Back to work laws are the black hole of labour relations, a place where labour disputes are sent to disappear. In earlier times, troops and militia were regularly called out to send striking workers back to their jobs. The more modern solution, in Canada at least, is to pass laws and issue emergency orders, backed up by enormous fines.
You could see the trouble coming months away. In May the Canadian Union of Public Employees warned that the next 100 days were a make or break period for settling outstanding contracts for 22,000 members in ten locals, many of them working under agreements that had expired years ago. With little progress to show, in September union members voted 94 per cent in favour of strike action.
The province took its time to negotiate. In late October, a mediator did manage to bring the two sides close to an agreement, but the province left the table. Within days the strike was underway. And it seemed increasingly likely that back to work legislation was the province’s endgame.
By Friday morning, November 5, the strike was a week old, and New Brunswickers welcomed the news that the premier and the union president had held a meeting. Once again it sounded like a deal was in the works. The province had made an offer, and the bargaining committee made a counteroffer.
That Friday morning CUPE president Stephen Drost and the bargaining committee sat at a table in front of the New Brunswick Legislature and read out the two versions of the agreement for the benefit of the hundreds of strikers on hand as well as the media. An agreement on wages seemed closer than ever, a matter of 25 cents on the hourly rates in years four and five of the contracts, according to CUPE.
The press conference was only a few minutes old when Premier Blaine Higgs appeared on the scene and requested the microphone. While strikers chanted “Sign the Deal”, he stood on the steps and argued, literally over the heads of the union officers, that any agreement also needed to include a review of pensions for workers in two of the locals.
Somehow it was no surprise that the deal failed.
By late afternoon, the province had issued a back to work order under the authority of the province’s Emergency Measures Act, which had been proclaimed to address conditions related to the COVID-19 pandemic. Unlike a general back to work order, this one did not require debate or legislation.
The order was addressed only to employees in the health care system, where 70 per cent of the staff had remained at work as designated essential workers. The province’s health authority CEOs argued that the health care system, operating under sub-optimal conditions, was now facing intolerable shortages and cancellations. A solution was needed, and the province obviously preferred an emergency order instead of a settlement.
Workers across Canada will be interested to see what a pandemic-style back to work order looks like. But millions of workers are already familiar with the usual back to work laws, which have been used at least 145 times by provincial and federal governments since the first occasion in 1950. Political economists have come to refer to such laws as the new normal, a policy of “permanent exceptionalism” that governments fall back on whenever strikes threaten their political and economic priorities.
The record includes two instances in New Brunswick. The first was in 1982, when non-teaching school board employees were sent back to work after three weeks on strike, under threat of fines of $500 a day for individuals and $10,000 for the union. The issues were sent to arbitration by the province’s chief justice, who endorsed the province’s bargaining position and imposed a new contract.
The measure was used again in 2001 against hospital workers. This time the legislature was called back for an emergency session while striking workers were voting on a tentative agreement. The bill allowed the government itself to write a new contract, including changes in classifications and regulations that the union had rejected. In this situation, members narrowly approved an unsatisfactory agreement, protesting that they were being forced to do so to avoid a worse result.
The use of back to work legislation has become more problematic, at least constitutionally, since a 2015 Supreme Court decision ruled that the right to strike is protected by the Canadian Charter of Rights and Freedoms and, like union membership and the right to collective bargaining, is an essential part of the democratic way of life in Canada.
It is worth quoting briefly from the decision:
Where good faith negotiations break down, the ability to engage in the collective withdrawal of services is a necessary component of the process through which workers can continue to participate meaningfully in the pursuit of their collective workplace goals. . . . Through a strike, workers come together to participate directly in the process of determining their wages, working conditions and the rules that will govern their working lives. The ability to strike thereby allows workers, through collective action, to refuse to work under imposed terms and conditions. This collective action at the moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives.
Gaining access to rights, however, is not so simple. Since 2015, governments have continued to use back to work legislation to impose settlements, including by the Liberal federal government in 2018 and again as recently as this past May in the case of port workers in Montreal. As a result, workers face the paradox that rights that are spelled out in standing laws and constitutional decisions continue to be suspended when governments find that serves their needs.
Unless an agreement is reached in the ongoing strike, New Brunswick workers may be the next to face these contradictions in the existing labour relations system. They have already had a preview in the emergency order Friday and may face more back to work legislation in the near future. It seems of course passing strange that the differences on wages have been largely resolved, and that the whole situation hangs on a review of pensions.
There is also the bizarre idea that some kind of mandatory order may be applied to the rest of the province’s public employees. On the face of it, it would seem impossible to impose a back to work law on workers who are not on strike and may not even have taken a strike vote. Possibly what is mooted is an attempt to suspend the right to strike or to impose wage controls. Those kinds of pre-emptive orders would fall dangerously close to violating the requirement to “bargain in good faith” provided in provincial legislation, not to mention relevant Supreme Court decisions.
Meanwhile, the union members, and the general public that consists of their friends and neighbours, are living with the inevitable inconvenience that comes when the public goods and services we depend on are interrupted. They must be wondering why it is so important for the province to take us all down this black hole.
David Frank is a labour historian and the author of Provincial Solidarities: A History of the New Brunswick Federation of Labour.
Access all of NB Media Co-op’s coverage of the CUPE strike here.
Read all about the the events leading up to the strike here.
