that the pause and intervention of Kaplan will ultimately lead the parties to reach a deal prior to April. But, provided the CIRB finds that a settlement is unlikely, the Minister’s move at least permits Canada Post to make some December deliveries. By not “ending the strike”, the government might also hope to have sheltered itself from a more obvious Section 2(d) Charter complaint that it has banned a strike. In theory, I assume that it’s possible the strike could resume after Kaplan’s report is issued in April and the extended collective agreement terms have expired.
Note also that Kaplan is not being appointed as an interest arbitrator. I haven’t seen the terms of the s. 108 reference, but the Minister’s comments indicate that Kaplan is being asked to examine structural or systemic issues at Canada Post that are preventing a settlement. That is different than asking him to act as arbitrator and impose or even propose substantive collective agreement terms, although he may do that in the process of talking to the parties. In fact, it is notable that the government’s intervention in Canada Post very deliberately does NOT refer to this dispute to binding arbitration.
The government let this dispute continue for over a month now, much longer than they permitted in the case of Westjet, the railways, and the ports. An observer might suggest that what distinguishes those other cases from the Canada Post scenario is that the unions in those other cases had significant bargaining power and so the employers were more open to interest arbitration. I’ve noted many times before on this blog and elsewhere that there is a positive correlation between the speed of government intervention in labour disputes and the degree of union bargaining power in a given dispute. Governments are far more likely to intervene quickly when the union has a lot of power and the employer wants intervention. If you are weak union getting kicked in the face by a long work stoppage, like the port workers in Quebec City who were locked out for 2 years while the feds sat on their hand, then governments are more likely to talk of “respecting the right to collective bargaining.”
I suspect (without any inside information this point) that Canada Post is less enthusiastic about imposed arbitration because an arbitrator is unlikely to give them all the flexibility they are seeking to introduce a cheaper contingent workforce. Note that, unlike in the other recent Section 107 interventions, the government in this Canada Post direction does not impose arbitration at all, at least not yet.
Anyways, a lot of this is speculation on my part for now, since I have not seen the reference. Let’s keep an eye on this and once I see the Minister’s reference I will update this post and link to the reference. //