Not many Canadians pay attention to the activities of the Canadian Senate. But interesting debates occur there all the time. I noted to the Twitosphere this morning that I was invited by the Leader of the Opposition in Senate, Senator James Cowan, to appear tomorrow before Senate as a witness to discuss Bill C-39. While I greatly appreciate the invitation, Im not able to attend.
However, I thought this would be a good opportunity to post a very interesting and spirited exchange that took place at Senate recently involving Senator Cowan, who argued strongly against the Conservative government’s constant meddling in collective bargaining. This exchange related to the Air Canada legislation. The day before, Minister of Labour Raitt appeared before Senate to explain and justify the Bill. I will post her speech, but not all the questions and her answers that followed. Those answers give some insight into Raitt’s thinking about the role of the state in collective bargaining, so give it a read (here) if you have time.
Note in Cowan’s speech how he slams the government for including an unchallengeable right of the Minister to chose whomever she likes to be arbitrator, a provision that Raitt added after a judge ruled that her selection of arbitrator in the Canada Post decision lacked ‘common sense’. Notably, Raitt has left the controversial clause in the CP Rail legislation, despite dropping other controversial provisions found in the earlier legislation.
Here are the two speeches in their entirety. Grab a drink…
The Honourable Lisa Raitt, Minister of Labour: Thank you very much, Mr. Chair. I apologize to honourable senators because I seem to have picked up a cold, so my voice will be in and out. I am happy to have the microphone to at least amplify what voice I have left.
I have with me today Hélène Gosselin, Deputy Minister of Labour; Marie-Geneviève Mounier, Assistant Deputy Minister; and Christian Beaulieu, Senior Counsel and Group Head. Thank you very much; I appreciate your time today.
Mr. Chair, whenever the government has to bring in legislation to avert a work stoppage, there are certain predictable objections that you will hear. The first is that we are misusing our powers and imposing on the right to collective bargaining. The second is that we are moving too quickly and that we should wait for matters to happen. The third is that the problem we are trying to solve is not really all that serious. I would like to point out to honourable senators today that these arguments, in our view, just do not stand up.
Since 1984 there have been 35 work stoppages in the air transportation industry, and six of them have involved Air Canada. We already have a pretty good idea of the damage that a work stoppage can do. Some of these stoppages took a heavy toll on the economy and severely disrupted the lives of Canadians. Today once again we are faced with the likelihood of a work stoppage at Air Canada; and once again it will take a toll on Canadians if it happens.
Throughout these debates, our government has provided statistics on the possible economic damage and the disruption to our fragile economic recovery. Our government’s mandate is to maintain our economic recovery and act in the best interests of Canadians because we believe that is what we are here for. As I have already explained in some detail in the house, our government has followed all the rules and taken all the steps set out in the Canada Labour Code while assisting the parties in these two Air Canada disputes.
We have been assisting the parties and encouraging a deal at every step of the way. As the history of these disputes clearly shows, the parties in each case have had plenty of time to reach an agreement, and help from expert mediators and conciliators has been provided. Negotiators for the two unions, the Air Canada Pilots Association and the International Association of Machinists and Aerospace Workers, shook hands on tentative agreements at that bargaining table; but in both cases, the terms and conditions agreed to by the union representatives were rejected by their members.
Mr. Chair, I will not pretend that we are not frustrated here in our labour program to see all the hard work of negotiations lead to no deal. However, unions are democracies, and union members have a right to vote for their interests and against agreements reached by their leaders. If these two disputes were occurring in another sector of the economy, perhaps the work stoppage could play itself out without impacting the economy. However, in this case, we just cannot afford to do that. The federal government has to take action in these two disputes at Air Canada.
The first step we took, once we had received notice of strike and notice of lockout, was to send the matter of the maintenance of activities to the Canada Industrial Relations Board and ask them to determine if a work stoppage would pose a risk to the health and safety of the public. While the CIRB is considering the cases, the two parties will have to maintain full operations at Air Canada. That gives everyone a little time to cool off and reconsider the issues at hand. I had hoped that the parties would use that time to get back to the bargaining table and find better solutions.
