The proposed Bill C-89: a better solution than the last one. Likely illegal, but perhaps the best choice among bad choices.
The Canadian Government is putting an end to the Canada Post strike with Bill C-89. These Bills have become a ritual in their dance with the Canadian Union of Postal Workers.
Bill C-89 is very similar to the 2011 version, the Restoring Mail Delivery for Canadians Act, S.C. 2011, c. 17. However, it is much more verbose. The complexity of the wording and structure is purposely done to skirt around the Charter issue and guarantees years of legal discussion before the courts.
January 25th, 2019 update. This article originally stated the process was Final Offer Selection. A recent January 22, 2019 CUPW statement states otherwise and calls it traditional interest arbitration:
The parties agreed that a traditional interest arbitration was the preferred method and the arbitrator agreed. The case will continue as an interest arbitration with witnesses and evidence. There will be no final offer selection.
The 2011 version heavily weighed against CUPW. The mediator-arbitrator was required to consider the best economic interests of Canada Post in the decision. The present iteration proposes to remedy the various problems faced by both sides. In this present version, the odds do not significantly favour either side. Canada Post itself could face some financial risk with several potential outcomes.
The proposed Act increases the decision-making principles of the mediator-arbitrator to six variables. Here is the text:
(3) In rendering a decision or selecting a final offer under paragraph (1)(b), the mediator-arbitrator is to be guided by the need
(a) to ensure that the health and safety of the employees is protected;
(b) to ensure that the employees receive equal pay for work of equal value;
(c) to ensure the fair treatment of temporary or part-time employees, and other employees in non-standard employment, as compared to full-time, permanent employees;
(d) to ensure the financial sustainability of the employer;
(e) to create a culture of collaborative labour-management relations; and
(f) to have the employer provide high-quality service at a reasonable price to Canadians.
Outside observers and the Liberal dominated Government can strongly argue that they attempted to balance the rights of the workers, the financial viability of the Post Office, and improvement of the work environment in this Bill. This argument does have some validity and may be the only means to address a hostile environment between the Union and Management. A situation so broken and dysfunctional, they would both prefer to destroy each other and take the company down rather than sitting down and talking as equals.
In 2011, CUPW and its members were forced to play a lousy hand and ratify a new Collective Agreement with Canada Post that avoided the alternative—the FOS of the back to work legislation. The agreement approved was very much a compromise and loss to the employees.
After four years of legal discussion through the courts, Canada’s Supreme Court nulled the 2011 version, the Restoring Mail Delivery for Canadians Act, S.C. 2011, c. 17, as a violation of the Charter of Rights. However, it was only a moral victory. There was no compensation for the damages caused or reversal of its effects.
If CUPW chooses to contest this legislation through the courts, they will eventually win a moral victory but little else. This legal situation continues to demonstrate a severe flaw in the Canadian system of governance.
This legal delay and lack of punitive damages is a flaw that various levels of Canadian Governments are now playing with. A workaround that is precisely what Brian Pallister, the Premier of the Manitoba Government, and previously a Conservative Member of Parliament under Stephen Harper, has applied against the Manitoba Public Sector. Public Sector wages are unilaterally frozen or reduced by an act of the Manitoba Government—behaviour that bypasses the Collective Agreement process altogether. Manitoba Unions have jointly started a legal address to the Bills that severely limit the Collective Bargaining Process. However, Pallister and his Government are banking on the fact that it will take years for the Unions legal address to have a ruling. Even if the Unions do win, the Government believes they will not have to restore any lost wages or compensate any employees for potential wage increases found in the normal process of the Collective Agreement negotiation process.
It is a financial win for the Government and its subsidiaries and a costly exercise and loss for Union members. It is not fair and unless either new legislation is passed to restrict such unlawful interference or the Supreme Court begins to apply punitive damages, this will continue as a political tactic against organised Canadian Unions for years to come.
For further reading:
- Senate Delays Bill C-89
- Back to Work Legislation Ruled Unconstitutional (2011 Version). An analysis of the Supreme Court ruling on the back to work legislation introduced by the Harper Government.
- Senators pass back-to-work legislation to end rotating postal strike
- Postal Workers to Trudeau: We Will Remember. Anger and frustration reflected in this CUPW response on being legislated back to work again.
- Minister Appoints Former CΙRB Chair to Resolve Canada Post Labour Dispute
- The CUPW announcement of an appointed Mediator
- Postal Workers Union Filing Court Challenge Over Back to Work Legislation
- The Liberals Disregard for Workers Rights. A very good opinion piece from Macleans, a premier Canadian magazine, outlining the Liberal dominated Federal Government’s back to work legislation.
- Canada Post Says Normal Delivery Times Restored for Most of the Country
- CUPW Announces Mediation Process Ends