Court rules against back-to-work law

Legislation passed in 2011 deprived postal workers’ right to strike, Ontario judge says

Legislation brought in by the Harper government in 2011 ordering postal workers back to work was unconstitutional because it deprived unionized employees of their right to strike, an Ontario judge has ruled.

“Based on the evidentiary record, there can be no question that, on the facts of this case, the Restoring Mail Delivery for Canadians Act abrogated the right to strike of CUPW members,” Justice Stephen Firestone wrote in a 48-page decision released last week.

“The question is whether the Act disrupted the balance between the parties. There can be no doubt that it did.”

The Ontario Superior Court decision comes just as Canada Post and the Canadian Union of Postal Workers are ramping up negotiations again, with a legal strike deadline or lockout looming in early July.

“This is a strong message to Canada Post management that they can’t expect to simply lock us out and wait for back-to-work legislation,” said Mike Palecek, national president of the Canadian Union of Postal Workers. “We haven’t seen a lot of movement yet, just concession demands.”

Jon Hamilton, spokesman for Canada Post, which had intervenor sta- tus in the court case, declined to comment on the decision.

Talks are moving along since negotiators moved to an Ottawa hotel in mid-April with two conciliators assigned.

“The pace has picked up. Our objective is to reach a deal,” Hamilton said. “We believe a deal is achievable.”

Firestone noted that during 2011 bargaining, proposals were going back and forth, calling the process meaningful.

“There was clearly some prospect of a negotiated solution to their differences before any legislative intervention,” the court decision said.

The union filed the challenge shortly after the back-to-work law was introduced in July 2011. The law came after Canada Post shut down, locking out employees following weeks of rotating strikes.

“It took away the right to strike, which was exacerbated in this situation because the arbitration process they were offered was unfair and inadequate,” said constitutional lawyer Paul Cavalluzzo, who argued on behalf of the union.

The legislation set out the length of the contract, specific wage increases (lower than the company’s final offer), as well as conditions such as not affecting the company’s financial viability or pension plan.

“It gave the post office even more bargaining leverage at the expense of the postal workers,” Cavalluzzo said, noting the union began to pull back on its demands, preparing to take lower wage increases and make concessions. Then-labour minister Lisa Raitt named an arbitrator, using final-offer selection process, where the arbitrator chooses one position over another, instead melding demands from the two sides.

That raises the stakes, given the winner-take-all scenario. Two arbitrators who were appointed were eventually rejected, one because he wasn’t bilingual and the other because he had acted for Canada Post in a long-standing pay equity case.

In the end, the two parties returned to the bargaining table and hammered out a settlement in October 2012, though the union insists it would not sign off on many of the items because of the back-to-work law. The judge argued that back-towork legislation can be appropriate in certain circumstances.

“If you are going to take away the right to strike, you have to substitute a fair, impartial arbitration mechanism, so that the employees are placed in an equal position to their employer at the arbitration table,” Cavalluzzo said.

For organized labour, the decision is seen as a substantial victory after the Conservative government repeatedly introduced back-to-work legislation or threatened to do so, sometimes even before a work stoppage began.

Jerry Dias, president of Unifor, the country’s largest private-sector union, praised the Firestone decision, saying it reaffirms that the right to collective bargaining and the right to strike are enshrined in the constitution.

“There is no question it will make governments think about whether to stick their noses in,” Dias said. “There is no question that the previous government believed their role was to side with employers.”

However, Raitt still defends her government’s intervention in the Canada Post dispute, noting how fragile the economy was then.

George Smith, adjunct professor in the School of Industrial Relations at Queen’s University, disagrees with Raitt’s position, arguing that preemptive intervention was simply wrong and interfered with the collective bargaining process, which works.

“I’m not advocating that strikes should happen willy-nilly, but it is a right of unions and workers. Those rights are part of our democracy,” he said. When asked whether Ottawa would appeal the decision, a spokeswoman said in an email: “We are aware of the decision and are carefully reviewing the judgment.”

“The pace has picked up. Our objective is to reach a deal . . . We believe a deal is achievable.” JON HAMILTON SPOKESMAN FOR CANADA POST