In case they are unable to break their impasses — and over the weekend they were unable — we must proceed with Bill C-33. We are doing this in part to help Air Canada, but this is not favouritism on our part because I am not passing judgment on the merits of the airline’s cases vis-à-vis the pilots’ and machinists’ unions. We do not pick sides at the bargaining table. That is for the arbitrator to decide, and I am not an arbitrator in this matter.
The global airline industry has been under strain, and Air Canada has been affected by many factors beyond its control. It has come close to bankruptcy on more than one occasion. Like our economy, Air Canada is in a fragile state. Like our economy, Air Canada is trying to get back on a firm footing. Mr. Chair, having disputes dragging on for almost a year does not help the matter; that is a long time. The uncertainty about these agreements has had a negative effect on Air Canada already. On the other side, I am sure that it has been very stressful for the members of the unions as well.
Pulling back from the particular disputes we are talking about today, in terms of labour relations, it has been a difficult year for Air Canada in general. In June 2011, our government tabled back-to-work legislation after there was a three-day labour disruption by Air Canada’s customer service agents. The parties subsequently arrived at a process and concluded a new four-year collective agreement. They submitted to final-offer selection binding arbitration with an arbitrator of their choice.
However, our government would much rather see employers and unions arrive at an agreement themselves prior to the tabling of legislation. In September 2011, Air Canada reached an agreement at the table with the flight attendants only to have the union membership reject it. I called the parties together, and another tentative agreement was reached at the bargaining table. I asked the head of the union, Paul Moist, if he was sure that the membership would ratify the terms of the agreement, and he confirmed they would. Unfortunately, that did not happen, and instead we received a strike notice. At that point, we referred the matter to the Canadian Industrial Relations Board. It was at that board meeting that the parties agreed to submit to arbitration and conclude their deal.
Again, the agreement was reached the hard way, but it does not have to be that way. In February, Air Canada ratified agreements with two CAW-Canada units and a Canadian Airline Dispatchers Association bargaining unit. For awhile, it looked as if there were going to be agreements between Air Canada and the pilots’ and machinists’ unions. Once again, the deals Air Canada reached at the table were rejected by the union membership. For anyone who is counting, that means eight tentative agreements were concluded and four of them were rejected through the six bargaining units.
Mr. Chair, the Canada Labour Code recognizes the principles of freedom of association and free collective bargaining. The CLC gives the parties in labour disputes many ways and opportunities to reach a settlement, with or without help from the federal government. At the end of the day, the Government of Canada respects the rights of the unions to strike and the rights of employers to lock out their workers.
Indeed, we prefer not to interfere in these matters unless it is absolutely necessary; and this is a special case today. When a work stoppage has the potential of impacting the national economy, the government must respond to protect the public interest. Consider the impact on jobs: Air Canada is a major employer, Mr. Chair. As of November 2011, Air Canada had 26,000 employees across the country, and 23,000 of those employees are full-time workers. To give you some context, General Motors Canada employees 9,000 full-time workers, and Chrysler employees 11,000 full-time workers. That is the sheer size of Air Canada.
If the airline loses too much money, the jobs could be in jeopardy. There also could be jobs lost, as a result of Air Canada’s work stoppage, by their partners and suppliers. Our information is that Air Canada indirectly has 250,000 staff. That is a large number of hardworking Canadians and Canadian families who would be affected immediately by that work stoppage.
According to Transport Canada, any reduced operation at Air Canada also trickles on to Canada’s airports, as well as to Air Canada’s third-party suppliers. At the end of the day, the elements of the air service system are interdependent. If one element is weakened, all are vulnerable.
Up to now, the news about employment in Canada has been encouraging. We have recovered all the jobs we lost in the recession, and we have created some new ones. The question the government asks is, “Do we really want to gamble with our economy and possibly put those gains at risk?”
