Here is the latest in a long series of legislative interventions in labour relations by the Federal government. This one is called Bill C-33.
This is preemptive back to work legislation, to deal with the potential situation that the Labour Board were to rule on the Minister’s references, which I discussed earlier. Those references only suspend a work stoppage until the Board has decided if there is a health and safety risk posed by an Air Canada work 
stoppage. Once the Board decides that, the parties could have (in theory) commenced a lockout or strike. So Raitt needed to have back to work legislation ready to rumble.
I have to rush home to get my kids, so I’ve only a fast read through. It looks much like the other back to work legislation this government has been routinely drafting, with some differences. This Bill covers both the pilots and the maintenance ground crew.
Minister Selects Arbitrator
Once again, rather than let the parties decide who they want to write the agreement they need to live with, the nanny state will decide for them (Section 11). As I noted before, Minister Raitt has already be chastised by a Federal Court Judge for making an appointment decision under a similar provision relating to Canada Post that the judge said lacked “common sense”. That arbitrator was Anglophone and had no labour relations experience. Unbelievable. This time, to ensure that Raitt can appoint anyone she likes, even someone that knows squat about the airline industry or collective bargaining and that neither side wants, she included a clause saying that no one can challenge her decision (section 15):
15. No order is to be made, no process is to be entered into and no proceeding is to be taken in court
(a) to question the appointment of the arbitrator; or
(b) to review, prohibit or restrain any proceeding or decision of the arbitrator.
So we will have to see if Raitt uses her dictatorial powers to select an arbitrator the parties will respect, which is usually a sensible move given that the parties have to live together for years under the agreement that is imposed.
Legislation Directs Arbitrator on Factors to Consider
Another interesting point in this legislation is the government’ attempt again to inject itself into the arbitrator’s discretion. This time, the legislation requires the arbitrator to “take into account” the proposed settlement that the members of the union rejected last month. An arbitrator would be expected to consider that anyways, since rejected tentative settlements are considered strong evidence of where the parties would likely have ended up themselves. (Remember the last Air Canada interest arbitration, in which the rejected settlement was awarded).
Maybe the reason Minister Raitt put that in the legislation is that the person with no labour relations experience she intends to appoint to arbitrate might not be aware of arbitral jurisprudence and norms. 🙂
The arbitrator must also take in account “terms and conditions of employment that are consistent with those in other airlines” and that will provide the necessary “flexibility” to ensure “short and long-term economic viability” of the employer.”
These are all factors that seem to favour the employer’s arguments. For example, most “other airlines” pay their workers less and have fewer benefits compared to Air Canada. So does this mean the arbitrator must be guided by a desire to drive terms and conditions at Air Canada down to the lowest common denominator? A legislated race to the bottom? “Flexibility” in industrial relations context often is intended to mean ‘fewer rules’ and fewer restrictions on management rights. For example, when Rob Ford says the City of Toronto collective agreements need to be “more flexible”, part of what he means is “the employer needs to be able to fire unionized workers easier and replace them with cheaper private sector workers.” Not good for the workers.
On the other hand, an arbitrator could easily disregard those criteria with a simple shrug. Of course, an arbitrator is going to consider industry practices, and the economic viability of the employer. Neither side would suggest otherwise. But the parties will have very different ideas of the best way to do that, and other things can be considered too, such as how long workers have gone without raises, for example, and the fact that Air Canada has been around way longer than other Canadian airlines, and AC employees have collective bargaining rights whereas many other airlines’ employees do not, so that you are really comparing apples to oranges.
My question is why the Minister bothers throwing in these criteria at all. What purpose are they intended to serve.
They piss off the workers and the union, because even if they do not end up influencing an arbitrator to weigh the employer’s interests over the employees’ interests in catching up from past concessions, they appear to be intended to do just that. This causes the employees to question the neutrality of the model, and by implication, any outcomes that result from the it. This can only be bad for employee relations.
Put it this way. Either the Minister is trying to skew the process in favour of the employer, which would be extremely inappropriate, OR she is not trying to skew the process in favour of the employer, in which case there is no need to include the list of mandatory criteria for the arbitrator to “take into account”. Just let the parties make their pitches to the arbitrator, appoint an arbitrator that understands collective bargaining and the airline industry, and let him or her decide. Why does this government insist on getting itself so involved in the intricacies of employee relations of a private corporation? It’s highly unusual and very strange behaviour from a government that talks a whole lot about the supposed benefits of lesser government intervention in private business.
It is also courting more Charter challenges, and for no reason. My sense is that the Supreme Court will be concerned about government interference in the neutrality of the interest arbitration process. If you are going to interrupt collective bargaining and strike rights, and to refer the matter to another dispute resolution process, that process had better be neutral and arms-length from the state and not skewed in favour of one party to the dispute. The ILO says this very clearly, and the SCC has told us that the Charter of Rights must be interpreted to provide “at least the level of protection” of the ILO law.
What do you think about this government’s insistence on trying to guide the exercise of the arbitrator’s discretion?
So we will have to see how this plays out. If you are keeping score, it is presently tied at one arbitration victory for Air Canada (flight attendants) and one for the workers (customer service agents). [See recap here]
We will also have to see whether this legislation serves as springboard to yet another Charter challenge against this government. It will almost certainly lead to another rebuke from the International Labour Organization, which has ruled almost every piece of back to work legislation in Canada to violate international law. Bill C-33 is no different.