Canadian Press is reporting today that CUPW intends to challenge Bill 6, the Tory legislation that ordered an end to the employer’s lockout of the workers. Here is the Globe and Mail story.
Although the story is not clear on this, I assume that this means the union intends to file a Charter challenge alleging the legislation violates Section 2(d) freedom of association. That will make for an interesting case. The question will be whether it is a violation of Section 2(d) for a government to legislate an end to a work stoppage mere days into the legal strike/lockout period, and then impose legislation that fixes wages at a rate below what the employer was offering, that gives the parties no say in the selection of an arbitrator, and that imposes the following, employer-friendly parameters on the arbitrator:
(2) In making the selection of a final offer, the arbitrator is to be guided by the need for terms and conditions of employment that are consistent with those comparable postal industries and that will provide the necessary degree of flexibility to ensure the short- and long-term economic viability and competitiveness of the Canada Post Corporation, maintain the health and safety of its workers and ensure the sustainability of its pension plan, taking into account
(a) that the solvency ratio of the pension plan must not decline as a direct result of the new collective agreement; and
(b) that the Canada Post Corporation must, without recourse to undue increases in postal rates, operate efficiently, improve productivity and meet acceptable standards of service.
The Supreme Court has recognized a limited right to collective bargaining in Section 2(d) in B.C. Health Services, a case in which the B.C. government rammed through legislation that restricted the rights of workers to bargain collectively. To date, the Court has not recognized a right to strike or lockout. For background on the Charter issues, you can look at my piece called The Charter and Workplace Law: A Guide for Beginners, which is available for free download here (it needs a post-Ontario v. Fraser update).
We’ll have to wait and see if, and what CUPW argues. God only knows what the current Supreme Court would do with a case like this, were it to make it that far. The Court has shown a distaste for heavy-handed government interference with collective bargaining rights, so who knows.
Perhaps the lawsuit is a tactic to encourage Canada Post to bargain a deal outside of the arbitration process set down in the law. One of the odd things about the Tory legislation is that it largely removes the incentive for Canada Post to bargain a collective agreement, since the arbitration process the government has designed is tilted towards the employer’s interests. Usually, a government would want to create an incentive for the parties to reach a bargained solution. The Tories seem more interested in having the parties go to arbitration.
What do you think Charter experts think? Would Bill 6 withstand a Charter challenge?
The news article suggests CUPW is also considering a human rights complaint:
The union is also considering lodging a complaint with the Human Rights Commission, claiming discrimination against newer employees who will not have the same pension benefits as older ones.
I think that claim is a stretch. Look at Section 3 of the Human Rights Act, which says this:
3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.
What grounds of discrimination would “new Canada Post employees” fall under?
