tag:theconversation.com,2011:/us/topics/labour-disputes-63095/articlesLabour disputes – The Conversation2023-09-13T20:35:43Ztag:theconversation.com,2011:article/2131112023-09-13T20:35:43Z2023-09-13T20:35:43ZStriking a balance: How the law regulates picket lines<iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/striking-a-balance-how-the-law-regulates-picket-lines" width="100%" height="400"></iframe>
<p>Picket lines are often the most visible feature of a labour dispute. And with the <a href="https://globalnews.ca/news/9867957/summer-strikes-canada/">recent uptick in strike action across the country</a> — from port workers in British Columbia to grocery chain employees in Toronto — Canadians have been more likely than usual to encounter one.</p>
<p>Picket lines are meant to disrupt business as usual, rally support and communicate a message — all in an effort to increase pressure on employers to reach a negotiated settlement.</p>
<p>While picketing is a legal expressive activity, how the right to picket squares with property rights and civil rights is not straightforward. </p>
<p>The common view is that while picketers may carry signs, they may not — or at least, should not — prevent others from crossing picket lines. The reality is more complicated. </p>
<h2>Legal context</h2>
<p>Picketing is almost exclusively regulated by courts. Historically, courts did <a href="https://cbr.cba.org/index.php/cbr/article/view/2368/2368">not look kindly upon picketing</a> and police forces were only too eager to enforce injunctions (court orders) or engage in other efforts to dismantle picket lines.</p>
<p>Today, courts are less keen to use the blunt instrument of an injunction to limit picketing. Intervening too quickly in a labour dispute is now seen as unfairly helping one side, namely employers. This shift in approach was heavily influenced by the connection the Supreme Court of Canada has drawn between picketing and freedom of expression. </p>
<p>According to the Supreme Court, picketing “<a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1945/index.do">always involves expressive action</a>,” which is protected under the guarantee of freedom of expression in the Charter of Rights and Freedoms. As such, the court ruled that picketing may only be limited to prevent “wrongful acts.”</p>
<p>Courts will consider criminal acts like violence and damage to property as reasons to limit picketing. But wrongful actions also include things like trespassing and nuisance (interfering with others’ lawful right to enter and exit). </p>
<p>Since the main function of a picket line is to discourage others from crossing, delaying others in order to provide the union an opportunity to convey its message is key. </p>
<p>So, how do courts find the right balance between the expressive rights of picketers and the property and civil rights of others — all while ensuring the general safety of everyone involved? Some inconvenience to employers and the public is an essential part of the equation.</p>
<figure class="align-center ">
<img alt="A man in jeans, a T-shirt and a ball cap hands a flyer to a passerby." src="https://images.theconversation.com/files/545339/original/file-20230829-28-ewe8xx.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/545339/original/file-20230829-28-ewe8xx.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/545339/original/file-20230829-28-ewe8xx.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/545339/original/file-20230829-28-ewe8xx.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/545339/original/file-20230829-28-ewe8xx.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/545339/original/file-20230829-28-ewe8xx.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/545339/original/file-20230829-28-ewe8xx.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A striking TVO employee hands out flyers on the picket line outside of TVO offices in August 2023.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Spencer Colby</span></span>
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<h2>Striking a balance</h2>
<p>Because the outcomes of judicial interventions are uncertain, employers and unions can benefit from negotiating non-binding picketing protocols in advance of any dispute.</p>
<p>Where they exist, protocols govern how picket lines will operate. For example, an employer may allow picketers to come onto private property to avoid creating dangerous traffic or public safety conditions. Or the parties may agree that people attempting to cross a picket line will be delayed a given amount of time, thereby allowing the union to communicate its message.</p>
<p>In fact, a refusal to even discuss a protocol in advance <a href="https://www.canlii.org/en/on/onsc/doc/2004/2004canlii2565/2004canlii2565.html?resultIndex=1">may work against the refusing party</a> if a request for an injunction is later filed.</p>
<p>While the role of local police in labour disputes varies, it is now common for them to formally take a neutral stance and play no more than a mediating role with regard to public safety. While police are expected to keep the peace, they <a href="https://www.yrp.ca/en/about/resources/Labour_Disputes_Pamphlet.pdf">are not normally authorized to intervene on behalf of either party</a> engaged in the dispute. </p>
<p>When injunctions are issued, police do intervene to uphold court orders. But workers are generally still permitted to delay traffic, often with the proviso that <a href="https://www.cbc.ca/news/canada/saskatchewan/coop-workers-injunction-10-minutes-1.5410026">anyone who doesn’t want to hear the union’s message may proceed at will</a>.</p>
<p>Additionally, in issuing an injunction a judge may set further rules, for example, on the number of picketers or where they are permitted to picket.</p>
<p>The same balancing principles apply to <a href="https://www.cp24.com/news/metro-seeks-injunction-against-striking-workers-preventing-deliveries-to-stores-1.6535373">secondary picketing</a> (picketing against a third party to increase pressure on the struck employer). </p>
<p>For example, an <a href="https://77b90736.flowpaper.com/MetroOntarioIncvUniforanditsLocal414EndorsementdatedAugpdf/#page=1">injunction recently granted against Unifor,</a> the union representing striking Metro grocery workers in the Toronto area, restricted picketing workers from blockading the company’s distribution centres. </p>
<p>Yet the order still permitted picketers some <a href="https://77b90736.flowpaper.com/InterimOrderofJusticeChalmers/#page=1">leeway to continue stopping vehicles</a> for a prescribed amount of time. <a href="https://www.cbc.ca/news/canada/toronto/toronto-metro-workers-1.6953627">The workers recently ratified a new collective agreement after their month-long strike</a>.</p>
<h2>Emotions can run high</h2>
<p>Strikes may be inconvenient for the public. For striking workers, they can be highly emotional affairs. If a strike drags on or becomes particularly heated, negotiated protocols and even injunctions <a href="https://www.huffingtonpost.ca/entry/regina-coop-refinery-lockout-unifor_ca_5e42f45bc5b6f1f57f1989fd">may be ignored out of frustration, anger or a sense of urgency</a>. </p>
<p>Besides the legal questions at play, union members also stress moral arguments for respecting picket lines. A refusal to do so can <a href="https://macleans.ca/opinion/whats-the-point-of-a-picket-line-to-stop-scabs/">feel like a betrayal</a>, especially when those crossing the line are from within union ranks.</p>
<p>That’s because crossing a picket line almost inevitably weakens the union’s bargaining position, and, ironically, may help to prolong the dispute by alleviating pressure on the employer to come to a negotiated settlement. </p>
<p>“Naming and shaming” replacement workers — known as scabs — also <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13334/index.do">enjoys some constitutional protection</a>. </p>
<p>In short, the politics of picket lines can be complex, especially for members of the public encountering them for the first time. </p>
<p>No one wants a strike or lockout; they are stressful and full of uncertainty. While labour stoppages are typically used as a last resort to overcome a bargaining impasse, they can become lightning rods for unions, employers and members of the public. </p>
<p>Recognizing, however, that competing rights are at play is key to understanding how the law aims to uphold civil and property rights without jeopardizing workers’ freedom of expression.</p><img src="https://counter.theconversation.com/content/213111/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alison Braley-Rattai receives funding from the Social Sciences and Humanities Research Council.</span></em></p><p class="fine-print"><em><span>Larry Savage receives funding from the Social Sciences and Humanities Research Council.</span></em></p>When it comes to picket lines, courts aim to uphold civil and property rights without jeopardizing workers’ freedom of expression.Alison Braley-Rattai, Associate Professor, Labour studies, Brock UniversityLarry Savage, Professor, Labour Studies, Brock UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2124182023-08-29T20:59:04Z2023-08-29T20:59:04ZTVO strike highlights the scourge of contract work in public service journalism<iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/tvo-strike-highlights-the-scourge-of-contract-work-in-public-service-journalism" width="100%" height="400"></iframe>
<p><a href="https://www.thestar.com/politics/provincial/tvo-producers-content-creators-hit-the-picket-lines-in-first-strike-at-public-broadcaster/article_fd4fd063-21d4-57db-87d8-b6d95dab4b7c.html">Workers at TVO are on strike for the first time in the public broadcaster’s 53-year history</a>. </p>
<p>Amid the din of traffic outside TVO’s offices in Toronto, unionized journalists, producers and education workers hold picket signs declaring: “Fund TVO Like it Matters.” </p>
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<p>TVO’s contract with the union, a branch of the Canadian Media Guild, expired in October. After months of negotiations, workers are striking to improve wages and to address precarious employment. </p>
<p>The union says that workers <a href="https://www.newswire.ca/news-releases/cmg-members-at-tvo-in-legal-strike-position-on-friday-august-18-802546892.html">have received below-inflation wage increases since 2012</a>, including zero increases between 2012-2014. </p>
<p>I spoke to a producer who has worked at TVO’s flagship current affairs show, <em>The Agenda</em>, for 22 years and earns $74,000. </p>
<h2>Wages shrinking</h2>
<p><a href="https://twitter.com/DanielKitts/status/1695548363922366865">In a video posted to social media</a>, digital journalist Daniel Kitts, who has worked at TVO for 25 years, says: “For the past 10 years we have tried to… support this organization by seeing our wages shrink basically every year thanks to inflation. And after 10 years, we just can’t do it again.” </p>
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<p>Another crucial issue in the dispute is <a href="https://www.hrreporter.com/focus-areas/labour-relations/tvo-workers-go-on-strike-as-contract-issues-continue/378985">temporary and precarious employment</a>, when workers are kept on perpetual contracts with no hope of their position becoming permanent. </p>
<p>TVO workers say these contracts prevent them from doing the kind of rigorous, civic journalism and current affairs programming that serves communities in Ontario. </p>
<p>In a news ecosystem where traditional advertising revenue is down, outlets chase clicks at the whims of platforms like Meta and X and disinformation circulates widely, the need for quality, fact-based public affairs programming is particularly urgent.</p>
<h2>The risks of precarious work</h2>
<p>In their <a href="https://pepso.ca/documents/precarity-penalty.pdf">2015 study</a> of precarious employment in southern Ontario, researchers found it has collective, cumulative effects on communities in what they call a precarity penalty. </p>
<p>People in precarious employment earn low incomes, face intermittent and insecure work, lack access to benefits and training and endure stress, social isolation and poor mental health. </p>
<p>Such pressures on individual lives shapes people’s participation in community life, and precarity becomes a burden borne by society at large. </p>
<p>Striking TVO workers are drawing attention to journalism’s precarity penalty: the consequences for robust journalism when the work of producing journalism is made precarious.</p>
<figure class="align-center ">
<img alt="A man in jeans, a T-shirt and a ball cap hands a flyer to a passerby." src="https://images.theconversation.com/files/545339/original/file-20230829-28-ewe8xx.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/545339/original/file-20230829-28-ewe8xx.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/545339/original/file-20230829-28-ewe8xx.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/545339/original/file-20230829-28-ewe8xx.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/545339/original/file-20230829-28-ewe8xx.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/545339/original/file-20230829-28-ewe8xx.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/545339/original/file-20230829-28-ewe8xx.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A striking TVO employee hands out flyers on the picket line outside of TVO offices.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Spencer Colby</span></span>
</figcaption>
</figure>
<p>At issue at TVO is funding. <a href="https://tvo.me/wp-content/uploads/2023/02/2021-22-TVO-ANNUAL-REPORT-ENG.pdf">TVO is funded</a> via a provincial Crown Corporation and reports to the Ministry of Education. It receives a base operating grant of $38.3 million annually, but funding hasn’t increased as costs and inflation have risen.</p>
<p>Rank-and-file workers are feeling the squeeze as <a href="https://www.newswire.ca/news-releases/tvo-management-gets-double-digit-pay-increases-while-asking-unionized-employees-to-take-another-pay-cut-890131220.html">senior managers receive above-inflation raises</a>. <em>The Agenda</em> host Steve Paikin told CBC Ottawa that when he joined TVO 30 years ago, there were 650 people working at TVO. Now there are about 250. “I’m really nervous about the place being squeezed any further,” he said.</p>
<h2>TVO’s contract workers</h2>
<p><a href="https://tvo.me/wp-content/uploads/2022/03/Multi-Year-Plan-2021-2024-AODA-English.pdf">The government wants to see TVO increase “self-generated revenue,</a>” including donations and sponsorships. But precarious employment is baked into this model, TVO union branch president Meredith Martin told me. </p>
<p>As money comes in for specific projects, workers are hired on contract. When the project ends, so do the contracts. No one is made permanent in such an unstable funding environment. </p>
<p>TVO wants the union to give up language that enables workers on contract for two years to become full-time employees, eligible for benefits and other protections. Martin has seen first-hand the problems the contract model brings to the workplace: high staff turnover, low morale and an inability for workers to invest in quality work. </p>
