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The Progressive Economics Forum

Lisa Raitt’s Three Principles of Labour Law

Posted below is a slightly longer version of my column in today’s Globe and Mail regarding the Harper government’s highly creative approach to making up labour law on the run.

Also posted is a graph showing the dramatic decline (of 95% or more) in the frequency of work stoppages in Canada since the mid-1970s.  In 2010 only 0.03% of work time was lost to work stoppages (including lockouts like U.S. Steel), just a smidge higher than the all-time postwar record low of 0.02% reached in 2008 (source: calculated from StatsCan variables 4391647, 15856467, and 4391505, assumes 8-hour working day and 250 working days per year) .

         

Here’s the Globe and Mail Column:

The rule of law has suddenly been given a rather flexible interpretation by the Harper government in Ottawa, in the arena of labour relations.  In just six months in power, the Conservative majority (fronted in this realm by Labour Minister Lisa Raitt) has intervened three times to end or prevent work stoppages.

            The first was in June, when she announced (after less than one day of picketing) she would forcibly end a strike by CAW members at Air Canada.  The two sides settled, sending one outstanding item (pensions for new hires) to arbitration.  A new principle was established (call it Raitt’s First Principle): even at private non-monopoly companies, government can ban strikes.

            Later that month, she waded into the Canada Post dispute.  It was management (not the union) that locked out everyone and closed the doors.  But Ms. Raitt used that as the pretext to legislate the posties back to work – imposing a wage settlement lower than what management had already offered.  Raitt’s Second Principle was established: government can explicitly dictate wage settlements.

            Then in October she pushed the boundaries of legal interpretation even further, calling in the Canada Industrial Relations Board to pre-empt a CUPE strike at Air Canada.  She laughably invoked concerns about the “health and safety” of the travelling public (perhaps worried about too much airport coffee in the tummies of stranded passengers?).  She further justified her actions on the basis of her government’s “strong mandate” in the May election (when Conservatives won 39.6% of the vote).  Raitt’s Third Principle is in fact a blank cheque: government can simply prohibit any work stoppage it wants to.

            Each case represented an audacious willingness to intervene in labour-management relations, even in private companies.   Each case moved the goalposts a little further.  And now Ms. Raitt has speculated about amending the federal labour code so that the economy itself is defined as an essential service.  That would codify Raitt’s Third Principle, giving government the explicit right to ban any work stoppage it deems offensive.

            Of course, which work stoppages are prevented, and which aren’t, will remain a matter of judgment.  Imagine if all work stoppages (not just strikes, but also lockouts – increasingly popular with employers) were prohibited.  All disputes would then be settled by binding arbitration (as currently occurs with true essential services, like police and hospitals).  But employers don’t want that approach, fearing that arbitrators may occasionally side with the union.  The arbitrator in the Air Canada-CAW case did exactly that, sparking a bizarre decision by the company to appeal his “final and binding” judgment to the courts (an appeal since abandoned, wisely).

            When employers hold the better cards (as they do in today’s unforgiving labour market), they happily go for the jugular – work stoppage or no work stoppage.  Consider another epic dispute which ended last month: the 50-week lockout at the U.S. Steel factory in Hamilton.  There the company starved out the union with far-reaching demands to gut pensions and other long-standing provisions.  The economic cost of that bitter, lopsided dispute didn’t slow the company, nor did it spur any level of government to action.

            I estimate that the loss of GDP resulting from a 50-week shutdown of that plant was at least 4 times as large as the effects of a full one-week shutdown of Air Canada (something that never occurred).  If government were truly concerned with “protecting recovery,” why didn’t it end the U.S. Steel lockout?  True, steel falls within provincial (not federal) jurisdiction.  But Ottawa had plenty of leverage if it wanted to act – not least being U.S. Steel’s galling violation of the production and employment commitments it made when Ottawa approved its takeover of the former Stelco.

            In this case, where workers held little power, government stood idly by.  It’s only when workers have a little leverage that government acts powerfully to “protect the economy.”

            We shouldn’t forget, either, that the extent of work stoppages has already declined dramatically during the neoliberal era, reflecting both the gradual decline of unionization, and more importantly a more dramatic decline in the propensity of union members to go on strike (offset somewhat by the increasing propensity of employers to lock their unionized workers out).  In 2010 work stoppages (both strikes and lockouts) accounted from 0.03% (ie. one-thirtieth of one percent) of all work time in Canada’s economy; that’s a 95% decline from the strike-happy days of the 1970s. 

            In that context, trying to pretend that union work stoppages are really a major problem facing Canada’s economy is far-fetched, to say the least.  0.03% of a year’s working time is approximately 37 minutes – barely enough to run down to Timmie’s and back for a double-double.  And in today’s labour relations environment, those stoppages that do occur are more likely to be driven by management, not by the unions.

            There is no doubt that Raitt’s actions have been popular with many Canadians.  And there is no doubt that work stoppages cause economic inconvenience and disruption.  But because something is unpopular or inconvenient, does not give a government moral authority to take away rights and make up the law as it goes – even if it does hold a majority of seats in a parliament.

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Comments

Comment from Kelsey
Time: November 2, 2011, 4:06 pm

Jim, this is awfully scary!!

“And now Ms. Raitt has speculated about amending the federal labour code so that the economy itself is defined as an essential service. ”

What is Conservative government exactly conveying here? Essential service to Citizens or the Corporations? The sanctified history of North America has kept public in ignorance of the past brutal practice by big corporations of using indentured servants, reading your column I see one of those corporations has carried on the remnants of that attitude to the current times and our government did not have the courage to step in.

What I do not understand is why is Harper government so invigoratingly passionately inspired to interject itself on behalf of corporations in labour disputes? It would be cynical if not for the fact like the First Earth Summit, at its time the largest gathering event in the world of the heads of state because of the impending environmental crisis was not about the environment at all. Incidentally I was thinking about it yesterday and wondered why PEF has not touched on this. By some strange twist it so happens that today is the 20th anniversary of Rio Summit. EIR has in its archives a write up about Maurice Strong about the real objectives behind his worship of Gaia.

http://www.larouchepub.com/other/1999/2605maurice_strong.html

As Dewar writes: “The Rio Summit would take long steps towards a world in which nation states have withered away in favor of supranational and global institutions…. Advertised as the World’s Greatest Summit, Rio was publicly described as a global negotiation to reconcile the need for environmental protection with the need for economic growth. The cognoscenti understood that there were other, deeper goals. These involved the shift of national regulatory powers to vast regional authorities; the opening of all remaining closed national economies to multinational interests; the strengthening of decision making structures far above and far below the grasp of newly minted national democracies; and, above all, the integration of the Soviet and Chinese … into the global market system.”

As our interview makes clear, Strong knew that the Rio Summit was aimed to destroy the sovereign nation-state republic…

Comment from ben burd
Time: November 4, 2011, 9:16 am

Taken from a blog:

A blast from the past is the name – Joe Davidson. This man, a fiery Scot, was the President of the Canadian Union of Postal Workers, who in In 1975, led a 42-day strike. His claim to fame was that when asked about the impact on the public that the strike was having, said, “To hell with the public”. Quite right, what place in an industrial dispute does the public have? None – it’s a dispute between two parties. The public is collateral damage and as such is not in the dispute. This discussion has to take place because the rights of the public not to be inconvenienced during a strike is a major justification for “back to work” legislation.

In a Country that guarantees the freedom to assemble and then refuses to let the assemblers assemble where they want to is a Country that lives on ‘weasel words’. Such is North America. By the witholding of parade permits and the establishment of ‘freedom areas’ the lawmakers make a mockery of our basic rights to assemble freely. Is it any surprise then the the same lawmakers are now carving out a position for the public in what is essentially a two-party problem – a strike. Of course the public is inconvenienced, it is supposed to be. Without any collateral damage the Unions and Management’s fight for public opinion is useless. The public has to get hurt to exert influence on whichever side they deem is to blame. It is essential that public opinion comes to bear or else the strike as a weapon is useless. Naturally the lawmakers know this and it doesn’t matter what political party is in, they will support management every time. The Cons screwed CUPE in the AirCanada dispute and Labour screwed labour in the Quantas dispute, just a couple of days ago.

So as we watch, impotently, and fume about government intervention in the strike process, even before the strikers get to hit the bricks, one should realise that unless we want to be reduced to the Japanese style of striking – to continue to work but wear a bandanna signifying ones participation in a strike – that the public has to hurt to get results. So we at the BR say “It’s time to memorialise Joe Davidson and repeat “to hell with the public”" It’s the only way to get results.

Postscript:

Taken from the Globe & Mail “If this isn’t enough, Labour Minister Lisa Raitt, who’s been winning praise for her hard-line tactics, says she’s considering changing the Canada Labour Code so the economy will be defined as an essential service. Given that almost any strike could be said to affect the economy, such a move would give the government extraordinary arbitrary powers.” This quote is more than enough to justify the tough language in the post above. The fight is on get on side!

Comment from Kelsey
Time: November 4, 2011, 11:51 am

If and when this amendment to Federal Labour Code is is tabled NDP should walk out enmasse. Lets see if NDP is willing to deligitmise Harper government’s actions to arbitrarily redefine labour relations.

Comment from Kelsey
Time: November 7, 2011, 11:48 am

Minister Raitt’s threatening maneuvers to amend Federal Labour code have kept the real motives of this government hidden from public. The deceptive ReformCons or more aptly their Private Corporate buddies are gunning for another arsenal here – the Forceful Preemption.

All this interference is to push labour to challenge the government in the Supreme Court. And this is where the game will be played out and our Leader will then show his hand.

The issue is not wages or economy here but to destroy the concepts of solidarity and brotherhood and common bonds in society. We do not have clans, tribes or villages or elders in society, and small family farms will disappear after CWB (read about dekulakization) is dismantled. Unions are last bastions of social justice where common voice is loudest. Erect legal barriers around unions to make them impotent, and the government has pretty much a clear field to pursue their destructive policies. I guess Canadians are not easily compromised so the powers will use the Supreme Court to force Canadians to accept their agenda.

Who ever believes there is no secret agenda in Harper government does so at his own peril.

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