If the ostensible end of the strike by British Columbia port workers last week teaches us anything, it’s to never rely on the goodwill of an employer, and equally, don’t depend on the supposed neutrality of the adjudicators of labour law. Events moved quickly, so a short recap is likely in order.
Members of the International Longshore and Warehouse Union (ILWU) Canada had been on strike across more than 30 west coast ports since July 1, after talks with the immensely profitable companies that make up the B.C. Maritime Employers’ Association (BCMEA) broke down. The more than 7,400 port workers hit the picket lines over issues of pay, automation and outsourcing. The 13-day strike idled billions of dollars worth of cargo across port terminals up and down the west coast.
Following nearly two weeks of employer recalcitrance, federal Minister of Labour Seamus O’Regan appointed a mediator to help the parties reach a new collective agreement. The mediator issued a report for a recommended settlement, many of the details of which are still unknown. The proposed agreement contained a 19.2 per cent wage increase over four years, barely addressing concerns over the cost-of-living crisis. It’s unclear whether the mediated settlement addressed the arguably more pressing issues related to automation, outsourcing and job loss at the ports.
The ILWU leadership caucus evidently felt the provisions of the deal were inadequate and chose not to put the proposed settlement to a vote of the membership — a decision which is common during collective bargaining. After the union leadership rejected the tentative agreement, workers resumed strike action on Tuesday, as is customary when proposed contracts are either not recommended to the membership or are put to the members and voted down.
Meanwhile, the Prime Minister’s Office convened a crisis cabinet committee on Wednesday in anticipation that the strike would resume. As the CBC reported, “The move underscores the importance being attached to the dispute, with the response group only convened at times of ‘national crisis’ or to discuss events with major implications for Canada.”
Whether or not they planned to reconvene Parliament to table back-to-work legislation is uncertain, though the government had grown increasingly impatient and been hinting publicly that intervention could be coming down the pike. O’Regan and Minister of Transport Omar Alghabra had noticeably struck a harsher public tone with the union, indicating that the federal government would not countenance a continuation of the strike.
Conservative provincial premiers and federal Conservative Party Leader, Pierre Poilievre, had all called for government intervention to end the strike. The business class as well had been similarly appealing for back-to-work legislation throughout the strike. The Canadian Federation of Independent Business, the Retail Council of Canada and the Canadian Chamber of Commerce all proposed legislative infringement on workers’ rights to end the work stoppage.
Even the patience of B.C. NDP Premier David Elby seemed to be wearing thin last week. “It’s profoundly disappointing to see that we’re back where we were before, but I can’t help but feel that whatever is separating the parties is not worth this disruption,” he told a press conference on Wednesday. The premier nevertheless registered his opposition to potential back-to-work legislation, which he correctly pointed out would only be a short-term solution and fail to resolve the underlying issues about which workers clearly felt strongly.
This is where things took a sharp turn. The BCMEA responded to the union’s resumption of picketing on Tuesday by petitioning the Canadian Industrial Relations Board (CIRB), the federal body tasked with administering the Canada Labour Code and overseeing industrial relations in the federal private sector, to declare the strike unlawful, which the latter body obliged in the early hours of Wednesday.
According to the CIRB’s report — tweeted out approvingly by minister O’Regan on Wednesday morning — ILWU’s strike was unlawful because the union failed to provide the 72-hour strike notice required under the Canada Labour Code. The union correctly believed that the strike was simply “suspended,” never ended, while the mediator’s proposed settlement was discussed.
In a press release, the union relayed the course of events this way: “As required by our constitution, the ILWU contract caucus considered the tentative contract in a two-day meeting. The caucus was not satisfied the mediator’s deal met the membership’s goals and directed the bargaining committee to seek a negotiated agreement. After advising the Minister of Labour and the BCMEA, the ILWU resumed its lawful picketing activities. Although the ILWU removed its picket lines voluntarily while it considered the tentative agreement, the BCMEA decided to exploit our good faith move by complaining to the CIRB that the ILWU has commenced a new strike for which 72 hours notice was required.”