Of course, Mr. Chair, no company will feel the impact of a work stoppage more than Air Canada itself. The last time the pilots walked off the job, in 1998, it was reported that the airline lost $300 million. The economy was reported to have lost $133 million. That was 1998, and today the stakes are higher.
Every day of lost business will have a dramatic impact on the bottom line of a company that has been struggling to stay solvent for most of the past decade.
In the event of a work stoppage, Air Canada services also may not easily be replaced. Many Air Canada customers do not have easy access to an alternative carrier. The second largest carrier in Canada is WestJet, and Air Canada is 3.7 times the size of WestJet.
In some places, Air Canada is the only airline. In some places, Air Canada is the only efficient means of transportation in general, and the lives of thousands of frustrated travellers could be disrupted. Some could be merely inconvenienced, but others could face some real hardship.
Mr. Chair, our government is not indifferent to the concerns of the Air Canada employees in this dispute either. Throughout the process of collective bargaining, we assisted the parties, and we encouraged them to find their own deal. We have suggested process, and we have appointed mediators and conciliators. We were hoping that they would come to agreements that would be acceptable to everyone. Unfortunately, it has not worked out that way.
Mr. Chair, I have always said, as Minister of Labour, that the best solution in any dispute is the one that the parties reach themselves, but the parties in these disputes have failed to reach their own agreements. I have used all the tools at my disposal under the Canada Labour Code. I have no other recourse but to ask the members to support the legislation.
At the end of the day, I would ask honourable senators to remember this: The rights and the interests of the employers and the unions are very important, but, in this specific work stoppage, they simply cannot outweigh the needs of 33 million Canadians. Our economy needs labour peace, and we need it in vital industries like air service.
I thank you for your consideration of this bill, and I am happy to answer any questions honourable senators may have.
Hon. James S. Cowan (Leader of the Opposition): Honourable senators, the Harper government likes to talk about hard-working Canadians, but when push comes to shove, it really has no interest in defending their rights.
We are here debating so-called back-to-work legislation for Canadians who are working, have been working and never stopped working. There is no strike in progress; there is no lockout; there has been absolutely no work stoppage at all, no disruption of air travel — nothing. This is not back-to-work legislation; it is “Don’t you even dare think about stopping work” legislation.
Some Hon. Senators: Hear, hear!
Senator Cowan: Honourable senators, we have a Constitution in this country. Our Constitution includes the Charter of Rights and Freedoms, which guarantees that all Canadians have freedom of association. The Supreme Court of Canada has held that this includes the right to collective bargaining, yet it is now abundantly clear that the Harper government does not like collective bargaining. Prime Minister Harper makes the rules, and he is not going to be stopped, not even by a constitutional right.
Of course, Air Canada is a private company. There is no monopoly these days on air travel. Air Canada has a number of active competitors and it faces competition from other travel providers. Yet this government, which professes to be a Conservative government, supposedly committed to the primacy of market forces and against government interference in the private sector, suddenly appears eager to intervene. It jumps in, invoking closure at every turn in the other place, with pre-emptive and back-to-work legislation for people who have never stopped working.
I want to take a moment to set out how we got here. Despite the fact that this government has seen fit to intervene in four out of five labour negotiations at Air Canada since June of 2011, less than a year ago, in fact there have been very few strikes or lockouts at Air Canada. The last time the pilots went on strike was in 1998, almost 15 years ago.
A Liberal government was in power then. There was no government intervention, no back-to-work legislation. The parties worked it out. Was it difficult? Of course it was; but the economy, under Liberal stewardship, was strong. The Chrétien-Martin team had finally slain the deficit inherited from Prime Minister Mulroney.
An Hon. Senator: And Trudeau.
