Ottawa’s Air Canada strike debacle shows it failed to learn from history

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Barry Eidlin is an associate professor of sociology at McGill University.

On Saturday, just before 1 a.m., 10,000 Air Canada AC-T flight attendants, members of the Canadian Union of Public Employees, went on strike after months of failed negotiations. Less than 12 hours later, Patty Hajdu, who occupies the cabinet position formerly known as Labour Minister, ordered them back to work pending binding arbitration.

She did so using what until recently was an arcane part of the Canada Labour Code known as Section 107. This referred the dispute to the Canada Industrial Relations Board (CIRB) for review, which could then order binding arbitration. In the meantime, the flight attendants would be forced to return to work against their will.

This has become a pattern in recent years, with labour ministers invoking Section 107 to impose back-to-work orders on rail workers, at ports, at Canada Post and now at Air Canada.

The difference this time is that CUPE members are refusing to comply with the back-to-work order. Instead, we have seen footage of flight attendants at airports chanting, “Forced to fly? We won’t comply!”

Air Canada flight attendants’ strike declared illegal by labour board

Air Canada flight attendants go on strike after union, airline fail to reach a deal

The current conflict at Air Canada ties into a much longer history of Canadian governments attempting to impose labour peace by clamping down on workers’ right to strike. And judging by the Carney government’s actions, it appears they have forgotten or ignored the lessons previous Liberal governments learned from that history.

The existing Canadian system of collective bargaining, for all its flaws, was forcibly extracted from a reluctant Liberal government in the 1940s. Then prime minister William Lyon Mackenzie King favoured a voluntary approach to labour negotiations. But after repeated efforts to restrict workers’ ability to strike only led to further explosions of class conflict, he was forced to face the fact that the only hope for anything like a stable industrial relations system required not only establishing worker rights but also compelling employers to recognize unions and negotiate with them.

There were legal compulsions, but the foundation was workers’ right to strike. That was the fulcrum upon which the rest of the system was balanced.

The reason for this is simple: For collective bargaining to function, the parties need to meet on something like a level playing field. Employers have many levers at their disposal to pressure workers. Workers have one: the power to withdraw their labour.

Policy makers came to understand that restricting workers’ ability to strike too much both eliminated employers’ incentive to bargain and stoked worker resentment, generating further conflict. Employers had to face sanction to get them to the table and to tamp down labour conflict.

The resulting Canadian labour regime kept serious restrictions on the right to strike. Policy makers couldn’t fully let go of their desire to contain class conflict the old-fashioned way. But there was a qualitative difference between the quasi-illegality of unions in the pre-Second World War period and the circumscribed labour rights of the postwar era. Instead of being immediately repressed, strikes were regulated.

The debate over the right to strike flared up again in the 1960s, as public-sector workers began to organize in large numbers. Without legal rights, they demanded recognition the only way they could: by striking. This provoked outrage in the business community and parts of the legislature, who demanded a ban on public-sector strikes.

But others with far from radical political views remembered the lessons of the 1940s. As then prime minister Lester B. Pearson wrote to an incensed MP demanding a strike ban: “My own feeling is that if public servants are to be told that under law they can never strike, one may be precipitating the very thing one is trying to prevent.” The resulting legislation guaranteed public-sector workers a similar right to strike as their private-sector counterparts. Restricted, but real to some degree.

As strikes swelled in the 1970s, we entered the era of what labour scholars Leo Panitch and Donald Swartz termed “permanent exceptionalism.” Politicians and employers gave lip service to the importance of the right to strike in the abstract, but when confronted with an actual strike would find a reason to oppose it “just this once.” This led to a dramatic rise in special back-to-work legislation at the federal and provincial levels.

With so many strikes squashed by such “exceptional” legislation, the right to strike increasingly became a dead letter. Meanwhile, Canada claimed its place as the leader among G7 countries in violating workers’ rights via back-to-work legislation.

The problem of permanent exceptionalism continued to fester, but also became somewhat moot as strike rates plummeted in the 1990s. Still, jurisprudence surrounding restricting the right to strike continued to work its way through the courts, culminating in the Supreme Court’s 2015 ruling in Saskatchewan Federation of Labour v. Saskatchewan.

That ruling held that the right to strike was constitutionally protected under the Canadian Charter of Rights and Freedoms. The court declared that “the right to strike is an essential part of a meaningful collective bargaining process” and that “the ability to strike … is an affirmation of the dignity and autonomy of employees in their working lives.”

This significantly raised the bar for enacting back-to-work legislation, as it would involve invoking the notwithstanding clause. Some governments still tried the legislative route, most notably Doug Ford’s Tories in Ontario, who passed legislation in 2022 to end a strike by 55,000 CUPE education support workers. That backfired, though, as strikers defied the law and other unions threatened a general strike. Mr. Ford had to back down.

In this context, the federal Liberals’ discovery of Section 107 seemed like a convenient workaround. Instead of going through the trouble of passing legislation, they could order workers back to work by sending an e-mail to the CIRB.

We have seen the corrosive effect this has had on collective bargaining. On the employer side, it has shifted bargaining expectations. Rather than use the strike deadline as an incentive to hammer out a deal, they now drag their feet and let the strike happen, confident that the government will intervene to end it.

On the workers’ side, the repeated use of Section 107 has sent the message that their Charter rights don’t count for much. Governments support the right to strike – until an actual strike happens. It’s a return of permanent exceptionalism.

The problem is that, if governments keep showing such disregard for workers’ fundamental rights, we shouldn’t be surprised if workers start showing more disregard for government orders. To paraphrase Mr. Pearson, if workers are to be told through repeated invocations of Section 107 that they can never strike, one may be precipitating the very thing one is trying to prevent.

It does not appear that the flight attendants intend to return to work any time soon. If so, it will then be the government’s turn to figure out how to respond. A second, more forceful e-mail to the CIRB likely won’t cut it.

We could see a situation similar to the Ontario education workers’ standoff with the Ford government in 2022, especially if other unions move beyond statements of support to more concrete forms of solidarity with the flight attendants.

At that point we may discover that what initially seemed to be a clever way to bypass workers’ rights has turned out to be a fuse to light a new labour revolt in Canada.