The question was predictable. The CN and CPCK unions had barely announced that negotiations were unsuccessful when journalists across the country were already demanding an answer from Prime Minister Justin Trudeau to this question: “Will you adopt special back-to-work legislation?”
This conflict is certainly characterized by the use of lockouts and colossal anticipated economic losses, but this journalistic reflex, which can be harmful to healthy negotiations, helps to legitimize in public opinion a State intervention, which has been judged many times to be unconstitutional and liberticidal.
Whether during negotiations in the construction industry, in the civil service or in sensitive sectors of the economy, the question of the adoption of a special law systematically comes up in the media, most often very early in the conflict.
On Thursday, August 22, when the lockout and strike in the railway sector were announced, analysts made numerous interventions to highlight the hypothetical advent of a special back-to-work law and speculated on the support of this or that party for such a measure.
Few analysts or journalists have questioned the state of the law and the fact that, since 2015, the Supreme Court has considered the right to strike as an essential component of freedom of association protected by the charters. Let us nevertheless highlight the presence of a few guest specialists who were able to provide nuances.
Moreover, in a recent judgment of the Superior Court of Quebec invalidating the 2017 special law in the construction industry, Judge Frédéric Pérodeau recalled that it is normal for a strike to disrupt the economy, it is even its nature. Prohibiting the right to strike, and by the same token denying freedom of association, has more consequences in the eyes of the judges of the Supreme Court than disrupting the economy, even in sensitive industries.
Responsibility
It is desirable and normal for the media to cover and study the different options during a conflict. What makes one doubtful is this quick trivialization of an option that contravenes the Charter of Rights and Freedoms.
The measure’s historical use does not detract from its serious nature. Could we imagine a group of analysts discussing the possibility of imprisoning political dissidents on morning radio and presenting this option as a discounted part of the government’s arsenal?
By presenting the special law as an expected tool, the media may mislead the public about the weight and range of actions that governments can take. There are options and the public has the right to be informed about them in order to form a fair and informed opinion.
Arguing that the use of the special law is a systematic option and minimizing its exceptional nature unbalances the balance of power between the parties. This media impatience trivializes among the public the idea that it is desirable for the government to decide on the outcome of a conflict rather than waiting for the parties to find an agreement, including through mediation or arbitration.
It should be noted that the federal government has still not used any special legislation in the ongoing conflict with the CN and the CPCK (even though it has certainly interfered in the matter using the legal tools at its disposal) and that the provincial government has not adopted any special return-to-work legislation during the 2023 strike by the Fédération autonome de l’enseignement.
In the long run, this will remind employers, unions and the public that the goal of negotiation is to reach an agreement, not to avoid conflict.