Victoria Canada Post workers on strike in November, 2024. Photo courtesy CUPW.

In mid-June, Minister of Jobs and Families Patty Hadju asked the Canada Industrial Relations Board (CIRB) to conduct and oversee a vote. The voters are to be Canada Post office workers. They are to decide, as individuals, whether they want to accept the last offer made by their employer to their union. Their union had rejected it. If the employees, despite their union’s stance, accept the employer’s offer, a death blow will have been struck against the union. If, as one would hope is more likely, they support their union and reject the offer, Hadju will likely refer the matter to the CIRB which—as its track record indicates—will decide that the impasse cannot be resolved and that an arbitrator should settle the dispute. The union will thus have had its right to strike aborted. I expect the minister to express her and the government’s disappointment that it had to come to this, even though this outcome was engineered by that government.

This is part of a pattern of federal Liberal governments’ approach to the right to strike. They regularly use sleight of law to rob workers of their collective bargaining weapons, even as these are now protected by the Charter of Rights and Freedoms. They have had to be cunning as Canadian jurisprudence, under pressure from civil libertarians, unions and international committees who repeatedly found Canada to be in violation of international norms, has changed markedly. This requires some elaboration.

It was a trilogy of cases arising out of governmental restraints on the right to strike that led unions to the Supreme Court of Canada in 1987. They asked it whether the recently minted guarantee of freedom of association prevented a government from taking away their right to bargain collectively, a right which by necessity had to allow workers to withhold their labour in concert, that is, to strike. The court answered “no,” the freedom to associate did not prevent governments, following proper legislative processes, from taking away a statutory right to strike. The assault on public sector workers, painstakingly documented by Leo Panitch and Donald Swartz in their 1984 book From Consent to Coercion, was given an invigorating judicial green light. Unions and their supporters fought back. Finally, in 2015, the Supreme Court of Canada relented, stating that whatever it had said 28 years ago no longer applied. Governments could not use their law-making power to take away any workers’ right to strike which had been bestowed by a properly enacted statute. Workers could go to court and get judges to stop a government from trying to rob them of their statutory right to strike.

(As this is being written, Unifor members are conducting a legal strike at the CN Tower in Toronto. The Canada Lands Company, a federal Crown corporation, has responded by making its final offer and locking out the workers on strike. If this does not lead to a quick settlement, it will be interesting to see whether the federal government will resort to one of the union-busting tactics discussed in the text which follows.)

Manifestly, that judicially enforceable right to strike is not a new right. It is the same right as the one found in labour relations statutes throughout the country. Those laws permit a union certified as the bargaining agent for employees of one employer to conduct a strike after a host of costly, dilatory procedural requirements have been satisfied. They do not allow unions to use that power for political purposes, only for narrow economic ones. They do not allow unions to strike in support of people on legal strike elsewhere. They do not give statutory protection to non-unionized workers to strike. The Supreme Court of Canada did not say that it was endorsing any of these kinds of rights. All that has changed is that the rather limited statutory right to strike, first enacted in 1944, is now enforceable in the courts.

To be clear, that is a positive legal advance because governments can no longer act as capriciously as they so often did. They cannot just take away a use of the statutory right to strike which annoys them or challenges the dominant ideology or causes them political difficulties by hastily summoning a special session of the legislature and ordering the lawfully striking workers back to work. If they want to legislatively interfere with an ongoing, now Charter-protected, strike, they will have to deploy the notwithstanding clause of the Charter. This may impose a high political price as the voting public might view them as acting against the spirit of the Charter to which, public surveys tell us, Canadians are

© Canadian Dimension