The Liberals' new anti-worker bill
The Liberals say the Bill C-39 is a golden opportunity to both increase investments and solidify workers' rights. How? They claim to have found a magical process that reduces strike risk while protecting the collective interests' of workers. Sound ridiculous? That's because it is.
An attack on the right to strike (and other things)
Liberals are not known to side with workers generally, but when they are run by a bunch of bankers and liberal staffers-come-MPs, they tend to be that much worse.
The huge omnibus bill that packs privatization of Canada's public ports, privacy busting security programs that puts worker surveillance as the tip of the spear, and the elimination of environmental protections also includes a major attack on worker rights.
This should not be surprising or confusing to people. The goal here for the Liberals is to support "investment" through every profit subsidy capital has ever asked for.
But, let's take a look at the mess of changes to the Canada Labour Code first.
The Canada Labour Code regulates workplace democracy in the federal sector. It is a fraction of the entire workforce, but as with most things in Canada, if the federal government does it, everyone else copies it. So, expect the following changes to show up in a labour law near you.
A list of what is in the Code changes.
- De facto elimination of the right to strike.
- New "special" mediation using a "special" mediator who has "special" (magical even) report writing powers.
- New powers for Labour Minister to intervene in a variety of ways in local bargaining including ending strikes as they begin. (Remember that the Liberals did not even assign anyone as "Labour Minister" so it is the business minister who is determining your right to strike.)
- Extended conciliation for naughty unions who have the gall to have a dispute with their employer.
- Lengthened timelines for conciliation.
- Strengthened Essential Service and "maintenance of activities" agreements and timelines.
- Post-Bargaining Mediation (for the workers who dared to have a conflict with their employer)
- Individualized fines for those labour leaders who happen to be the head of unions or locals whose members (rightly) directly challenge these anti-strike provisions.
- The loss of sick leave benefits for union members if you happened to have negotiated any sick leave.
That's a lot. But, there's more.
Somethings not-so-bad?
There are three provisions that seem less terrible in contrast:
- Protections against contract flipping
- First contract arbitration
- Better support for non-union workers who do not get paid on time.
Oh, something good you exclaim. Can we focus on that?
Sure. But, only to tell you how bad they are really.
Contract flipping protections
First, the protections against contract flipping has been a long demand of the labour movement. Contracting-out and privatization has meant the loss of a union contract (and your union) when a employer's name changes on the outsourcing contract. That is, if your employer's (say) five year contract ends and it does not win a new contract, you loose your collective agreement. Workers then have to organize the new firm that got the contract.
It is usually the case that the vast majority of workers stays the same when a contract is changed (or "flipped"). So, all that has happened is the nameplate of the company changes. Workers are back to square one.
Take this as a good protection to win.
BUT
It only applies to airports.
And, understand that it is basically necessary given the massive privatization that will lead to outsourcing, contracting-out, and the full weight of predatory private capital. So, without some contract flipping language the union density at airports (which is essential to security at airports) would evaporate.
First Contract Arbitration
Second, first contract arbitration.
Sounds great. It is another long demand of private sector unions, especially in the large federally regulated industries.
The normal process is this:
Unions spend hundreds of thousands of dollars and navigating a gauntlet of anti-worker regulation organizing a workplace (hurrah!). But, they get to the table and the employer just does not want to negotiate.
The employer does not just say this, of course. That's not allowed. Instead, the employer slow-rolls bargaining, launches and anti-union campaign, and mobilizes opposition to the union based on the slow progress of bargaining.
Two years go by and there is massive turnover in the workplace, usually (just coincidentally) with some main union organizers being dismissed. No contract.
You started the negotiations at the height of member mobilization and an brand new workplace democracy. Two years in and you have replaced that with a technocratic bargaining process that results in nothing. And, no ability to strike because support in the workplace has dwindled in the face of a fully funded anti-union campaign.
If you get an agreement, it isn't ratified and you get no strike vote. Or, you ratify it under duress and it is garbage. Or, you simply face a de-certification campaign and the workers lose workplace democracy that they never really achieved.
So, interest arbitration for first contracts is a necessary demand for labour to allow workers to fully express their Constitutional right to organized workplace democracy.
Of course the Liberals could not leave it like that, they had to add that the employer can also call for first contract interest arbitration.
This basically eliminates the right to strike for your first contract. Now, this barely ever happens, but Liberals cannot help but take away this right whenever it appears.
Third, support for non-union workers getting paid. Long-overdue and kind of ridiculous that the Labour Program is so ineffective at simply getting workers paid that they had to change the law to do that. They could have just resourced the program and we are not holding our breath that more resources are going to make this change effective.
So, that's the good stuff. What about the bad stuff?
