|Editorial Obiter with Glenn Kauth|
The moves are particularly surprising in light of our courts’ recent jurisprudence on the right to collective bargaining. The leading case, of course, is the Supreme Court’s ruling in Health Services and Support — Facilities Subsector Bargaining Association v. British Columbia in 2007.
In that case, the court was considering the B.C. government’s efforts to contract out work to non-union workers. The landmark decision upheld the notion of collective bargaining as a constitutional right as well as employers’ duty to negotiate in good faith.
In proposing legislation to send Canada Post workers back to their jobs, the government actually went as far as mandating a wage settlement that was less than the company had been offering the union.
Under the bill, workers would receive a 1.75-per-cent increase in the first year, 1.5 per cent in the second year, and two per cent in the last two years. Canada Post had been offering 1.9 per cent in the first three years and two per cent in the last year.
Pensions, of course, were a key sticking point in both the Air Canada and Canada Post labour disputes. Management wants to move to defined-contribution plans for new workers, while unions are eager to protect their existing defined-benefit schemes for all.
Regardless of the merits of either side’s argument — although it’s becoming clear that public-sector unions will at some point have to deal with the growing disparity in pensions between their members and those in the private sector as well as taxpayers’ ability to fund them — the government appears to be taking a legal risk in usurping the collective bargaining process so aggressively and going as far as imposing a worse wage settlement.
Perhaps the government believes that by leaving the pension issue for determination by an arbitrator who will choose to impose either the union’s or the employer’s final offer, it might skirt a legal challenge. It may also be hoping the courts will reconsider the B.C. Health Services decision by giving employers more leeway than the Supreme Court provided.
At the end of the day, however, it’s worrisome that the government has shown itself to be so dismissive of collective bargaining. Beyond the fact that back-to-work legislation should be a tool of last resort, if employers truly want to alter their pension schemes, they have a better chance of achieving that at the bargaining table than through arbitration.
That’s particularly true with Canada Post, an organization that despite its status as a key national institution, most of us can live without for a few weeks.
— Glenn Kauth