Senator Cowan: The Chrétien government had already created over 1 million jobs since taking office in 1993, and the economy under Liberal leadership went on to do very well indeed. The Toronto Star, through access to information legislation, recently obtained assessments prepared for Labour Minister Raitt by her own officials. They note that during the 1998 work stoppage by Air Canada pilots, the company made arrangements with 15 airlines and VIA Rail to ensure that the travel plans of its 60,000 daily customers were, in the words of the officials, “unaffected.”
Evidently, Liberal governments are much better than the Harper one at managing labour disputes and the economy simultaneously. It is clear from Minister Raitt that her government cannot see its way to deal with both matters at once.
As we are all aware, there are two separate disputes here, which this government has decided to bundle together in yet another omnibus bill. One deals with the pilots, represented by the Air Canada Pilots Association; and the other deals with the baggage handlers, mechanics and cargo agents, represented by the International Association of Machinists and Aerospace Workers, the IAM.
Let me deal first with the IAM employees. They have been operating under essentially the same collective agreement since 2003, almost 10 years. We all remember the terrible events of 9/11, which had a significant effect on Air Canada. Air Canada actually became insolvent by the spring of 2003. In 2003, given this situation, the IAM agreed to a number of significant concessions, including wage and non-wage scale changes.
This collective agreement was extended to July 1, 2006. In 2006, they agreed to extend it again, to July 1, 2009, with certain exceptions relating to wages, which were resolved with the help of an arbitrator. The arbitrator concluded that Air Canada was still not profitable and awarded across-the-board wage increases slightly below the normative range.
The collective agreement expiring July 1, 2009, was then extended without substantial changes for a further 21 months. A conciliation commissioner was then appointed on December 21, 2011. A tentative collective agreement was reached by the negotiators during this process. However, when it was presented to the 8,500 members for a vote, it was rejected by a vote 65.6 per cent.
That was their right, honourable senators; that is how the process works. That is a very strong majority. The Harper government likes to describe itself as having a strong mandate from the Canadian electorate because it received 40 per cent of the vote in May. I find it passing strange — and perhaps some might say hypocritical — for these same people to turn around and dismiss a 65.6 per cent vote.
Let us talk about the pilots. They, too, say that they have been unable to freely negotiate a collective agreement for more than a decade. In the 2003-04 financial restructuring of Air Canada, the pilots accepted pay cuts of between 15 and 30 per cent, and agreed to other concessions to help keep the airline flying.
In 2009, the pilots accepted a wage and benefits freeze for two years. They also agreed to significant concessions — hundreds of millions of dollars — to relieve the company’s pension funding obligations.
That collective agreement was set to expire in March of 2011. Recognizing this, Air Canada and the Air Canada Pilots Association began negotiations in October 2010. A tentative agreement was reached in May of 2011 but rejected by 67 per cent of the membership. Again, honourable senators, that is their right. It is one of the basic tenets of labour law that union members have the right to ratify or reject collective agreements negotiated by their leadership. If they have no right to reject, then they are facing a “take it or leave it” situation, which is emphatically not negotiation.
It took a while for negotiations to get going again, during which the pilots continued to fly. A federal conciliation officer was brought in to help, and that process went on for two months. Again, throughout, the planes flew. There was no disruption in air travel.
In early February, negotiations became difficult. The company rejected the pilots’ offer to delay any strike or lockout until April. Faced with this, the pilots held a vote, and 97 per cent gave a mandate to the association to negotiate and strike if necessary. The association was clear: No one wanted to strike; the vote was a defensive measure only. Negotiations would continue with the assistance of a new federal mediator appointed by Minister Raitt.
Shortly thereafter, Minister Raitt appointed new mediators, and the parties entered into what was supposed to be a six-month mediation process. However, 23 days into the process, on the first day of that round of contract talks, Air Canada chose instead to table what it termed its “final” offer.
That was March 7, honourable senators. The next day — last Thursday, March 8 — Air Canada threatened to lock the pilots out at midnight on March 11. The company threatened to lock out its pilots and bring operations to a halt right before one of its busiest and most profitable periods of the year, March break week. The very same day that Air Canada made that announcement, the Minister of Labour jumped in and referred the dispute — along with the one with the machinists and aerospace workers — to the Canada Industrial Relations Board. The next day, the government announced that it would table “back-to-work” legislation, for workers who had never stopped working, and that is the bill we have before us today.
