The Canada Industrial Relations Board (the “Board”) recently released its written reasons between WestJet and Aircraft Mechanics Fraternal Association, following its Order on June 28, 2024, where the Board found that the Minister of Labour (the “Minister”) referral under section 107 of the Canada Labour Code (the “Code”) does not have the effect of suspending the Union’s strike notice or its ability to strike.
The Decision
As those who followed this story will recall, the Minister directed the Board to assist the parties in reaching a settlement of the outstanding terms of their first collective agreement by imposing final binding arbitration under section 107 of the Code.
Section 107 of the Code states:
107 The Minister, where the Minister deems it expedient, may do such things as to the Minister seem likely to maintain or secure industrial peace and to promote conditions favourable to the settlement of industrial disputes or differences and to those ends the Minister may refer any question to the Board or direct the Board to do such things as the Minister deems necessary.
The Minister’s Section 107 referral from June 27, 2024, reads as follows:
WHEREAS I am deeply concerned that the parties’ continued inability to reach and ratify a first collective agreement is undermining industrial peace and, if not resolved in an expeditious manner, could lead to poisoned relations between the parties into the future;
AND WHEREAS I am convinced that providing for an arbitrated first agreement between these parties is the best way to secure industrial peace and promote favourable conditions for future collective bargaining between these parties;
NOW THEREFORE, I, as Minister of Labour, pursuant to section 107 of the Code and in keeping with the objectives of section 80 of the Code, hereby direct the CIRB to assist the parties in reaching a settlement of the outstanding terms of their first collective agreement by imposing final binding arbitration to resolve outstanding terms of the collective agreement.
Amongst the issues between the parties in this dispute, was whether the Minister’s direction impeded the Union’s June 25, 2024, strike notice or its ability to strike. WestJet took the position that the Minister’s referral fundamentally altered the traditional collective bargaining process and rendered a strike or lockout to have no practical effect. WestJet emphasized that the Minister’s referral sought industrial peace and that it would not make practical sense that such a referral would not end the parties’ ability to engage in strike or lockout activity.
The Union disagreed with the Employer’s interpretation, and asserted that the referral is silent as to its effect on the strike notice and, as such, must be interpreted in a manner consistent with the Canadian Charter of Rights and Freedoms (the “Charter”) and prior jurisprudence which protects the right to strike.
The Board found that in the specific circumstances of this case, the Minister’s referral does not have the effect of rescinding the Union’s strike notice or suspending its right to strike. In reaching this conclusion, the Board considered the explicit wording of the referral, the statutory context, and Charter values.
1. The Text of the Referral
The Board found that the text was silent on its effect on the ability to strike or lockout. The Board explained that while the Minister states that his direction was made pursuant to section 107 and “in keeping with the objectives of section 80”, the jurisprudence explains that section 80 should only be applied in exceptional circumstances and that section 80 does not operate to automatically suspend the right to strike or lockout.
The Board also noted that the circumstances of the referral are well outside the normal course of events, the Board was unaware of another instance in which the Minister has asked it to order binding arbitration under section 107 at this stage of collective bargaining, and further emphasized that intervention in labour disputes that impedes the right to strike, or lockout have historically been done through an act of Parliament
2. Statutory Context
When examining the statutory context, the Board emphasized that the Code does not explicitly indicate the effect of a ministerial referral under section 107 on strike or lockout activity. The Board did find it informative that other provisions of the Code restrict the right to strike/lockout, or reference alternative methods of resolving collective bargaining impasses. For example, the Board highlights section 79 whichprovides a mechanism for parties to agree to binding arbitration to settle a collective agreement and explicitly states that such a mutual agreement suspends the parties’ right to strike or lockout.
The Board found it notable that, in contrast, the Code does not state that a ministerial referral made under section 107 has a similar effect. Furthermore, unlike agreements under section 79, section 80 of the Code is silent on the effect of a referral on the right to strike or lockout. The Board highlights that its jurisprudence has not interpreted this section as operating to automatically suspend the right to strike or lockout (see LTS Solutions Ltd., 2022 CIRB 104, CJMS Radio Montréal Limitée (1978), 27 di 796; and [1979] 1 Can LRBR 332 (CLRB no. 160).
3. Charter Values
Having found that the referral is silent on its effect on the ability to strike or lockout and that there are no Code provisions that conclusively address the effect of the referral on this ability, the Board found that they must apply Charter values in issuing the order directed by the Minister in the referral.
The Board found the ministerial referral clearly engages the guarantee of freedom of association set out in section 2(d) of the Charter as it has the effect of imposing binding arbitration on the parties to resolve their first collective agreement.
In issuing the Order, the Board was tasked with balancing the right to a meaningful process of collective bargaining with the objectives of the Code. The Board found that it must apply the ministerial referral in a manner that prioritizes the Charter values underlying freedom of association. Given the Supreme Court of Canada’s reasoning in Saskatchewan Federation of Labour, which characterizes the ability to strike as an essential component of meaningful collective bargaining, the Board found they cannot apply the referral in a manner that would restrict or suspend the parties’ right to strike or lockout. The Board found that this would amount to a substantial interference with the Charter right to a meaningful process of free collective bargaining and would be inconsistent with the freedom of association.
As a result, the Board found that the ministerial referral under section 107 of the Code did not have the effect of suspending the parties’ right to strike or lockout.
In our View
The decision provides helpful insight into the right to strike and lockout in the context of a referral made by the Minister of Labour under section 107 of the Code. This decision also highlights a potential legislative gap in section 107 and 80 of the Code because, as the Board highlights, neither provision addresses whether a direction made under these provisions has the effect of suspending the right to strike or lockout.
For more information, please contact Steven Williams at swilliams@ehlaw.ca or Lauren Jamieson ljamieson@ehlaw.ca
