Could CUPW Mark Back-to-Work Legislation as ‘Return to Sender’?
So the Canadian Union of Postal Workers (CUPW) has filed a legal challenge against the back-to-work legislation that the Harper government recently pushed past an NDP filibuster.
“Freedom of association is a fundamental right,” said Denis Lemelin, CUPW National President. “What other rights are they going to try to take from us if we let them get away with this one?”
The challenge, which will be heard by the Federal Court, is based on the Canadian Charter of Rights and Freedoms. The union has retained Paul Cavalluzzo, a leading constitutional lawyer, known for his work on the Walkerton inquiry.
“Postal workers are doing the right thing, not only for their union but for other workers who may face being legislated in the future,” said Cavalluzzo. “Few employers will negotiate in good faith when they can count on extreme government intervention to bail them out.”
An interesting case to make, no doubt. It’s been made before.
In fact, in 1987 the supreme court effectively threw the right to strike out the window. In their decision in what is called the ‘Labour Triology’, Justice McIntyre writes (I’m fixing up his shorthand, here)
The Charter is primarily an individual rights document. Denominational school rightsts and aborignal rights are the only exceptions.
Charter doesn’t create new group rights.
The ruling goes on to say, effectively, that the supreme court shouldn’t be getting invovled in labour disputes.
Yet, in 2007, the supreme court has something else to say on the matter,
A majority of the Court determined that Ontario’s Agricultural Employees’ Protection Act (AEPA) is consistent with the Charter’s s. 2(d) guarantee to freedom of association.
Okay, so to boil this down even further (because there’s no way I’m sifting through years of supreme court rulings) - in 1987 the Supreme Court decided that the right to strike was found nowhere in the Charter and therefore back-to-work legislation is, by default, legal. In 2007, the court decided that the right to strike was vested in an act (an act that I can’t actually see applying to the case, as it was a ruling on Health Services, but what do I know) and therefore employees were effectively granted the right to strike by the government legislation.
Problem is that when it comes down to a federal ruling, there is no act to fall back on, as labour laws are provincial juristiction.
On top of that, the 2007 ruling was fraught wtih dissent and confusion among the judges.
I’ll now defer to someone who appears to know a heap more about this than I do.
On Doorey’s Workplace Law Blog (a great title, I know) he argues that the International Labour Organization’s C87 (treaty on the right of association and organization that Canada has ratified),
allows back to work legislation, or other legislative restrictions on the right to strike, only in cases where a strike “would endanger the life, personal safety or health of the whole or part of the population” (ILO, 1983b, para. 214) … This is why the ILO expert bodies have ruled Canadian back to work legislation violates C87 many, many times.
But, of cours, the ILO is a part of the UN and therefore has absolutely no power to like, y’know, do stuff.
The point is - we signed an international declaration that strikes the same chord as our own charter right to assmbly. While I’m sure the government is certain that the 1987 ruling is the rule of law, as it were, but the currnt spate of judges that passed down the 2007 ruling may have something else to say about that.
But there’s an interesting bit in here. The 1987 backgrounder reads,
1970s & early 80s, several strikes in Alberta by nurses and public servants. 1983: Alberta Labour Act amended to prohibit strikes & lockouts by public servants, hospital employees, firefighters & nurses (police already prohibited). Compensation arbitration instead.
Labour leaders claimed legislation unconstitutional because of 2(d) [freedom of association.]
So that was a situation that could be, in the eyes of the court, a matter of public safety. I sincerely doubt that this government can say the same about the CUPW back-to-work legislation. While public safety does not seem to factor into the judges 1987 decision, it could be a mitigating factor.
And, again this comes from amateur eyes, if we’re talking about the differences between a provincial labour act, and federal back-to-work legislation, the differences could again set the tone for the ruling.
If this challenge makes it to the supreme court, which it may well do, we could see CUPW claim the right to strike for non-essential services.
