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How’s that for an engaging title.

I am, I would say unsurprisingly or even predictably, interested in the ongoing railway labour dispute. Although it’s not clear from the articles I’ve read, the relevant union seems to be fighting for some pretty fundamental rights for workers, like “to live where they want” and “to not fall asleep while driving a train.” From the Teamsters website:

Neither CN nor CPKC has relented on their push to weaken protections around rest periods and scheduling, increasing the risk of fatigue-related safety issues. CN also continues to demand a forced relocation scheme, which could see workers ordered to move across the country, tearing families apart in the process.

The employer response I’ve seen to date seems to be “we’re meeting legislated minimums,” as if that’s sufficient answer to employees’ safety concerns.

I would characterise the government’s response as “… but the economy.” Because in practice Liberal governance prioritizes economic growth above all things (the climate, public health, workers’ rights, the constitution, etc.).

Flashback to Westjet

You might remember there was a bit of confusion a few months ago, when Labour Minister Seamus O’Regan issued a directive for binding arbitration with respect to Westjet employees, and then was surprised when the union went on strike anyway. I wondered at the time who fucked up, and my read of this recent article from law firm Emond Harnden confirms it was the Minister, whose directive under s. 107 of the Canada Labour Code apparently read as follows (emphasis added):

WHEREAS I am deeply concerned that the parties’ continued inability to reach and ratify a first collective agreement is undermining industrial peace and, if not resolved in an expeditious manner, could lead to poisoned relations between the parties into the future;

AND WHEREAS I am convinced that providing for an arbitrated first agreement between these parties is the best way to secure industrial peace and promote favourable conditions for future collective bargaining between these parties;

NOW THEREFORE, I, as Minister of Labour, pursuant to section 107 of the Code and in keeping with the objectives of section 80 of the Code, hereby direct the CIRB to assist the parties in reaching a settlement of the outstanding terms of their first collective agreement by imposing final binding arbitration to resolve outstanding terms of the collective agreement.

The Minister’s Westjet directive did not, as the Canada Industrial Relations Board pointed out earlier this summer, say anything about limiting the right to strike, nor did the CIRB find anything in the Code that meant the fact of issuing a s. 107 directive made a strike illegal. Rather, Emond Harnden explains, the CIRB looked to Charter values to resolve the question:

The Board found the ministerial referral clearly engages the guarantee of freedom of association set out in section 2(d) of the Charter as it has the effect of imposing binding arbitration on the parties to resolve their first collective agreement.

In issuing the Order, the Board was tasked with balancing the right to a meaningful process of collective bargaining with the objectives of the Code. The Board found that it must apply the ministerial referral in a manner that prioritizes the Charter values underlying freedom of association. Given the Supreme Court of Canada’s reasoning in Saskatchewan Federation of Labour, which characterizes the ability to strike as an essential component of meaningful collective bargaining, the Board found they cannot apply the referral in a manner that would restrict or suspend the parties’ right to strike or lockout. The Board found that this would amount to a substantial interference with the Charter right to a meaningful process of free collective bargaining and would be inconsistent with the freedom of association.

As a result, the Board found that the ministerial referral under section 107 of the Code did not have the effect of suspending the parties’ right to strike or lockout.

What this says to me is that the Minister was insufficiently specific in his Westjet directive, and the Board was not willing to “read in” a Charter-infringing prohibition on the right to strike. What this does not say to me is that the Minister is prohibited from directing the infringement of Charter rights.

Section 107 of the Canada Labour Code

I know from my years at Scrutiny of Regulations that section 107 of the Canada Labour Code is a high-discretion provision:

107 The Minister, where the Minister deems it expedient, may do such things as to the Minister seem likely to maintain or secure industrial peace and to promote conditions favourable to the settlement of industrial disputes or differences and to those ends the Minister may refer any question to the Board or direct the Board to do such things as the Minister deems necessary.

107 Le ministre peut prendre les mesures qu’il estime de nature à favoriser la bonne entente dans le monde du travail et à susciter des conditions favorables au règlement des désaccords ou différends qui y surgissent; à ces fins il peut déférer au Conseil toute question ou lui ordonner de prendre les mesures qu’il juge nécessaires.

Things that the Minister “may” do are generally granted deference, as are things that the Minister deems “expedient” or “necessary”: tribunals are not keen to second-guess a Minister’s opinions or political decisions.

What all of this means is that the Liberals just need to be slightly less cagey than they were earlier this summer if they’re going to ruin workers’ lives for the sake of the economy.

The Train Directives

Which brings us to today, when the CIRB ordered everyone back to work, finding it has no discretion or ability to refuse to implement, in whole or in part, the minister’s directions under s. 107 or to modify their terms.

The Teamsters website has posted the CIRB’s decisions (CN and CPKC), which describe the new Labour Minister’s new directives as follows:

the Minister has directed the Board to i) order [the railways] to resume operations and [the] employees to resume their duties; ii) assist the parties in reaching a settlement of the outstanding terms of their collective agreement by imposing final binding interest arbitration to resolve the outstanding terms of the collective agreement; and iii) extend the term of the existing collective agreement(s) until the new collective agreement(s) is/are determined by the arbitrator;

The rail directive is more directive than the air directive, which only contained the “assist the parties” clause. The government has learned from its earlier mistakes, and the CIRB is clear that it is only following orders. Although I’m not sure, without seeing the original text of the directive, who came up with the part of the CIRB’s order that the parties are “to continue such operations and duties until the final binding interest arbitration process is completed”: an order to resume does not necessarily include an order to continue.

The Teamsters are appealing the decision and it remains to be seen what the Federal Court will do with Charter arguments versus Ministerial discretion under s. 107 of the Code.

I hope that the right to strike will prevail. A job should not cost workers their safety and their family.