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<img alt="A TVO sign." src="https://images.theconversation.com/files/545337/original/file-20230829-23-n8tqly.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/545337/original/file-20230829-23-n8tqly.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/545337/original/file-20230829-23-n8tqly.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/545337/original/file-20230829-23-n8tqly.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/545337/original/file-20230829-23-n8tqly.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/545337/original/file-20230829-23-n8tqly.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/545337/original/file-20230829-23-n8tqly.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">TVO signage is seen at Canada Square in Toronto. Almost 96 per cent of CMG’s members at TVO rejected an offer from the employer.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Spencer Colby</span></span>
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</figure>
<p>In journalism, precarity is manifold. Insecure work prevents people from establishing themselves in an organization and accessing career supports. Precariously employed journalists can’t contribute meaningfully to teams, speak out against sexism and racism at work or enjoy professional autonomy. </p>
<p>Employment insecurity is linked to industrial precariousness, where technological and economic changes spur management to shrink journalists’ wages and job security. As profits decline and labour forces contract, fewer journalists are in secure positions and increasing numbers of workers are on contract or freelance.</p>
<h2>The impact on diverse communities</h2>
<p><a href="https://caj.ca/programs/diversity-survey/">Two successive annual surveys</a> by the Canadian Association of Journalists show that women, racialized, Indigenous, queer and trans journalists are concentrated in the most precarious positions, making it difficult to meaningfully diversify journalism in Canada. </p>
<p>Journalists, researchers and advocates have long been calling for increased racial and gender diversity in journalism, demanding that newsrooms represent the communities they report on. Precarity is an impediment to such diversity. </p>
<p>Public, non-profit outlets like TVO can and should become model employers, committed to producing journalism in the public interest and providing workers, particularly those from diverse communities, with the sustainable jobs necessary to do so. (The CBC is also <a href="https://thetyee.ca/News/2023/05/09/CBC-Temp-Workers/">under fire</a> for maintaining a permanent underclass of temporary workers). </p>
<p>TVO workers are part of a broader movement to protect journalism via unionization. Since 2015, <a href="https://culturalworkersorganize.org/digital-media-organizing-timeline/">more than 150 newsrooms</a> in Canada and the United States have organized unions.</p>
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<p>In my review of their contracts, I find many examples of language that converts contract workers into full-time permanent workers after a set period, usually 12 months. This type of language is becoming the industry standard, negotiated by worker-led bargaining committees to gain some stability in an unstable industry. </p>
<p>Although work in journalism has never been a safe bet, it’s now rife with deepening uncertainty. In this context, TVO workers’ strike for material security to do work in the public interest matters more than ever.</p><img src="https://counter.theconversation.com/content/212418/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicole Cohen has received funding from the Social Sciences and Humanities Research Council of Canada. </span></em></p>Although work in journalism has never been a safe bet, it’s now rife with deepening uncertainty. The TVO strike aimed at job security is a matter of public interest.Nicole Cohen, Associate Professor, Communication, University of TorontoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2107792023-08-02T19:55:27Z2023-08-02T19:55:27ZB.C. labour dispute: It’s time for an industrial inquiry commission into ports and automation<figure><img src="https://images.theconversation.com/files/540889/original/file-20230802-19-98ffbc.JPG?ixlib=rb-1.1.0&rect=0%2C379%2C6120%2C3940&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Striking International Longshore and Warehouse Union Canada workers march to a rally as gantry cranes used to load and unload cargo containers from ships sit idle at port, in Vancouver, on July 6, 2023.</span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Darryl Dyck</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/bc-labour-dispute-its-time-for-an-industrial-inquiry-commission-into-ports-and-automation" width="100%" height="400"></iframe>
<p>A <a href="https://www.bcmeanegotiations.com/joint-ilwu-canada-and-bcmea-news-release/">new tentative agreement was reached</a> on July 30 between the two groups involved in a labour dispute affecting British Columbia ports with the help of the Industrial Relations Board.</p>
<p>At the beginning of July, about 7,400 port workers went on strike for 13 days <a href="https://www.cbc.ca/news/canada/british-columbia/bc-port-workers-resume-strike-1.6910572">over issues including automation</a>, outside contracting and the increasing cost of living.</p>
<p>This new deal — between the International Longshore and Warehouse Union Canada (ILWU) and the B.C. Maritime Employers Association — comes <a href="https://globalnews.ca/news/9866982/bc-port-strike-tentative-deal-oregan/">after union members rejected a previous deal on July 28</a>.</p>
<p>By initially rejecting the first contract, ILWU members implied that a generous wage and benefit package — which employers had agreed to pay — was not enough to address their concerns about potential job losses and workplace changes.</p>
<p>This isn’t a one-sided problem; under <a href="https://www.canada.ca/en/atlantic-canada-opportunities/services/researchstudies2.html">current workplace arrangements and labour market pressures</a>, port operators are unlikely to attract and retain workers with the skills required to implement the coming automation.</p>
<p>With the prospect that the <a href="https://thetyee.ca/News/2023/02/16/Union-Fears-Robots-Will-Kill-Jobs-Port-Expansion/">new container terminal at Roberts Bank port</a>, south of Vancouver, will be the first fully automated terminal in B.C., this issue is more important than ever.</p>
<h2>Canada Labour Code</h2>
<p>After the initial deal between the union and the employer’s association was rejected, Labour Minister Seamus O'Regan <a href="https://www.canada.ca/en/employment-social-development/news/2023/07/statement-by-minister-oregan0.html">asked the Canada Industrial Relations Board</a> whether a negotiated resolution was still possible, and to impose a new collective agreement or binding arbitration if it was not. </p>
<p>Despite <a href="https://globalnews.ca/news/9811240/alberta-minister-back-to-work-legislation-bc-port-strike/">many people demanding back-to-work legislation</a>, O'Regan followed the <a href="https://laws-lois.justice.gc.ca/eng/acts/l-2/">Canada Labour Code</a>, which encourages free collective bargaining and advocates for the constructive settlement of disputes.</p>
<p>In support of the idea that negotiated settlements are best, the code provides the minister with tools to prod, push or force parties in an industrial dispute to find a deal they can both live with.</p>
<figure class="align-center ">
<img alt="A Black man in a blazer and newsboy cap speaks to a crowd of people waving flags and holding signs that say ILWU CANADA" src="https://images.theconversation.com/files/540525/original/file-20230801-15-z5grx.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/540525/original/file-20230801-15-z5grx.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/540525/original/file-20230801-15-z5grx.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/540525/original/file-20230801-15-z5grx.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/540525/original/file-20230801-15-z5grx.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/540525/original/file-20230801-15-z5grx.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/540525/original/file-20230801-15-z5grx.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Willie Adams, International President of the International Longshore and Warehouse Union, speaks at a strike rally in Vancouver, on July 9, 2023.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Ethan Cairns</span></span>
</figcaption>
</figure>
<p>Drawing on my <a href="http://www.sfu.ca/%7Epvhall/#seaports_logistics_and_port_cities">research on B.C. ports</a>, I’d encourage the minister to make use of one more tool provided in the code: appoint an industrial inquiry commission on port skills and automation.</p>
<h2>Dockworkers and new technologies</h2>
<p>To understand the current dispute, we need to overturn <a href="https://press.princeton.edu/books/paperback/9780691170817/the-box">the myth that west coast unionized dockworkers</a> have refused to accept new cargo handling technologies.</p>
<p>Since the 1960s, ports on the west coast of North America have benefited enormously from mechanization and modernization agreements, <a href="https://www.bcmeanegotiations.com/wp-content/uploads/2022/11/Collective-Agreement-April-1-2018-to-March-31-2023.pdf">now enshrined in various collective agreements</a>. </p>
<p>In exchange for giving employers the freedom to implement technological changes — which often displace labour — employees secured a share of the resulting productivity gains in some form of compensation.</p>
<p>In the United States, this takes the form of a <a href="https://digicoll.lib.berkeley.edu/record/72012">minimum earnings guarantee</a>; in B.C. ports, full members <a href="https://summit.sfu.ca/_flysystem/fedora/sfu_migrate/3516/b14062914.pdf">receive a generous payout at retirement</a>.</p>
<p>But one result of a “jobs-for-income” agreement, in an industry where labour demand fluctuates, is a large pool of casual workers. As a result, <a href="https://www.bcmea.com/wp-content/uploads/2019/07/BCMEA_AR2018-Digital-v4FA.pdf">not everyone working in B.C. ports is a full union member</a>: roughly two-fifths are members, one-fifth are casuals with benefits and two-fifths are casuals without benefits.</p>
<p>The prospect of being a casual employee for several years is not particularly attractive, least of all to a tradesperson or computer programmer with employment options elsewhere. </p>
<h2>Commissions have helped before</h2>
<figure class="align-right ">
<img alt="Cargo cranes seen at a port" src="https://images.theconversation.com/files/540529/original/file-20230801-28-txabzn.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/540529/original/file-20230801-28-txabzn.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=795&fit=crop&dpr=1 600w, https://images.theconversation.com/files/540529/original/file-20230801-28-txabzn.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=795&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/540529/original/file-20230801-28-txabzn.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=795&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/540529/original/file-20230801-28-txabzn.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=999&fit=crop&dpr=1 754w, https://images.theconversation.com/files/540529/original/file-20230801-28-txabzn.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=999&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/540529/original/file-20230801-28-txabzn.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=999&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Gantry cranes used to load and unload cargo ships sit idle at port in Vancouver, B.C., on July 4, 2023.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Darryl Dyck</span></span>
</figcaption>
</figure>
<p>Industrial commissions have helped management and union find a path out of an impasse before — even if not everyone likes what they recommend. </p>
<p>One of the original clauses in the 1963 Mechanization and Modernization Agreement stated that Vancouver-bound containers had to be filled and emptied by ILWU members. </p>
<p>Against the wishes of many union members, the container clause was eliminated on the recommendation of the <a href="https://www.worldcat.org/title/978222691">1987 Weiler Commission</a> and <a href="https://ilwu500.org/wp-content/uploads/2013/11/Gainshare.pdf">replaced by a pension funding arrangement</a> to ensure ILWU members shared the resulting gains.</p>
<p>The <a href="https://www.worldcat.org/title/in-the-matter-of-the-canada-labour-code-part-i-industrial-relations-report-of-the-industrial-inquiry-commission-into-industrial-relations-at-west-coast-ports/oclc/461336129?page=citation">1995 Jamieson and Greyell Commission</a> strongly rejected the notion that port workers be denied the right to strike — as requested by some agricultural and business interests — but it did recommend the 72-hour strike/lockout notification period now included in the Canada Labour Code.</p>
<h2>Industrial inquiry commission</h2>
<p>A commission on port automation can share information, promote understanding and make recommendations. It would examine trends in <a href="https://www.itf-oecd.org/container-port-automation-impacts-and-implications">container terminal automation</a>, as well as technology trends in non-containerized and commodity-exporting terminals.</p>
<p>It can determine the nature and extent of the skills shortage in B.C. ports and look into the adequacy of existing recruitment, retention and training systems. And it can learn from the experiences of port workers, especially casual workers and skilled tradespersons.</p>
<p>We need a new agreement between employers and employees in the B.C. ports that will allow both sides to continue to enjoy the benefits of new workplace technologies. </p>
<p>Employers will only benefit from automation if they can train, recruit for and retain the new skills that will be required. Employees will only support automation if they see a future for themselves, their families and communities in the industry. </p>
<p>An industrial inquiry commission might help tackle this challenge.</p><img src="https://counter.theconversation.com/content/210779/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter Hall receives funding from the Social Sciences and Humanities Research Council of Canada, including funding to support research partnerships that involve the port union (<a href="http://www.sfu.ca/waterfront.html">http://www.sfu.ca/waterfront.html</a>) and shipping industry (<a href="https://greenshippingproject.com/">https://greenshippingproject.com/</a>).</span></em></p>We need a new agreement between employers and employees in the B.C. ports that will allow both sides to enjoy the benefits of new workplace technologies.Peter Hall, Professor of Urban Studies, Simon Fraser UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2040082023-04-27T21:04:53Z2023-04-27T21:04:53ZPost-pandemic work in the public sector: A new way forward or a return to the past?<figure><img src="https://images.theconversation.com/files/522885/original/file-20230425-26-va0dte.JPG?ixlib=rb-1.1.0&rect=0%2C0%2C5676%2C3855&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Members of the Public Service Alliance of Canada picket outside a Service Canada office in Canmore, Alta., in April 2023. More than 150,000 federal public-service workers are on strike across the country after talks with the government failed. Remote work is a negotiation issue. </span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Jeff McIntosh</span></span></figcaption></figure><p>Three years after COVID-19 was declared a pandemic in March 2020, many <a href="https://www.ctvnews.ca/business/employers-face-resistance-as-they-seek-to-increase-office-days-1.6270940">public health restrictions have been lifted and organizations are requiring workers to return to the office</a>. </p>
