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By Christina Catenacci, BA, LLB, LLM, Ph.D. | 3 Minutes Read March 15, 2012
Air Canada pre-emptive back-to-work Bill
On March 14, 2012, Bill C-33, An Act to Provide for the Continuation and Resumption of Air Service Operations, received third reading in the House of Commons. The goal of the Bill is to require continued air service, prohibit strikes and lockouts, extend the previous collective agreement and create a final offer selection scheme to force the parties (Air Canada and the two unions for the pilots and support staff) to settle their dispute.
If passed, the Bill would come into force on the expiry of the 24th hour after it received royal assent.
Specifically, the Bill:
Requires the employer to continue air service operations, and employees to continue their duties of employment
Extends the term of the collective agreement until a new agreement is reached
Prohibits employers from locking out employees, employees from going on strike, and unions from declaring a strike
Creates a final selection scheme – the Minister appoints an arbitrator, and the employer and unions list the outstanding issues and provide their final position concerning those issues. The arbitrator then selects either the final offer of the employer or the final offer of the union
Requires the arbitrator to consider the interim agreements in place and to be guided by the need for terms and conditions of employment that are consistent with those in other airlines that will provide the necessary degree of flexibility to ensure the short-term and long-term economic viability and competitiveness of the employer and the sustainability of the employer's pension plan, taking into account any short-term funding pressures on the employer
Confirms that the arbitrator's decision constitutes the new binding collective agreement the parties are not permitted to question the appointment of the arbitrator in court, or review any decision of the arbitrator in court
What do you think about this government intervention?
I've read several articles and the comments go both ways. On one hand, some believe the government's actions were a critical step to take to ensure that people can keep flying especially during the March Break when people are traveling more frequently. In fact, putting pressure on the parties to come up with a final offer that has to be reasonable enough to be chosen can force the parties out of a negotiation standstill. It can also prevent significant impacts on the economy.
But on the other hand, it does interfere with the process of creating a newly negotiated collective agreement between the parties pursuant to the Canada Labour Code. In fact, some may say this act completely undermines free collective bargaining among federally regulated workers. This is especially true since the appointment of the final selection arbitrator cannot be questioned, and the decision cannot be reviewed in court.
Further, recent case law has confirmed that the right to bargain collectively is protected under the Canadian Charter of Rights and Freedoms, and Canada has clearly ratified international treaties that require respecting the freedom to associate and the right to collectively bargain; preventing free collective bargaining in this manner is clearly contrary to the Charter and international obligations.
Furthermore, Air Canada is no longer government-owned and is not providing an essential service. On the contrary, it is now a privately owned company that has numerous competitors, and it may not be appropriate for the government to get involved in a private labour dispute.
Maybe we should take a look at what Prime Minister Harper said about why the intervention was necessary…what do you think?
Christina Catenacci
First Reference Human Resources and Compliance Editor
Christina Catenacci, BA, LLB, LLM, Ph.D.
Christina Catenacci, BA, LLB, LLM, PhD, was called to the Ontario Bar in 2002 and has since been a member of the Law Society of Ontario. Christina worked as an editor with First Reference between 2005 and 2015 working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk, and First Reference Talks blog discussing topics in Canadian Labour and Employment Law. Christina obtained her Professional LLM Specializing in Labour Relations and Employment Law from Osgoode Hall Law School of York University in 2013, and recently earned her PhD in Law at the University of Western Ontario on October 23, 2020 in the area of privacy in the workplace.
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Article by Christina Catenacci, BA, LLB, LLM, Ph.D. / Union Relations / Air Canada, Air Canada pilots, Airlines, Bill C-33, Canada labour Code, Charter, Dispute resolution, economy, employment law, essential services, extend collective agreement, final offer selection, government intervention, House of Commons, Industrial Relations, Labour Law, maintenance workers, prohibit strikes and lockouts, prohibits lockouts, prohibits strikes, support staff
About Christina Catenacci, BA, LLB, LLM, Ph.D.
Adam Gorley says
Yes, of course, there are WestJet and other carriers, but if I understand correctly, Air Canada gets legal preference for many routes from and to Canada, which makes competition difficult. Not sure if I'm right about that though.
Anyway, that's a whole other issue!
Christina Catenacci says
Thanks for your comment, Adam. I would think that WestJet could constitute a viable competitor, but I see your point, Air Canada does dominate for the most part at this time…
I think the biggest problem is that Air Canada has effectively no competition on many of its flights. That is what makes the situation so tricky. If customers could just choose another carrier or switch their flights easily, then the government would have no reason to interfere, and the company would have a greater incentive to avoid a strike.
Only in a situation without competition does it make any sense to legislate striking employees back to work.
ANDREW LAWSON says
As troubling as the government interfering in labour/management issues is the potential for workers to unfairly interfere in the operation of their employer's business. Fairness works in all directions. I'm keeping my fingers crossed for an upcoming flight.
I agree. I think it is time for the market to decide the future of Canada's airline industry . . .WestJet and Porter are two encouraging examples
Thanks for your comment, Andrew. I can see how people are torn on this issue…but from a labour perspective, it seems troubling that the government is interfering with back-to-work legislation.
Having booked on Air Canada during the critical period, I'm really glad the government has intervened. However, as a business consultant I am troubled by it. Honestly, if any of my flights are cancelled due to a work slow-down I will happily look for other arrangements in support of the free market. I only hope my distant clients share my sympathies!