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The Anti-Union Justin Trudeau

Trudeau is making an illegal push to end a major series of strikes. But unions can’t count on the courts to save them — only direct action can get the goods.

Justin Trudeau at the World Bank headquarters in Washington DC, March 2016. World Bank / Flickr.

On November 26, the Canadian government passed back-to-work legislation to end rotating strikes by postal workers at Canada Post that started on October 22.

Members of the Canadian Union of Postal Workers (CUPW), the country’s most militant union, have been negotiating a new contract since November 2017. They have been fighting for job security, pay equity, and health and safety. Canada Post made a profit of $144 million in 2017, thanks to growing parcel delivery due to online shopping. With the legalization of cannabis in Canada — available only for online home delivery in the largest province of Ontario — profits are expected to climb even higher.

This is not the first time the government has done this to postal workers. However, this is the first time back-to-work legislation has been used by Justin Trudeau’s government.

The irony in all this is twofold. First, Trudeau reached out to labor in the 2015 election campaign, promising improved relations compared to the previous Conservative government, and gave unions a seat at the table for Trump’s NAFTA renegotiations. That alliance is probably now over. Second, the turn to back-to-work legislation to solve public sector strikes and labor disputes in Canada actually began with Trudeau’s father. In the 1974 federal election, during the stagflation crisis, Pierre Trudeau actively campaigned against wage and price controls, a measure his Conservative opponents were proposing. The Liberals went on to win that election and by 1975 they had broken their promise and instituted them.

Once the wage and price controls regime came into force, interference in free collective bargaining followed at both the federal and provincial levels. Into the early 1980s, as inflation continued to be an issue and recession set in, these policies continued to be sold as temporary measures to stabilize the economy. But interference in public sector collective bargaining would continue into the mid-1980s, leading Leo Panitch and Donald Swartz to coin the term permanent exceptionalism, a situation in which governments insisted that these were temporary measures to deal with economic problems, yet kept using them.

To get a sense of the regime of permanent exceptionalism within Canada, just look at the country’s record at the International Labor Organization (ILO). Between 1982 and 2015 Canada has had one of the highest number of complaints submitted to the ILO’s Freedom of Association Committee, with eighty-six of them about provincial and federal labor law. The ILO has ruled on eighty-five of these and found that the principle of freedom of association was violated in seventy-eight of them.

The legal basis for governments to undermine the right to strike and free collective bargaining through back-to-work legislation was upheld in 1987 when the Supreme Court of Canada issued three decisions that came to be known as the Labor Trilogy. But Canadian unions continued to file lawsuits, and federal and provincial governments continued to practice permanent exceptionalism when it came to public sector labor disputes. The 1990s saw particularly aggressive use of back-to-work legislation and unilateral amendments to public sector collective agreements in provinces like Alberta and Ontario.

The labor movement’s strategy of hoping to win favorable court rulings continued into the twenty-first century. A breakthrough occurred in 2007 when the Supreme Court ruled that the British Columbia government had violated the Canadian Charter of Rights and Freedoms, and threw out parts of a law that tore up collective agreements for hospital workers in the province. The right to collective bargaining was finally recognized within the Charter. (However, it is important to realize that the law that was overruled was passed in 2002.)

The next big development came in 2015. That year, the Supreme Court of Canada issued three rulings that have come to be known as the New Labor Trilogy. These new rulings were progressive and upended the old trilogy. The most important development was that the rulings recognized the right to strike as an essential part of collective bargaining based on the principle of freedom of association. Also recognized was the constitutional right to join or create a union that is independent from management. The rulings also restricted “essential services” legislation, which have been used to exempt certain public sector workers from being able to strike, on the grounds that their work is too important to the day-to-day functioning of society. In the wake of these rulings, earlier back-to-work legislation used against postal workers in 2011 was ruled in violation of the Charter by an Ontario court.

On the surface, the decision to use back-to-work legislation again seems self-defeating for the Canadian government. But it is important to remember that any lawsuits against the legislation must wind their way through the courts. In the past year, both Liberal and Conservative governments in Ontario have used back-to-work legislation. Last autumn, the Ontario Liberal government legislated faculty back to work at the province’s colleges after a five-week strike. And one of the first acts of the new Ontario Conservative government was to pass legislation in late July ending a nearly five-month strike by teaching and graduate assistants at York University in Toronto. It is also important to note that in neither of these cases did a court grant a temporary injunction to halt the legislation so it could be adjudicated by the courts, and a final ruling could take several years.

That is why, ultimately, the courts are no substitute for a strong labor movement that can assert its rights on picket lines, the street, and in communities. In his book Labor and the Class Idea in the United States and Canada, Barry Eidlin makes a compelling case that labor law in Canada remained stronger and has indeed strengthened in many ways compared to the US because Canadian lawmakers saw organized labor as a class representative and acknowledged the conflictual nature of labor relations, while in the US organized labor was seen in a pluralist nature, as one interest group among many.

In the ruling recognizing the right to strike, the Supreme Court did in fact note the unequal relationship between workers and management, which is why it saw the right as important to free collective bargaining and thus freedom of association. However, that has not saved the Canadian labor movement. While density, especially compared to the US, remains comparatively high at around 30 percent, that is thanks to the high density of the public sector. Private sector unionization has been falling.

At the end of the day, while lawmakers and the courts recognize the conflict at the heart of labor relations, the bosses still have immense power to influence politicians. Recognition of class conflict on a basic level has not led to any sort of class consciousness within Canada’s political institutions. Since the 1980s, even the social-democratic New Democratic Party (NDP), which was founded in part by the Canadian Labour Congress, has been guilty of enacting back-to-work legislation and unilaterally opening up public sector labor contracts when it has been in power at the provincial level. Even a party founded by labor could not resist the ideological constraints imposed by the collapse of Keynesianism, the rise of neoliberalism, and the end of the Cold War.

Passing progressive and pro-worker labor law is important. But it should be remembered how labor law became a reality in the first place. Like the US, Canada saw its share of violent confrontations before the modern regime of labor relations became a reality. Unions in Canada were essentially illegal until 1872, when a strike by the Toronto Typographical Union managed to rally public support, forcing the federal government to decriminalize unions. And any comparison between labor relations in the US in Canada should note that the Wagner Act preceded the Canadian federal decree giving workers similar union and collective bargaining rights (under wartime laws) by nine years. The idea that Canada is somehow a priori more progressive than the US in all situations is nonsense.

Thus, reducing national differences to questions of exceptionalism, whether American or Canadian, is insufficient. While there are institutional and economic factors that shaped the trajectory of the labor movements in each country (having a labor party really helps, for example), it is clear that for workers to be able to win and protect rights, what they need is a vibrant labor movement that is able to organize deeply within the working class and engage in direct action when necessary. That is how the labor movement was built, and that is how its gains will be not only protected but expanded.

But the movement and its allies are beginning to re-embrace this. Unlike other recent cases of back-to-work legislation, there has been real resistance this time, beyond filing lawsuits. Liberal Party events have been disrupted. Trade unionists from outside of CUPW, as well as other activists, have been setting up what they call community picket lines outside Canada Post processing facilities across Canada. There have been arrests of some protestors in Ottawa and Halifax. Protests continue and show no signs of stopping.

What protesters have been stressing are not simply bargaining demands, but constitutional rights like the right to strike and the right to free and fair collective bargaining. This can help build a broader consciousness among workers of what their rights are and rebuild a fighting labor movement that can defend their past victories. And given the state of the labor movement in many countries around the world, returning to actions in the streets and on the shop floor is the only way to win new victories.