This is new for Air Canada. As I said at the beginning of these remarks, in fact there have been very few work stoppages at the airline. The last pilot strike, I remind honourable senators, was some 15 years ago. The Liberal government of the day, in its wisdom, allowed the strike to run its course, and the result was a 15-year stretch without a strike or lockout.
However, last June, not even a year ago, the Harper government let it be known what its new approach to labour disputes would be when it legislated postal workers back to work. Parliament ordered them back to work on terms worse than those which management had previously offered. The government also introduced back-to-work legislation not even 24 hours after the customer service and sales staff at Air Canada had walked out.
The flight attendants were up next, and the Harper government left absolutely no doubt in anyone’s mind that the back-to-work legislation would be forthcoming if they exercised their democratic rights.
Honourable senators, this is not collective bargaining; this is collective bullying.
Some Hon. Senators: Hear, hear.
Senator Cowan: The minister told us yesterday her primary concern was the damage that a work stoppage would cause to Canada’s economy. However, as soon as she referred the disputes to the Canada Industrial Relations Board, the risk of a strike or lockout was gone. The pilots told us very clearly yesterday they were not on strike had not given any notice that they would strike. In fact, they made numerous statements, publicly, privately and to the government prior to the Christmas break and again prior to the spring break period, that they would not strike during these high-traffic times, and they did not.
As soon as the government referred both disputes to the Canada Industrial Relations Board, which they did last Thursday, this prohibited all parties from any strike or lockout during the period of adjudication by the board.
Honourable senators, there was no risk of a strike or a lockout. That was taken off the table by the minister’s action. There was no risk of damage to the economy, so concern for the economy cannot have been the real reason for this bill.
We have two groups of workers — over 11,000 in total — who have been waiting for more than 10 years to sit down and negotiate a full collective agreement with Air Canada. As Captain Paul Strachan of the Air Canada Pilots Association told us yesterday:
Our men and women have waited a decade to be able to address both the sacrifices that they made in the restructuring of the airline in 2003 and 2004 and also many of the issues, of course, that have arisen within the collective agreement in addressing the operations of the airline over that period of time.
However, emboldened by this government’s evident willingness — indeed eagerness — to wipe out any real collective bargaining, Air Canada has apparently felt free not to engage in real negotiations but instead, with five months left for mediation, threatened a lockout. It knew then that the Minister of Labour would protect its back and not the backs of workers who wanted to engage in meaningful negotiations.
Dave Ritchie of the IAM told us yesterday that their last offer on the table would have resulted in $25 million of additional costs to Air Canada.
We also heard from Kevin Howlett of Air Canada that to shut down the airline for one day would cost them $33 million. In other words, the difference between the two sides was less than the cost to Air Canada of one day’s strike. As Mr. Ritchie said, he cannot believe in his heart of hearts that an agreement could not have been reached had the minister not intervened, but the minister did intervene and put an end to negotiations.
The magazine Canadian Lawyer ran a cover story in its January 2012 issue entitled “The Death of Collective Bargaining?” It began by discussing “Harper’s apparent war with the labour movement in Canada.” It said:
This new policy of stepping into disputes is setting the stage for a new style of labour negotiations, experts say, where companies hold back and wait for government help. If the government’s propensity to involve itself in labour disputes continues, says Cavalluzzo, employers will feel safe under the umbrella of back-to-work legislation and will no longer be serious about negotiating.
Honourable senators, this would appear to be exactly what has happened here.
Julie Guard, an associate professor of labour studies at the University of Manitoba, has said that the Air Canada and Canada Post negotiations last June suggest that the Harper government has a secret policy of undermining collective bargaining and weakening the labour movement. This is what she said:
The Conservatives did not mention collective bargaining or an intention to undermine unions when it campaigned in the last election and has not acknowledged that goal now. But it appears that is nonetheless its agenda.
