Federal legislation ordering postal workers back to work in 2011 unconstitutional

Ontario Superior Court rules that Conservative government's legislating postal workers back to work in 2011 violated their rights to freedom of association and expression.

Ottawa (02 May 2016) — On Thursday, April 28, 2016, the Ontario Superior Court ruled that the Harper government violated the Canadian Union of Postal Workers (CUPW) members’ freedom of association and expression by legislating them back to work in June 2011.

Legislation ruled unconstitutional

The former federal government introduced the Restoring Mail Delivery for Canadians Act, Bill C-6, in June 2011, forcing locked-out postal workers back to work and imposing wage increases that were less than the employer’s last offer. It referred all other outstanding issues to a final offer selection (FOS) arbitration process, which the Court found to be “structurally inadequate and not impartial.”

This is the second positive labour rights ruling by the Ontario Superior Court in a week. On April 20, the Court found that Ontario government's Bill 115, Putting Students First Act, was unconstitutional for violating collective bargaining rights of educational workers.

In this most recent ruling, Justice Stephen Firestone found that Bill C-6 "violates the rights to freedom of association and freedom of expression under sections 2(d) and 2(b) of the Charter." He declared "the Act is unconstitutional and of no force and effect." The decision scraps the law but not the agreement that CUPW had been forced to sign on behalf of its members as a result of the deeply flawed and unfair arbitration process. That agreement has now expired, and CUPW are currently in negotiations with Canada Post for a new agreement.

Justice Firestone found that Bill C-6 “abrogated the right to strike of CUPW members. The effect of this abrogation was to substantially interfere with — and to disrupt the balance of — a meaningful process of collective bargaining between CUPW and Canada Post.”

Bill C-6’s arbitration process “structurally inadequate and not impartial”

Justice Firestone harshly criticized the FOS arbitration process that the Act established.

“It seems clear also that the arbitration process contemplated by the Act was structurally inadequate and not impartial.  The FOS process did not redress the loss of balance that was entailed by the Act. Far from putting the parties on an "equal footing," it instead created and exacerbated an imbalance between the parties that had not existed before the legislation was tabled on June 20," the Judge said in his ruling. 

“Taking wage increases and the term of the agreement off the table was fatal to the constitutionality of the impugned legislation in the case at bar. It ensured that that arbitration process would be ineffective and inadequate in crucial respects, and it blunted the remedial function of the arbitration process in the absence of the right to strike."

Read the entire ruling here.

Good riddance to anti-worker legislation

Paul Cavalluzzo, lead counsel on the case, and a board member of the Canadian Foundation of Labour Rights (CFLR), noted that "this is a very significant decision which vindicates worker rights that were sorely abused during the Harper era. Harper's addiction to "back to work" laws had a horrendous effect on collective bargaining not only at the Post Office, but also throughout the whole federal sector."

Cavalluzzo went further saying that "the court called it for what it was, a blatant and draconian disregard of workers’ rights to assist an employer who took full advantage of this illegal law. This was the stuff of a despotic regime which hated workers and unions. The Charter of Rights and Freedoms has belatedly and emphatically pronounced: Good riddance!"

Slowing undoing the Harper government’s anti-worker legislation

James Clancy, National President of the 360,000-member National Union of Public and General Employees (NUPGE), and CFLR board member, supported CUPW’s challenge with an affidavit to the court on the important role unions and collective bargaining play in a democracy.

Commenting on the ruling Clancy noted, “Bill C-6 is the third anti-worker bill by the Harper government that has been taken off the books. In February this year, the Trudeau government introduced legislation to repeal Bill C-377 and Bill C-525. And there are Charter challenges against 4 other restrictive labour laws passed by the Harper government that are currently winding their way through the courts. I predict these challenges will also be successful.”

“Despite a determined effort during the Harper government years to roll back the constitutional rights of working people, history will show that the government's efforts have failed," he said.

“Let this be a lesson for any government in Canada that contemplates implementing anti-worker legislation. Labour law in Canada has entered into a new era where Canada’s constitution is recognized as protecting workers’ rights to join a union, engage in collective bargaining and take strike action. This will strengthen the labour movement, but more importantly, it will also strengthen Canadian democracy.”

For more information:

Canadian Foundation for Labour Rights

Ontario Superior Court of Justice Decision

NUPGE

The National Union of Public and General Employees (NUPGE) is one of Canada's largest labour organizations with over 360,000 members. Our mission is to improve the lives of working families and to build a stronger Canada by ensuring our common wealth is used for the common good. NUPGE

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