By David Doorey
I was minding my own business on the Canada Day long weekend touring the tops of Manhattan skyscrapers (see below) and attending labour law panels at the annual Labor and Employment Relations Association (LERA) conference last month when my phone lit up with emails from reporters.
“What’s going on at Westjet?”
Good question. What was going on at Westjet? I wasn’t paying any attention to Canadian labour relations developments that week. I knew that the mechanics represented by the Aircraft Mechanics Fraternal Association (AMFA) had been threatening a strike to begin on Friday of the Canada Day long weekend causing hundreds of canceled flights. I even knew flights had been cancelled. However, the reporters seemed to be writing about something out of the ordinary.
Apparently, on Thursday June 26, the federal Minister of Labour Seamus O’Regan had “directed” the Canada Industrial Relations Board to impose binding arbitration to resolve the bargaining dispute that led to the strike. In a story published that day with the headline “Westjet strike averted after federal labour minister imposes binding arbitration”, the CBC had reported this development as follows:
A strike by WestJet mechanics has been averted after federal Labour Minister Seamus O’Regan directed the Canada Industrial Relations Board (CIRB) to impose final binding arbitration to resolve the outstanding issues of the collective agreement between the airline and the Aircraft Mechanics Fraternal Association (AMFA).
However, the mechanics just continued their strike. Moreover, the CIRB then put out a ruling that permitted the strike to continue, prompting Minister O’Regan to assert that the CIRB’s ruling was “clearly inconsistent” with this “directive” that the bargaining dispute be referred to arbitration.
I leave town for a few days and all hell breaks loose. WTF is going on! I’ve now done some digging. Here’s the full-ish story.
The Background
This is a first collective agreement situation. The AMFA was certified to represent the mechanics in March 2023. The parties engaged in bargaining but progress was slow and in May 2024, Westjet sent a notice of lockout to the AMFA. The lockout was called off when the parties reached a tentative agreement, but the membership voted that down by 97%. Bargaining continued, but on June 17, the AMFA served a notice to begin a strike on June 20.
Westjet’s Request for First Contract Arbitration
The confusing legal story begins with an application filed by Westjet on June 17 to the Ministry of Labour alleging an unfair labour practice and requesting that the Minister order the bargaining dispute be resolved by binding arbitration. Under section 80 of the Canada Labour Code, the Minister “may, if the Minister considers it advisable” order first contract arbitration. The next day (June 18), the Minister of Labour made a referral to the CIRB under Section 40 requesting that the CIRB inquire into the dispute and, if advisable, to settle the terms and conditions of a first agreement.
The Minister’s Directive
Following the Minister’s Section 40 referral to the CIRB, the AMFA withdrew its strike notice and the parties met again on June 25, but bargaining did not go well. Later on June 25, the AMFA issued a new strike notice, setting a strike date for June 28 at 7:30 pm.
Once again, the Minister of Labour jumped into the fray. On June 27, the day before the strike was to begin, the Minister issued the “Directive”. That Directive was issued pursuant to Section 107 of the CLC, which states as follows:
107 The Minister, where the Minister deems it expedient, may do such things as to the Minister seem likely to maintain or secure industrial peace and to promote conditions favourable to the settlement of industrial disputes or differences and to those ends the Minister may refer any question to the Board or direct the Board to do such things as the Minister deems necessary.
That section grants the Minister considerable discretion to take steps to end a labour dispute. Combining this broad power with the Section 40 power of the Minister to order binding first contract arbitration, the Minister in this case issued a Directive to the CIRB.
But here is where things get muddled. If you read the Minister’s Directive carefully, you will see that nowhere in it does it expressly say that the mechanics cannot strike. Rather, after a bunch of factual recitals, the Minister’s Directive provides as follows:
The Minister clearly believed that this Directive ended any possibility of a strike, hence the media stories on June 28 claiming that the “strike had been averted”. But not so fast.
The CIRB’s Decision Regarding the Minister’s Directive
As noted, the Directive did not prohibit a strike by the mechanics, it rather referred the dispute back to the CIRB with a direction to impose arbitration. Immediately after the Minister’s Directive was released on June 27, the CIRB ordered the parties to make submissions regarding the Directive by 11 am on June 28 . In its submissions, the AMFA argued (among other things) that the Directive did not suspend the mechanic’s right to strike and that, if it had done so, such an order by the Minister would be an unconstitutional infringement of Section 2(d) of the Charter and the constitutional right to strike. This argument makes sense to me. Surely Section 107 of the Canada Labour Code cannot confer on the Minister of Labour the authority to violate the Charter. A section 107 order banning strikes would still be subject to s. 2(d).
In any event, the CIRB issued an order (Order 1554-NB) referring the dispute to arbitration and setting out the procedures for that arbitration. However, it would still take time for an arbitrator to be appointed and for the process to begin. That left the question of what happens with the strike in the interim?
Westjet argued that the Ministerial referral requires that the strike end immediately. This is also what the Minister seemed to believe. However, the CIRB accepted AMFA’s argument that “the Ministerial referral does not have the effect of suspending the right to strike or lockout”. This meant that AMFA and its members were within their legal rights to continue the strike beyond Friday June 28. Which they did.
So, we can now see why reporters were calling little labour law professors who were minding their own business on top of NYC skyscrapers on Saturday June 30 asking how the strike could continue after the Minister had ordered it to end. In fact, according to the CIRB, the Minister had done no such thing. The chaos of cancelled Westjet flights over the long weekend no doubt helped AMFA obtain a good settlement late on Sunday June 30, which the AMFA members later ratified.
And with that mystery solved, and news of a possible settlement in the LCBO strike, a bid you all a fine summer weekend adieu!