Top 5 Things I Won’t Miss About Harper – Labour Law Edition
October 27, 2015 By: Christopher C. Rootham Read Time: 3 minutes
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Monday October 19, 2015 was probably the best TV-watching day of my life. In no particular order:

  1. Blue Jays 11, Royals 8.1
  2. Harper Conservatives lose the election.
  3. New Star Wars: The Force Awakens trailer.2

With apologies and condolences to my NDP brothers and sisters, I still had to let out a cheer when Peter Mansbridge3 announced a Liberal government.

In the week since, I have grown reflective on almost 10 years of Harper Conservative governments in Ottawa. I could almost grow to miss Harper.As tempting it would be to look forward and play “who’s going to be in Cabinet”, I wanted to take this time to look back on the top 5 good and bad labour law initiatives by the Harper Conservative government.

Top 5 Good Things About the Harper Government (Labour Law Division):

  1. Not all forms of union activity are criminalized.
  2. That’s all.
  3. Really.
  4. I’m not kidding.
  5. OK, one more thing. Bill C-4, the Economic Action Plan 2013 Act, No. 2 did amend the Public Service Labour Relations Act to make it clear that grievances alleging a violation of the Canadian Human Rights Act can be referred to Adjudication. This will avoid jurisdictional wrangling such as in the Chamberlain series of cases (see here for the latest), where federal public servants are left to guess whether they should (or must) grieve or file a human rights complaint with the Canadian Human Rights Commission – only to have the employer respond, inevitably, that they are in the wrong forum. Of course, this positive change has not been declared in force, but it could happen.

Top 5 Bad Things About the Harper Government (Labour Law Division):

1. Back-to-work legislation

Okay, I know all governments (even some supposedly left-wing governments) restrict strike activity every once in a while. The Harper Government, though, went further in this than any previous government. First, not content to order workers back to work who were on strike, the Harper Government passed back-to-work legislation before workers even got a chance to strike. The 2012 Protecting Air Service Act, for example, banned a strike that hadn’t even started yet. This isn’t “back-to-work” legislation; this is “stay-at-work” legislation. Second, the Harper Government abandoned even the pretence of fairness between labour and management when imposing back-to-work legislation. In some cases it imposed the most restrictive form of arbitration, final offer selection, and in all cases it set out statutory criteria for the arbitrator that favoured the employer. Worst, though, was the 2011 Restoring Mail Delivery for Canadians Act, which imposed wages that were lower than what the employer had agreed to pay earlier in the dispute.

2. Restrictive essential services legislation

I’ve already written about Bill C-4, the Economic Action Plan 2013 Act, No. 2, extensively here. The worst part about that legislation is the essential service regime: the employer gets to decide what level of service is “essential” without reference to any criteria, and then decide which employees perform “essential” services. If any portion of an employee’s duties are “essential” – no matter how tiny – the employee cannot go on strike.

3. Making certification harder

The 2014 Employees’ Voting Rights Act requires vote-based instead of card-based certification. There are a myriad of studies and reports demonstrating that vote-based certification suppresses union support as it gives time for employers to intimidate, threaten, or otherwise dissuade employees from supporting a union. This law also makes it easier to decertify a union than certify one: a certification application requires 45% of the workplace to sign a union card, but a decertification application only requires that 40% of the workplace request decertification.

4. Invasive financial disclosure for unions

The 2015 Bill C-377, An Act to amend the Income Tax Act (requirements for labour organizations), requires unions to make detailed and public financial disclosures – far more detailed and public than for businesses.

5. Prohibiting unions from supporting pay equity

The 2009 Equitable Compensation Act prohibits federal public service unions from supporting any member who files a pay equity complaint – to the extent of setting a fine up to $50,000 if a union helps an individual member make such a complaint. This legislation, thankfully, was never declared in force. Maybe the Harper Conservative government has some shame after all. Or, they just forgot.


I haven’t even had room to mention wage restraint legislation, which requires Treasury Board interference in collective bargaining at Crown corporations, the shambolic foreign worker program, or legislation eliminating sick leave for the majority of federal public servants.

The new Government of Canada can’t do any worse, can it? (Note to Justin Trudeau: this is not a dare.)


Although, holy crap that 9th inning got scary all of a sudden. No more Liam Hendricks after the 7th inning, please.
If you haven’t seen it, the Internet is calling you. Go ahead. I’ll wait for you to get back.
A moderate left-winger watching the CBC? You’re all shocked I’m sure.
This is not actually true.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2018 Nelligan O’Brien Payne LLP.

Service: Labour Law