Back-to-work legislation may come back to haunt Justin Trudeau

The Justin Trudeau government’s use of back-to-work legislation effectively put an end to the rotating strikes waged by the Canadian Union of Postal Workers (CUPW). But the legislation could haunt the governing Liberals in the months and years to come.

First, the Canadian Union of Postal Workers, known as CUPW, has a history and culture of militancy, making it unlikely the union will simply roll over in the face of back-to-work legislation.

What’s more, the health and safety and wage disparity issues that precipitated the labour dispute are unlikely to be fully resolved in mediation.

Unions co-ordinated in an unprecedented manner to help defeat the Stephen Harper’s Conservatives in 2015, and while the Liberals are not nearly as reviled in labour movement circles, their back-to-work law will almost certainly alienate labour activists.

Is it constitutional?

Second, union leaders, New Democrat MPs and several independent senators have expressed concerns that the government’s back-to-work law is unconstitutional because it violates the Charter of Rights and Freedoms’ guarantee of freedom of association.

As we wrote in our 2017 book Unions in Court: Organized Labour and the Charter of Rights and Freedoms, the Supreme Court of Canada has recognized in a series of cases that freedom of association includes both a right to collectively bargain and a right to strike.

In arriving at the conclusion that the Charter of Rights and Freedoms protects the right to strike, the Supreme Court found in both 2007 and 2015 that there was an inseparable relationship between meaningful collective bargaining and the right of workers to withdraw their labour.

In the landmark 2015 case in favour of the Saskatchewan Federation of Labour, the court also determined that workers needed a credible threat to withdraw their labour in order to meaningfully exercise their right to collectively bargain.

While the Supreme Court has conceded that governments can interfere with Constitutionally enshrined labour rights in order to maintain essential public services, it’s also established a pretty high threshold for governments’ ability to unilaterally take away these rights.

Inconvenience no reason to intervene

So while the court is willing to concede that protecting the life, personal safety or health of Canadians may justify interfering with the right to strike, governments cannot intervene because a strike merely inconveniences members of the public.

How the courts might interpret the constitutional validity of the Liberal back-to-work bill is an open question, but Labour Minister Patty Hajdu’s concern about the economic wellbeing of Canadians or the “growing economic harm to the country” as a justification for back-to-work legislation could be considered dubious as far as a judge is concerned.

If the courts do rule against the government, the Canadian public could be on the hook for millions in compensation to CUPW members denied their Constitutional rights.

Similar multi-million dollar payouts were ordered when governments in British Columbia and Ontario were found to have violated the Charter by interfering in the collective bargaining process with education workers.

And this is hardly the first time the federal government has unilaterally interfered in the bargaining process of CUPW workers.

Even if the court upholds the back-to-work law, the Liberals will have tarnished their relationship with important segments of the labour movement — a relationship they have been working extremely hard at cultivating.

Overall, a short-term political calculus to appease online holiday shoppers may have unintended consequences for a much broader public in the years to come.