It continued: “The ILWU has followed Canadian labour law which holds that a strike continues from the moment of job action until the ratification of a collective agreement. The CIRB however, did not follow the established cases, and determined that [a] new strike notice was required. The ILWU will appeal the CIRB decision but will respect the ruling and reissue notice.”
Then, on Wednesday afternoon, the ILWU unceremoniously, and without explanation, withdrew their new 72-hour notice to resume strike action by Saturday. “The past 24 hours have demonstrated that this continues to be a fluid and unpredictable situation,” the BCMEA said in a statement responding to the union’s withdrawal of strike notice. “We will communicate as appropriate with key stakeholders as we receive clarification.”
As workers began returning to work on Thursday, the government indicated that it understood the strike to be over, noting that they hoped the union membership would ratify the collective agreement worked out and recommended in mediation.
The Liberals, ever hoping to triangulate by ending the strike without appearing to undermine workers’ rights, seemed able to have their cake and eat it too. They got the intervention they desired without themselves having to directly pull the trigger. As Larry Savage, professor of Labour Studies at Brock University, put it to me: “In the end, I think the Liberal government’s handling of the situation has been driven purely by political considerations. In many ways, the Liberals are stuck between a rock and a hard place politically. If they resort to back-to-work legislation, they are forced to team up with Pierre Poilievre to extinguish workers’ right to strike. If they opt to do nothing, they face the wrath of a business community that wields tremendous power in Canadian politics.”
Apparently ending with not a bang but a whimper, the conclusion of this strike is nevertheless extremely troubling. Unions regularly suspend their picket lines while a proposed tentative agreement is being considered. That the BCMEA chose to use the opportunity provided by a picketing hiatus to obtain a unlawful strike declaration is frustrating, yet nevertheless intelligible as a tactic of class warfare fought on the terrain of legal technicalities. Indeed, never trust the supposed goodwill of the employer.
The decision of the CIRB to forcefully intervene to delay and ultimately end the strike, on the other hand, is more insidious. To say that the Board’s interpretation of strike notice requirements is novel would be generous. As the ILWU understood matters, a strike is a strike until the union membership ratifies a new collective agreement. Temporarily laying your placards down as a gesture of good faith while a proposed contract is considered doesn’t revoke a previous strike mandate, a mandate democratically provided by union members, no less.
The Board’s decision appears to hinge on the fact that the union leadership didn’t bring the mediator’s recommendations to the membership for a vote. According to Global News, the mediator had received directions from Ottawa to table the recommended settlement. If this interpretation is accurate — that the CIRB intervened because the union refused to bring to the membership a government-recommended contract it felt was inadequate — this is a dangerous development in the world of industrial relations. Technically, under the Canada Labour Code, the government can force a membership vote on a deal rejected by leadership, but there’s no public indication such a direction was made.
As David Camfield, associate professor of labour studies at the University of Manitoba, relayed to me, “We should all be concerned about this ruling by the CIRB. It’s an attack on the basic democratic right of workers who’re on strike to reject a deal they see as inadequate and continue to strike for a better deal. There’s the risk that this ruling could set a precedent that provincial labour boards will follow.”
Bargaining proposals arise from the concerns of the membership. Union leaders and bargaining team members are tasked with bringing back a collective agreement that addresses members’ priorities and meets their needs. If a proposed agreement, even one reached through mediation, doesn’t accomplish this, nothing compels union leadership to force an agreement down members’ throats. Indeed, union reform movements, such as the one making up the new Teamsters’ leadership in the United States, are often propelled by previous union leaders forcing bad contracts on members.
If the CIRB did in fact end this strike because an unsatisfactory agreement — arrived at through mediation and with pressure from Ottawa — wasn’t forced upon ILWU members for a vote, this will represent a nakedly political intervention as well as a clear overreach on the part of the Board. I sincerely hope the ILWU and unions across the country are planning to fight back.