Last week, news broke that the Canada Industrial Relations Board (CIRB) had dismissed the Canadian Union of Postal Workers’ (CUPW) challenge of the government order that terminated their lawful strike in December 2024.
In fact, the decision had been issued to Canada Post and the union in August but was only recently made publicly available.
While the decision is a blow to the union and prolongs the process of challenging the government’s use of s. 107 of the Canada Labour Code to unilaterally end or suspend strikes, the battle is far from over. CUPW will likely appeal the decision, and perhaps more importantly, has already filed for judicial review of the government’s actions in federal court.
Nevertheless, examining the CIRB’s decision is instructive, if only for demonstrating the folly of relying on the courts to secure workers’ rights. Preventing similar actions in the future will require the labour movement to engage in a political battle to repeal s. 107 and make governments think twice about interfering in strikes.
The Stakes Of The CIRB Challenge
Given the various twists and turns of the dispute between Canada Post and CUPW, it’s worth recounting the circumstances of the government intervention that ended the strike in question.
On Dec. 13, 2024, then-minister of labour Steven MacKinnon directed the CIRB to assess the likelihood of the parties reaching a settlement before the end of the year, and if the Board found a resolution unlikely, to order a resumption of operations until May 22, 2025, under the previous collective agreement. Unlike other recent s. 107 directions, however, the minister didn’t order binding arbitration but instead forced the parties into an Industrial Inquiry Commission to study the bargaining impasse as well as the financial challenges of the crown corporation.
Hearings were held on Dec. 14 and 15, 2024, and the Board determined no settlement was likely to be reached and therefore complied with the minister’s directive. A 5 per cent wage increase was also implemented to help facilitate the return to work.
CUPW promptly challenged the constitutionality of the Minister’s actions. On the labour side, the Canadian Labour Congress (CLC) also joined the CIRB challenge as an interested intervenor. On Canada Post’s side, the Federally Regulated Employers–Transportation and Communication (FETCO), an employer association, did the same.
Following submissions from the parties and intervenors, further hearings were held on Feb. 18 and March 3 and 4, 2025. Three CIRB members presided over the hearings. The decision against CUPW was written by CIRB chairperson Ginette Brazeau, with member Paul Moist, former Canadian Union of Public Employees (CUPE) president, dissenting.
As various media outlets have reported, the CIRB made two determinations in its final decision. First, it found that s. 107 is not unconstitutional; and second, it determined that the Board does not have the authority to review ministerial directions made under s.107, even if these include ending a lawful strike.
However, a fuller consideration of the Board’s reasoning is illuminating.
The Board’s Determinations
The union side had posed two separate sets of legal questions. First, it raised constitutional questions concerning whether the minister’s use of s.107 and the Board’s orders violate various sections of the Charter of Rights and Freedoms and the Canadian Bill of Rights, particularly those related to the right to strike.
Second, CUPW and the CLC raised statutory questions concerning whether s. 107 itself gives the minister the power “to override Code-protected collective bargaining rights, including the right to strike,” and second, whether the Board has jurisdiction to review the minister’s s. 107 directions.
The labour side argued that the purpose of the Canada Labour Code is to promote collective bargaining and that the minister’s use of s.107 as it did against CUPW undermines that purpose.
The Board, by contrast, recounted the various provisions in the Code which also allow the minister to make interventions “promoting industrial peace,” such as ordering binding arbitration when essential services are involved or asking the Board if it is advisable to impose collective bargaining in instances where new union members may not be able to reach a first settlement. The Board argued that s.107 is of a piece with these various provisions.
Further, the Board majority writes: “Nothing in the text of section 107 of the Code [...] directly engages Charter rights. It delegates a broad authority to the Minister that is admittedly limited by the applicable legal and Charter constraints [...] In the Board’s view, it is the act that the Minister took pursuant to the broad discretion delegated to him in section 107 of the Code that is the source and target of the union’s Charter challenge.”
In other words, if the minister’s ending of CUPW’s strike was unconstitutional, it was not because s. 107 itself is unconstitutional but rather because the minister exercised his discretion in a way that is (potentially) unconstitutional. (Note that this is not quite as groundbreaking or unequivocal as media reports suggest.)
Which brings us to the Board’s second determination: it lacks the authority to review a minister’s direction.
The union side argued that s. 107, properly interpreted, does not empower the minister to make a direction or order that overrides the right to strike. Furthermore, they argued that the Board must be certain the orders that it’s being asked to make are authorized by legislation and are consistent with Charter values.
The Board expressed sympathy for the union’s position, but clarified that the Board has no authority to review a minister’s directive made via statutory authority.
It writes: “A referral or a direction under section 107 of the Code is made by the Minister as a matter of public policy based on various considerations. In effect, by providing such broad authority to the Minister without an explicit power for the Board to review it, section 107 implicitly removes any discretion of the Board to make its own assessment of the exercise of ministerial discretion.”
In another recent case arising out of the Minister’s use of s.107 against the Teamsters Rail Conference of Canada, Canadian National Railway Company, 2024, the CIRB traces the history of s. 107 and expresses skepticism concerning the minister’s interpretation of the section’s power.
Paragraph 42 of the CN Rail decision reads, “Ultimately, section 107 of the Code was amended in 1984, and Parliament adopted a provision that provides the Minister with authority to direct the Board to do such things as the Minister deems necessary. There is limited information in the task forces’ reports or in parliamentary proceedings that assists us in understanding the rationale for and intent of this addition in the Code.” Nevertheless, in that case the Board determined that the power to review the minister’s direction rests with the Federal Court alone.
Thus, despite the union side attempting to distinguish the CUPW case from the Teamsters case, the Board maintained, based on the previous decision, that it did not have the authority to review the minister’s direction. Put another way, its hands are tied when the government decides to crush strikes with legally questionable back-to-work orders.
The Fight Ahead
As unfortunate as this CIRB decision is, it simply clarifies that the struggle against s. 107 is a political one.
Legal challenges will continue, and may ultimately prove successful. For example, as Board member Moist argues in this dissent, if s. 107 did indeed provide for the discretion and wide latitude to end strikes, there would be no reason to include in the Code the various other provisions that allow the minister to end or curtail strikes and collective bargaining in specified circumstances, nor would there have ever been a reason to table back-to-work legislation.
As the CIRB decision itself notes, federal governments have legislated postal workers back to work six times: in 1978, 1987, 1991, 1997, 2011 and 2018. All of these instances beg the question: if s. 107 allowed for the suspension of strikes already, why resort to back-to-work legislation at all? Clearly, no government prior to 2023 believed that 107 offered such powers.
The CIRB’s decision is not the end of the story, nor does it settle once and for all the constitutionality of the government’s use of s.107. Court challenges remain. The federal NDP has introduced legislation to repeal the section. The CLC are also campaigning for its removal. Following the Air Canada flight attendant’s strike, there may be additional public support to remove the Code provision and help protect the right to strike.
Ultimately, the CIRB decision only underlines how important it is to build mass public pressure to win this fight politically, rather than depend on the legal process. The courts are at best a tool for workers and unions to use where it is strategically advantageous to do so.
But as always, defending workers’ rights will be up to workers and unions themselves.
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