<p>The desired return to pre-pandemic societal norms versus the pushback from employees who want to continue to enjoy the benefits of working from home has sparked debate about what the future job market will look like.</p>
<p><a href="https://www.bnnbloomberg.ca/canadian-employers-face-resistance-as-they-seek-to-increase-office-days-1.1881692">Hybrid and remote arrangements became commonplace during the COVID-19 pandemic</a> and became vital tools for the continued functioning of society, the economy and all levels of government. </p>
<p>These arrangements enabled thousands of employees to keep their jobs, companies to remain operational and the public sector to continue providing essential goods and services to citizens. </p>
<figure class="align-center ">
<img alt="Two children sit at laptops while their mother sits at a desk looking at her own laptop." src="https://images.theconversation.com/files/522890/original/file-20230425-28-sjoko6.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/522890/original/file-20230425-28-sjoko6.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=415&fit=crop&dpr=1 600w, https://images.theconversation.com/files/522890/original/file-20230425-28-sjoko6.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=415&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/522890/original/file-20230425-28-sjoko6.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=415&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/522890/original/file-20230425-28-sjoko6.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=522&fit=crop&dpr=1 754w, https://images.theconversation.com/files/522890/original/file-20230425-28-sjoko6.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=522&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/522890/original/file-20230425-28-sjoko6.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=522&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Schoolchildren participate in online lessons while their mother works from home in January 2022 in Mississauga, Ont.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Nathan Denette</span></span>
</figcaption>
</figure>
<h2>Dramatic changes to how we work</h2>
<p>Consequently, the pandemic caused sudden and profound changes to traditional work models. </p>
<p>While some thought these changes would be permanent, a partial and gradual return to the conventional workplace has begun. </p>
<p>Does this simply involve adapting the full-time, pandemic-fuelled remote work model to current times, or does it signal a complete return to the pre-pandemic way of working? </p>
<p><a href="https://doi.org/10.1111/capa.12520">We’re exploring the behaviour and decision-making process of the government of Canada</a> in terms of remote and hybrid work environments before, during and after the pandemic.</p>
<p>Our analysis results from a thorough review of several official government documents, including new information released through access-to-information requests and additional informal observations and insights from the field.</p>
<h2>The evolution of remote work</h2>
<p>A year prior to the outbreak of COVID-19, the federal government started experimenting by offering <a href="https://www.canada.ca/en/public-services-procurement/news/2019/06/gccoworking-new-flexible-alternative-workplaces-for-government-of-canada-employees.html">“new and flexible (shared) workplace solutions” for employees in 14 departments who could work remotely</a>.</p>
<p>But prior to 2020, the number of Canadian employees who worked at home full-time was statistically low: Statistics Canada’s General Social Survey 2016 reported that <a href="https://www150.statcan.gc.ca/n1/pub/36-28-0001/2021010/article/00001-eng.htm">less than four per cent of employees were working from home most of the time</a>. </p>
<p>This suggests that even though remote work was already recognized as a viable employment option by some organizations before the pandemic, it wasn’t used efficiently as a widespread work arrangement until COVID-19.</p>
<p>As a result of the pandemic, the government of Canada has provided guidance to departments and agencies to outline how the public sector can best provide remote and hybrid work arrangements to their employees in an effort to normalize this new way of working.</p>
<h2>No direct contact with citizens</h2>
<p>The pandemic has dramatically changed the way public sector employees work, especially in the federal government, where a wide variety of jobs don’t require direct interactions with the public.</p>
<p>As Evert Lindquist, a public administration scholar at the University of Victoria, <a href="https://doi.org/10.1111/capa.12493">has noted</a>, remote and hybrid work models were accelerated by the digitization of the government:</p>
<blockquote>
<p>“Many governments have instituted digital service agencies, established open data platforms, adopted social media channels, created innovation labs and proclaimed commitment to ‘open government.‘”</p>
</blockquote>
<p>In the public sector, <a href="https://www150.statcan.gc.ca/n1/pub/45-28-0001/2020001/article/00026-eng.htm">remote work became a way for governments to continue functioning remotely</a> during COVID-19. </p>
<p>Once the pandemic stabilized, the government of Canada began a gradual, partial return to the designated workplace, initially giving departments considerable latitude to experiment with different hybrid models and the opportunity to make their own choices with few limitations.</p>
<p>But this strategy — based on flexibility and managerial discretion — didn’t last very long. </p>
<p>New rules were imposed by the Treasury Board Secretariat on departments in December 2022, <a href="https://pipsc.ca/news-issues/return-to-workplace">including a requirement for public servants to work 40 to 60 per cent of their regular monthly schedule at the designated workplace</a>. These rules <a href="https://www.cbc.ca/news/canada/ottawa/federal-public-service-return-office-hybrid-shared-space-1.6717454">have been criticized</a> by many who believe they mark the beginning of a return to the pre-pandemic way of working. </p>
<figure class="align-center ">
<img alt="People sit at a long table in front of a row of Canadian flags while a man appears on screen. Empty chairs several feet apart sit in front of the long table." src="https://images.theconversation.com/files/522888/original/file-20230425-4953-gj2sgn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/522888/original/file-20230425-4953-gj2sgn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/522888/original/file-20230425-4953-gj2sgn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/522888/original/file-20230425-4953-gj2sgn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/522888/original/file-20230425-4953-gj2sgn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/522888/original/file-20230425-4953-gj2sgn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/522888/original/file-20230425-4953-gj2sgn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">President of the Treasury Board Jean-Yves Duclos, shown on video, joins other public officials, including Chief Public Health Officer Dr. Theresa Tam, in a COVID-19 briefing in January 2021.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Sean Kilpatrick</span></span>
</figcaption>
</figure>
<h2>Remote work as a negotiation issue</h2>
<p>All these changes happening in a short period of time have created uncertainty and even distrust on the part of federal government employees toward their employers — so much so that <a href="https://globalnews.ca/news/9639952/kelowna-remote-work-federal-strike/">remote work is now a central issue in the negotiations for the new collective agreement with the Public Service Alliance of Canada (PSAC)</a> representing 120,000 employees. </p>
<p>The ability to continue to work from home is a point of contention, particularly pertaining to employees <a href="https://ici.radio-canada.ca/nouvelle/1972409/greve-teletravail-fonctionnaires-federaux-afpc">who were hired during the pandemic since they don’t have a physical office and have only ever worked from home, especially those in rural areas.</a></p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1650509369526689805"}"></div></p>
<p>The federal government and federal employees are both navigating uncharted territories. </p>
<p>On the one hand, those who currently work remotely want to preserve as much flexibility as possible in their work patterns. </p>
<p>On the other hand, enshrining the right to work remotely in a collective agreement will significantly limit the employer’s ability to impose return-to-office mandates over the long term. It could also create inequality and competition among those whose jobs can easily be done remotely and those who provide direct services to the public. </p>
<h2>Multiple issues at play</h2>
<p>In addition, there’s uncertainty about the long-term impact on the quality of team work, the management and design of government buildings and the psychological impact of isolation on employees. There’s a lot more at stake in these negotiations than salary issues. </p>
<p>Although the rules have recently been tightened and are still a major focus of the current bargaining process, the government of Canada has shifted significantly when it comes to the role of remote and hybrid work before and after the COVID-19 pandemic. </p>
<p>The crisis has irrefutably transformed the workforce in all sectors, and a complete reversal to pre-pandemic work models isn’t likely. </p>
<p>Even though many political and administrative decisions on remote work loom on the horizon, we argue that workplaces will continue to evolve in the months and years ahead.</p><img src="https://counter.theconversation.com/content/204008/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Olivier Choinière is affiliated with the Centre on Governance (University of Ottawa). Olivier is a former Government of Canada executive (2018-2022). During this period, he held several responsibilities, including the Director of the Future of Work Office in a major department (2021-2022).</span></em></p><p class="fine-print"><em><span>Aracelly Denise Granja and Eric Champagne do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>COVID-19 transformed the workforce, including in the public sector. A complete reversal to pre-pandemic work models is unlikely, but there’s lots at stake as employers contemplate the future of work.Eric Champagne, Professeur agrégé, École d'études politique, Directeur, Centre d'études en gouvernance / Associate professor, School of Political Studies, Director, Centre on Governance, L’Université d’Ottawa/University of OttawaAracelly Denise Granja, Research Assistant, Centre on Governance, L’Université d’Ottawa/University of OttawaOlivier Choinière, Professor of Project Management, Université du Québec à Rimouski (UQAR)Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1993862023-02-09T22:44:03Z2023-02-09T22:44:03ZHealth-care worker strikes in the United Kingdom: Are there lessons for Canada’s health crisis?<figure><img src="https://images.theconversation.com/files/509279/original/file-20230209-22-e2n15h.jpg?ixlib=rb-1.1.0&rect=36%2C7%2C4787%2C3196&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Nurses of the University College Hospital protest in London on Feb. 6, 2023. The walkout is part of a wave of health worker strikes and demonstrations in recent months.</span> <span class="attribution"><span class="source">(AP Photo/Frank Augstein)</span></span></figcaption></figure><p>It is a “season of strikes” for health-care workers in the United Kingdom. Nurses and ambulance workers employed within the National Health Service (NHS) in England, Wales and Northern Ireland conducted <a href="https://www.reuters.com/world/uk/britain-faces-largest-ever-healthcare-strikes-pay-disputes-drag-2023-02-05/">the largest strike</a> in the organization’s history on Feb. 6, 2023, after initiating strikes in December 2022. </p>
<p>Nurses, ambulance workers and physiotherapists will continue their industrial action this week. Junior doctors <a href="https://www.reuters.com/world/uk/uk-junior-doctors-vote-strike-action-england-union-says-2023-01-20/">are set to follow</a> after voting in favour of strike action this month. </p>
<p>Media attention to these labour disputes by <a href="https://www.cbc.ca/player/play/2151515715974">Canadian</a> and <a href="https://time.com/6233694/nurses-strike-nhs-rcn-hospitals/">international</a> news outlets has been intriguing. Health workers strike with <a href="https://accountabilityresearch.org/publication/heroes-on-strike-trends-in-global-health-worker-protests-during-covid-19/">regularity</a> around the world, particularly in the COVID-19 era. Why, then, is there so much interest in these particular strikes? </p>
<h2>Holding up a mirror</h2>
<p>One reason is the context in which these strikes are occurring; the U.K. is facing <a href="https://www.cbc.ca/news/world/britain-strike-uk-labour-unrest-1.6733623">labour disputes across multiple sectors</a>, underscoring a broader and deeper crisis in government-labour relations in the country.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/509285/original/file-20230209-26-32jg0n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People holding signs reading 'Fair Pay for Nurses' and 'Staff shortages cost lives'" src="https://images.theconversation.com/files/509285/original/file-20230209-26-32jg0n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/509285/original/file-20230209-26-32jg0n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/509285/original/file-20230209-26-32jg0n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/509285/original/file-20230209-26-32jg0n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/509285/original/file-20230209-26-32jg0n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/509285/original/file-20230209-26-32jg0n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/509285/original/file-20230209-26-32jg0n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Demonstrators hold up placards in support of a strike by nurses outside St. Thomas’ Hospital in London on Dec. 20, 2022.</span>
<span class="attribution"><span class="source">(AP Photo/Alastair Grant)</span></span>
</figcaption>
</figure>
<p>The global attention may also be affected by their unprecedented nature: <a href="https://www.rcn.org.uk/Get-Involved/Campaign-with-us/Fair-Pay-for-Nursing/Strike-hub/Strike-locations#:%7E:text=For%20the%20first%20time%20in,act%2C%20our%20strike%20action%20continues.">U.K. nurses had never gone on strike</a> in their century-long history as organized labour. Scale also plays a role, as strikes extended to a large part of the country.</p>
<p>But another reason motivating international interest might be that the strikes in the U.K. hold up a mirror to other parts of the world, including Canada, reflecting the discontent of our own health workers. </p>
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Read more:
<a href="https://theconversation.com/patient-aggression-and-physician-burnout-the-makings-of-a-human-resources-crisis-in-health-care-175017">Patient aggression and physician burnout: The makings of a human resources crisis in health care</a>
</strong>
</em>
</p>
<hr>
