The federal government's recent use of Section 107 of the Canadian Labour Code to end the Air Canada flight attendant strike is a troubling development for Canadian workers and unions.
Authors
- Bethany Hastie
Assistant Professor, Law, University of British Columbia
- Keegan Nicol
Juris Doctor Candidate, University of British Columbia
On Aug. 16, less than 12 hours after more than 10,000 Air Canada flight attendants walked off the job, the federal jobs minister intervened .
Patty Hajdu invoked Section 107 to order the attendants back to work, and directed their union and Air Canada to binding arbitration - a process in which a neutral third party decides on the terms of a collective agreement after considering each party's position.
Section 107 provides the jobs minister with the general power to "maintain or secure industrial peace" and to direct the Canada Industrial Relations Board (CIRB) , which adjudicates workplace disputes, to also take similar actions.
Since June 2024, the federal government has used Section 107 four other times to interfere with striking workers at West Jet , the CN and CPKC railways , the British Columbia and Québec ports and Canada Post .
The ability to strike is the most powerful tool workers have when collectively bargaining with their employers. When the government intervenes and pre-emptively ends a strike, it undermines the legal purpose and use of strikes in Canadian labour law. It also likely violates workers' constitutional right to strike under the Canadian Charter of Rights and Freedoms .
The purpose of strikes in Canadian labour law
In defending its use of Section 107, the federal government has repeatedly argued its intervention is necessary because the parties were at an impasse . This undermines the very purpose of a strike.
Under Canadian labour law , workers can only strike during collective bargaining with their employer and when certain conditions have been met. Strikes are intended to move collective bargaining forward when the parties reach an impasse in negotiations. They work by exerting economic pressure on an employer and incentivizing them to return to the bargaining table and reach an agreement.
Often, as during last year's Air Canada pilots labour dispute illustrates, the threat of a strike alone is enough to spur the parties to reach an agreement.
The swiftness with which the government has intervened - for example, less than 17 hours into the CN/CPKC strike and less than 12 hours into the most recent Air Canada strike - undercuts the ability of those strikes to achieve their purpose of moving past deadlocks.
Government intervention also creates an expectation for employers. Air Canada, for instance, asked for federal intervention due to an impasse several days before the flight attendants' strike began. Such requests undermine the purpose of strikes and, in turn, the collective bargaining process itself.
The recent Air Canada dispute also demonstrates the effectiveness of strikes when government interference is no longer an option. Once it was clear to Air Canada that the flight attendants would continue to strike despite the government ordering them back to work , they were able to reach a tentative agreement with the union within 48 hours.
Intervention not justified
The federal government has repeatedly pointed to economic hardship as justification for using Section 107. Harm to the economy was cited as a basis to order the CN/CPKC railway workers back-to-work last summer, and again when the federal government intervened in labour disputes at the Montréal, Québec and Vancouver ports in November 2024.
Most recently, Hajdu defended sending Air Canada flight attendants back to work because "the potential for immediate negative impact on Canadians and our economy is simply too great."
Yet economic hardship is not a justifiable basis for removing workers' right to strike. Canadian labour law recognizes that only workers who provide essential services may be prohibited from striking - where withdrawal or interruption of services would cause a serious and immediate threat to public safety or security, such as police officers or fire fighters.
Notably, both the Montréal port workers and the CN/CPKC railway workers have been subject to attempts by their employers to have their work designated as essential. However, the CIRB declined to make such a designation in either case.
The constitutional right to strike
The government's use of Section 107 is likely unconstitutional. Since the right to strike was recognized as protected under the Canadian Charter of Rights and Freedoms in a 2015 Supreme Court of Canada decision , laws that remove workers' ability to strike risk violating the guarantee of freedom of association.
Restrictions on the right to strike may sometimes be justified under Section 1 of the Charter , which allows for reasonable limits on Charter rights and freedoms where the government can show the limit is justifiable, such as in the case of essential service workers.
However, the government's use of Section 107 so far - swiftly, and with reference to economic hardship as the primary reason for doing so - seems unlikely to be justified.
The importance of the constitutional right to strike has already stymied the federal government's use of Section 107. In the West Jet mechanics labour dispute, it was determined by the CIRB that the government's order for binding arbitration had not suspended the mechanics' constitutional right to strike, which allowed them to proceed with their planned strike .
In all subsequent orders, the federal government has avoided this outcome by specifically ordering the end of the strike.
The significance of a constitutionally protected right to strike was underscored during the recent Air Canada dispute when flight attendants and their union defied the government's back-to-work order , risking jail time and hefty fines by continuing to strike.
Troubling development for labour rights
The Canadian government's willingness to intervene in labour disputes, and the manner in which it has done so, undermines the collective bargaining process central to Canadian labour law and industrial relations.
The constitutionality of the government's actions will soon be ruled on by the courts. Unions representing the port workers , the railroad workers and the Air Canada flight attendants have all filed constitutional challenges against the government's use of Section 107.
However, a final decision by the courts could still be years away. In the meantime, workers and unions in major federal sectors will remain vulnerable to government intervention, and - as in the recent Air Canada dispute - may have to risk fines and jail time to assert their constitutional right to strike.
Bethany Hastie receives funding from the Social Sciences and Humanities Research Council of Canada. She is a member of the BC Employment Standards Coalition.
Keegan Nicol does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
