Postal union challenges 2011 back-to-work bill
Federal legislation that ended strike and lockout violated charter rights, court hears
Postal workers are challenging federal back-to-work legislation brought in during a 2011 labour dispute, saying it denied them key charter protections.
At issue is Bill C-6, Restoring Mail Delivery for Canadians Act, which Parliament enacted in June 2011 after a series of rotating strikes by the Canadian Union of Postal Workers was followed by a nationwide lockout of employees that shut down Canada Post’s operations.
“Bill C-6 unilaterally prohibited any lawful strike,” said lawyer Paul Cavalluzzo, as he outlined the union’s case before Ontario Superior Court Justice Stephen Firestone this week. “It was enacted in circumstances that did not justify the interference on constitutional rights.”
Cavalluzzo argued the law denied the union’s rights to freedom of association and freedom of expression, which include the right to strike. “These were pretty unique circumstances. The government caused the problem in which it allegedly intervened to solve,” he said, noting Canada Post is a Crown corporation.
The legislation ordered 48,000 workers back on the job and set out details of a settlement that included lower wage increases than Canada Post had previously offered, a move that infuriated the union. It also dictated the length of the agreement as well as the condition that any settlement not negatively impact the pension plan, which was in the red.
The law also ordered a final-offer selection process, where an arbitrator would choose one position or the other, which the union viewed as “a winner-take-all model.”
But lawyers for the attorney general of Canada and Canada Post, which had intervenor status, have dismissed the union’s arguments.
Government lawyers Kathryn Hucal and Jon Bricker argued in court filings that “there is cogent and persuasive evidence that the restoring of postal services was a pressing and substantial objective because of the impact the withdrawal had . . . on the economy, businesses, rural, northern and Aboriginal communities, and marginalized/vulnerable Canadians.”
The federal government argued that it imposed the term and wages of the contract in the back-to-work law, given “the length of bargaining, the wide gap in parties’ positions, the number of issues remaining in dispute, and the difference in quantum within the disputes.” It noted that the final offer selection closely replicates the incentive to negotiate and the settlement rate of that produced in strike- and lockout-based regimes.
This case highlights concerns from organized labour about the federal government’s willingness to threaten back-to-work legislation or intervene even before a strike has begun.
Outside court, CUPW national president Mike Palecek argued that the federal government’s move in 2011 wasn’t a typical back-to-work law, given all the restrictions attached.
“What the Conservative government did was fundamentally wrong. It was violation of our rights to freedom of association, to freedom of expression, and it was interference in the collective bargaining process,” Palecek said.
Typically in back-to-work legislation, there is a binding arbitration, where the two sides are forced to compromise, and “an arbitrator picks something up the middle,” Palecek said. But by 2012, with no arbitrator in place, Canada Post put forward a new offer which the union members reluctantly accepted.
Canada Post lawyer John Craig countered in court Thursday that the post office operates at arm’s length from the government did not benefit from the contract.
Craig argued Bill C-6 wasn’t “some unusual out of the ordinary intervention from the legislature.” Rather, he noted that there have been four previous instances of back-to-work legislation involving these two parties and the threat of a fifth.
CUPW is a “formidable and wellorganized union,” so this is not vulnerable workers struggling against their employer, Craig added.
The current contract expires in January, so negotiations are expected to begin soon.