<p>The labour concerns motivating this crisis — <a href="https://accountabilityresearch.org/wp-content/uploads/2022/04/ARC-Accountability-Note_Health-Worker-Protests_WEB.pdf">staffing shortages, pay, benefits, working conditions, repeated waves of COVID-19, burnout</a> — are occurring around the world in different types of health-care systems. This suggests there is something fundamentally askew with health workforce policy globally. How, then, might the situation in the U.K. provide lessons about the health-care crisis unfolding in Canada? </p>
<h2>Protests in Canada</h2>
<p>In the U.K., health workers are demanding pay increases that account for inflation, as well as policies to address staffing shortages and underinvestment in the health-care system. These concerns bear conspicuous similarities to recent demonstrations from health workers across Canada. </p>
<p>Between 2021 and 2022, according to the <a href="https://acleddata.com/">Armed Conflict Location & Event Data Project</a> database of protests and political violence, there were over 150 discrete demonstrations by Canadian health workers in every Canadian province. </p>
<p>Some of the higher profile events included protests against <a href="https://ottawa.ctvnews.ca/ottawa-health-care-workers-protest-to-repeal-bill-124-1.5878016">Bill 124</a> which would have limited pay increases in Ontario, protests against <a href="https://calgary.ctvnews.ca/alberta-unions-rally-against-health-care-cuts-and-privatization-1.5176108">underinvestment and privatization of health services</a> in Alberta, and <a href="https://bc.ctvnews.ca/nurses-rally-to-highlight-crisis-in-b-c-health-care-system-1.6098097">the shortage of family physicians and nurses</a> in British Columbia. </p>
<p>While the structure of Canadian health care might not result in a national protest similar to the ones in the U.K., the shared DNA across events in Canada is undeniable. These protests are clear manifestations of the deeper crisis in Canadian health care, fuelled by underinvestment, staffing shortages and attrition, burnout and repeated waves of COVID-19 and other respiratory illnesses. </p>
<p>These concerns echo demands from health workers around the world. An <a href="https://accountabilityresearch.org/publication/heroes-on-strike-trends-in-global-health-worker-protests-during-covid-19/">analysis of global health worker protests</a> in the first year of the pandemic found that the vast majority of protests focused on remuneration and working conditions, such as insufficient or unpaid wages, risk allowances and job security. Clearly, health policy was not aligned with public declarations of health workers as heroes and warriors. </p>
<h2>Short-term solutions don’t solve long-term problems</h2>
<p>Many of the frustrations voiced by health workers in Canada, the U.K. and other countries <a href="https://www.who.int/publications/i/item/9789241511131">predate the pandemic</a>. Health workers have long drawn attention to problems of underinvestment and austerity through strikes and demonstrations. </p>
<p>Yet, health system leaders continue to address only the most immediate fires that need to be put out, rather than the underlying issues impacting health service availability and access. Not enough attention has been paid to the unintended consequences of using shorter-term solutions to address the workforce crisis. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/509287/original/file-20230209-22-c6660h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A crowd of protesters with signs supporting fair pay for nurses" src="https://images.theconversation.com/files/509287/original/file-20230209-22-c6660h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/509287/original/file-20230209-22-c6660h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/509287/original/file-20230209-22-c6660h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/509287/original/file-20230209-22-c6660h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/509287/original/file-20230209-22-c6660h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/509287/original/file-20230209-22-c6660h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/509287/original/file-20230209-22-c6660h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Nurses of the University College Hospital protest in London on Feb. 6, 2023.</span>
<span class="attribution"><span class="source">(AP Photo/Frank Augstein)</span></span>
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</figure>
<p>For example, travel or contract employment have become <a href="https://www.vox.com/22936455/travel-nurses-health-care-covid">a lucrative option</a> for nurses in the United States and Canada frustrated with their working conditions and seeking more flexibility. But, hiring these nurses comes at <a href="https://www.cbc.ca/news/canada/edmonton/alberta-dependent-on-contract-nurses-1.6735424">a high cost</a> to hospitals and creates lingering discontent in the workforce due to pay and benefits imbalances between travel nurses and staff nurses in the same facilities. </p>
<p>Recruiting nurses from low- and middle-income countries is another solution; yet, this approach results in <a href="https://www.cbc.ca/news/health/canada-international-nurses-poorer-countries-worried-1.6655231">labour shortages in low- and middle-income countries</a>, where migration is an attractive option for skilled nurses due to workforce and system challenges in their own contexts.</p>
<p>The U.K. health worker protests echo problems here in Canada and elsewhere. More importantly, they are a harbinger of forthcoming labour disputes and systemic collapse if our health systems continue to be characterized by austerity, underinvestment and neglect of health worker voices. </p>
<p>Reform is urgently needed to address these challenges in a manner that pays heed to workers’ concerns, looks long term at workforce planning (and its consequences) and prioritizes sustainable investment in health systems. The costs of not seriously engaging with this type of reform are clear for all to see, across the pond.</p><img src="https://counter.theconversation.com/content/199386/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Veena Sriram receives funding from the Social Sciences and Humanities Research Council of Canada and the Canadian Institutes of Health Research.</span></em></p><p class="fine-print"><em><span>Sorcha A. Brophy receives funding from the Social Sciences and Humanities Research Council of Canada.</span></em></p>U.K. health worker protests echo issues in Canada. They are also a harbinger of future labour disputes and systemic collapse if austerity, underinvestment and neglect of health workers continue.Veena Sriram, Assistant Professor, Global Health Policy, University of British ColumbiaSorcha A. Brophy, Assistant Professor, Department of Health Policy and Management, Columbia UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1938242022-11-03T20:57:07Z2022-11-03T20:57:07ZOntario school strike: Government’s use of the notwithstanding clause — again — is an assault on labour relations<figure><img src="https://images.theconversation.com/files/493362/original/file-20221103-14-1xljo9.jpg?ixlib=rb-1.1.0&rect=0%2C846%2C5384%2C2740&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Ontario Premier Doug Ford sits in the Ontario legislature during Question Period as members debate a bill meant to avert a planned strike by 55,000 education workers. </span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Frank Gunn</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/ontario-school-strike--government-s-use-of-the-notwithstanding-clause-—-again-—-is-an-assault-on-labour-relations" width="100%" height="400"></iframe>
<p>The government of Ontario has passed <a href="https://www.ola.org/sites/default/files/node-files/bill/document/pdf/2022/2022-10/b028_e.pdf">Bill 28</a> imposing a four-year contract on 50,000 education support workers and making it illegal to strike.</p>
<p>The back-to-work legislation affects educational assistants, early childhood educators, librarians, administrative staff and custodians represented <a href="https://cupe.on.ca/">by CUPE</a>. It also invokes the so-called notwithstanding clause to insulate the government from future judicial scrutiny.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1588287120908570624"}"></div></p>
<p>With its imposition of a contract upon these workers, and the Ontario government’s invocation of the notwithstanding clause in the Canadian Charter of Rights and Freedoms <a href="https://www.cbc.ca/news/canada/toronto/ontario-notwithstanding-cupe-strike-1.6635564">for the second time</a>, there’s a lot to dissect in Bill 28.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/doug-ford-uses-the-notwithstanding-clause-for-political-benefit-162594">Doug Ford uses the notwithstanding clause for political benefit</a>
</strong>
</em>
</p>
<hr>
<h2>Back-to-work laws in a nutshell</h2>
<p>Most unionized workers have both a statutory and — as of 2015 — a <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14610/index.do">Charter right to strike</a> in pursuit of a new collective agreement. Despite this, back-to-work legislation has been passed by governments of differing political stripes. </p>
<p>In their book <a href="https://utorontopress.com/9781442600966/from-consent-to-coercion/"><em>From Consent to Coercion</em>, political scholars Leo Panitch and Donald Swartz</a> chronicled the increasing use of back-to-work legislation. They coined the term “permanent exceptionalism” to describe what they saw as governments consistently characterizing particular labour disputes as exceptional to justify back-to-work legislation, even while leaving intact the overriding law permitting the strike. </p>
<p>Panitch and Swartz argued that this was a way for governments to avoid political fallout from simply denying the right to strike outright. Instead, they do it by stealth — case-by-case as apparent one-offs. </p>
<p>But with the right to strike now afforded Charter protection, governments have to think about the legal fallout too. Bill 28, after all, bears many of the hallmarks of Ontario’s Putting Students First Act or <a href="https://www.canlii.org/en/on/laws/stat/so-2012-c-11/latest/so-2012-c-11.html">Bill 115</a>. </p>
<p>Bill 115 was passed in 2012 under the Liberal government of Dalton McGuinty. It, too, pre-empted an otherwise lawful strike amid negotiations with the province’s teachers. It also imposed a contract rather than leaving outstanding issues to a neutral third party.</p>
<figure class="align-center ">
<img alt="Men and women in parkas and hats carry red signs that read Respect Collective Bargaining." src="https://images.theconversation.com/files/493372/original/file-20221103-15-4pac3y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/493372/original/file-20221103-15-4pac3y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=420&fit=crop&dpr=1 600w, https://images.theconversation.com/files/493372/original/file-20221103-15-4pac3y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=420&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/493372/original/file-20221103-15-4pac3y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=420&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/493372/original/file-20221103-15-4pac3y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=527&fit=crop&dpr=1 754w, https://images.theconversation.com/files/493372/original/file-20221103-15-4pac3y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=527&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/493372/original/file-20221103-15-4pac3y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=527&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Amid a wave of one-day walkouts, teachers of the Ottawa-Carleton District School Board carry picket signs in protest of Ontario’s Bill 115 a decade ago in Ottawa. The bill was later deemed unconstitutional.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Cole Burston</span></span>
</figcaption>
</figure>
<p>It was <a href="https://www.canlii.org/en/on/onsc/doc/2016/2016onsc2197/2016onsc2197.html">deemed unconstitutional</a> four years later, requiring the government to <a href="https://www.thestar.com/politics/provincial/2022/02/02/ontario-elementary-teachers-awarded-103m-as-remedy-for-liberals-bill-115.html">pay millions in damages</a> to the workers whose Charter rights had been violated.</p>
<p>I have <a href="https://brocku.ca/brock-news/2018/10/brock-researcher-examines-constitutional-protections-for-canadian-workers-right-to-strike/">argued elsewhere</a> that some back-to-work legislation is <a href="https://theconversation.com/is-back-to-work-legislation-unconstitutional-107561">likely constitutional</a>. But Bill 28 would almost assuredly be unconstitutional — except for the invocation of the notwithstanding clause.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/is-back-to-work-legislation-unconstitutional-107561">Is back-to-work legislation unconstitutional?</a>
</strong>
</em>
</p>
<hr>
<h2>Notwithstanding clause’s original aim</h2>
<p>The notwithstanding clause, or Sec. 33 of the Charter, permits governments to pass laws <a href="https://laws-lois.justice.gc.ca/eng/const/page-12.html#h-51">“notwithstanding” that those laws violate specific provisions in the Charter</a>. </p>
<p>At first glance, this is perplexing. Why adopt a constitutional Bill of Rights that can be ignored? However, at the time of the Charter’s creation, some provincial premiers were skeptical. They feared the dampening of their legislative supremacy via judicial overreach. Sec. 33 was the escape hatch offered to quell their fears. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-history-of-the-notwithstanding-clause-90508">The history of the notwithstanding clause</a>
</strong>
</em>
</p>
<hr>
<p>Québec had its own reasons for systematically attaching the clause to legislation in the Charter’s early days given that it was the only province <a href="https://www.canadahistoryproject.ca/1982/1982-07-quebec-refusal.html#:%7E:text=Another%20reason%20Quebec%20wouldn't,in%20the%20rest%20of%20Canada">not to have signed on to the Charter</a>. Outside of that, however, Sec. 33 was rarely used in the first decades of the Charter — and doing so came to be understood by many as political suicide. </p>
<p>Its more recent invocation by governments in Ontario, Québec and Saskatchewan is concerning. Some fear it signals the move may soon <a href="https://www.thestar.com/opinion/contributors/2021/06/10/doug-fords-government-is-using-the-notwithstanding-clause-for-the-first-time-in-ontario-history-when-is-use-of-the-constitutional-override-legitimate.html">become commonplace</a>. </p>
<p>Additionally, its pre-emptive use, as is the case with Bill 28, is particularly indicative of constitutional recklessness. </p>
<p>The working presumption when the Charter was being hammered out is that legislatures want to protect their citizens’ rights. If true, it follows that the escape hatch of Sec. 33 is a device that should be used only after a law has been deemed unconstitutional.</p>
<p>This allows legislatures to review the courts’ rationales with consideration and thoughtfulness before determining whether they should proceed nonetheless, reserving Sec. 33’s use for exceptional circumstances. </p>
<h2>The nuclear option?</h2>
