October 7, 2015 By: Steve Waller
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Nelligan O'Brien Payne gratefully acknowledges the contributions of Eric Kerson and Jill Lewis, Students-at-Law in writing this blog post.

Since its 2008 election, the Harper majority government has rammed through a breathtaking array of punitive (and often unconstitutional) anti-union measures. If a new government takes power following the election in October, would it repeal those measures?

The federal Conservatives’ labour agenda is driven by ideology. It ignores mounting evidence, even from such conservative bodies as the World Bank, International Monetary Fund and Conference Board of Canada, that high rates of unionization benefit middle- and low-income earners; reduce poverty and income inequality; decrease unemployment and inflation; increase productivity; and foment improvements in employment conditions for union and non-union workers alike.

Consider some of Harper’s more notable anti-union measures, and what the opposition parties have said so far about them.

Bill C-4, Budget Implementation Act 2013

It weakens public service bargaining

This omnibus legislation introduced several retrograde labour changes that took effect on October 1, 2014. Notably, it imposed two changes that gut the bargaining power of federal public service unions.

First, it imposed a new “essential services” process to determine what public services must be continued during a strike. The employer now has carte blanche to label any service as “essential”, and then to dictate the number and  kind of  public servants who must continue providing those services during a strike.

Second, C-4 abolished the right of public service unions to choose arbitration, rather than strike action, as the method of resolving bargaining impasses. Arbitration is now available only when the employer agrees, or when the employer has designated over 80% of the bargaining unit employees as “essential”. Now, the employer can designate a large majority of the unit employees as “essential”, leaving the union to choose between capitulating to the employer’s demands at the outset, versus capitulating after an ineffective strike. Sound fair?

To tilt the playing field further, Bill C-4 has also changed the rules of interest arbitration. Now, when awarding a renewal collective agreement, an arbitrator must give preponderance to “Canada’s fiscal circumstances relative to its stated budgetary policies”. Arbitrators are being pushed to award collective agreements that will cost no more than the employer wants to pay.

It weakens protection against unsafe work

Bill C-4 also weakens protections from unsafe work for employees under federal jurisdiction (both public servants and private sector employees). Among other changes, the bill:

  • Eliminates the express right to refuse work that is “potentially” dangerous.Redefines “danger” so as to focus on risks of imminent harm, and arguably downgrades protection against harms that may materialize only in the future. Eliminates the requirement that neutral, trained Health and Safety Officers investigate complaints of unsafe work. Now, the Minister or her appointee can investigate instead.
  • Permits the Minister to refuse investigate to complaints that she deems to be “trivial, frivolous or vexatious.”

What are the opposition parties saying about Bill C-4?

In a May 6, 2015 letter to the Canadian Association of Professional Employees, NDP leader Thomas Mulcair stated he would repeal “the many provisions of Bill C-4 that directly attack public service unions”. Mulcair wrote “this legislation infringes on the right to free bargaining by allowing the government to unilaterally designate categories of employees as essential service providers”.

In her Labour Day statement, Green leader Elizabeth May assailed the Conservatives’ “back to work legislation” (this may have been intended to include C-4, which prevents many employees from striking in the first place). She pledged to “work with labour and business to put in place [better] policies”.

Bill C-59, Division 20 – Sick Leave and Disability Programs

It allows government to set employment terms by fiat

This 2015 omnibus budget implementation legislation has further eroded collective bargaining rights in the core federal public service. It empowers the employer to unilaterally establish terms of employment related to the sick leave and disability benefits of unionized public servants. It also allows the employer to unilaterally amend already-agreed terms relating to those subjects.

This Bill does not outright ban collective bargaining about sick and disability benefits, but it has a comparable effect. It sends the employer back to the bargaining table, but armed with the power to break off bargaining at any time and to impose whatever terms it wants.

What the opposition parties are saying about Bill C-59, Division 20

To our knowledge, no opposition party has publicly stated its intentions regarding Bill C-59, Division 20.

Bill C-377 – An Act to Amend the Income Tax Act

It puts onerous and costly disclosure obligations on unions

This extraordinary Bill amended the Income Tax Act so as to single out unions for special treatment. It will require every labour organization and “labour trust” to post on the internet, for all to see, extremely detailed annual reports on its financial position and financial transactions. “Labour trusts” include all pension plans, benevolent funds, training funds and health and welfare funds that benefit unionized employees.

Although this Bill was passed in the name of “tax transparency”, neither employers nor other organizations that enjoy special tax treatment (such as registered charities and First Nations) are subject to such onerous reporting requirements. Even government agencies are required to make less detailed public disclosure.

C-377 has come under fire from many quarters, including some Conservative Senators who voted the Bill down a few years ago, when it was first introduced in Parliament. Then-Conservative Senator Hugh Segal called C-377 “an expression of statutory contempt for the working men and women in our trade unions and for the trade unions themselves and their right under federal and provincial law to organize”. Undeterred, the Conservatives later re-introduced the Bill, and passed it this time. Senator Segal predicted that C-377 “will actually worsen labour relations in Canada, slow economic development, and upend the balance between free collective bargaining, capital investment and return, which are vital to a strong and free mixed-market economy. As a Conservative, I oppose the upending of this balance”.

What are the opposition parties saying about Bill C-377?

The federal Liberal and NDP parties have both stated that they would repeal Bill C-377.

In an April 27, 2015 speech to the International Association of Fire Fighters, Liberal leader Trudeau confirmed that if elected the Liberals would repeal both C-525 (dealt with below) and C-377. On Labour Day, Trudeau vowed that “a Liberal government is firmly committed to repealing these deeply ideological and highly partisan pieces of legislation”.

In her Labour Day statement, Green leader May labelled C-377 as “the disastrous Union Disclosure Bill” and pledged to “work with labour and business to put in place [better] policies”.

Bill C-525 – Employees’ Voting Rights Act, S.C. 2014, c. 40

It discourages unionization

This Act, in effect since June 16, 2015, changed the procedures by which unions in the federal private sector, the federal public service, and on Parliament Hill can be certified as bargaining agents.

Previously, a union could be certified by submitting signed applications for membership ("cards") from more than 50% of the bargaining unit. Now, the union must file cards signed by 40% of the unit and then also win majority support in a secret ballot vote.

The mandatory vote regime ensures that employers, after learning about the certification application, have a window in which to convince employees to vote against the union. Other jurisdictions that have switched to mandatory votes have seen significant reductions in the success of union organizing drives. This result appears to be the true aim of Bill C-525.

What are the opposition parties saying about C-525?

In a May 6, 2015 letter to the Canadian Association of Professional Employees, NDP leader Mulcair committed to repealing bill C-525. Mulcair stated this bill “goes against the trend among provincial governments, which are trying to improve access to collective bargaining”.

In an April 27, 2015 speech to the International Association of Fire Fighters, Liberal leader Trudeau confirmed that if elected, the Liberals would repeal both C-525 and C-377 (dealt with above). On Labour Day, Trudeau vowed that “a Liberal government is firmly committed to repealing these deeply ideological and highly partisan pieces of legislation”.

Conclusion

The opposition parties have stated their intentions with respect to some but not all of the anti-union legislation summarized above. If you wish to protect the rights of unionized employees, you are encouraged to follow up with our politicians. Where a commitment has already been made to repeal, be sure to remind the parties of their commitment before the election. If a new government is elected, demand that it fulfill its commitment. Where no commitment has yet been made, ask for one!

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Labour Law