Minister Raitt has cited the fact that back-to-work legislation is not unique to the Harper government. It has been used more than 30 times since 1950. That is true. Back-to-work legislation, per se, is not that unusual. What is unusual is when and where this government has been employing it. According to Eric Tucker, professor of law at York University’s Osgoode Hall Law School in Toronto:
Historically, back-to-work legislation was usually only enacted after a strike had gone on for at least some period of time and there was some evidence that the public interest was being seriously affected in a negative way.
Honourable senators, there is no strike or lockout here. Not only has it not been going on for some period of time, it has not been going on at all. There is no evidence that the public interest has been seriously affected in a negative way because nothing has happened: the planes are flying and the baggage is being taken care of. There is no work disruption.
Laurel Sefton MacDowell, a labour historian at the University of Toronto, said that back-to-work legislation has mostly been used for strikes in the public sector: teachers, nurses, garbage workers. Air Canada, by contrast, is, as I have said, a private sector company. Professor Tucker was asked about this last fall. He said:
Air Canada has never been treated as an essential service. I don’t know that there would be evidence to say that if there was an Air Canada strike that the lives and health of Canadian citizens would be put at risk. I think that’s an extraordinary claim.
In fact, Minister Raitt’s own officials have concluded that, in the event of a strike or lockout by Air Canada, passengers would have other options. I mentioned an assessment that they had prepared. This is an internal assessment in her department. It said:
An Air Canada work stoppage would induce some passengers and firms to cancel their travel arrangements altogether, while others would opt for alternative airline companies or choose to travel by train.
That makes sense, honourable senators. There are alternatives to air travel in Canada. Even if one wishes to travel by air, Air Canada does not have a monopoly. Indeed, WestJet announced last Thursday that it planned to add extra flights to accommodate passengers who might otherwise be stranded in the event of a work stoppage by Air Canada.
Honourable senators, there is no immediate need for this legislation. There is no work stoppage that needs to be addressed, and Air Canada is not an essential service. Canadians have options. Minister Raitt’s own officials acknowledge this.
Honourable senators, what is this bill really about? Some believe it is about union-busting. I am certainly not in a position to tell you what is in Minister Raitt’s or Prime Minister Harper’s mind.
Senator Mockler: Caring for people.
Senator Cowan: Terrible as union-busting would be, the effect of this legislation, I believe, would be even more far reaching and harmful than that.
The Montreal Gazette interviewed George Smith about this bill. Professor Smith teaches industrial relations at Queen’s University, and he used to be Director of Employee Relations at Air Canada. He said that Minister Raitt is taking labour relations in this country “through the looking glass.” He said the pattern Minister Raitt has established sets a bad precedent for other federally regulated sectors, such as telecommunications, the ports and railways, in their future negotiations.
He added something that I found particularly insightful. While most of the focus has been on whether the measures the minister has taken are anti-union, he said they are also anti-management because they threaten to saddle the corporation with a labour agreement that is uncompetitive through binding arbitration. He said:
No management in its right mind would voluntarily agree to binding arbitration. It is such short-term thinking. There is no public policy or economic consideration where this will take us six months from now, or a year from now.
This approach, honourable senators, is bad for unions and it is not good for management either. Once again, honourable senators, I feel we are in the realm of ideology rather than clear thinking based on real evidence.
Once again, we are witnessing the thoughtless, short-term politics of division and anger, pitting one group against another, labour against management, Canadian against Canadian.
The vice-president of the International Association of the Machinists and Aerospace Workers said that in his 40 years of collective bargaining he has never seen the level of anger that he now sees in his membership at Air Canada.
That should not surprise us, colleagues. When you know there is no point engaging in serious negotiations because the other side has a trump card it will play, back-to-work legislation that the government is happy, indeed eager, to bring in, when you know your concerns and issues can be blithely ignored, how does that help to bring a good, stable working environment?
