Essential Workers’ Right to Strike

 

Marni Soupcoff says workers have no right to strike.

It’s true. I don’t think essential workers should have the right to strike. But before I go any further with my case for why, you should probably know that I don’t think any workers should have a right to strike. So, I’m not singling out nurses or snowplow operators. At least, not yet.

Opposing the right to strike may sound regressive and reactionary. Yet this was the position the Supreme Court of Canada held until 2015. Before the court’s rather stunning reversal in a case called Saskatchewan Federation of Labour v. Saskatchewan, the justices had been clear that there was no constitutional right to strike in Canada. In fact, when the drafters of our Canadian Charter of Rights and Freedoms were at work on the new document in 1982, they specifically contemplated including a right to strike as one of the protected rights… then purposely dumped the idea.

But haven’t there been plenty of strikes in Canada before 2015? Yes, there have. And do you know why? Because it’s perfectly possible to negotiate contracts and rely on statutes to create situations where employees can stop working while still enjoying some degree of job protection. A right to strike isn’t, and never has been, a necessary component of a labour stoppage.

And an important point here that several of the Saskatchewan Federation of Labour Supreme Court justices seemed to miss—it’s always possible for employees to stop working without job protection. The absence of a right to strike does not imply a legal acceptance of forced labour: if they’re willing to risk getting fired, employees are free to stop work any time, whether to protest unsafe industrial conditions or to demand an extra two weeks of paid vacation days.

I’m not trying to argue that stopping work without job protection is a great option. What I’m saying here is that the status quo before 2015 was not slavery. A strong regulatory regime existed to ensure and enforce a floor of safe and humane work circumstances. Even modern back-to-work legislation, when passed, had stopped resorting to the draconian old practice of threatening a jail sentence on employees who defied such orders (which were a step away from the pure contract and common law approach to begin with). And—once again—workers could always quit.

So, a better way to state my position might be that no workers should have a fundamental legal entitlement to strike, including essential workers. But the flip side is also true: no employer, including government, should have a fundamental legal entitlement to force someone to work, even an essential worker.

Society needs police officers and firemen. In a truly free and voluntary regime, government employers would be able to fire police officers and firemen who were endangering public safety by not working; and government employers would be able to hire replacement police officers and firemen willing to protect citizens in exchange for compensation that the officers or firemen and employers agreed to. But government employers would not be able to force any particular police officer or fireman to work by threatening criminal prosecution or other legal punishment.

Not all Albertans working at minimum wage are necessarily poor.

In practice, my position runs up against several decades of statutory law—and, more recently, common law—that views the idea of simply letting each person use his labour as he chooses (workers) and his money as he chooses (employers) as, at best, a hopelessly simplistic framework. At worst, it’s viewed as a denial of the dignity and autonomy of labourers (whose personal choices must apparently, out of fairness, come second to collective action).

Me, I’d call what I’m championing a universal right to contract freely. But hey. We all see things differently.

In a nod to present reality, where Canadian workers now formally enjoy a constitutional right to strike, I will say this: A strike by essential workers poses a risk of financial losses and physical harm that rises beyond the risk posed when non-essential workers walk off the job. It’s a serious pain in the behind if UPS workers go on strike and the distribution of important parcels is affected. It’s downright scary if nurses go on strike and critically ill people can’t get proper hospital care.

Therefore, if courts are going to butt in on behalf of essential workers by inventing a legal right for them to strike, upsetting the natural balance of voluntary contract, courts must also consider butting in on behalf of essential-worker employers by allowing them meaningful options to maintain public safety during an essential-worker strike (e.g., to hire temporary replacements without penalty and to insist on the physical protection of replacements who cross pickets).

My preference, though, remains for courts to butt out, and to treat and enforce contracts between workers and employers just like any other contracts between individuals. Is that even possible? Isn’t labour law far too complex and far-reaching now to make such a suggestion feasible? It is. However, we’ve got to start somewhere.

Even if we can’t dismantle overnight the undue collective legal privileges unions have been gifted—to the detriment of individual workers’ and employers’ autonomy—we can at least pay attention to the damage these special privileges can do. That damage will be most apparent when public workers who provide essential services take advantage of their newly found right to strike. Organized labour may soon discover that its standing in the public’s estimation will take a pretty tumble even as unions’ bargaining power rises.