<p>There may be <a href="https://theconversation.com/in-defence-of-the-notwithstanding-clause-why-canada-should-hold-onto-it-186375">no cut-and-dried answer</a> as to what may be deemed judicial overreach that warrants the use of Sec. 33. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/493371/original/file-20221103-20-t00bk6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A grey-haired man is seen in profile as he makes a speech." src="https://images.theconversation.com/files/493371/original/file-20221103-20-t00bk6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/493371/original/file-20221103-20-t00bk6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=464&fit=crop&dpr=1 600w, https://images.theconversation.com/files/493371/original/file-20221103-20-t00bk6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=464&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/493371/original/file-20221103-20-t00bk6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=464&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/493371/original/file-20221103-20-t00bk6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=583&fit=crop&dpr=1 754w, https://images.theconversation.com/files/493371/original/file-20221103-20-t00bk6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=583&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/493371/original/file-20221103-20-t00bk6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=583&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Saskatchewan Premier Allan Blakeney makes a speech in this 1977 photo.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS</span></span>
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<p>But it’s perhaps noteworthy that former Saskatchewan premier Allan Blakeney, <a href="https://policyoptions.irpp.org/magazines/may-2017/the-notwithstanding-clauses-toxic-legacy/">one of the most ardent critics of the adoption of the Charter at the time</a>, was concerned about socially conservative judges undoing progressive social legislation.</p>
<p>This phenomenon was at play in the so-called <a href="https://www.vox.com/2015/1/17/7628543/rand-paul-lochner">Lochner era in the United States</a>. What we would now consider basic employment standards laws were overturned on the basis that they contradicted the right of employers and employees to negotiate contracts. </p>
<p>Regardless of Blakeney’s views on the notwithstanding clause, it’s still hard to reconcile the initial purpose of Sec. 33 with its current potential use: to prevent 55,000 citizens, among the lowest-paid workers in Ontario’s education sector, to seek restitution for the violation of their Charter rights that Bill 28 would likely cause. </p>
<p>Whatever we might think about whether Ontario is justified in preventing the workers’ strike, neither the imposition of a collective agreement nor the invocation of Sec. 33 is necessary to meet the government’s stated goal of avoiding a labour disruption. </p>
<p>In fact, it may have upped the ante. In addition to a vow by CUPE to strike, others have pledged <a href="https://globalnews.ca/news/9247567/opseu-walk-out-solidarity-cupe/?utm_source=%40globalnewsto&utm_medium=Twitter">to walk off the job in solidarity</a>.</p>
<p>It’s mostly been right-leaning provincial governments that have recently invoked Sec. 33. However, it bears noting that if we normalize its use, we normalize it for governments of all political stripes.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1587858159602962434"}"></div></p>
<h2>Labour relations on the brink</h2>
<p>While most contract negotiations are settled without labour disruption, the threat of disruption is used as leverage by unions to move past impasses where they occur. </p>
<p>Ontario Superior Court Justice Thomas Lederer, in his decision on Bill 115, said the province’s labour relations are rooted in the notion that “the employer has power and the employee does not” and that <a href="https://www.canlii.org/en/on/onsc/doc/2016/2016onsc2197/2016onsc2197.html">“the ability of employees to act collectively”</a> narrows that power gap. </p>
<p>Threats of labour disruption act to motivate the parties, usually in the days and hours leading up to a strike deadline, to reach a settlement neither party would propose but both can accept. </p>
<p>Ontario Education Minister Stephen Lecce’s stated refusal to <a href="https://www.chch.com/lecce-warns-that-ontario-education-talks-wont-proceed-unless-strike-cancelled/">even consider CUPE counter-offers</a> unless it first calls off all job action is at odds with his stated intention to keep kids in school. It’s also at odds with the very heart of our labour relations model.</p><img src="https://counter.theconversation.com/content/193824/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alison Braley-Rattai does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Ontario government’s latest use of the notwithstanding clause is at odds with its stated intention to keep kids in school amid a labour dispute — and at odds with the heart of labour relations norms.Alison Braley-Rattai, Associate Professor, Labour studies, Brock UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1863642022-07-05T14:19:07Z2022-07-05T14:19:07ZUK strikes: six milestones in the history of industrial action in Britain<p>Holidaymakers and commuters are expecting significant disruption this summer following a recent <a href="https://www.reuters.com/world/uk/strikes-cripple-britains-railways-unions-warn-more-come-2022-06-23/">surge in strike action</a> in the UK and Europe. UK train drivers are the latest group to consider striking in what could be the <a href="https://www.telegraph.co.uk/business/2022/07/05/ftse-100-markets-live-news-flight-cancellations-nuclear-power/">first national rail strike</a> in more than 25 years</p>
<p>Strikes – a withdrawal of labour from employers – have been happening ever since the workers at the Royal Necropolis at Deir el-Medina in Egypt <a href="https://www.guinnessworldrecords.com/world-records/first-recorded-strike#:%7E:text=The%20first%20recorded%20strike%20in,that%20dates%20from%20that%20time.">organised an uprising</a> in 1152 BC over <a href="https://www.worldhistory.org/article/1089/the-first-labor-strike-in-history/">late wages</a>. British industrial action has a much shorter, but still turbulent, history that has often been fuelled by changing economic conditions. </p>
<p>Workers today face <a href="https://www.bbc.com/news/business-61891649">high inflation</a> and government reluctance to <a href="https://www.bbc.com/news/business-61874732">raise public sector wages</a>, combined with the ongoing economic impact of the COVID-19 pandemic and resulting <a href="https://news.sky.com/story/fifteen-years-of-stagnant-incomes-left-british-families-brutally-exposed-to-cost-of-living-crisis-12645557">cost of living</a> crisis. With continued industrial action very likely in the months ahead. </p>
<p>Here are some major milestones in the history of UK strike action to date:</p>
<h2>1. Pre-20th century: law both restricts and supports union activity</h2>
<p>In Britain, <a href="http://eprints.hud.ac.uk/id/eprint/3042/">documented strike action</a> started in the 17th century, when groups of skilled workers used brief periods of industrial action to get better conditions of work and pay. During the 18th century, various pieces of <a href="https://www.nationalarchives.gov.uk/pathways/citizenship/struggle_democracy/trade_unionism.htm#:%7E:text=part%20of%20workers.-,The%20Combination%20Acts,-%2C%20passed%20in%201799">legislation</a> made strikes illegal. </p>
<p>But when the <a href="https://www.britannica.com/topic/trade-union#ref270634:%7E:text=for%20their%20workers.-,Legal%20precedents,-British%20unionism%20received">Trade Union Act of 1871</a> allowed trade unions to become legal bodies, a flurry of industrial activity occurred in industries such as <a href="https://archiveshub.jisc.ac.uk/search/archives/ab1c7f37-0f40-3af6-86de-f87445a955e8?component=d955a0bd-83e4-3329-aa29-19bf4f429981">coal mining</a> and <a href="https://www.tandfonline.com/doi/abs/10.1179/0078172X13Z.00000000031?journalCode=ynhi20">textiles</a>, as new unions fought for better conditions.</p>
<h2>2. Post-WWI: economic decline leads to demands for better pay</h2>
<p>Following a lull during the first world war, <a href="http://www.unionhistory.info/timeline/1918_1939.php">industrial action intensified</a> in the 1920s as employers tried to reduce wages amid much post-war economic and political change. Nearly 8 million days’ work were <a href="http://eprints.hud.ac.uk/id/eprint/3051/">lost to strikes</a> in 1925, rising to 162 million lost days in 1926 when 1.7 million workers went on strike in support of a million miners. </p>
<p>Miners’ refusal to accept a 10% wage reduction that year, for example, led to a nine-day <a href="https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/articles/thehistoryofstrikesintheuk/2015-09-21">general strike</a> in support of the locked out miners in May. During a general strike, the Trades Union Congress – a group representing the majority of unions in England and Wales – asks members of different unions to strike in support of affected workers.</p>
<p><strong>Working days lost to strike action, UK (1931-2020)</strong></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/472558/original/file-20220705-14-d4b58a.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Graph showing total working days lost to strikes in the UK 1931-2020" src="https://images.theconversation.com/files/472558/original/file-20220705-14-d4b58a.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/472558/original/file-20220705-14-d4b58a.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=317&fit=crop&dpr=1 600w, https://images.theconversation.com/files/472558/original/file-20220705-14-d4b58a.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=317&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/472558/original/file-20220705-14-d4b58a.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=317&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/472558/original/file-20220705-14-d4b58a.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=398&fit=crop&dpr=1 754w, https://images.theconversation.com/files/472558/original/file-20220705-14-d4b58a.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=398&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/472558/original/file-20220705-14-d4b58a.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=398&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Total working days lost to strikes in the UK, 1931-2020 (000s)</span>
<span class="attribution"><a class="source" href="https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/timeseries/bbfw/lms">Office of National Statistics</a></span>
</figcaption>
</figure>
<h2>3. Post WWII: governments struggle to tame union power</h2>
<p>Levels of strike activity in Britain fell again in the 1930s, but picked up significantly after the second world war. At this time, the majority of strikes – about <a href="http://eprints.hud.ac.uk/id/eprint/3042/">2,000 per year</a> – were unofficial, or not supported by trade unions. This prompted <a href="https://www.nationalarchives.gov.uk/cabinetpapers/themes/industrial-unrest.htm">government</a> <a href="https://www.jstor.org/stable/41837392">calls for</a> greater union accountability, a cooling-off period before strikes, as well as ballots – or votes – on strikes. </p>
<p>The unions’ rejection of these suggestions led to further industrial conflict, including <a href="https://www.gov.uk/government/history/past-prime-ministers/edward-heath#:%7E:text=crippling%20were%20the-,miners%E2%80%99%20strikes,-of%201972%20and">two coal miners’ strikes</a> under Edward Heath’s 1970-1974 Conservative government. The strikes led to power cuts across the country and then an enforced three-day working week to <a href="https://www.theguardian.com/politics/gallery/2009/apr/16/past-conservatives">curb electricity use</a> as the striking coal miners forced the government to ration dwindling fuel supplies.</p>
<h2>4. 1970s: the failed social contract and the Winter of Discontent</h2>
<p>Harold Wilson’s Labour Party came to power in the 1974 general election and suggested a “<a href="https://www.nationalarchives.gov.uk/cabinetpapers/themes/miners-strike-social-contract.htm#:%7E:text=Labour%27s%20Social%20Contract">social contract</a>” with unions where they would curb wage demands in return for nationalisation and increased spending on social welfare. The government failed to deliver upon this agreement, however, and trade unions began to demand substantial wage rises to ensure members’ pay kept up with the high inflation of the late 1970s.</p>
<p>An effort by Ford factory workers to gain a 25% weekly raise in August 1978, for example, triggered nine weeks of strikes and was settled with a 16.5% wage increase. This kicked off a a period now known as the <a href="https://blogs.londonmet.ac.uk/tuc-library/2016/05/12/winter-of-discontent-part-2/">Winter of Discontent</a>. The following January, 20,000 railway workers held four one-day strikes over the course of the month. About 1.3 million municipal workers also called a one-day <a href="http://eprints.hud.ac.uk/id/eprint/3042/">national strike</a> for pay increases on January 22 1979.</p>
<p>The strikers were increasingly vilified by politicians and the media during this time. For example, a comment made by a councillor about the possibility of “<a href="http://eprints.hud.ac.uk/id/eprint/3042/">burials at sea</a>” due to a strike by Merseyside grave diggers in 1978 and 1979 saw trade unions publicly criticised for their lack of sympathy for the bereaved. Similarly, conservative politicians criticised the Labour government over a <a href="http://news.bbc.co.uk/onthisday/hi/dates/stories/january/22/newsid_2506000/2506715.stm">January 1979</a> public sector strike that included refuse collectors and resulted in <a href="http://news.bbc.co.uk/onthisday/hi/dates/stories/january/22/newsid_2506000/2506715.stm">rubbish piled high</a> on the streets of central London. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/472550/original/file-20220705-13-j0an4w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/472550/original/file-20220705-13-j0an4w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=425&fit=crop&dpr=1 600w, https://images.theconversation.com/files/472550/original/file-20220705-13-j0an4w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=425&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/472550/original/file-20220705-13-j0an4w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=425&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/472550/original/file-20220705-13-j0an4w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=534&fit=crop&dpr=1 754w, https://images.theconversation.com/files/472550/original/file-20220705-13-j0an4w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=534&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/472550/original/file-20220705-13-j0an4w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=534&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Conservative prime minister Margaret Thatcher did much to curb trade union activity following her election in 1979.</span>
</figcaption>
</figure>
<h2>5. 1980s: the rise of Thatcherism and the decline of union power</h2>