This government has frequently lectured Canadian businesses about their poor records on productivity and innovation, yet it sows by actions such as this a poisonous atmosphere amongst the very workers whose productivity and innovation it says it wants to improve, and then it wonders why its policies are not succeeding.
According to ACPA, Air Canada pilots earn less today than a decade ago. However, Canadians have noticed that the same cannot be said for Air Canada executives. Last year, Air Canada’s top five executives each received 30 per cent pay increases. Air Canada President and Chief Executive Officer Calin Rovinescu earned $4.55 million in 2010, a $2-million increase from 2009. On March 31, less than two weeks from now, he will receive a $5’million retention bonus. That is $5 million just for having stayed in his position for three years.
Senator Munson: That is better than the Senate.
Senator Cowan: As I described, the pilots took a 15 to 30 per cent cut in 2003-04, agreed to a wage freeze in 2009 and today earn less than they did 10 years ago. The baggage handlers, mechanics and cargo handlers also agreed to cost savings in the hundreds of millions of dollars.
This is a volatile situation, honourable senators, reflected in the large numbers that voted on the various proposed deals. There is need for the government here, a need for the government as a calm, neutral third party to work with both sides to bring them together and find a compromise that can be accepted by everyone. However, honourable senators, back-to-work legislation is not the answer. No one is fooled. This will not calm labour relations in this country. I fear it will foster greater resentment and unrest.
We know there will be legal challenges to this legislation as indeed there already have been with respect to the postal workers legislation passed by the Conservative majority in June. The Canadian Union of Postal Workers filed an action in the Ontario Superior Court of Justice alleging that Bill C-6, which we passed in June, is unconstitutional. We heard yesterday from the pilots’ association that they consider Bill C-33 to be similarly unconstitutional and have asked their legal advisors to challenge it accordingly.
Indeed, the Supreme Court of Canada has held that the right to collective bargaining is a fundamental right protected under the freedom of association in the Charter. The landmark case was the 2007 decision in Health Services and Support — Facilities Subsector Bargaining Assn v. British Columbia. The court went through a detailed analysis of the history of labour relations and collective bargaining noting the important role that collective bargaining plays precisely in avoiding and resolving labour disputes. The court concluded:
Recognizing that workers have the right to bargain collectively as part of their freedom to associate reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in theCharter.
Honourable senators, these are not values to be taken lightly. This is not a right to be revoked on a dime, yet I fear this is not far from the situation here.
One day the minister was referring these disputes to the Canada Industrial Relations Board, the next day suddenly there was the announcement that back-to-work legislation would be introduced and indeed passed. Why? I can only assume it is because Parliament has a break week next week. I and I think all of my colleagues on this side of the house would have been happy to have returned to consider this bill if our Speaker had recalled the Senate. That is what happened in June. We were recalled on a Sunday and we sat for many hours in Committee of the Whole to debate. Honourable senators, that is our job.
However, it is not only the process I find objectionable; the bill that the government has crafted and introduced is itself problematic. Bill C-33 would grant broad discretion to the minister to choose the arbitrator. The bill says in clauses 11 and 26 — and remember we are dealing with two labour disputes here:
The Minister must appoint as arbitrator for final offer selection a person that the Minister considers appropriate.
“That the Minister considers appropriate,” honourable senators. I cannot imagine any power broader than that. There is no requirement even to consult with the parties, let alone obtain their agreement to the party chosen.
An Hon. Senator: How fair is that?
Senator Cowan: This language was used in the postal workers legislation we dealt with last June. The Canadian Union of Postal Workers challenged that legislation in the Ontario Superior Court and also specifically challenged the choice of the arbitrator in the Federal Court. The minister, evidently, had appointed someone who is not bilingual and who did not have a degree of recognized expertise in labour relations.
