And just like that, the Federal government has introduced legislation to end a 3 day old strike by CN rail engineers. Here’s the story from the National Post.
Here’s a copy of the Bill (Bill C-61).
Back to Work Legislation is Contrary to Canada’s International Law Obligations
I’ve noted before that Canada’s tendancy to use back to work legislation to end strikes is contrary to its international law obligations as mandated by ILO Convention 87, which requires countries to respect a robust right to strike. The ILO has singled out Canada for its use of back to work legislation as a means of ending collective bargaining. Only strikes involving ‘essential’ services are permitted to be restricted under that Convention, and ‘essential’ is defined narrowly, as explained in this decision of the ILO’s expert body condemning a decision of the Feds to order an end to a grain workers’ strike in 1992:
The Committee recalls that essential services are those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. Grain handling is not an essential service in the strict sense of the term…. Noting that the Government has had recurrent recourse to back-to-work legislation in the recent past, the Committee strongly urges that the Government refrain from the use of such measures in the future in services which are not essential.
Simiarly, there is no evidence that the 3 day strike was putting anyone’s health at risk. We can probably expect yet another ILO complaint to filed and upheld arising from this new back to work legislation. There’s also the ever present possibility of a Charter challenge that looms in all of these back to work cases, a point I have discussed before.
Was C.N. Permitted to Unilaterally Change the Employee’s Terms of Employment?
Of interest in the CN case is that the fact that the union decided to strike only after the employer made a unilateral change to the employees’ terms of employment. After the parties were in a legal strike/lockout position, the employer unilaterally gave employees a 1.5% wage increase and also increased the number of miles an engineer can be required to log in a month (from 6100 km to 6900 km). These are the two main issues that remained in bargaining: the union wants a slightly hirer raise and no increase in working hours.
Professor Paul Weiler long ago noted that the counterveiling power for employers to the employees’ right to strike is not the right to lockout workers, but the right to unilaterally change conditions of work once the parties are in a legal strike/lockout position. The right of an employer to unilaterally change the terms of employment after it is in a legal lockout position was recently discussed (and affirmed) by the Ontario Labour Relations Board in a case called Neenah Paper. If you want to understand how that conclusion follows from the legislation, read Neenah.
I assume that Bill C-61 will require the employer to revert to the old terms of the collective agreement (take back the raise and the increase in required kms), since my very quick browse of the legislation indicates that the old collective agreement is extended until a new one is imposed by the interest arbitrator.
