Canadian government shows impatience with labour laws

Conservatives threaten or use back-to-work legislation three times since election
By Allison Martell
|labour-reporter.com|Last Updated: 10/18/2011

(Reuters) - The Canadian Conservative government is increasingly showing impatience with federal labour laws as it seeks to prevent strikes that it says would damage the economy.

The federal government has threatened or used anti-strike legislation three times since it won a majority in Parliament in May's general election.

Last week, in an unusual effort to prevent a strike, Labour Minister Lisa Raitt asked the Canada Industrial Relations Board to consider whether an impending strike by flight attendants at Air Canada, the country's biggest airline, would pose a health and safety risk.

The immediate effect of Raitt's request was to stop the strike from starting because no labour action can occur while a health and safety issue is before the board. The more normal way for the government to prevent a strike, passing legislation, was not available because Parliament was not in session.

The longer-range effect of Raitt's action, however, was to shine a light on what may be a broad disconnect between the government and the industrial relations board, which is charged with enforcing the Canada Labour Code, a document that governs labour relations in banking, interprovincial transportation and telecommunications.

"The purpose of the code is to promote collective bargaining. Part of the problem we have is that we have a government that's opposed to (collective bargaining), and legislation that promotes it," said Mary Cornish, labour lawyer and partner at Cavalluzzo Hayes Shilton McIntyre & Cornish LLP.

The preamble to the labour code describes a Canadian tradition of promoting "free collective bargaining and the constructive settlement of disputes," and that preamble guides the actions of the quasi-judicial CIRB, whose members usually come from both unions and business.

"The CIRB is not expected to be completely unbiased when we interpret the Canada labour code," CIRB Chairwoman Elizabeth MacPherson said soon after her 2008 appointment.

"The CIRB and its predecessor... have consistently interpreted the code so as to encourage the establishment of collective bargaining relationships," she said.

The board certifies and dissolves unions, and workers, unions or employers can appeal to it if they believe the code has been violated.

"When we're trying to define neutrality in the context of labour boards, their job is to carry out the fundamental purposes of the act," said University of Ottawa law professor Pamela Chapman. "They're not there to question whether there should be collective bargaining."

Expressing frustration with the bargaining process at Air Canada, where flight attendants twice rejected tentative agreements with management that their own union leaders had endorsed, Raitt said last week that the government was looking closely at the Canada Labour Code.

"There's something wrong in this case, and does that mean there's something wrong in the code?" she asked in an interview with CBC, the nation's public broadcaster.

A spokeswoman declined to say if that meant the government wanted to change the code.

Canada's Parliament would have to approve any amendments to the labour code. The left-leaning New Democrats, the biggest opposition party, would be bound to object, but the Conservatives' majority in Parliament means they could force through changes.

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