Wow. What a week for industrial relations teachers! There’s been a steady stream of real-world examples of course materials. 
Here are some quick notes for class:
Once the Parties are in Legal Lockout/Strike Position, there are Tactical Options
First, we saw a partial (rotating) strike at Canada Post, which I predicted could provoke the employer to institute a partial or rotating lockout. Canada Post opted for a partial lockout when it shut down mail delivery two days per week. The employer also unilaterally changed the conditions of employment by freezing the employees’ benefits coverage and suspending vacations. Those tactics have now led us to a complete lockout by Canada Post, which argues that only by fully locking out the workers (and thereby suspending their wages) will the urgency of the matter hit home for the union and the workers. The Postal union argues that the complete lockout is intended to force the government to pass back to work legislation, something the Minister of Labour is already talking about. The Minister has also warned Air Canada and the Canadian Auto Workers to reach a deal in the next 48 hours, or face back to work legislation.
Now we get to watch the silly P.R. dance in which the employers blame the “greedy unions” and the unions blame the “greedy employers” for the dispute. All of this is spin and you should not read much into the mud-slinging that goes on in public while bargaining continues in the back rooms.
Back to Work Legislation and Interest Arbitration
I wonder why Canada Post would want back-to-work legislation, given that it will come with interest arbitration. The main objective of both Canada Post and Air Canada is to make a substantial change to the pension plan that could dramatically cut the pension levels of the workers. It should surprise no one that the workers would be prepared to fight to save pensions. If your employer wanted to substantially cut your pension, would you be prepared to fight that? Nonunion workers don’t have many option to resist, but unionized workers do. Employer attempts to restructure pension plans are at the root of a good percentage of strikes over the past decade.
An interest arbitrator is unlikely to implement a major restructuring of a pension plan, although perhaps an arbitrator might be open to a system that introduces a new cheaper pension plan for new hirers. More likely, I’d predict, is that an arbitrated outcome will just defer the issues to some later date. Perhaps Canada Post and Air Canada hope the back to work legislation will include some direction to the arbitrator on pensions, though that would be unusual. We’ll watch and see.
Canada Once Again Acting in Contravention of International Law
Note that the back-to-work legislation the government is planning at Canada Post and Air Canada would violate Canada’s international law obligations, since the ILO’s Convention 87 has long been interpreted to forbid bans on strikes by all but the military and “essential services” defined narrowly as those jobs without which personal health and safety would be threatened. I have discussed this before on numerous occasions (here’s an example). Of course, Canadian governments have consistently demonstrated that they could care less what the ILO says about their violations of the right to strike.
Should Replacement Workers be Banned?
Air Canada elected to hire replacement workers to perform some of the work usually done by the striking employees. The Federal law that permits Air Canada to use replacement workers says this:
Prohibition relating to replacement workers
(2.1) No employer or person acting on behalf of an employer shall use, for the demonstrated purpose of undermining a trade union’s representational capacity rather than the pursuit of legitimate bargaining objectives, the services of a person who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given and was hired or assigned after that date to perform all or part of the duties of an employee in the bargaining unit on strike or locked out.
In practice, as long as the employer indicates its willingness to continue bargaining, they will be fine in using replacement workers.
That law came out of the 1995 “Sims Report” on revising the labour relations provisions in the Canada Labour Code. The debate over the use of replacement workers is a long-standing one. Unions (and many academics) argue that permitting an employer to use replacement workers prolongs the industrial dispute, seriously harms trust and confidence in the workplace going forward, and facilitates picket line violence. Check out this submission by the Canadian Labour Congress calling for a Federal ban on replacement workers. And here is a law journal article that explains the origins and meaning of the Federal replacement worker provision.
What do you think about this law?
Should Air Canada be permitted to use replacement workers while it’s employees are picketing out front of the airport?
Sympathy Strikes by Other Air Canada Workers
Some Air Canada workers who are not on strike engaged in a short “sympathy strike” today in support of the striking employees. This type of action is considered a “strike” under the Canada Labour Code because of the very broad scope given to the definition of strike:
“strike” includes a cessation of work or a refusal to work or to continue to work by employees, in combination, in concert or in accordance with a common understanding, and a slowdown of work or other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output;
This is yet another way that Canadian labour laws are inconsistent with international law. The ILO has said that peaceful “sympathy” strikes should be treated as lawful provided that the original strike is itself lawful. The unionized baggage workers and cleaners who engaged in the short sympathy strike are violating the law since they are not in a legal strike position. Unless the collective agreement permits sympathy actions, they could be disciplined by Air Canada. Those workers are also due to be bargaining for a new collective agreement this summer. We will wait to see if Air Canada takes any action against those workers.
Never a dull moment in this field, huh.