Liberals propose changes to labour code to intervene in strikes affecting national interest

OTTAWA — Labour experts say the Liberal government's latest major legislative push will test the limits of Ottawa's power to intervene in collective bargaining when economic interests are at stake.

The Liberals tabled Bill C-39, the Building Canada Strong Act, on Monday.

The most consequential of the bill's changes to the Canada Labour Code are adjustments to Section 107, which was introduced in 1984.

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The minister can trigger the section to direct the Canada Industrial Relations Board to "do such things as the minister deems necessary" to settle disputes and ensure industrial peace.

Bill C-39 changes the language in Section 107 to explicitly state that a minister can order a business under federal jurisdiction to resume operations or put parties into binding arbitration.

It also adds conditions the federal government must meet before triggering the section: it must consider a special mediator's report and determine whether a work stoppage is adversely affecting the "national interest."

The federal government argues this revised Section 107 measure doesn't constitute a new power to intervene in labour disputes.

"The changes proposed in the bill would clarify the minister’s existing ability to direct the board to take specific measures by establishing clear guardrails around the use of Section 107," said Maja Stefanovska, spokesperson for Employment and Social Development Canada, in an email.

Labour experts who spoke to The Canadian Press this week argue the new language likely does confer additional powers on the minister.

"They're pitching it as trying to clarify it and, as they said, put some guardrails around Section 107," said Adam King, assistant professor in the labour program at the University of Manitoba.

"But I think that's a mischaracterization. What they've done is really enhanced that power. It's really Section 107 on steroids."

As of Thursday afternoon, the federal government had not yet published a Charter statement regarding Bill C-39.

Bethany Hastie, associate professor in law and director of the Centre for Law in the Contemporary Workplace at Queen's University, said the federal government is setting out a "clearer process" to use Section 107 to interfere in collective bargaining.

Hastie said this approach has the potential to "significantly impact" workers' rights to strike, which was upheld by the Supreme Court of Canada in 2015.

So far, most reasonable limits to those rights in the Canadian labour context have revolved around essential services.

"There have been arguments made that perhaps the right to strike could be reasonably limited where there are significant adverse economic consequences, but that is not something that's yet been pronounced on" at the Supreme Court, Hastie said.

The text of the legislation says the minister can take into account "any relevant considerations" to determine if the "national interest" is at stake.

Jobs Minister Patty Hajdu has said the national interest qualifier is a "high bar" to meet.

"I think the pressure is extremely high when it's in a transportation sector that is transporting essential goods, transporting perishable goods," she said. "There are a number of different scenarios where the pressure really mounts. And it's intended to mount. That's a point of a strike."

Brent Marks, a lawyer in the labour and employment division at Nelligan Law, said strikes are supposed to impose economic discomfort.

"Obviously that's something that engages the national interest," Marks said.

The government already has a tool to intervene in labour disputes in federally regulated sectors: passing back-to-work legislation in Parliament.

Hajdu argued it's not always possible to convene the House of Commons when necessary to resolve a dispute.

King said expanding reasonable limits on the right to strike through the vague national interest condition is a "dangerous road to go down."

Both King and Hastie argue, however, that the Liberals risk a wider backlash from unions and a fraught period for labour relations if they proceed with the proposed changes to Section 107.

With files from The Canadian Press, CHEK News and BNN Bloomberg