What the Supreme Court of Canada decision will mean for unions and workers: Lessons from Air Canada
By Andrew Stevens and Doug Nesbitt
Back-to-work legislation and sweeping “essential service” designations at the federal and provincial levels. These are trends that are sweeping public and private sector industries nation wide. Tomorrow, the Supreme Court of Canada will begin hearing a final appeal on the constitutionality of Saskatchewan’s Public Service Essential Services Act along with amendments to what was then the Trade Union Act, which enhanced management’s ability to influence the outcome of a union certification campaign and vote. (See the Sask Federation of Labour’s factum for details about the case.) RankandFile.ca has covered these developments extensively since 2012 and a background to the case can be found in the RankandFile.ca archives.
What’s important to recognize here is that the country’s top court will render a final decision on the constitutionality of the right to strike.
What does this mean?
Keep in mind that since the Supreme Court delivered its important Health Services decision in 2007, which extended section 2(d) of the Charter of Rights and Freedoms (the Freedom of Association) to include a process of collective bargaining, the federal government has routinely suspended the right of unions to engage in legitimate (read: legal) collective action.
Back-to-work legislation, and now a broadening of a federal “essential service” classification, has certainly upset the capacity of workers to bargaining fairly and freely with employers. The same can be said for provincial governments across Canada. In other words, Supreme Court decisions rendered years after the fact mean very little for unions or workers affected by unconstitutional laws enacted today.
Supreme Court decisions rendered years after the fact mean very little for unions or workers affected by unconstitutional laws enacted today.
Consider the repeated use of back-to-work legislation that has ended every job action at Air Canada, Canada Post, Canadian Pacific Railway, and CN in the last three years. The Air Canada case is of particular importance, and we have covered the story extensively since 2012. For starters, check out our March 23, 2012 post. The Air Canada disputes, wildcats and civil disobedience of 2011-12 is the subject of our recent article in the Labor Studies Journal, “An Era of Wildcats and Sick-outs in Canada? The Continued Decline of Industrial Pluralism and the Case of Air Canada”. Here’s an abstract:
In the winter of 2012, the Canadian federal Conservative government introduced back-to-work legislation prohibiting work stoppages at Canada’s largest airline, Air Canada. In the following weeks, wildcat strikes by baggage handlers, ground crew, and even pilots rattled the company. These disputes were preceded in 2011 by another instance of back-to-work legislation and threats of legislation against Air Canada’s customer service workers and flight attendants, respectively. In all cases, the union leadership was legally forced to police their membership and order their members to cease job actions when they erupted. This article situates the Conservative government’s coercive measures to deal with labor unrest at Air Canada within a broader anti-union context, highlighting the continued decline of industrial pluralism in Canada and questioning whether the repeated use and threat of federal back-to-work legislation will open up space for civil disobedience as a new norm in Canadian industrial relations.
The pending Supreme Court decision will either be a symbolic victory or defeat for trade union and workers’ rights. But whichever way the Court leans, job action and civil disobedience actually need to be considered and incorporated into union strategies in order to be effective. Between 2011 and 2012 workers at Air Canada showed that legislation can only make strike action illegal; it cannot make it disappear.
Canada’s declining frequency of strikes, as well as working time lost to strike action, suggests that these rights are hollow if they are not exercised. In fact, the suspension of this hard fought right to strike can be poisonous for conditions inside companies, as one Air Canada employee, and RankandFile.ca contributor, has shown in a recent post. As we conclude in the paper,
In the absence of such spaces for legitimate forms of protest and managed class conflict, workers at Air Canada were compelled to develop and employ forms of collective and individual action that amount to civil disobedience. Furthermore, the wildcat and sick-out at Air Canada demonstrate that civil disobedience as a tactical expression of protest is not the same as a consciously developed strategy employing civil disobedience. But whether or not unions will include these repertoires of collective action into their broader political strategies is another question.
That said, the Supreme Court decision will be historic, if nothing else.