Canada: Bill C-39 Amends Canada Labour Code s. 107 Strike Intervention

• Bill C-39, introduced on September 21, proposes revisions to Section 107 of the Canada Labour Code, which governs ministerial intervention in federal labour disputes.
• The new provisions proposed in Bill C-39 require a special mediator to be appointed by day 75 of an extended 90-day conciliation period, and ministerial action can only occur after a work stoppage begins.
• A "significant adverse national impact" assessment by Employment and Social Development Canada is now a prerequisite for the Minister to direct the CIRB to order a return to work or impose arbitration, according to the proposed changes in Bill C-39.
• Union counsel and leaders argue the broad "national impact test" proposed in Bill C-39 could effectively eliminate the practical exercise of the right to strike in federally regulated sectors.
• Concerns have been raised that the new conditions proposed in Bill C-39 undermine collective bargaining power and that constitutional rights should not be curtailed by ministerial decision without parliamentary debate.

Union representatives argue that the broad scope of the national impact test Canada labour could effectively render legal strikes impossible in federally regulated industries.

A significant legislative package, Bill C-39, introduced on September 21 by Transport Minister and Government House Leader Steven MacKinnon, has ignited debate within the labour bar. This 243-page omnibus bill, contextualized by the broader Building Canada Strong Act, specifically targets a substantial rewrite of Section 107 of the Canada Labour Code. This particular section governs the federal government's authority to intervene in labour disputes, including strikes and lockouts, across federally regulated industries.

Historically, Section 107 has granted the Minister of Labour broad discretion to take actions deemed necessary for maintaining or restoring labour peace. This power has been frequently invoked by successive governments to address disputes in critical sectors such as rail, port, airline, and postal services. These interventions often led to referrals to the Canada Industrial Relations Board (CIRB), resulting in back-to-work orders or the imposition of binding arbitration, some of which have faced legal challenges in the courts.

While Bill C-39 preserves the Minister's ultimate power to intervene in a Bill C-39 Canada Labour Code s. 107 strike, it introduces new conditions that must be met before such action can be taken. These Canada Labour Code s. 107 amendments aim to formalize the process, but their practical impact on collective bargaining and the federal right to strike changes remains a point of contention among legal experts and union leaders.

The revised Section 107 establishes a multi-stage process for ministerial intervention labour Canada. Initially, the Minister must appoint a special mediator no later than day 75 of the statutory conciliation period, which itself has been extended from 60 to 90 days. Crucially, the Minister's power to act is now contingent on a work stoppage already being underway.

Once appointed, the special mediator is allotted up to 21 days to facilitate a resolution to the dispute. Should these mediation efforts prove unsuccessful, the mediator is required to produce a report detailing the unresolved issues, the positions and participation of each party, and an assessment of the likelihood of a settlement. This report is then made public five days after its submission.

Concurrently, Employment and Social Development Canada undertakes its own assessment of the national impact of the ongoing work stoppage. Following the receipt of both the mediator's report and the national impact assessment, the Minister may determine that the strike or lockout poses a "significant adverse national impact." Only at this juncture can the Minister direct the CIRB to issue a return-to-work order, extend the existing collective agreement, or impose binding arbitration, thereby concluding the dispute.

The introduction of these new conditions has created a clear division within the labour bar regarding both their policy implications and their legality. While senior counsel from both union and employer sides acknowledge the merits of other aspects of Bill C-39, they fundamentally disagree on the revised Section 107. Union representatives argue that the broad scope of the national impact test Canada labour could effectively render legal strikes impossible in federally regulated industries.

Paul Cavalluzzo, a Counsel at Cavalluzzo LLP in Toronto, highlights two primary concerns. He asserts that the right to strike is a constitutionally protected guarantee that must be practically meaningful. Cavalluzzo contends that if employers anticipate ministerial intervention can easily end a strike, the fundamental power dynamic of collective bargaining is undermined, diminishing union rights. His second concern centers on the decision-making process: he argues that Parliament, not a minister acting behind closed doors, should be responsible for curtailing constitutional rights, emphasizing the need for transparency and debate.

Union leaders have voiced similar apprehensions. Canadian Labour Congress president Bea Bruske suggested that workers might retain the right to strike in principle but never be able to exercise it, fearing the revised power could be used pre-emptively. Tom Doran, president of the International Longshore and Warehouse Union Canada, pointed out that given the economic significance of every port dispute, the national-impact test effectively eliminates the right to strike for workers in his sector. Conversely, Christopher Pigott of Fasken Martineau DuMoulin LLP in Toronto notes that the requirements for a special mediator and public reports could benefit both parties by increasing pressure for a resolution.

Lawyers must advise clients on the implications of Bill C-39's revised Canada Labour Code s. 107, specifically the new conditions for ministerial intervention and the 'national impact test,' which could significantly alter collective bargaining power and the practical exercise of the right to strike in federally regulated sectors.

Source: Original reporting via Canadian Lawyer