<p>The election of Margaret Thatcher as Conservative prime minister in May 1979, signalled the start of a period of major restrictions on trade union power. Five <a href="https://link.springer.com/chapter/10.1007/978-1-349-27607-3_10?noAccess=true">employment acts</a> and one <a href="https://www.legislation.gov.uk/ukpga/1984/49/enacted">Trade Union Act</a> were introduced between the start of Thatcher’s two terms and the end of John Major’s Conservative government in 1997. These laws restricted the right of picketing, prevented unions bringing their members out in support of other unions and introduced fines and asset seizures for unions that struck without a ballot. </p>
<p>Some of this legislation was tested in another <a href="https://archiveshub.jisc.ac.uk/features/mar04.shtml">miners’ strike</a> that lasted from 1984 into 1985. After a proposed 5.2% wage increase was rejected by the National Union of Mineworkers (NUM) in October 1983, the National Coal Board (the UK corporation created to run nationalised coal mines) threatened to reduce output and was rumoured to have drawn up a list of pit closures. </p>
<p>An unballoted strike erupted on March 9 1984, which lasted for nearly a year. It progressed into a national strike as NUM leader <a href="https://www.theguardian.com/politics/2022/jun/23/arthur-scargill-joins-rail-picket-line-sheffield-strike">Arthur Scargill</a> sent “flying pickets” – striking union members – to different picket lines around the country by car and coach. Mass picketing led to violent clashes and even deaths. There were also several legal twists and turns as the High Court fined the NUM <a href="https://apnews.com/article/21bff1746bb861656292ae2d5255b217#:%7E:text=is%20called%20off.-,Oct.%2010,-%2D%20The%20National%20Union">£200,000</a> and seized its assets because it had not called an official strike by ballot.</p>
<p>The strike ended without any settlement when the miners <a href="https://www.theguardian.com/fromthearchive/story/0,,1429566,00.html">returned to work</a> without agreement on March 3 1985. After a year without pay, they had effectively been starved into submission.</p>
<h2>6. Present day: A return to the 1970s?</h2>
<p>Trade union power and activism has steadily declined since the turbulence of the 1980s. <a href="https://www.gov.uk/government/statistics/trade-union-statistics-2020">Membership</a> had grown from 4 million in 1914 to a peak of 13.2 million in 1979, but has since halved to about 6.5 million people. </p>
<p>The number of days lost to strikes in recent years is typically little more than one million, with the highest annual total of working days lost in one year <a href="https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/workplacedisputesandworkingconditions/articles/labourdisputes/2018#:%7E:text=by%20coal%20miners-,Since%202000,-%2C%20the%20highest%20annual">since 2000</a> was 1.4 million in 2011.</p>
<p>But industrial action is stirring again. As <a href="https://www.theguardian.com/uk-news/2022/jun/18/rail-and-tube-strikes-to-go-ahead-next-week-rmt-union-confirms">transport</a> workers, <a href="https://www.bbc.com/news/uk-62009941">barristers</a> and <a href="https://metro.co.uk/2022/07/01/travel-summer-holidays-under-threat-from-airline-strikes-across-europe-16929191/">airline staff</a> have all called strike action in recent weeks, this figure may well be exceeded in 2022.</p><img src="https://counter.theconversation.com/content/186364/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Keith Laybourn does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Strikes are happening across various UK industries at the moment, but what is the history of strike action in UK?Keith Laybourn, Professor Emeritus of History, University of HuddersfieldLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1772512022-02-18T08:34:36Z2022-02-18T08:34:36ZWhy formal employment is not a guaranteed path to social equality<figure><img src="https://images.theconversation.com/files/446770/original/file-20220216-15-15se0i3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">House painter Emanuel Chisiya and other jobseekers wait for casual jobs work offers on the side of a road in Cape Town. </span> <span class="attribution"><span class="source">EPA-EFE/Nic Bothma</span></span></figcaption></figure><p>The theme of this year’s World Day of Social Justice is “<a href="https://www.un.org/en/observances/social-justice-day">Achieving Social Justice through Formal Employment</a>”. Gaining access to formal employment can greatly reduce poverty. As it is, <a href="https://www.un.org/en/observances/social-justice-day">more than 60% of the working population in the world</a> – 2 billion people globally – eke out a living in the informal economy. In theory, formal employment provides a more stable income, social protection and employment-related benefits.</p>
<p>However, the reality is that many formal sector jobs are increasingly precarious and do not provide any of these benefits, meaning that formal work is not a guaranteed path to greater social equality. </p>
<p>Internationally, there has been a rise in so-called <a href="https://www.workrightscentre.org/what-is-precarious-work">precarious work</a>. While there is no single definition of precarious work, it is generally used to refer to insecure, poorly-paid work and work without access to benefits, such as medical aid. Examples of these forms of work include seasonal work, casual work, <a href="https://www.weforum.org/agenda/2021/05/what-gig-economy-workers/">gig work</a> and agency work, what is most often called <a href="https://www2.deloitte.com/content/dam/Deloitte/za/Documents/process-and-operations/ZA_Labour%20broking%20and%20outsourcing%20-%20FP.pdf">labour broking</a> in South Africa.</p>
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<p>In South Africa, these various forms of precarious work have increased substantially. Between 2004 and 2017 the number of people employed in the ‘non-core’ segment, another term for precarious work, <a href="https://www.researchgate.net/publication/338546087_Challenging_workplace_inequality_precarious_workers'_institutional_and_associational_power_in_Gauteng_South_Africa?_sg%5B0%5D=PFQYPwslD7Eyxxxhw7dqOjoV_mNWkOTcdhDd01CeNwYKEDtPH2gILIfOU6ujYSZW9zrTXsDBWHujwQi9DNZzbCJJo9GCGnE6MoFRVair.soYdW0Ll4ra_pChwfPlOujVbvRqs96zoKBu3c57Ppe5XXGIOarRuwkgVmB2ubXZnilOegXRIu6mHpbVz8FYTfg">increased by 71%,</a> two times faster than in the formal or informal sectors of the labour market. As a result, it is estimated that four out of ten workers in the formal sector may be in some form of precarious work.</p>
<p>These workers are likely <a href="https://www.wider.unu.edu/publication/how-large-wage-penalty-labour-broker-sector">to earn, on average, half of what a permanent worker</a> makes and they are more likely to suffer violations of their basic labour rights, such as not receiving paid sick leave. Such forms of precarious work entrench inequality and poverty rather than achieving the goal of social justice.</p>
<h2>Decent work for all?</h2>
<p>The UN Sustainable Development Goals include the creation of so-called <a href="https://sdgs.un.org/goals/goal8">decent work</a>. Decent work is defined as work that provides a fair income, security, social protection, the prospects for personal development and the right to organise at work.</p>
<p>Decent work is, therefore, about more than simply getting more people into work. The challenge is to create socially transformative labour markets that can create employment for inclusive, prosperous and equitable societies.</p>
<p>However, South Africa’s record in this regard is patchy.</p>
<p>The <a href="https://www.gov.za/sites/default/files/gcis_document/201811/42060gon1303act9of2018.pdf">national minimum wage</a>, which was introduced in 2019, was and continues to be set at a level that does not cover basic needs.</p>
<p>In October 2021, the NGO the <a href="https://pmbejd.org.za/wp-content/uploads/2021/10/PMBEJD_Media-Statement_October-2021_27102021.pdf">Pietermaritzburg Economic Justice and Dignity Group</a>, found that the cost of the average household food basket was R4,317.56 a month. </p>
<p>Yet a worker earning the national minimum wage and fortunate enough to be in full-time employment (45 hours a week) would only have earned R3,904 in a month. Not enough to cover just basic food items, never mind costs for transport, electricity and a range of other essential items.</p>
<p>The data provided by the NGO is based on tracking food prices on the most commonly bought food items, such as maize meal, rice and bread, in 44 supermarkets in working class areas of the country. This provides the real cost of basic items rather than estimates based on rates of inflation. And, therefore, provides real insight to the extent to which many of those working in the formal sector are ‘<a href="http://nationalminimumwage.co.za/wp-content/uploads/2016/03/NMW-RI-Fact-Sheet-2.pdf">working poor</a>’. </p>
<p>For the range of precarious workers who may not even work 45 hours a week due to the increasing use of variable hour or <a href="https://www.newframe.com/zero-hours-contracts-are-a-poverty-sentence/#:%7E:text=Under%20zero%20hours%20contracts%20%E2%80%93%20which,South%20African%20economy%20are%20rubbish">zero hours</a> contracts, their situation is even worse.</p>
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<p>Achieving greater social justice through formal employment is only a realistic possibility if such work provides, at least, a living wage and protection of labour rights.</p>
<p>But it is estimated that <a href="https://www.africaportal.org/publications/measuring-multidimensional-labour-law-violation-application-south-africa/">60 per cent of the workforce</a> in South Africa experience some violation of their labour rights. Yet most of these violations go unreported. In the context of <a href="http://www.statssa.gov.za/?p=14957">high unemployment</a>, workers fear reporting these labour violations for fear of dismissal.</p>
<p>Even when workers do report their employers <a href="https://journals.sagepub.com/doi/full/10.1177/09500170211015081">the road to justice can be long</a>, as I have been documenting for a number of years following labour broker workers seeking to access their rights to permanent employment.</p>
<h2>Tackling precarious employment</h2>
<p>One positive intervention that the state has made in attempting to address precarious employment has been its attempt to regulate the use of labour broking. </p>
<p>Labour broking is when a company provides workers to client companies, supposedly on a temporary basis. However, very often labour broker workers work for years at the same company, performing the same work as permanent workers for inferior wages and no benefits. </p>
<p>In 2014 the Labour Relations Act was <a href="https://www.gov.za/sites/default/files/gcis_document/201501/37921gon629.pdf">amended</a> to restrict labour broking to work of a genuinely temporary nature. It requires that labour broker workers become permanent employees of the client company after three months. While this was not the ban on labour broking that the labour federation Congress of South African Trade Unions <a href="https://www.iol.co.za/business-report/opinion/cosatu-demands-ban-on-labour-brokers-1961638">called for</a> it was, in theory, a significant step forward in the rights for labour broker workers.</p>
<p>However, the path to gaining these rights has been arduous for many workers.</p>
<p>When workers open cases against their employers, either at the <a href="https://www.ccma.org.za/">Commission for Conciliation, Mediation & Arbitration</a> or at <a href="https://www.gov.za/services/trade-unions/register-bargaining-council">bargaining councils</a> – which solve labour disputes – employers often victimise workers and continually delay proceedings in the hope that the workers will give up their case.</p>
<p>Furthermore, many of these workers take up these cases themselves as most precarious workers do not belong to unions. Indeed, only just over a quarter (27%) of the total formally employed workforce is <a href="http://www.statssa.gov.za/publications/P0211/P02113rdQuarter2021.pdf">unionised</a>, the majority of whom are workers in skilled and supervisory positions. Yet the rules of representation at the Commission for Conciliation, Mediation & Arbitration and bargaining councils only permit representatives of registered trade unions or lawyers to represent workers in these forums.</p>
<p>This puts non-unionised workers in a David versus Goliath situation where they must follow the rules of the Commission and argue their case while facing, at least, trained human resources professionals or, at worst, several lawyers from some of the most prestigious law firms in the country.</p>
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<p>Workers complain that they often feel pressured by Commission for Conciliation, Mediation & Arbitration commissioners, who are themselves <a href="http://www.dpru.uct.ac.za/sites/default/files/image_tool/images/36/DPRU%20WP09-137.pdf">performance managed</a> on how many cases a day they settle, into accepting settlements that do not resolve the injustice that they seek to address.</p>
<p>Thus, it has been estimated that as much as <a href="https://www.news24.com/fin24/economy/80-of-labour-broker-workers-should-be-deemed-permanent-20180826-2">80% of labour broker</a> workers have not been deemed permanent and continue to work in precarious conditions.</p>
<h2>Achieving social justice</h2>
<p>Getting a formal sector job is not on its own going to create greater social equality. Workers need a living wage and an environment in which rights are protected and enforced.</p>
<p>This requires both strong state enforcement and the organisation of workers.</p>
<p><a href="https://www.dailymaverick.co.za/opinionista/2021-03-02-labour-pains-trade-union-membership-has-declined-badly-and-bosses-are-calling-the-shots/">Declining rates of unionistation</a> among workers is a result of the increasing precarious nature of work, and the limited responses that unions have had to this.</p>
<p>However, workers are not waiting for unions to come and organise them and have taken the initiative to organise themselves in a variety of sectors and, in many cases, are successfully winning their demands.</p>
<p>Yet, such workers formations are excluded from the labour institutions. One advance that could be made in promoting social justice through formal employment would be to recognise all forms of worker organisation, and afford them greater rights in protecting and advancing worker rights.</p><img src="https://counter.theconversation.com/content/177251/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Carin Runciman receives funding from the National Research Foundation. Between 2016 and 2021 she was a management committee member of the Casual Workers Advice Office, a NGO dedicated towards the rights of precarious workers. </span></em></p>Many formal sector jobs are increasingly precarious and poorly paid, meaning that formal work is not an avenue to greater social equality for many people.Carin Runciman, Director, Centre for Social Change, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1275722019-11-24T14:58:02Z2019-11-24T14:58:02ZWhy government and industry want us to view the CN Rail strike as a security risk<figure><img src="https://images.theconversation.com/files/303289/original/file-20191123-74603-1jg778y.jpg?ixlib=rb-1.1.0&rect=107%2C0%2C4060%2C2389&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Striking CN rail members are seen outside the Mclean Rail Yard in North Vancouver on Nov. 20, 2019. Confidential RCMP documents reveal how involved corporations are when faced with disruptions to "business as usual" and how federal agencies should respond.</span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Jonathan Hayward</span></span></figcaption></figure><p>The trains of Canada’s largest railway company have ground to a halt after some 3,200 CN Rail workers recently walked off the job.</p>
