A Federal Court judge admonished the Federal Minister of Labour, Lisa Raitt, this week in a strongly worded rebuke. The Judge found that the Minister’s position that she can appoint someone with no labour relations experience to decide the terms of a collective agreement of a national employer lacks “common sense”, and her process “lacked transparency”!
The decision involved a challenge by the postal union (CUPW) to the appointment by Raitt of an Anglophone
judge with no labour relations expertise to sit an arbitrator in the legislated interest arbitration flowing from the government’s back to work legislation last summer.
Here is the Decision, issued last week.
Background: Recall that last summer the Feds legislated an end Canada Post’s lockout of its employees. I summarized that event at the time. The back-to-work legislation, like that which the government passed in the Air Canada situation, included a number of unusual features aimed at slanting the interest arbitration process it substituted for the right to strike or lockout in favour of the employer. [Here is the legislation (Bill C-6 Restoring Mail Delivery for Canadians Act)] One unusual feature was that it gave the sole authority for appointing the interest arbitrator to the Minister, with no requirement to even consult with the parties about this. Section 8 said this:
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The Minister interpreted this language to mean that she could appoint anyone she likes, even someone who knows nothing about labour relations, Canada Post, the postal industry, who cannot speak a word of French, the language spoken by a large percentage of both management and staff, and who lacks the support of either of the parties to the collective agreement. The Court disagreed. Strongly disagreed.
The Decision
This is an important decision, because it shows once again that the Courts will create an obstacle to conservative governments that want to interfere with the interest arbitration system in ways that tarnish the neutrality and objectivity of the system. Conservatives want someone who is outside of the labour relations community in the hopes that that person will not be concerned about pissing off the unions and the workers, and will therefore be prepared to impose significant concessions on behalf of employers. The Mike Harris Conservatives in Ontario tried the same tactic back in the 1990s, and were met by an unimpressed Supreme Court.
The most interesting part of the decision is the strongly worded rebuke of the Minister’s position. The judge wrote that the Minister:
…would like the exercise of ministerial power… to be unobstructed, unguided or not subject to any criteria of qualification or competence for the arbitrator. In other words, the Minister would merely have to act in good faith and deem the person qualified for it to end the Court’s judiciary review exercise.
The judge soundly rejects this argument, saying that it “is not what is indicated by common sense, case law, the economy of the Act, or the specific labour relations context that govern the parties to the collective agreement.” Ouch. The Judge continues:
In the case at hand, the lack of transparency inherent in the appointment process followed by the Minister, the little evidence or rationale provided by the Minister and the laconic nature of her communications raise serious questions and indicate that the Minister appears to have excluded, as relevant criteria, the person’s previous labour relations experience and the bilingualism requirement stemming from the specific context under which the final offer arbitrator would have to make his or her final decision.
Do you think that elected governments should be entitled to appoint whomever they like to arbitrate collective bargaining disputes? Or do you agree with courts intervening to require the appointment of people respected in the labour relations community?