Here is the link to the newest in a line of highly interventionist federal legislation restricting collective bargaining and the right 
to strike and lockout.
This one is called Bill C-39: An Act to provide for the continuation and resumption of rail service operations
I’ve given it a quick read. Apparently, I was wrong in my post from earlier this morning. This Bill does not follow the model of the Air Canada and Canada Post laws. It still bans the right to strike, imposes ridiculously high fines for non-compliance, and confers on the Minister the unilateral right to select her favorite arbitrator while prohibiting the right of the parties to challenge her selection. But it also drops a couple of restraints on the arbitration process that appeared in the earlier legislation. In particular, unlike those laws, this Bill:
1. Does not require Final Offer Selection as the method of interest arbitration. I assume that means that the parties can select their own process, or otherwise the normal process will apply, whereby the parties make submissions and the arbitrator is free to craft the award he or she thinks is sensible.
2. Does not include the usual list of criteria for the arbitrator to consider, which in the earlier laws, included such things as “the competitiveness” of the employer in the short and long term, the employer’s earlier offers, the employer’s need for flexibility, the need for the conditions of work to be ‘consistent with’ the employer’s competitors, and pressures on the employer that might result from short-term pension funding obligations. As I noted before, these criteria appear to favour the employer’s interests, which undermined the perceived fairness of the model as whole. I questioned on several occasions why the government would so openly side with one side in a private dispute, when it was so plainly obvious that all this achieved was greater anger and resentment of the workers. What good will come from the government’s attempts to restrain the arbitrator’s discretion?
Maybe the Air Canada Pilots caused the government to blink slightly. The pilots demonstrated how workers can still wreak havoc on an employer when restrained by what they perceive to be unbalanced, unfair strike banning legislation. Railways can also easily be shut down or delayed considerably by tired or sick drivers. The law is still a blatant violation Canada’s international law obligations to respect the right to strike (explained here), and may still be the subject of a Charter challenge. But it at least appears to substitute a process that gives the perception of being more even-handed than this government’s earlier interventions. And perception can make a difference in these things.
What do you think? Is this Bill more or less acceptable to you, given that it does not include the usual list of employer-friendly criteria for the arbitrator to consider in making the award?
Why do you think Minister Raitt loosened the reigns slightly on the process of arbitration that will apply here, compared to the Canada Post and Air Canada situations?
