Rail labour dispute | Unprecedented government intervention

Imagine that a minister orders a judge to make a decision, that he orders him to put an end to a conflict between two parties.

This is practically unthinkable in a state governed by the rule of law like ours, where the judiciary is independent of the executive. In normal times, there would be outrage.

Yet this is what the intervention of the federal Minister of Labour, Steven MacKinnon, looks like in the labour dispute between the Teamsters, on the one hand, and the two railway companies CN and CPKC, on the other.

I do not deny that a prolonged work stoppage would have had enormous consequences on the Canadian economy, but all the same, we must be aware of the scope of the decision, its framework, its impact.

The minister used section 107 of the Canada Labour Code to achieve his goals, a recourse that is very rare, contrary to what one might think. In the last 25 years, there have only been 5 recourses by a minister to section 107. And even then, the previous recourses were far from having such scope.

Under this section, the Minister may “order” the Canada Industrial Relations Board (CIRB) to take measures that the Minister considers necessary to resolve a dispute.

Now, it should be noted that the CCRI is the equivalent of an “independent administrative tribunal”, composed of a president and vice-presidents. “It functions like a court, but its procedures are less formal. The mandate of the Council is to resolve workplace disputes,” is explained on the CCRI website.

In short, the Minister is ordering the members of the CIRB to decide. And his request leaves little room for interpretation: the Minister has clearly indicated that he is asking the CIRB to impose “final binding arbitration” on the parties, and the arbitrator’s decision will therefore be impossible to refuse.

He also imposed the extension of collective agreements and “an immediate resumption of activities of the two railway companies.”

No special law, therefore, no debates in Parliament, and no embarrassment in specifically ordering a decision from a court…

It must be said that the Trudeau government could have had a hard time imposing a special law. For two reasons, one legal, the other political.

First, since a Supreme Court ruling in 2015 (Saskatchewan decision), governments cannot prevent unionized workers from striking, even if the economic impact is very great.

Only a few specific exceptions could limit this right to strike, but these exceptions forcing essential services can be required only “to prevent imminent and serious risks to the safety or health of the public,” according to the Labor Code.

This would be the case if a ferry to a destination was the only means of transport for the local population. However, rail services are generally not considered essential services, as the International Labour Organization (ILO) has already ruled, and our courts largely take their cue from it. The ILO is a body of the UN.

A special law requiring union members to return to work would almost certainly have been struck down by the courts.¹.

That said, the use of section 107 could also be invalidated on the basis of the Saskatchewan decision, according to the lawyers I spoke to. But presumably, Minister MacKinnon felt free to act with section 107 because the work stoppage was caused by a lockout and not a strike.

In fact, it is unlikely that a lockout of a business would be considered a fundamental right protected by the Charter, like the right to strike in the Saskatchewan decision.

Note also that last June, CN had made a request for arbitration, but this request – which would also have been enforceable – was not accepted by Teamsters.

The risk of dispute remains, however, since in parallel with the lockout, the Teamsters union responded with a strike notice for the CKPC…

Air Canada too, in 2011, but…

In the last 25 years, only 5 other recourses to section 107 have been recorded. The Minister’s requests to the Industrial Relations Board (IRB) were, however, light: to decide on the end date of the collective agreement, to facilitate a negotiated agreement, to decide on the good faith of a party, etc.

Oh, there was intervention in the Air Canada dispute in 2011, but in that case, Conservative minister Lisa Raitt had asked the CIRB to determine whether the rejection of the two tentative agreements by the bargaining unit had created conditions unfavourable to the resolution of the dispute.

We are far from imposing binding arbitration…

The other reason for avoiding a special law for the Trudeau government is obviously political. Adopting a law could have been fatal for its alliance with the NDP, an alliance that allows the minority government to govern. The NDP is committed to union members and supports the strikers. And leader Jagmeet Singh has made it known that his party would not support a special bill.

In short, the nature of the use of Article 107 is probably unprecedented. The conflict justified the need to act, especially since the impact is North American, but the manner must not open the door to abuses in this area.

1. This explains why, for example, the Legault government did not adopt a decree to force a return to work during the last negotiations with teachers and nurses, unlike what was done 15-20 years ago.

Read “Railway transport shutdown: Ottawa intervenes to revive the railways”