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The Harper Government’s latest attack on working people

October 23, 2013

The Globe and Mail and Blacklock’s Reporter have talked to Steven Barrett and Jim McDonald about the Harper Government’s latest attempt to undermine collective bargaining and workplace safety.

The Harper government’s latest attack on workers has come as a stealth attack in its new omnibus budget bill.

The budget bill contains amendments to the Public Service Labour Relations Act (PSLRA) and the Canada Labour Code that would fundamentally alter the rules and laws governing collective bargaining and workplace health and safety.

On the collective bargaining front, among other things, the amendments would give the federal government the unilateral power to designate which jobs provide essential services to the public, thereby eliminating the right of employees in those positions to strike. Under the current PSLRA, the employer and the union must negotiate an essential services agreement in which they agree that certain services are essential to the safety and security of the public and will continue to be performed, at a level set by the government, during a strike.

Claims by Tony Clement’s office, reported in the Globe and Mail, that unions can veto the government’s effort to designate a job as essential are not true. If the employer and the union are unable to agree whether a particular service is essential to public safety and security, either of them may apply to the Public Service Labour Relations Board (i.e. a neutral, independent adjudicative body) to have the dispute resolved. The government’s real issue seems to be that it can’t simply dictate which jobs are essential.

In addition to proposing amendments that would allow it to use essential service designations to restrict the number of employees who may legally strike, the government also introduced amendments that would restrict a union’s access to binding interest arbitration when collective agreement negotiations are at an impasse. These amendments provide that, where less than 80% of a bargaining unit’s members are performing services that have been deemed essential, interest arbitration is available only if both sides agree. As the Globe reported, “critics said these changes would reduce the leverage of bargaining units. If, for instance, 79 per cent of a bargaining unit is designated as essential – and cannot strike – only 21 per cent of the work force could use job action as a lever.”

Moreover, even where a dispute is referred to arbitration, the amendments provide that the arbitrator must give preponderant weight to Canada’s fiscal circumstances relative to its stated budgetary policies. This would effectively rig any arbitration in favour of the employer’s position.

As Steven Barrett told the Globe and Mail, the proposed amendments “virtually [eviscerate] collective bargaining for public servants.”

“You can imagine the effectiveness of strike action if nearly 80% of the work force is designated essential … Basically you can designate so many workers as essential that you make collective bargaining fruitless or meaningless.”

As the Globe also reported, Steven “questioned why the government buried the public sector labour relations measures in a budget implementation bill instead of tabling them as separate legislation ‘that could be properly debated rather than smuggled in through the back door.'”

The budget bill also amends the definition of “danger” in Part II of the Canada Labour Code which sets occupational health and safety standards in federally regulated workplaces. An employees has certain rights to refuse to work if they have reasonable cause to believe that something presents a danger to the employee or another employee.

The current definition of “danger” is: “any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system.”

The budget bill would amend the definition to: “‘Danger’ means any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.”

As Jim McDonald noted, in an interview with Blacklock’s Reporter, it seems the “clear intent of the amendment is to reduce the occasions when workers will be able to exercise their right to refuse to perform unsafe work.”


Steven Barrett

Practice Areas

Labour Law