Government’s repeated interventions in labour disputes do more harm than good

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Barry Eidlin is an associate professor of sociology at McGill University.

Employers across Canada breathed a sigh of relief on Tuesday. That’s when federal Labour Minister Steven MacKinnon ordered an end to employer lockouts of their workers at the ports of British Columbia, Montreal and Quebec, which had come after talks with unions broke down. Mr. MacKinnon referred the disputes to binding arbitration.

Mr. MacKinnon lamented his decision, repeating his oft-heard mantra that labour disputes should be left to the parties to resolve, that “negotiated agreements are the best way forward.” But he added that the costs to the economy of the port shutdowns were too high, noting that, “We simply cannot afford this uncertainty and instability at this moment.”

Mr. MacKinnon’s order may have brought an end to the immediate port shutdowns. But it comes with its own costs. First, it likely violates workers’ Charter-protected rights to engage in collective bargaining and strike.

Second, it’s not the first time the government has made such a move. By normalizing such moves, it provides employers with a playbook for making an end-run around collective bargaining. We saw this approach last summer on the railways and may see it again with Canada Post, depending on the outcome of those labour talks.

And third, intervening in labour disputes does not resolve the issues underlying the conflict, setting the stage for future, more acrimonious labour strife.

In 2015, the Supreme Court of Canada ruled that workers’ rights to engage in collective bargaining and strike were protected by the Charter of Rights and Freedoms. Their ruling relied on extensive testimony from labour relations experts who documented Canada’s overreliance on the doctrine of “permanent exceptionalism.” Under that doctrine, Canadian governments and employers would declare their support for collective bargaining rights, while repeatedly finding reasons to circumvent those rights “just this once.”

Permanent exceptionalism led to Canadian federal and provincial governments being the heaviest users of back-to-work legislation among G7 countries, and the top violator of international labour rights in that group. Between 2002-2019, Canada accounted for 54 per cent of complaints of violations of labour rights filed with the International Labour Organization against G7 countries.

The Supreme Court’s 2015 rulings tried to move past the doctrine of permanent exceptionalism. Mr. MacKinnon’s order slides back in the wrong direction, but with a modern twist. Previously, governments wanting to circumvent labour rights “just this once” had to go through the trouble of enacting back-to-work legislation. Now, through a novel interpretation of Section 107 of the Canada Labour Code, the minister can simply impose his order by sending an e-mail to the Canadian Industrial Relations Board – no Parliament needed.

Charter issues aside, if Mr, MacKinnon’s playbook to make an end-run around collective bargaining is allowed to stand, we can expect other employers to take the ball and run with it.

The employer playbook has three simple steps: 1) lock out your workers; 2) use the economic chaos created by your own lockout as a pretext to call for government intervention; and 3) have the government impose binding arbitration.

However deeply the Labour Minister may believe that “the best deals are reached at the negotiating table,” his playbook will only make such deals less likely. If employers know they can engineer a back-to-work order by dragging out negotiations and locking out their workers, then they have no incentive to reach a negotiated settlement. Instead, they can sit and wait for governments to impose settlements, or use the threat of government intervention to get their way.

Collective bargaining exists to resolve thorny issues between parties with fundamentally different interests and goals. To work properly, the parties need to be compelled to work through their differences and come to an agreement. And because of their structural power advantage, employers often need an extra push to come to the table.

Usually, it’s the threat of economic disruption from a strike that gives employers the extra push toward the bargaining table. Back-to-work orders, conversely, pull employers away from the table. Instead, they allow employers to use the threat of economic disruption to pressure governments to intervene. The result can only corrode collective bargaining.

What’s more, agreements imposed after back-to-work orders lack the legitimacy of agreements that are duly negotiated, then debated and voted on by the workers involved. Additionally, even skilled labour arbitrators are ill-suited for adjudicating the kinds of fundamental workplace issues that are at stake at the ports, such as technological change and scheduling. Unlike wage and benefit packages, you can’t just split the difference.

Finding durable resolutions to these kinds of issues requires commitment from the parties involved. They cannot be imposed from outside. Binding arbitration puts a lid on the conflict instead of resolving the underlying issues, virtually guaranteeing that they will continue to bubble up.

Blocking the end-run around collective bargaining is the best way to ensure that deals are actually reached at the table.