<p>Within the first 48 hours of the strike, provincial leaders and the private sector sounded the alarm. The premiers of Alberta, Saskatchewan and Quebec declared an “<a href="https://globalnews.ca/news/6199755/quebec-cn-strike/">emergency</a>” and demanded the federal government intervene and table back-to-work legislation. </p>
<p>The national association representing the propane industry — which relies predominantly on rail transport — issued a <a href="https://propane.ca/wp-content/uploads/2019/11/CPA_Action_Critical_CN_Rail_Strike_NR_2019.pdf">news release</a> warning: </p>
<blockquote>
<p>“It is critical that action is taken immediately.”</p>
</blockquote>
<p>Nathalie St-Pierre, head of the association, said an extensive wait for truckers picking up propane in Sarnia, Ont., three days into the strike was “<a href="https://www.cbc.ca/news/canada/montreal/quebec-cn-strike-strike-propane-1.5367945">something that’s never been experienced</a>.” </p>
<p>That may or may not be so, but both the propane industry and CN have a history of hostility toward disruptions to business as usual. Documents I obtained via access-to-information legislation reveal that national security officials have been preparing for such an event.</p>
<h2>Corporations involved</h2>
<p>During the course of conducting research for <a href="https://policingindigenousmovements.ca/">Policing Indigenous Movements</a>, I obtained thousands of pages of internal documents. These files paint a picture of how police and government respond to protests that are framed as threats to national security, and how corporations have become integrated into efforts to protect critical infrastructure. </p>
<p>The <a href="https://www.thecanadianencyclopedia.ca/en/article/idle-no-more">Idle No More movement</a> became a focal point for security efforts to mitigate any future economic disruptions.</p>
<p>In December 2012, the movement erupted across Canada. Tens of thousands of Indigenous people mobilized in response to federal legislation aimed at facilitating resource extraction which necessitated gutting environmental protections. The movement asserted treaty rights, Indigenous sovereignty and demanded that Canada engage and negotiate on a nation-to-nation basis.</p>
<p>In support of Attawapiskat Chief Theresa Spence’s hunger strike on Victoria Island on the Ottawa River, members of the Aamjiwnaang First Nation established a blockade of a CN spur line on their territory adjacent to “<a href="https://www.thestar.com/news/world/2017/10/14/in-sarnias-chemical-valley-is-toxic-soup-making-people-sick.html">chemical valley</a>” in Sarnia.</p>
<p>CN immediately sought an injunction to bring down the blockade. It was granted by Justice David Brown, <a href="https://aptnnews.ca/2014/03/26/formal-complaint-filed-ontario-judge-issued-injunctions-end-cn-rail-blockades/">a former CN lawyer and expert witness</a>. CN sought $50,000 in financial damages for the 13-day blockade. First Nations protester Ron Plain was ordered to pay <a href="https://beta.theglobeandmail.com/news/national/first-nations-man-faces-16k-bill-for-idle-no-more-blockade-on-cn-railway/article13444178/">more than $16,500 in damages</a> for being “<a href="https://www.canlii.org/en/on/onsc/doc/2013/2013onsc4806/2013onsc4806.html?autocompleteStr=ONSC%204806.&autocompletePos=1">the visible spokesperson of a protest that openly defied a court order</a>.” </p>
<p>The Sarnia police force was also chastised by CN. The chief of police <a href="https://www.thestar.com/news/canada/2013/07/25/native_activist_ron_plain_fined_16000_over_cn_blockade.html">was summoned to court</a> to explain why the police force did not forcefully bring down the blockade.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/303291/original/file-20191123-74557-heswn1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/303291/original/file-20191123-74557-heswn1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/303291/original/file-20191123-74557-heswn1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/303291/original/file-20191123-74557-heswn1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/303291/original/file-20191123-74557-heswn1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/303291/original/file-20191123-74557-heswn1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/303291/original/file-20191123-74557-heswn1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Sarnia Police Chief Phil Nelson, right, meets First Nations protesters at the blockade of the CN tracks in Sarnia in January 2013 as part of the Idle No More movement.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Geoff Robins</span></span>
</figcaption>
</figure>
<p>Briefing notes and emails produced by the RCMP — including the Critical Infrastructure Intelligence Team’s National Security Criminal Operations, which monitored Idle No More closely — acknowledged that “CN policy is to seek an injunction where a railway is blocked” and to levy indictable mischief, intimidation and trespass charges under the <a href="https://laws-lois.justice.gc.ca/eng/acts/R-4.2/">Railway Safety Act</a>.</p>
<p>During Idle No More, the RCMP also noted that: “CN has provincewide injunctions for British Columbia, Manitoba and Saskatchewan as it relates to Aboriginal blockades.” </p>
<h2>Industry pressure</h2>
<p>In addition to having access to legal resources to end disruptive protests and strikes, industry pressure can also play a significant role in influencing government and security officials.</p>
<p>During the Aamjiwnaang rail blockade, Indigenous and Northern Affairs Canada (INAC) bureaucrats monitored social media and solicited Sarnia police for intelligence. INAC emails reveal that CN’s Manager of Aboriginal Relations asked a senior government official to intervene and request the blockade be dismantled, further noting that CN officials were “extremely frustrated” with police.</p>
<p>In addition to CN pressure, the Canadian Propane Association sent a letter to the minister of public safety <a href="https://nationalpost.com/news/canada/cn-rail-extremely-frustrated-by-ottawas-handling-of-idle-no-more-blockade-in-sarnia-documents-show">urging the immediate removal of the blockade</a> “before it causes serious damage to the propane industry.” </p>
<p>Given the role that public servants played during the Aamjiwnaang rail blockade and Idle No More in general —as peers to industry and hostile to protesters — CN workers should expect ongoing behind-the-scenes collaborations between industry, government and police throughout the course of this strike.</p>
<p>St-Pierre wants the federal government to <a href="https://www.reuters.com/article/us-canad-natio-rail-labor/heating-fuel-shortage-looms-as-strike-at-canadas-biggest-railroad-hits-third-day-idUSKBN1XV1QX">declare propane an essential product</a> for trains to move without interruption. </p>
<p>“When you depend on an infrastructure so important as the rail, it’s difficult to have a Plan B,” <a href="https://www.cbc.ca/news/canada/montreal/quebec-cn-strike-strike-propane-1.5367945">she said</a>. Invoking the national interest and critical infrastructure sends a direct message to the federal government, which, as it turns out, has already prepared for such a contingency.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/303294/original/file-20191123-74599-1w6qsqe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/303294/original/file-20191123-74599-1w6qsqe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=453&fit=crop&dpr=1 600w, https://images.theconversation.com/files/303294/original/file-20191123-74599-1w6qsqe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=453&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/303294/original/file-20191123-74599-1w6qsqe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=453&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/303294/original/file-20191123-74599-1w6qsqe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=569&fit=crop&dpr=1 754w, https://images.theconversation.com/files/303294/original/file-20191123-74599-1w6qsqe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=569&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/303294/original/file-20191123-74599-1w6qsqe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=569&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A security guard removes a picket sign in front of the CN headquarters as Canadian National Railway workers began a nationwide strike on Nov. 19, 2019 in Montreal.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Ryan Remiorz</span></span>
</figcaption>
</figure>
<p>In June 2013, the Government Operations Centre — <a href="https://www.publicsafety.gc.ca/cnt/mrgnc-mngmnt/rspndng-mrgnc-vnts/gvrnmnt-prtns-cntr-en.aspx">which leads and supports response co-ordination of events affecting the national interest</a> —organized a “tabletop exercise for deputy ministers on federal response to major protests” in response to Idle No More and to prepare for future disruptions. </p>
<p>A memo prepared for Public Safety’s deputy minister outlined that “the scenario centres on a small and peaceful protest that will gradually escalate to a major protest occurring in several regions of the country.” </p>
<p>The invitees included 17 federal agencies, including INAC, the RCMP, the Canadian Security Intelligence Service and the Integrated Terrorism Assessment Centre.</p>
<p>Interestingly, the exercise scenario centred on the blockade of a CN rail line in southern Ontario. During the exercise, government officials co-ordinated to weigh various options and respond to different scenarios, which included pressure from the propane industry.</p>
<p>A debrief of the exercise indicated that:</p>
<blockquote>
<p>“The scenario was not specific to First Nations protests; however, lessons learned from recent events were pulled into the discussion. The exercise started with a lawful, local protest, escalating to violent and criminal activities across Canada.”</p>
</blockquote>
<p>The “violent and criminal activities” referred to as part of the table-top scenarios included the existence of a “splinter group” setting up a blockade, and solidarity blockades and protests in four provinces. </p>
<p>The “splinter group” category has been created by Canadian officials to refer to “dissidents” or “factions” of “Aboriginal extremists” acting outside of federally recognized Indian Act Band Council leadership. </p>
<h2>Threats?</h2>
<p>When negotiators are unable to end a blockade or reach an agreement during a labour disruption, it’s clear that events can be put under a national security microscope and conveniently framed as threats to critical infrastructure.</p>
<p>Indeed, the Aamjiwnaang rail blockade and subsequent scenario-planning exercises may have helped inform the 2015 update to the Anti-Terrorism Act and the embedded <a href="https://laws-lois.justice.gc.ca/eng/acts/S-6.9/20150801/P1TT3xt3.html">Security of Information Sharing Act (SCISA)</a>. </p>
<p>The SCISA facilitates the sharing of information among 17 government departments regarding “any activity that undermines the sovereignty, security or territorial integrity of Canada or the lives or the security of the people of Canada.” This type of activity includes “interference with the economic or financial stability of Canada” or “interference with critical infrastructure.”</p>
<p>Under these terms, strikes and blockades fall under the purview of counter-terrorism measures.</p>
<p><a href="https://www.cbc.ca/news/business/teamsters-cdn-strike-1.5369359">The union representing rail workers has suggested</a> CN and others are whipping up hysteria and manufacturing a crisis in order to crush the strike. It added that enough trains were running to supply propane to Ontario and Québec, and that CN decides which products get shipped.</p>
<p>The strike is still ongoing. It will be interesting to see how long it will take for both government and industry to frame it as a threat to national security.</p>
<p>[ <em><a href="https://theconversation.com/ca/newsletters?utm_source=TCCA&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=expertise">Expertise in your inbox. Sign up for The Conversation’s newsletter and get a digest of academic takes on today’s news, every day.</a></em> ]</p><img src="https://counter.theconversation.com/content/127572/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Crosby does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Internal documents reveal how police and government respond to protests or labour disputes that are framed as threats to national security, and how heavily corporations are involved.Andrew Crosby, PhD Student, Carleton UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1165562019-05-12T16:45:35Z2019-05-12T16:45:35ZRainforest Cafe strike puts the spotlight on tip-sharing<figure><img src="https://images.theconversation.com/files/273625/original/file-20190509-183089-1ah1ynq.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C4000%2C2269&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Hospitality workers across the country are concerned about efforts by employers to zero in on their tips. The ongoing labour dispute at the Rainforest Cafe in Niagara Falls underscores the alarm.</span> <span class="attribution"><span class="source">Unsplash</span></span></figcaption></figure><p>The ongoing labour dispute at the Rainforest Cafe in Niagara Falls, Ont., highlights a growing concern among hospitality workers across the country — <a href="https://www.cbc.ca/news/business/restaurant-chains-increase-tip-outs-1.4517271">employer control over their tips</a>. </p>
<p>Unionized servers, bussers and hostesses at the Rainforest Cafe have been <a href="https://www.stcatharinesstandard.ca/news-story/9273637-striking-rainforest-cafe-workers-put-niagara-falls-tourism-district-on-notice-">on strike since early April</a>. They are trying to bargain their first collective agreement with their employer, Canadian Niagara Hotels. Canadian Niagara Hotels owns the Rainforest Cafe location, as well as several <a href="https://www.stcatharinesstandard.ca/news-story/9289769-backlash-hits-falls-hotel-after-tourists-kicked-out-for-joining-picket-line/">local-area hotels</a> and attractions. </p>
<p>Both the substance and the administration of the employer’s tip-sharing policy remains a key sticking point in the dispute.</p>
<h2>They can’t take my tips, can they?</h2>
<p>Tips make up a substantial portion of a server’s income. And yet, prior to 2016, there was nothing in Ontario law that prevented employers from taking servers’ tips for any reason whatsoever: to cover breakage, theft by patrons, general renovations and other capital investments, to redistribute to other workers, or, simply, to keep them. </p>
<p>Tips are not counted as wages. And, contrary to the popular view, until recently, servers were not legally entitled to them. </p>
<p>Across Canada, regulation of tips and tip-sharing is more or less robust. For instance, Québec gives complete control over tip-sharing arrangements <a href="https://www.cnt.gouv.qc.ca/en/wages-pay-and-work/wages/wages-employees-receiving-tips/index.html">to the employees themselves</a>. Not only are employers forbidden from imposing tip-sharing arrangements upon employees, but the employer has no role in the administration of any such arrangement except at the request of the employees. </p>
