Trudeau’s Liberals use back-to-work laws to circumvent Charter rights

Federal government uses same old rhetoric to justify ending strike at Port of Montreal
Photo: The Port of Montreal. (Sandra Cohen-Rose and Colin Rose)
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In 2015 the Supreme Court of Canada ruled that workers had the constitutional right to strike, which built on its 2007 ruling that workers had a constitutional right to collectively bargain. These decisions reinforced the notion that the legislative rights to collective bargaining and job action that workers had precariously clung to for 70 years were now part of the Charter of Rights and Freedoms. Yet, given the recent events at the Montreal port, workers can be forgiven for questioning whether their constitutional freedoms are simply paper rights that can easily be circumvented by governments and the ruling classes when business profits are threatened.

The facts of the Montreal port dispute have been well reported. Over 1,100 workers affiliated with the Canadian Union of Public Employees (CUPE) at the Montreal ports have been without a contract for over two years. Employers represented by the Maritime Employers’ Association (MEA) were demanding greater flexibility to extend workday shifts, while the union was concerned with worker fatigue, which would make the job more dangerous and even life-threatening.

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The union participated in state-mandated mediation to solve the dispute and, when the MEA refused to budge on the longer working day, workers implemented various work-to-rule campaigns. When those tactics failed, negotiations reached an impasse and the workers called a strike. That strike was set to begin on April 26, 2021, almost two and a half years since the expiration of the workers’ contract.

The MEA and employers’ groups cried foul, claiming that the strike would be nothing less than economic disaster. Montreal Board of Trade CEO Michel Leblanc went so far as to equate the union with economic terrorists, whose legal strike action would be “taking the economy hostage,” while most other business associations alongside the Quebec government simply called on the federal government (ports are a federal responsibility) to intervene and end the dispute in order “to protect our economy.”

Tired old rhetoric against the right to strike

At this point, the federal Liberal government took the advice of Quebec Employers’ Council CEO Karl Blackburn, to use “all its tools to act,” and proceeded, on the annual workers’ National Day of Mourning, in a manner that has become highly predictable: it quickly drafted, introduced, and passed legislation to force workers back. In this case it’s Bill C-29, “an act to provide for the resumption and continuation of operations at the Port of Montreal.”

In introducing Bill C-29, Labour Minister Filomena Tassi offered what has become a time-honoured and oft-repeated assurance that the Liberals were “strongly committed to free and collective bargaining and the constructive settlement of labour disputes as the basis for sound industrial relations.”

Tassi’s comments repeated the same tired rhetoric that all governments use when taking away workers’ right to strike.

This commitment rang hollow, given that the government was moving to end a legal strike on the pretext it would cause irrevocable harm to the economy and possibly delay valuable supplies that may be necessary for those fighting the COVID-19 pandemic. Although the union had stated that it would ensure any necessary medical supplies were unloaded, strike or no strike, Tassi stated that she had to act because this was clearly an “emergency.”

Whether she was aware of it or not, Tassi’s comments repeated the same tired rhetoric that all governments use when taking away workers’ right to strike. In 2018, when faced with the economic “emergency” of a Canadian Union of Postal Workers (CUPW) rotating strike threatening the Christmas retail season, Labour Minister Patty Hajdu assured Parliament that the Liberal government was tabling back-to-work legislation as a “last resort” and it was “not something we take lightly.” Given the economic risks, she said, and “having exhausted all other options, it is necessary to protect the public interest and avoid further harm to the Canadian economy.”

Similarly, when Conservative prime minister Stephen Harper legislated CUPW and Air Canada workers back to work in 2011, he stated that strike action was “threatening greater and greater damage on other parties in the Canadian economy.” He further proclaimed his loyalty to “the Canadian economy” and concluded that these strikes threatened “the wider interests of the Canadian public.” When CP Rail workers struck in 2015 over longer workdays and worker fatigue (a major issue in the Lac-Mégantic rail disaster), Harper made similar arguments and quickly legislated them back to work.

Permanent exceptionalism is the new normal

This short history of federal labour relations over the past decade demonstrates several patterns. Both Liberals and Conservatives claim allegiance to Canada’s long-standing labour relations model, yet in reality neither government has acted in a manner that actually respects fundamental labour rights. Almost every time federal workers have engaged in legal strike action since 2011, they have been legislated back to work because of a real or imagined economic “emergency.” Both stripes of government have equated the “economy” with the entire Canadian population, ignoring the real class inequality at the heart of the strike. And both have used the legislative hammer to erode workers’ legislative and constitutional rights in order to protect the profit margins of businesses or to end a political crisis. In these actions, workers’ rights and freedoms, and even basic health and safety protections, are of secondary importance.

It is increasingly clear that governments are willing to pass legislation to end workers’ strikes regardless of the constitutionality.

None of these events would be surprising to the eminent political economist (and my teacher) Leo Panitch and his colleague Donald Swartz. In their groundbreaking 1984 article in the pages of Labour/Le Travail, Panitch and Swartz recognized that Canadian governments routinely defended legislation preserving the rights of workers to collectively bargain and to strike but that increasingly those same governments were intervening in strikes through “temporary emergency” legislation.

Panitch and Swartz recognized that this legislation was being used with increasing frequency by the end of the 1970s, and that the so-called “temporary” and “exceptional” nature of back-to-work legislation — which by 2021 had been used more than 145 times — represents something much more than a “temporary” or “ad hoc” policy instrument. By 1984 and certainly by 2021, it had become a form of “permanent exceptionalism” whereby capitalist states governed in a manner that undermined workers’ core collective freedoms so as to preserve the political and economic status quo.

When looking back on the past decade in federal labour relations, the Liberal and Conservative embrace of “permanent exceptionalism” has been all the more frustrating for workers and unions because the Supreme Court of Canada has recognized that workers’ core associational freedoms are now protected by the Charter of Rights and Freedoms. What is more, the courts have recognized that arguments from the government that it must undermine workers’ associational freedoms to protect the economy are not good enough to pass Charter muster.

Why then do these actions continue? It is increasingly clear that governments are willing to pass legislation to end workers’ strikes regardless of constitutionality. It is also clear that claims that government supports collective bargaining is a fiction. While collective bargaining and strikes will be allowed to occur in some cases, if those actions actually challenge the political or economic status quo, governments will step in to defend the most powerful classes and call it a defence of “the economy.” Permanent exceptionalism is the new normal.

The Supreme Court of Canada has recognized that the “ability to strike allows workers, through collective action, to refuse to work under imposed terms and conditions” and that this “moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives.” In other words, it is during a strike when working-class people can challenge the unilateral and imposed power of employers and governments.

Thus, it is time that we stop believing the fiction that governments will support collective bargaining. They will not. Workers have to take this power back themselves.

Charles Smith is an Associate Professor of Political Studies at St. Thomas More College, University of Saskatchewan. His research is on labour politics, public law, and Canadian politics. He is the co-author of Unions in Court and co-editor of Labour/Le Travail.

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