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Challenging back to work legislation

By: 
Pam Johnson

January 11, 2019

In December, Doug Ford called an emergency session of the Ontario legislature to pre-emptively legislate power workers back to work before they even went on strike. Shamefully, the Liberals and Green Party member voted with the Tories.

Less than a month earlier,  the Trudeau government legislated postal workers back to work to end their strike. An angry striking postal worker raised the very legitimate question, “Do we have the right to collective bargaining anymore?”

Indeed, legislation to end strikes is becoming a theme of both Liberal and PC governments: Trudeau legislated postal workers in November. Ford legislated York University workers in July, Kathleen Wynne legislated Ontario college faculty in 2017.

Harper’s Tories legislated Air Canada, CP Rail and Canada Post workers back to work in 2011 and 2012. Dalton McGuinty’s Liberal government imposed a contract and banned strikes for teachers in Ontario in 2012.

Rand Formula: historic compromise
Back-to-work legislation has been used by federal governments more than 30 times since 1950 and numerous times by provincial and municipal governments. This tactic arises from the historic compromise of the Rand Formula that set the terms for industrial unionism in Canada following the 1945 autoworker wildcat strikes in Windsor.

Judge Rand, the arbitrator brought in to find a solution to the strike, ruled that unions had the right to collect dues from all workers who benefit from collective agreements, a victory for union rights. But, he also ruled that unions could only legally strike at the end of a contract. Any strikes not conducted in this framework were ‘illegal’ with heavy fines and penalties as the consequence.

The Rand formula compromise was insurance for the employer against wildcat strikes. It has also had a dampening effect on the trade union leadership. Although labour leaders were already disinclined toward militant action without a push from below, the Rand Formula fortified that position.

Still, back-to-work legislation rarely survives a legal challenge because the law requires proving that the effected workers provide an ‘essential service’. Yet, this did not deter current Labour Minister, Patty Hadju from arguing that the CUPW strike posed ‘an emergency for many small firms and for Canadian consumers’, an implausible argument that the need for holiday deliveries trumps workers’ health and safety.

But back-to-work legislation has increasing become the norm when employers have not been able to starve out workers on a strike or lock-out. The impact is a complete undercutting of the bargaining process taking the incentive away from the employer to negotiate when they know the government will step in.

New mood of solidarity
The frustration and anger at this attack on workers’ rights hit a boiling point when postal workers were legislated back in November. A burst of actions across Canada and Quebec by trade unionists shows a new mood of solidarity to challenge anti-union actions by governments and employers not seen in decades.

It also exposes the collusion between governments and employers that is undermining workers rights and threatening to dismantle decades of struggle.

The NDP has stuck to its principles and voted against back-to-work legislation, but its numbers cannot carry the day. Trade unions have relied on the courts to challenge legislation but even when they win, it is always a matter of too little and too late.

Limits of the law
It will take the militant action and engagement of rank and file members to push real action forward. There is a history of labour struggles that pushed past the limits of the law to fight for workers:
• It was a postal worker wildcat strike in 1965 that led to the unionisation of the entire public sector.
• In 1978, postal workers went on strike and defied back to work legislation. CUPW leader, Jean Claude Parrot went to jail for defying the law.
• In 1999, Saskatchewan nurses stayed on the picket lines for a week after the province passed legislation ordering them back to work.
• 38,000 B.C. teachers launched a wildcat strike on Oct. 7, 2005 that lasted 10 days.
• In 2012, a wildcat strike broke out at Pearson airport when three Air Canada workers, members of IAM, were suspended for ‘slow clapping’ Labour minister Lisa Raitt.
• Recently, 2,000 crane operators in Quebec walked off the job in June and GM workers in Oshawa walked out the moment the plant closure was announced in November.

Building the Resistance now
The continuing lack of militant leadership by trade union leaders has created a vacuum that will be filled either by workers’ despair or workers’ struggle.

But the postal worker strike points to the willingness to fight against the continuous attacks by employers and governments on working conditions.

The solidarity with CUPW by the labour movement and community shows that there is a mood for solidarity to match the mood of resistance.
 

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