Life in the new Canadian nanny state is great fun for labour law professors like me.
Every week brings new and creative attempts by the Conservative government to interfere with collective bargaining. This week, it is Air Canada again. As I noted yesterday, the Tories have indicated they will introduce back-to-work legislation to end a threatened strike by flight attendants. But there was a snag, since the legislation couldn’t pass prior to the strike deadline.
In an attempt to get around that problem, the government has filed something called a ‘reference’ to the Canadian Industrial Relations Board. I haven’t seen the application, and only have a vague comment about a ‘reference’ reported in the media to go on. Here is a Toronto Star piece.
If anyone knows more about the application, please let us know.
Minister Raitt said that the issue is “communities [that] might be cut off from service to urban centres and what effect that would have on Canadians’ health and safety.” My understanding is that the application is under Section 87.4 of the Canada Labour Code. Section 87.4 says this:
87.4 (1) During a strike or lockout .. the employer, the trade union and the employees in the bargaining unit must continue the supply of services, operation of facilities or production of goods to the extent necessary to prevent an immediate and serious danger to the safety or health of the public.
(2) An employer or a trade union may, no later than fifteen days after notice to bargain collectively has been given, give notice to the other party specifying the supply of services, operation of facilities or production of goods that, in its opinion, must be continued in the event of a strike or a lockout in order to comply with subsection (1) and the approximate number of employees in the bargaining unit that, in its opinion, would be required for that purpose.
(5) At any time after notice of dispute has been given, the Minister may refer to the Board any question with respect to the application of subsection (1) or any question with respect to whether an agreement entered into by the parties is sufficient to ensure that subsection (1) is complied with.
(6) Where the Board, on application pursuant to subsection (4) or referral pursuant to subsection (5), is of the opinion that a strike or lockout could pose an immediate and serious danger to the safety or health of the public, the Board, after providing the parties an opportunity to agree, may, by order,
(a) designate the supply of those services, the operation of those facilities and the production of those goods that it considers necessary to continue in order to prevent an immediate and serious danger to the safety or health of the public;
(b) specify the manner and extent to which the employer, the trade union and the employees in the bargaining unit must continue that supply, operation and production; and
(c) impose any measure that it considers appropriate for carrying out the requirements of this section.
I take it the Minister’s argument is that there are people in remote areas of Canada serviced only by Air Canada that have no other means of getting to big cities for medical services. I have no idea if that is the case or not. I guess it’s possible, but we would be talking about a very small percentage of Air Canada flights to remote areas unserviced by other airlines. If this situation exists, then the employer presumably would have raised it with the union long ago, as envisioned by Section 87.4. Does anyone know if this is an issue that has been discussed and bargained by the parties?
Why the Reference Suspends the Strike (For Now)
Section 89(1)(e) says that the union does not get into a legal strike position if a reference has been filed by the Minister under 87.4(5) and it has not yet be determined. That section says:
No employer shall declare or cause a lockout and no trade union shall declare or authorize a strike unless:..
(e) the Board has determined any application made pursuant to subsection 87.4(4) or any referral made pursuant to subsection 87.4(5);
That means that the very filing of the reference by the government under section 87.4(5) suspends the commencement of the strike. By the time the Board “determines” the reference, the back to work legislation will likely be passed. That means that there is a very strong likelihood that this reference will never be argued or decided, since it will be moot. In other words, this reference is just a stall tactic by the Government.
I should say that perhaps there is some ambiguity (as there often is) on whether the filing of a reference under Section 87.4(5) suspends the commencement of a strike, because of Section 87.5(3), which says this:
(3) A referral made pursuant to subsection 87.4(5), during a strike or lockout not prohibited by this Part… does not suspend the strike or lockout.
My reading of all of this is that “during a strike” means, well, during a strike. A reference filed before a strike commences automatically suspends the strike by operation of section 89(1)(e). Clear as mud?
What do you think about a government filing a legal reference for the purpose of stalling what would otherwise be a lawful strike until such time as the government can legally ban the right to strike?