Bob Barnetson says workers must have that right.

Most of us are workers. We trade our time, effort and skill for money in order to feed our families. Sometimes, our interests conflict with those of our employer—usually around wages and working conditions. Employers typically want to minimize labour costs. We often want fairer and safer workplaces, as well as wages that keep pace with inflation.

Historically, workers have found that threatening to put down their tools is often the only way to make an employer take their concerns seriously. Threats to strike are effective because, in the short-term, a work stoppage can be profoundly disruptive and costly.

For this same reason, the threat of a worker strike (or an employer lockout) often motivates both sides to compromise. This creates a seeming paradox: the threat of conflict actually helps prevent the conflict from happening. As a result of this dynamic, Alberta has seen only three to four strikes per year over the last 10 years.

Public-sector workers are no different from any other workers. Their employers—ultimately the provincial government—want to minimize labour costs. And most workers have joined unions in order to get a fair deal. Until recently, however, most public-sector workers couldn’t strike (at least, not legally) because the government used its legislative power to prohibit strikes.

Historically, public-sector strike bans were justified because public-sector workers provided essential services. While certainly some public-sector jobs are essential, this is not always or even usually the case. The world will not end if, for example, provincial parks or university employees are off the job. And, indeed, many private-sector workers (e.g., those employed in power generation and transmission) perform much more essential work than most public-sector workers.

The real reason for overly broad strike bans in the public sector is that governments are both legislators and employers. Many politicians—typically conservative politicians—have been unable to resist the temptation to use their legislative power to make life easier for themselves as an employer by curtailing workers’ strike power.

We only need to think back to the 2002 Alberta teachers’ strike for a good example. Teachers have long (and somewhat unusually) had the right to strike. At the height of the 2002 strike, some 21,000 teachers were off the job. Then-Minister of Learning Lyle Oberg had cabinet proclaim a public emergency and ordered teachers—some who had been on strike for only three days—back to work. The courts eventually overturned this edict, noting the PC government had no evidence of any kind of emergency… except perhaps of the political kind.

Strike bans have also been ineffective. When backed into a corner—often over the privatization of public services or unsafe working environments—Alberta’s public-sector workers have shown themselves willing to walk off the job. We saw this in 1995, when Ralph Klein tried to privatize laundry services in Calgary hospitals, and again in 2013, when Thomas Lukaszuk wouldn’t address jail-guard safety concerns at Edmonton’s new remand centre.

In 2015 the Supreme Court of Canada finally put a stop to governments enacting overly broad strike bans in the public sector and required governments to grant public-sector workers a meaningful right to strike.

The right to join unions and strike if necessary is a fundamental right of all Canadians.

That right is, of course, not absolute. Some public-sector workers do provide essential services. In 2016 Alberta defined an essential service as “public services that, if interrupted, would endanger the life, personal safety or health of the public; or that are necessary to the maintenance and administration of the rule of law and public security.”

Practically, this means that police officers and firefighters cannot strike. This ban makes sense. Even a partial strike by police officers and firefighters poses a significant risk to public safety.

On the other hand, government workers and workers in hospitals and long-term care facilities can now strike. But before they do, their union and employer have to agree on which workers will continue to work during the strike or lockout in order to ensure public health, safety and security. This arrangement is codified in an essential services agreement that protects the health and safety of the public while still providing most public-sector workers with the right to strike.

The most common objection to public-sector strikes is that workers will be able to drive harder bargains with their employer—to the disadvantage of the taxpayer. It bears noting that this dynamic works both ways: public-sector employers can also drive harder bargains with their workers by threatening to lock them out.

While no one wants to see their taxes rise, it is also worth noting that public-sector workers are taxpayers too. It is unreasonable to expect this group of taxpayers to subsidize the cost of everyone’s public services by accepting substandard salaries or unsafe working conditions.

Ultimately this debate comes down to fairness. The Supreme Court has recognized that the right to associate—which includes the right to join unions and strike if necessary—is a fundamental right of all Canadians. Withdrawing our labour is the only real power that we workers have on the job. As such, the right to strike should be protected, in the same way as our other fundamental rights such as freedom of expression, thought and belief.

There is no good reason to categorically deny public-sector workers the right to strike.

Soupcoff responds to Barnetson:

It’s true that most of us are workers. But most of us are workers who do not belong to unions. More than 70 per cent of working Canadians are non-union—including me. Over my career, I’ve held several jobs in various sectors and none of my workplaces has been unionized. Does that mean I’ve been suffering a violation of my constitutional right to freedom of association for my entire working life?

Obviously, the answer is no. I’ve been quite free to associate with who I like, and to negotiate salary and work conditions with my employers as I’ve seen fit. The fact that I’ve never been in a position to walk off the job with my co-workers and know my employer can’t fire me, has never struck me as a violation of my liberty.

But according to our Supreme Court the right to strike is, as Mr. Barnetson points out, a fundamental right of all Canadians. Which is odd when you consider that hardly more than a quarter of Canadians are in a position to actually exercise it.

A fundamental right that is protected only for members of a particular group? How is that fair?

Mr. Barnetson and I are in agreement about the dangers of policemen and firemen striking, in the traditional sense. However, we appear to disagree about whether they have a legal right to do so.

Historically, it’s been possible for legislatures to make reasonable exceptions to truly essential public workers’ ability to strike, by carefully drafting statutes, as Alberta appears to have done. But with a constitutionalized right at stake, legislators don’t have this luxury. The whole point of constitutionalized fundamental rights is that they are categorical. And, indeed, it is far from clear that the moderate Alberta statute Mr. Barnetson references passes constitutional muster in light of the Saskatchewan Federation of Labour decision.

“Withdrawing our labour is the only real power that we workers have on the job,” Mr. Barnetson argues, as have many union supporters before him. But, as I mentioned earlier, all workers are free to withdraw their labour even absent a right to strike (with the possible exception of those subject to authoritarian back-to-work legislation that threatens criminal sanctions, which should be abolished). It’s just that in non-union situations employers are free to replace them.

The best reason for denying all workers the “right to strike” is to preserve for them, and all Canadians, a more fundamental liberty: the freedom to choose for oneself when and with whom to enter a mutually beneficial agreement.

Barnetson responds to Soupcoff:

Ms. Soupcoff incorrectly asserts that the courts “invented” the legal right to strike. Workers have had a legal (if tightly controlled) right to strike for more than 100 years. What the Supreme Court’s 2015 Saskatchewan Federation of Labour decision said was that governments cannot unilaterally abridge the right to public-sector workers to strike—in this case, to advantage the government itself in negotiations.

This will not mean, as Ms. Soupcoff catastrophizes, that “critically ill people can’t get proper hospital care.” Section 1 of the Charter allows governments to impose reasonable limits on Charter rights and freedoms to achieve pressing and substantial public policy aims. Alberta’s 2016 essential services legislation, for example, limits essential-service workers’ right to strike by requiring unions and employers to ensure enough staff are available to protect the health, safety and security of the public before a strike or lockout can occur.

Ms. Soupcoff’s assertion that “if they’re willing to risk getting fired, employees are free to stop work any time” ignores the fundamental imbalance of power in the workplace. Workers are easy to replace. Most workers need their jobs to feed their families. Consequently, few will risk termination. What Ms. Soupcoff is really advocating is further bolstering the power of employers.

Unintentionally Ms. Soupcoff is also creating the potential for social chaos, because if workers are placed under great duress, they will sometimes suddenly and ferociously resist. For example, in 2013 the province would not address worker safety concerns about the new Edmonton Remand Centre. Instead, it started disciplining workers for complaining. With no other option, jail guards walked off the job in a wildcat strike. Then the strike began to spread throughout the corrections system.

After a few days, it was pretty clear the government was losing control of the situation. So they used the courts to pressure the workers to go back to work. This pressure, contrary to Ms. Soupcoff’s assertion, included fines and threats of imprisonment. Absent this pressure, we might have seen the complete collapse of public order.

In this way, telling workers “you can strike if you want to risk your job” gives rise to the very kind of negative consequences for uninvolved parties about which Ms. Soupcoff claims to be concerned. Alberta’s current law around work stoppages fairly balances the association rights of workers (including those who provide essential services) and the broader needs of society.

Marni Soupcoff is a journalist and deputy comment editor of the National Post. Bob Barnetson is a professor of labour relations at Athabasca University.

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