VANCOUVER—Monday, in front of the largest gathering of labour leaders in British Columbia, the leader of Canada’s NDP slammed back-to-work legislation that would be passed by the senate later that day as “unconstitutional.”

The declaration by Jagmeet Singh garnered massive applause from the crowd of union members, whose weeklong governing convention coincides with Canadian Union of Postal Workers being legislated back to work across the country at noon Tuesday.

Federal Labour Minister Patty Hajdu introduced the back-to-work legislation in the house of commons late last week, calling it a “last resort” in a bitter labour dispute that has impacted communities across Canada. Postal workers were on a rotating strike schedule since October 22.

CUPW has been seeking pay equity for rural and suburban letter carriers, as well as commitments from Canada Post to address the rate on on-the-job injuries its members experience.

Labour leaders across the country see the legislation as an affront to workers’ constitutional rights.

“The right to strike is a fundamental right and our movement will defend it every time the government intervenes,” said Hassan Yussuff, president of the Canadian Labour Congress, at the B.C. Federation of Labour convention Tuesday. “No government should be able to cross that line ever to take away that right for working people.”

Hajdu and the Liberals insist the legislation is legal and necessary, in order to ensure that postal services are widely available to Canadians during the busy holiday season.

Back to work legislation exists in Canada so that the government can end labour-management disputes when it judges the dispute has had major negative impacts on the rest of society.

But the legislative tool is controversial because it’s inherently at odds with unions’ bargaining rights. In a 2015 constitutional challenge arising from back-to-work legislation passed by the Harper government in 2011, Toronto lawyer Paul Cavalluzzo argued on behalf of CUPW that the bill restricted members’ rights to freedom of association and freedom of expression.

An Ontario superior court ruled in favour of the postal workers in 2016.

Margot Young, a professor at UBC’s Allard School of Law, called the right to strike a “core” form of expression protected under the charter.

Hajdu’s back-to-work legislation, Young said, infringes on that right.

“There better be some urgent need to do so,” Young said. “It seems so much to be the case that the rush is about Christmas and consumption.”

By passing the legislation, Young said, the government is effectively “putting the charter on hold for the Christmas season.” She added that strikes are effective precisely because they disrupt the economy.

There are some restrictions on who can strike. Workers deemed “essential” by the government can’t strike at all. That includes correctional services workers and search and rescues teams.

In the case of non-essential workers like postal workers, the specific circumstances matter.

Cavalluzzo included in his 2015 argument that the Harper government’s back-to-work legislation was unusually limiting, since it did not require input from both parties on selecting an arbitrator (the union said at the time it therefore felt compelled to accept a subpar offer by Canada Post).

Loading... Loading... Loading... Loading... Loading... Loading...

The present back-to-work legislation provides for 90 days of binding mediation-arbitration, with an arbitrator selected by both parties. The government argues this helps justify the restriction on freedoms.

Young said the arbitration provision is an important difference between this legislation, and that which was found unconstitutional in 2016. The key question a court will have to answer if the back-to-work legislation is challenged is whether the economic reasons for the legislation are urgent enough to justify the infringement on expression.

Read more about: