In defence of the right to strike

Lana Payne
Published on February 21, 2015

In spite of a staggeringly anti-worker federal government and unprecedented corporate power at home and around the world, workers’ rights are making a comeback.

The pendulum has finally swung too far. It took a couple of decades — decades where workers’ fundamental rights, guaranteed in Canada by our Charter of Rights and Freedoms, were eroded and blatantly attacked by federal and provincial governments and by emboldened employers.

The global lobby against workers’ rights is among the fiercest and best financed. And it has reached a fever pitch, including an assault by employers at the International Labour Organization (ILO) against the right to strike.

Corporate power and employer organizations have had a good friend in right-wing governments (and some not so right-wing) around the world.

It is no coincidence that the attack on workers’ rights and freedoms, such as the right to join a union and to fair and free collective bargaining, have gone hand in hand with unparalleled growth in inequality.

Unions, organized labour, remain the single greatest counterbalance to corporate power. Simply, they force wealth to be shared. No country on the planet has achieved shared prosperity without strong unions and decent collective bargaining coverage for workers.

A 2012 Organization for Economic Co-operation and Development (OECD) report looking at the growth in income inequality concluded: “arrangements that strengthen trade unions also tend to reduce labour earnings inequality by ensuring a more equal distribution of earnings.”

This is important for all kinds of reasons, not the least of which is inequality hampers economic growth (even the International Monetary Fund and the World Bank now agree) and damages civil engagement and democracy.

In 2009, a group of more than 120 Canadian scholars issued an open letter on the benefits of unionization and its positive impact on the economic and social well-being of Canadians.

But it has been tougher for unions to play this “lifting” everyone up role when they are under constant attack from legislators.

Consider, for example, the number of times the Harper government has interfered with collective bargaining, empowering even further the hand of big employers, including Canada Post, Air Canada and CP Rail.

Consider the countless changes in labour legislation, including the right to refuse unsafe work, undertaken by the federal government.

By curtailing the ability of unions to act as a catalyst to share or redistribute wealth in our economy, governments do their citizens a huge disservice.

And now in the midst of this, the Supreme Court of Canada has given governments who attack workers’ Charter rights a stunning rebuke by striking down a Saskatchewan law that took away the right to strike. The pendulum against workers’ rights had swung too far.

The court ruled that “where strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, it must be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations.”

Until this January decision, the right to strike, much like workers’ rights generally, had taken a beating as governments blatantly ignored the full meaning of the right of freedom of association protected under Canada’s Charter of Rights and Freedoms.

According to global rights, defined in the United Nations Convention 87 and signed and agreed to by Canada, the trilogy of workers’ rights are: the right to organize, the right to collectively bargain and the right to strike.

Justice Rosalie Abella, who wrote the majority Supreme Court decision, critiqued the dissenting opinion of two of her colleagues who attributed equivalence between the power of employees and employers.

“This reasoning, with respect, turns labour relations on its head, and ignores the fundamental power imbalance which the entire history of modern labour legislation has been scrupulously devoted to rectifying.”

She continued by noting that, “It drives us inevitably to Anatole France’s aphoristic fallacy: ‘The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’”

Last week, international trade union organizations held a Global Day of Action in defence of the right to strike. This became necessary because of increased efforts by employers at the ILO to eliminate this right as part of the global labour rights trilogy.

The right to strike is how many of the advances we take for granted today were achieved — like equal pay, holidays, paid overtime, same-sex benefits, and health and safety laws. These gains did not happen without struggle and a good deal of courage and sacrifice on behalf of working people over many generations. They certainly didn’t happen because someone felt generous.

Following the Supreme Court decision, labour law professor David Doorey ( wrote, “the lawmakers of the land ought to urgently place at the top of their agendas a plan that would result in collective bargaining becoming the predominant method for the establishment of conditions of work. There is nothing pie-in-the-sky about such an ambition.

“The Scandinavian countries have come close to achieving negotiated conditions for all and the result has proven to be excellent. They have one of the highest standards of prosperity and equality in the world and they have economies that are consistently listed as the most competitive. Collective bargaining works for everyone.”

Indeed it does. Perhaps the greatest irony is this Supreme Court decision came on Stephen Harper’s watch. Justice after all.

Lana Payne is the Atlantic director for Unifor. She can be reached by email at Twitter: @lanampayne Her column returns March 7.