The Law of Work
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
The Law of Work
Law of Work Archive

The Fed's Mysterious "Reference" to Prevent an Air Canada Strike

by David Doorey October 12, 2011
written by David Doorey October 12, 2011

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?

1 comment
0
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

Leave a Comment Cancel Reply

You must be logged in to post a comment.

previous post
What Does Minister of Labour Mean When She Says the "Process" Not Working at Air Canada
next post
I'm Heading to CBC to Do Power and Politics with Evan Solomon

You may also like

This Blog Entry is About the Lunacy of...

July 21, 2019

A Cross Country Update on the Card-Check versus...

October 3, 2018

The Folly of Not Voting to Strike in...

September 16, 2018

Unifor Posts Photos of Replacement Workers as Gander...

September 10, 2018

A Wrongful Dismissal Case and the Absence of...

August 29, 2018

China Said to Quickly Withdraw Approval for New...

August 27, 2018

The Latest Hot E-Commerce Idea in China: The...

August 27, 2018

The Trump Administration Just Did Something Unambiguously Good...

August 27, 2018

Unstable Situations Require Police In Riot Gear Face...

August 27, 2018

Trump’s War on the Justice System Threatens to...

August 27, 2018

Subscribe via Email

Enter your email address to subscribe and receive notifications of new posts by email.

Join 338 other subscribers

Follow Us On Social Media

Twitter

Latest Tweets

David J. Doorey🇨🇦Follow

Law Prof. Talking #labor & #employment #law #Gig to the masses. Alpaca ❤️ @YorkUniversity @OsgoodeNews @LSELaw @LWPHarvard @Jacobin @OnLaborBlog https://t.co/5V9r8VPHsh

David J. Doorey🇨🇦
Retweet on TwitterDavid J. Doorey🇨🇦 Retweeted
AnthonyForsyt10Anthony Forsyth@AnthonyForsyt10·
4h

If you missed my ⁦@RMIT⁩ lecture on Tuesday here is the text with a recording to follow … Legislating to Rebuild Worker Power: The Industrial Relations Reforms We Need from the Albanese Labor Government - Labour Law Down Under ⁦⁦@RMITCoBL⁩ https://labourlawdownunder.com.au/?p=1042

Reply on Twitter 1560086376703750144Retweet on Twitter 15600863767037501444Like on Twitter 156008637670375014412Twitter 1560086376703750144
TheLawofWorkDavid J. Doorey🇨🇦@TheLawofWork·
7h

Old law school friend now works as a lawyer in the Office of the JAG. She is doing basic training, getting crazy fit. I wasn’t aware these lawyers must basically go thru basic training.

Imagine if there was a fitness test for labour and employment lawyers?

Reply on Twitter 1560028418015522817Retweet on Twitter 1560028418015522817Like on Twitter 15600284180155228178Twitter 1560028418015522817
TheLawofWorkDavid J. Doorey🇨🇦@TheLawofWork·
8h

You’ve seen this article?

Adrienne Cuoto, ‘Clothing Exotic Dancers with Collective Bargaining Rights’, 2006 38-1 Ottawa Law Review 37, 2006 CanLIIDocs 63, <https://canlii.ca/t/2913>

ryan white@ryandwhite12

One of my COVID projects has been working on a history of the Canadian Association of Burlesque Entertainers, the only case I am aware of in which dancers sought unionization in Canada - so I will be watching this carefully (it is rare and exciting) https://twitter.com/grimkim/status/1559995539999031297

Reply on Twitter 1560023264759615499Retweet on Twitter 15600232647596154991Like on Twitter 1560023264759615499Twitter 1560023264759615499
Load More...

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Climate and Just Transition
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Sports Labour
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.