In defying the back-to-work order, CUPE took a calculated risk that paid off

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By defying a federal back-to-work order, the union representing striking Air Canada AC-T flight attendants took a calculated risk that was ultimately successful – a strategy that could be replicated by other unions in future negotiations, experts say.

On Tuesday, Air Canada and 10,500 flight attendants represented by the Canadian Union of Public Employees (CUPE) reached a tentative deal that the union said would give its members some of the best provisions amongst North American airlines because Air Canada was forced to “significantly” increase its offer.

This came on the heels of a 24-hour illegal strike, after CUPE’s national leadership made the call to disregard a back-to-work order imposed by the federal labour board.

“This was a historic moment and it may have a ripple effect across the labour movement,” said Charles Smith, a professor of political science at the University of Saskatchewan. “The membership was united, public support for flight attendants was strong, so CUPE made the calculation that they could defy the order and continue striking until they got a better deal for their flight attendants.”

The union struck a four-year deal with Air Canada, which must be approved by a majority of union members in coming votes. It provides hourly raises of about 16 to 20 per cent over the life of the contract, depending on seniority and job type, according to people familiar with the matter. The Globe is not identifying them because they were not authorized to speak about the deal.

Flight attendants will also be paid a share of their hourly wage for pre-and post-flight work, which was previously unpaid and a key issue for union members. The ground work pay starts at 50 per cent of the hourly rate in the first year and rises to 70 per cent by the fourth.

Air Canada and CUPE officials declined to comment.

The issue of unpaid work was central in the labour dispute. As it stands, flight attendants are compensated an hourly rate from the time the airplane takes off to the point where it lands, but are not paid during boarding, safety checks and deplaning.

CUPE had the upper hand in this round of negotiations, said Adam King, an assistant professor of labour studies at the University of Manitoba. “They had a smart communications strategy that really emphasized to the public that flight attendants were actually not getting paid for a significant amount of time on the job. The time was right to challenge Air Canada and the federal labour board.”

A public survey conducted by the polling firm Abacus Data on Aug. 18 – two days into the strike, and after the government had ordered flight attendants back to their jobs – found that 66 per cent of respondents sided with the flight attendants. Sixty-two per cent of people felt that Ottawa’s back-to-work order set a bad precedent, and 54 per cent said flight attendants were right to defy the order.

The margin of error for the survey is plus-or-minus 2.7 per cent.

“There was a unique convergence of factors that made it possible for CUPE to take the risk of continuing on with an unlawful strike: public support against a private sector employer, a strike of front-line workers whom the public interacted with regularly, and the fact that the flight attendants were emerging from a 10-year contract,” said Stephanie Ross, an associate professor of labour studies at McMaster University.

Prof. Ross said she believes that union members want their union leadership to take risks to get better deals, and the outcome of this strike could be communicating that to other leaders. On Monday, CUPE national president Mark Hancock told reporters at a press conference that he was willing to risk jail time and have the union pay a hefty fine to get a better deal for members.

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CUPE’s defiance of the Canada Industrial Relations Board’s back-to-work order – which it was directed to make after the federal government invoked a clause in the Canada Labour Code – gained support from other major unions including Unifor, United Food and Commercial Workers union, and the Public Services Alliance of Canada. The Canada Labour Congress, an umbrella organization representing dozens of national unions, said it would collect financial contributions from affiliates to assist with legal costs.

Labour experts have long been critical of the government’s use of Section 107 – a clause that was rarely invoked prior to 2022, and which allows the government to order the federal labour board to direct striking workers back to their jobs and impose binding arbitration to force a deal. They say Ottawa’s constant interventions undermine collective bargaining because it creates a loophole that works in favour of employers and prevents them from proposing the best deal possible. The government has used Section 107 six times in the past two years to send striking workers back to their jobs.

Prof. King said its repeated use gave CUPE more ground to challenge the order.

He also said the optics of enforcing the back-to-work order played in CUPE’s favour. “Was this Liberal government really going to enforce fines on a majority female work force, and send a prominent union leader to jail?”

In a recent interview with BNN Bloomberg, Air Canada chief executive officer Michael Rousseau said the airline did not anticipate a long work stoppage because the airline had assumed Section 107 would be invoked by the government.

“The use of Section 107 kind of became an existential crisis for labour in Canada,” said Barry Eidlin, an associate professor in the sociology department at McGill University. “If unions keep allowing this to stand – where the government can just send an e-mail to the CIRB and end a strike – there’s really no more right to strike in this country.”

Prof. Eidlin said he believed it would be hard for Ottawa to use the clause in future disputes. “This got the ball rolling to get rid of this practice,” he said.

With a report from Eric Atkins