A locomotive moves rail cars at the Canadian Pacific Kansas City (CPKC) rail yard in Port Coquitlam, B.C., Monday, Aug. 19, 2024.DARRYL DYCK/The Canadian Press
Bruce Curran, PhD, is an associate professor in the faculty of law of the University of Manitoba.
As Gordon Lightfoot once sang, “There was a time in this fair land when the railroad did not run.” As I write this, it appears that we will almost certainly be revisiting that time shortly and that the “National Dream” is about to become a national nightmare.
It is possible that by the Thursday deadline, any stoppage of trains, as both sides have threatened, will have been averted. The union, Canadian National Railway Co. CNR-T and Canadian Pacific Kansas City Ltd. CP-T could have come to a last-minute agreement, as has happened before. But for several days, both railways have already been winding down operations in anticipation of a shutdown. Much damage to Canada’s economy has already been done.
While there are plenty of suspects to point the finger at – including putatively greedy railway companies, allegedly lazy and demanding workers, and supposedly intransigent unions – the primary blame falls on the shoulders of the federal government, but not for the reason you might think.
The “reason” that likely springs to mind is Ottawa’s failure to intervene to force a continuation of railway operations. Such intervention seems appealing, given the national importance of the issue, the high economic stakes and the apparent expediency of the solution, but is in reality a siren’s call.
Parliamentarians should exercise restraint in imposing an agreement. Binding arbitration would not work particularly well at this stage of this particular negotiation, because there are important and complex non-monetary issues still unresolved. Legislating an end to any work stoppage would likely violate workers’ rights to collectively bargain and strike, which are protected by the Canadian Charter of Rights and Freedoms and Supreme Court of Canada jurisprudence. The Canada Industrial Relations Board has also recently ruled that rail transportation by the two railways is not an “essential service,” a status that would give legal standing for the government to force staff back to work, a decision that is correct under both national and international law.
Why Canada is on the verge of an unprecedented rail labour stoppage
Instead, the government has been derelict in implementing a robust set of safety rules covering all railway workers in safety-sensitive positions. For CN and CPKC workers, safety rules (and, in particular, those to prevent worker fatigue and reduce the chances of accidents) appear to be a major issue in the current round of negotiations. The union asserts that the companies are demanding concessions on issues such as rail safety, fatigue management and crew scheduling, and that CPKC is understaffing rail-traffic controllers.
Transport Canada, the federal department responsible for regulating rail safety has, to date, failed to align the sector’s fatigue-management regulations and practices with the latest research on fatigue science. A more systematic approach to fatigue management is necessary for all employees with duties essential to safe railway operation.
The department has been working on a set of “Fatigue Management System Regulations” for a number of years. It conducted a series of consultations with stakeholders, which closed in April, 2022. Draft regulations are planned for publication and consultation, but are not expected until 2025.
In fairness to Ottawa, it has not been entirely inactive. Transport Canada implemented some improvements in 2020, when it introduced the Duty and Rest Period Rules for Railway Operating Employees. These rules, which have a phased implementation from 2022 to 2024, establish shorter limits on duty periods, longer minimum rest periods and limits on the number of hours that can be worked in a week and/or month. It also required railways to submit fatigue-management plans to Transport Canada by November, 2022, but these improved protections only cover some operational employees.
In their public communications, the railways emphasize that their recent offers to workers meet the safety requirements. However, a more comprehensive set of regulations that introduce a fatigue-management system and apply to all safety-sensitive railway employees – not just operators – is required.
Fatigue impairs worker performance, including attention, vigilance and general cognitive functioning, and poses a risk to the safe operation of a railway, both for workers and the general public. From the early 1990s, investigations and inquiries have identified fatigue as a contributing factor in more than 30 rail accidents in Canada. Even though the industry and Transport Canada have known sleep-related fatigue to be a problem for more than 20 years, the responses to date have not been adequate to fully address the issue.
There have been persistent demands made by unions and employees to improve rail operation safety, and the CN strike in 2019 was over safety-related issues. All of this should have put the federal government on notice.
The economic effects so far, and the worse effects that may yet occur owing to a work stoppage, could have been prevented if Ottawa had moved more quickly to enact better safety regulations for railway workers. The current labour negotiations have been a slow-motion train wreck, with Ottawa asleep at the switch.