Postal Workers Win Court Challenge To Back-To-Work Law: Superior Court Declares Harper's Law Unconstitutional

The Canadian Union of Postal Workers have won a major victory in the Ontario Superior Court of Justice with respect to the fundamental Charter rights of workers to freely associate and express themselves by engaging in lawful strike activity.

On April 28, 2016, the Court found in favour of the Postal Workers' constitutional challenge to federal back-to-work legislation.[1] The Court found that the legislation was unconstitutional as it violated the workers' freedom of association and expression, as guaranteed under the Canadian Charter of Rights and Freedoms ("Charter").

Factual Background

Enacted in June 2011, the impugned legislation interfered with free collective bargaining between Postal Workers and the Canada Post Corporation by forcing Postal Workers back-to-work after several weeks of rotating strikes and a nationwide lockout. The 2011 negotiations were particularly difficult for the workers as the Corporation was seeking breakthrough concessions which would significantly alter the collective agreement. In addition to taking away the Postal Workers' right to strike, the law was punitive toward workers by imposing a wage settlement that was lower than what the Corporation itself had offered in negotiations. The law also prescribed an unfair and biased arbitration process for resolving the outstanding issues in the labour dispute. Under this arbitration process:

• The Minister of Labour had the unilateral power to select the arbitrator;
• The arbitrator was required to select one party's final offer as a whole, as opposed to having the discretion to select elements from each party's offer or to bridge the gap between the parties in the interests of fashioning a fair award;
• In selecting one party's final offer, the arbitrator was required to be guided by criteria which were biased in favour of the employer;
• The legislated criteria included a requirement that the arbitrator select an offer that would not lower the solvency ratio of the pension plan, a criteria which required that the Union make concessions in pension benefits in light of the wage settlement;
• Both the wage settlement and term of the collective agreement were removed from arbitration and were dictated by government; and
• The "winner takes all" result would be imposed on the losing party for a four year term, as dictated by the legislation.

The Court found that by removing the right of Postal Workers to strike, the legislation interfered with their fundamental freedom to associate and express themselves, as guaranteed under the Constitution.

Back-To-Work Law Violates Freedom Of Association 

With respect to the violation of freedom of association, the Court found that taking away the right to strike substantially interfered with a meaningful process of collective bargaining as protected under s. 2(d) of the Charter. The Court noted that the bargaining proposals of the parties before and after the introduction of the back-to-work law revealed a clear shift in power between the Union and the Corporation. Whereas the Union was forced to make significant concessions in an effort to reach an agreement and avoid the punitive legislation, the Corporation was able to escalate its demands and seek even greater concessions than it had in the months of negotiations preceding the legislation. The Court concluded that the evidence clearly established that the legislation disrupted the balance of power between the parties, thereby substantially interfering with a meaningful process of collective bargaining.

Back-To-Work Law Violates Freedom Of Expression

With respect to the violation of freedom of expression, the Court found that by prohibiting strike activity the legislation suppressed an important means of expression about the issues at stake in the dispute for Postal Workers. The Court further found that the legislation interfered with the free speech rights of the Union and workers by prohibiting them from engaging in any conduct that may encourage employees to refuse to resume their employment duties. If contravened, the Union and workers faced severe fines under the legislation. Accordingly, the Court found that the government measure suppressed legitimate dissent and criticism of the back-to-work law, as such expression could potential constitute conduct prohibited by the law.

Back-To-Work Law Not Justified In A Free And Democratic Society

Finally, the Court found that the legislation's infringements of freedom of association and expression were not demonstrably justified in a free and democratic country, and were therefore not saved under section 1 of the Charter. While the Court was prepared to accept that the government's legislative purpose of maintaining postal services was sufficiently important to justify interfering with the constitutional rights of Postal Workers, it found that the measures chosen by the government to achieve that purpose were not minimally impairing of those constitutional rights. Specifically, the Court found that the arbitration process imposed on Postal Workers was not an adequate, impartial or effective dispute resolution mechanism, as it did not restore the Union's loss of bargaining power that resulted from workers losing their right to strike. According to the Court, there were two key constitutional deficiencies in the arbitration process: (1) the legislation removed important terms off the bargaining table, including wages and the term of the collective agreement; and (2) the legislation permitted the Minister to unilaterally select the arbitrator without first consulting the parties, leading to a potential appearance of bias as the government is the sole-shareholder of the Corporation. As stated by the Court, "[f]ar from putting the parties on an “equal footing”, [the legislation] instead created and exacerbated an imbalance between the parties that had not existed before the legislation was [introduced]" (para. 212). The Court further found that a complete ban on strike activity was not minimally impairing of the expressive rights of postal workers, and that the prohibition of any conduct which may encourage non-compliance with the back-to-work law was overly broad.

Commentary

As recognized by many labour leaders, this case is significant for the labour movement. It is the first time a Canadian court has reviewed the constitutionality of back-to-work legislation since the Supreme Court of Canada ruled that there is constitutional protection for the right to strike in the 2015 decision of Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4.

This case is an important repudiation of the Harper government's interventionist, anti-union approach to bargaining disputes in the federal sector.

Paul Cavalluzzo and Adrienne Telford argued the case on behalf of the Canadian Union of Postal Workers