<p>Newfoundland and Labrador’s statutory language is similarly clear in terms of giving individual employees <a href="https://assembly.nl.ca/Legislation/sr/statutes/l02.htm#38">control over the tips they earn</a>. By contrast, some provinces do not regulate tips at all, meaning employers may do with them as they please.</p>
<p>While Ontario and British Columbia do regulate tips, they give employers large discretion over them. Both jurisdictions forbid employers from <a href="http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96113_01">taking tips to pay for business expenses</a>. But beyond that, the employer has nearly complete control over any tips and tip-sharing arrangements. This includes how much is to be collected, as well as administration over the redistribution process, and — to a very large extent — who is to be included in what’s known as the “tip-out pool.”</p>
<p>In Ontario, and under amendments introduced in B.C. in late April, proprietors are forbidden to participate in tip-out pools except under certain narrowly specified circumstances. Whether front-line managers can participate —and under what circumstances — is less clear. The inclusion of front-line managers in tip-out arrangements is a central focus for striking Rainforest Cafe workers and others.</p>
<h2>Tipping-out is the new battleground</h2>
<p>Tip-sharing is not a new phenomenon. It has been described as a means of remedying the pay inequity between serving and non-serving staff. This certainly sounds laudable and is perhaps appropriate in some circumstances. After all, some non-tipped workers (bussers, kitchen staff) may also face precarious conditions — low wages, uncertain hours — and they contribute to the ability of the serving staff to do the job for which they receive tips. </p>
<p>But employer control over tips is a new battleground for many hospitality workers. Servers object to unilateral increases to tip-out amounts and the extension of tip-out pools to previously excluded employees. They say it amounts to <a href="https://www.cbc.ca/news/business/restaurant-chains-increase-tip-outs-1.4517271">clawing back gains made through improved employment standards legislation</a>, notably minimum wage increases. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/273632/original/file-20190509-183103-1bil265.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/273632/original/file-20190509-183103-1bil265.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/273632/original/file-20190509-183103-1bil265.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/273632/original/file-20190509-183103-1bil265.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/273632/original/file-20190509-183103-1bil265.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/273632/original/file-20190509-183103-1bil265.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/273632/original/file-20190509-183103-1bil265.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Who’s included in the tip-out pool can be contentious.</span>
<span class="attribution"><span class="source">Sam Truong Dan/Unsplash</span></span>
</figcaption>
</figure>
<p>Servers are concerned that tips are being funnelled to higher-paid or salaried employees as a means to maintain a particular compensation level for those employees; “<a href="https://www.cbc.ca/news/business/restaurant-chains-increase-tip-outs-1.4517271">taking from Peter to pay Paul.</a>”</p>
<p>Employer control over the arrangement also makes it vulnerable to abuse. In Ontario, there is no real way to ensure that tips are being collected and redistributed in accordance with any employer policy or even in compliance with the law; the requirement to provide pay stubs, for instance, does <a href="https://www.ontario.ca/laws/statute/00e41#BK18">not extend to information about tips.</a> </p>
<p>This is concerning given revelations of <a href="https://www.thestar.com/news/gta/2016/07/27/workplace-violations-widespread-in-ontario-government-report-says.html">systemic violations of employment standards</a> and Ontario’s recent <a href="https://www.thestar.com/news/queenspark/2018/10/25/ministry-of-labour-puts-hold-on-proactive-workplace-inspections-internal-memo-says.html">cutbacks to proactive enforcement measures</a>.</p>
<h2>Strong legislation and strong unions</h2>
<p>The dispute at the Rainforest Cafe highlights both the need for strong employment standards legislation and strong unions. </p>
<p>Robust employment standards legislation is necessary if we’re serious about ensuring workers receive basic protections. For example, tip-sharing should be regulated, at a bare minimum by requiring transparency. </p>
<p>But even where employment standards are strong, rarely are individual workers able to enforce rights on their own; a tip-sharing policy that violates employment standards would not likely be rectified by an individual employee. Unions provide workers with effective grievance procedures, as well as expertise that individual employees cannot otherwise normally access.</p>
<p>Workers at the Rainforest Cafe decided to unionize in March 2018 <a href="https://www.stcatharinesstandard.ca/news-story/8363838-rainforest-cafe-workers-vote-to-unionize/">over the employer’s tip-sharing policy</a>. They wanted a say over both its substance and its administration. Nearly a year later, they are on strike against a highly profitable employer that is intent on redistributing servers’ tips in response to minimum wage increases. </p>
<p>How the dispute will resolve itself is still an open question, but the strike has brought attention to a gap in public policy that allows employers to “take from Peter to pay Paul.”</p><img src="https://counter.theconversation.com/content/116556/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alison Braley-Rattai does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The ongoing labour dispute at the Rainforest Cafe in Niagara Falls, Ont., highlights some dubious efforts by employers to take tips from hospitality workers due to minimum wage increases.Alison Braley-Rattai, Assistant Professor Dept. of Labour Studies, Brock UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1075612018-11-28T21:56:48Z2018-11-28T21:56:48ZIs back-to-work legislation unconstitutional?<figure><img src="https://images.theconversation.com/files/247615/original/file-20181127-76755-26y70u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Canada Post workers walk the picket line during a rotating strike in Halifax on Nov. 13, 2018. </span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Andrew Vaughan</span></span></figcaption></figure><p><a href="http://www.parl.ca/DocumentViewer/en/42-1/bill/C-89/royal-assent#enH276">Bill C-89</a> recently passed third reading in the Senate, its final hurdle before becoming law. The bill ended the rotating strikes that the Canadian Union of Postal Workers had engaged in for more than a month and sends the labour dispute to third-party, binding arbitration after a specified mediation period.</p>
<p>The bill was briefly held up over concerns <a href="https://www.cbc.ca/news/politics/senate-canada-post-legislation-strike-1.4919485">that it was unconstitutional.</a> The union says Bill C-89 is <a href="https://nursesunions.ca/cupw-and-clc-issue-joint-statement-in-support-of-postal-workers/">“a clear violation of workers’ Charter rights.”</a> The Senate was ultimately unpersuaded.</p>
<p>It is accepted wisdom among labour relations scholars that freely negotiated settlements lead to better outcomes than imposed settlements. Whatever the labour relations wisdom of this bill, the question of whether it violates the Charter remains. </p>
<h2>The Charter right to strike</h2>
<p>In 2015, the Supreme Court of Canada expanded the scope of freedom of association under the Charter <a href="https://www.canlii.org/en/ca/scc/doc/2015/2015scc4/2015scc4.html">to include striking in support of collective bargaining.</a> </p>
<p>Those arguing Bill C-89 is unconstitutional refer to the fact that postal service is not “essential.” They also cite a 2016 court ruling in which a similar bill (C-6) introduced by Stephen Harper’s Conservatives in 2011 <a href="https://www.canlii.org/en/on/onsc/doc/2016/2016onsc418/2016onsc418.html">was deemed unconstitutional.</a> </p>
<p>While both of these facts are relevant, neither determines whether the present bill is unconstitutional. </p>
<h2>Essential services</h2>
<p>Federal Labour Minister Patricia Hajdu claims <a href="https://business.financialpost.com/pmn/business-pmn/mail-service-halted-in-ottawa-as-commons-looks-to-take-up-back-to-work-bill">the postal service is “essential”</a> and the rotating strikes were harming small and medium-sized enterprises.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/247616/original/file-20181127-76770-1kowphj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/247616/original/file-20181127-76770-1kowphj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/247616/original/file-20181127-76770-1kowphj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/247616/original/file-20181127-76770-1kowphj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/247616/original/file-20181127-76770-1kowphj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/247616/original/file-20181127-76770-1kowphj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/247616/original/file-20181127-76770-1kowphj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/247616/original/file-20181127-76770-1kowphj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Labour Minister Patricia Hajdu is seen during Question Period in the House of Commons on Nov. 22, 2018.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Adrian Wyld</span></span>
</figcaption>
</figure>
<p>Under international labour law, “essential services” are defined narrowly. Previous attempts to expand the definition of essential to include <em>economic</em> harm caused by a strike have been decisively rejected by the International Labour Organization’s Committee on Freedom of Association. And the Supreme Court of Canada has explicitly endorsed the <a href="https://www.canlii.org/en/ca/scc/doc/2015/2015scc4/2015scc4.html">restricted definition of “essential services” found under international labour law.</a></p>
<p>When it comes to labour law, the term “essential” is a loaded one. And it isn’t obvious whether the minister intends for the term to be understood in its legal, or some other, sense. And maybe it doesn’t matter.</p>
<p>That’s because in 2016, the court determined that even strikes in <a href="https://www.canlii.org/en/on/onsc/doc/2016/2016onsc418/2016onsc418.html">non-essential services could be restricted.</a> </p>
<h2>Different than previous bill?</h2>
<p>Hajdu maintains, in fact, that Bill C-89 is different from Bill C-6, ruled unconstitutional in 2016. Under Bill C-6, terms that were central to the bargaining impasse were removed from the arbitrator’s purview and imposed by the government. Additionally, Bill C-6 allowed for the <a href="http://www.parl.ca/DocumentViewer/en/41-1/bill/C-6/royal-assent/page-35#2">unilateral appointment of the arbitrator</a> by the government’s labour minister at the time, Lisa Raitt.</p>
<p>Bill C-89 appears to avoid both problems. First, it <a href="https://www.theglobeandmail.com/politics/article-senators-to-resume-debate-on-legislation-to-end-canada-post-strike/">“does not impose immediate outcomes.”</a> It does provide a list of “principles” that an arbitrator must consider in its determination, but that’s not unusual. Moreover, these principles acknowledge the concerns of <a href="http://www.parl.ca/DocumentViewer/en/42-1/bill/C-89/first-reading#enH272">both the union and the corporation.</a> </p>
<p>Bill C-89 allows for the unilateral appointment of an arbitrator only in the event that both parties cannot agree upon one, and even then, only after <a href="http://www.parl.ca/DocumentViewer/en/42-1/bill/C-89/first-reading#enH272">consultation with the chair of the Canadian Industrial Relations Board.</a> </p>
<p>Contrast this to the previous unilateral appointment process, whereby two successive appointees were challenged by the union. The first recused himself, and the second was ordered to do so by a federal court judge owing to <a href="https://www.canlii.org/en/ca/fct/doc/2012/2012fc975/2012fc975.html">a reasonable apprehension of bias.</a> </p>
<h2>Bill could still face uphill battle</h2>
<p>The fact that strikes may be restricted even in non-essential services, and that the arbitration process might pass constitutional muster, doesn’t mean that other Charter principles don’t apply. The government must demonstrate that its legislation has a pressing and substantial purpose, and that it is proportional.</p>
<p>In 2016, Bill C-6 was considered unconstitutional because it failed one aspect of the “proportionality” analysis — that is, it impaired the Charter rights of the striking workers more than was necessary to achieve its purpose.</p>
<p>Much depends upon how a court defines the government’s “purpose” and how it chooses to understand the relationship between that purpose and the requirement to only minimally impair Charter rights. </p>
<p>Among other things, a court might consider that the strike activity itself was minimal given that the union had very purposely chosen <em>rotating</em> strikes rather than a complete labour withdrawal. </p>
<p>The court might also consider that Canada Post is not a monopoly and that consumers and businesses have alternatives available to them. This could weigh against the notion that the total prohibition on strikes required by Bill C-89 is minimally impairing.</p>
<p>For these reasons, a constitutional challenge could still prove successful. In any event, a court tasked with determining whether Bill C-89 violates Charter rights should be very careful about what a low bar for government intervention it could be setting, all things considered.</p>
<h2>Strikes not all bad</h2>
<p>Strikes are necessarily inconvenient. But they also have benefits. Aside from providing a means to address workers’ legitimate concerns, those benefits often ripple beyond the union membership itself. </p>
<p>Notably, the postal worker strike in the early 1980s won for union members expanded maternity rights, which in turn pressured the government to <a href="http://activehistory.ca/2018/11/cupw1981/?fbclid=IwAR3km7BTJnJDr7TMzFkdJLoP0V64FhxZytWGl2gbittyTXuz2kQoAlBg1b0">follow suit.</a></p>
<p>And when faculty strike over <a href="https://www.cbc.ca/amp/1.2681865">class sizes</a> or to highlight their <a href="https://theconversation.com/my-experience-as-an-under-paid-ontario-college-instructor-87486">precarious employment</a>, the potential effect is to improve the learning conditions for all students.</p>
<p>While not every strike might carry with it far-reaching positive implications, we should be very circumspect about intervention into the bargaining process, and skeptical about government claims that intervention is the best way to protect the public interest.</p><img src="https://counter.theconversation.com/content/107561/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alison Braley-Rattai does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Ottawa has ordered postal workers back on the job, but is it constitutional? We should be circumspect about intervening in the bargaining process and skeptical about claims it’s in the public good.Alison Braley-Rattai, Assistant Professor, Brock UniversityLicensed as Creative Commons – attribution, no derivatives.