The very not-so-great stuff
First, there is no right to bargain a collective agreement without the right to strike. It is a fundamental part of any negotiation (over union or other contract) to say "no" and walk away from a bad deal.
There was a lot of discussion about "Section 107" and its abuse by the Liberals to end strikes through dictatorship-level Ministerial pronouncements.
Well, that abuse of 107 will now been codified in law.
We can get into the details, but basically the bargaining process will be an arduous 111 days navigating a maze of notices to the government, mediation, conciliation, special mediation, "cooling off periods", additional notice to strike, a special mediator written report outlining exactly how bad everyone is for thinking about a labour dispute, and finally the ending of your one hour long strike by the minister sending you to binding interest arbitration where a government-appointed arbitrator will determine your contract.
Sure, there are some other options and confusing language around it. It does not have to go down this way. The government does not have to intervene in such a broad and specific way.
The government is saying it will only apply to naughty unions who had a dispute last time.
But, there is absolutely nothing in the law as it is written that limits the powers of the government to push every single round of bargaining with every single employer into this process.
And, no one is confused that this or the next government will not be tempted into doing just that. Especially if we have another round of high inflation where employers don't want to give inflation-adjusted wage increases. Which happens to be why we had the higher than "normal" strike activity post-pandemic, which is the entire reason the government is saying it needs these new superpowers.
So, sure. Try to convince me they are not going to take full advantage of their new unconstitutional superpowers.
The government says it has restored the right to strike from the abuse of Section 107. But, obviously, one hour of strike before it is ended by the government is not the right to strike.
The right to bargain (and the associated right to strike) is not a right if we have to ask permission from a government Minister.
Some Details
Amendments to Section 107 superpowers of the Labour Minister
Section 107 superpowers for the Minister of Labour have been extended.
If the Minister gets a report from the special mediator that allows an opinion that the national interest is at risk of being impacted economically or will result in "serious social disruption" (read: if there is going to be a strike of angry union members) then the minister can end the strike and send the parties to interest arbitration.
The supposed limit on the Minister's power is that they have to receive a report from the special mediator to end a strike. The government says special mediators are only supposed to be assigned if there was a dispute last round of bargaining, the so-called "5%" who could not get a deal at the table.
However, there is no provision guaranteeing this. Everyone who reads this comes to the same conclusion: all bargaining will eventually end up with this special mediator being appointed just in case the Minister wants to end the strike.
Violation of International Law
The ILO has very recently reasserted that the right to strike is covered by international law and Treaties that the Canadian government signed.
The current language of the Bill violates this law.
The limits on the right to strike allowed by ILO treaties refer to life, personal safety, and health of a portion of the population.
Outlined in the reasons that the Minister can use to end a strike have been expanded to the "national interest" around economic disruption and "serious social disruption".
This is too broad (bizarre even, since no one knows what the definition of social disruption is) and expands the powers of the minister beyond the ILO/international law.
The ILO CFA as committee has long recognised that "strikes are by nature disruptive and costly" (paragraph 755) but must be allowed.
Back-to-work orders and the imposition of compulsory arbitration are both strictly regulated by the ILO.
I am told the two key concepts are:
- "essential services" in the strict sense of the term are services where the interruption of which would endanger the life, personal safety or health of whole or part of the population". The CFA has also drawn a list of services that are not essential (including ports) and therefore cannot be applied restrictions such as the ones proposed for Section 107 (paragraph 842).
- An "acute national crisis" is a crisis that is "endangering the normal living conditions of the population". A higher bar than it even sounds and much higher than the proposed changes.
"Serious social disruption" is not even contemplated under ILO standards.
Length of bargaining
It will now be at least 111 days of bargaining, mediation, conciliation, and special mediation, "cooling-off", and notice period before you can get to a strike or lockout situation.
Minimum. If you were "bad" last round and had a dispute, this will start almost a year earlier.
Special Mediator
A Special Mediator can be (will be!) appointed by the Minister for 21 days at the end of bargaining (while in conciliation) if you have not got a deal.
The Special Mediator will write a report if you are unable to get a deal or if your members are crazy enough to reject a tentative (forced vote or not).
That report will be sent to the Minister outlining all the bad things going on at the table and recommending that the Minister take action to stop a strike. Sure, it could say something "let them go on strike", but who are we kidding? It isn't going to say that.
That report will then be released to the public by the Minister after five days to publicly shame the parties for not getting a deal at the table.
Violation of the Code
There is a special fine for labour leaders who might be the elected representative of a group of workers who continue the strike after the Minister orders the end to the strike.
Illegal strikes/lockouts:
- $1,000/day for employers and unions
- $10,000 for individual officers/representatives
- general offence penalties up to $10,000 for contravening CIRB orders.