By the way, that act, like Bill C-33, purported to oust the jurisdiction of the courts. Take a look at clauses 15 and 30. The clauses even try to specifically prohibit orders and proceedings “to question the appointment of the arbitrator.” I am happy to tell honourable senators that even the government could not stand up in court and argue that this means what it says. I am speaking now about the discussion about the postal workers legislation, but as I have said, it is precisely the same wording in this legislation. The government agreed that the clause “must be construed narrowly” to protect the court’s constitutional role in reviewing the legality of actions taken by governments and administrative tribunals.
The Federal Court looked at the broad ministerial discretion to choose the arbitrator. The government argued they “would like the exercise of ministerial power, which it considers discretionary, to be unobstructed, unguided or not subject to any criteria of qualification or competence for the arbitrator.” This is the government’s argument. I’ll repeat that.
The government argued that they “would like the exercise of ministerial power, which it considers discretionary, to be unobstructed, unguided or not subject to any criteria of qualification or competence for the arbitrator.”
This is breathtaking, honourable senators. The Harper government believes that it should be allowed to appoint anyone to arbitrate these proceedings. It believes that it should be free to choose someone who is not competent, in other words someone who is incompetent. The Federal Court, I am relieved to tell you, rejected this argument, not surprisingly. It said, and I quote:
This is not what is indicated by common sense, case law, the economy of the Act or the specific labour relations context that govern the parties to the collective agreement. However discretionary a ministerial appointment may be, there is no such thing as absolute discretion.
That is the Federal Court in the postal workers’ dispute.
Honourable senators, despite that, the government is using precisely the same words not once but twice in the legislation we have before us, the exact same wording. We can only hope that the minister does not once again interpret it as allowing her to appoint an unqualified, incompetent arbitrator so long as she believes the appointment is appropriate. Seeing exactly the same words in this legislation and the previous legislation, you can appreciate my concern.
What is this arbitrator to do? Not arbitrate, not mediate, not work with the parties to come to a mutually satisfactory resolution but rather to receive final offers from each party and then choose one or the other. There is no choosing particular terms that seem more reasonable from one or the other to actually come up with a reasonable collective agreement. It is sudden death, labour relations as Russian roulette.
Let us be clear: These are not simple documents. The pilots told us yesterday that their collective agreement is a very complex document that is 346 pages long. It covers every aspect of their relationship with their employer and is the result, as Captain Strachan told us, of 60 years of constructive and cooperative collective bargaining as contemplated under the laws of Canada. Instead, an arbitrator, picked at the sole discretion of the minister, is given 90 days to select either one or the other final offer on the many issues in dispute between the parties.
Honourable senators, that makes no sense. This is no way to establish a complex agreement that will govern these parties’ relationship with one another for years to come.
Of course, once again, this government cannot refrain from imposing terms. Last time, honourable senators will recall that it actually legislated terms that were worse than what the employer had previously offered to the workers. This time, the minister has directed the arbitrator, in the case of the baggage handlers, mechanics and cargo agents, to take into account — those are the words in the bill — the terms of the tentative agreement dated February 10, 2012.
Honourable senators, these are the terms that were rejected by over 65 per cent of the members. In other words, with this legislation, the Parliament of Canada is telling them that their vote was meaningless, irrelevant. This is collective bargaining, Harper-style. A government elected by less than 40 per cent of Canadians wants to impose terms on a group of workers who said “no” to those very terms by a vote of over 65 per cent, all the while trampling on their constitutional right to collective bargaining. This supposed back-to-work legislation is being imposed where there is no strike, no lockout, the planes are flying and the baggage is being handled. What is the looming emergency?
Senator Mitchell: What would happen if there was an emergency?
Senator Cowan: The only looming emergency is the March break, and the real issue is not even the possible inconvenience to Canadian families, but rather to themselves. The Conservatives simply do not want to be called back from their vacations next week to deal with the work stoppage, should one actually occur.
Some Hon. Senators: Hear, hear.
Senator Cowan: Honourable senators, there is evidently no limit to this government’s arrogance. Hard-working Canadians at Air Canada and across the land deserve better.