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Restoring Rail Service Bill—Second Reading

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Statement made on 31 May 2012 by Senator James Cowan

Hon. James S. Cowan (Leader of the Opposition):

Honourable senators, here we go again. We have seen this movie before and we know how it ends — another strike, another bill legislating Canadian workers back to work. Once again, the Harper government has marched headlong into a private sector dispute to impose its will on the parties. The days of big government are back, except instead of government providing a social safety net to help workers when they find themselves out of work or to help older Canadians make ends meet with OAS, the Harper version of big government is to reach into a private dispute and bring down the heavy hammer of a new law to take away collective bargaining rights.

This is the Harper vision of Canada: Leave the workers and poor Canadians to fend for themselves, but intervene quickly to stomp on collective bargaining rights of workers trying to do their best to provide for their families.

This is now the sixth piece of back-to-work legislation that the Harper government has tabled since coming to power six years ago — the fourth in just the past year. That is quite a record, honourable senators. The last time this country saw so much back-to-work legislation was in 1991, under the Conservative government of Prime Minister Brian Mulroney.

Labour Minister Raitt likes to pay lip service to her government's respect for the collective bargaining process, but let us look at the facts. Last year, the postal workers went on strike but deliberately structured their strike action to have minimal disruption for Canadians and Canadian businesses. Management, evidently confident that the government would intervene on its side, locked the workers out. That caused disruption. The government then did exactly what management must have hoped for: They legislated the workers back to work, and on terms less favourable than those the company had already offered in negotiations.

Then came several successive labour problems at Air Canada. Most recently, the government did not wait for the pilots and others to go out on strike. I guess their motto was, "Why wait when you can legislate?" We all remember Prime Minister Harper's revealing words during the last election campaign: "I make the rules."

Of course, in the Air Canada situation his government was justifiably criticized for moving before there had even been a disruption in service at Air Canada. Therefore, this time, with the CP Rail dispute, they did wait. They held off for 10 hours after the strike began. Then they moved. Not even half a day into a legal strike, Minister Raitt announced that her government would introduce back-to-work legislation, and she had already broadly hinted in the public that she would do so.

John Ivison of the National Post, a journalist the Leader of the Government in the Senate has referred to approvingly in the past, wrote this on Monday:

Canada Post appears to have been a point, Air Canada a trend and Canadian Pacific a pattern. Employers need not bother negotiating in good faith, safe in the knowledge the government will step in on their side, like some school yard bully.

Part of the problem with this approach is that it settles nothing, merely pushing off the dispute into the court system, where both previous disputes remain in the hands of arbitrators.

He noted in the article that some of the leader's caucus members themselves are "uncomfortable about the rush to get involved" in the CP Rail case. He quoted one Conservative MP, who said, "We should let the process run its course. If they don't find a solution in the medium term — say two to three weeks — then step in. It's only been a week."

George Smith used to be Vice-President of Industrial Relations at CP Rail. He is now Adjunct Professor of Industrial Relations at Queens University's School of Policy Studies and will be one of the witnesses we will be able to chat with during Committee of the Whole later today. He has pointed out that the Harper government has intervened in virtually every labour dispute that occurred during their time in office. That fact becomes, in his words, "the elephant in the room" during collective bargaining. As he described it in an interview on CBC's As It Happens last weekend:

The bottom line is that has a deleterious effect. There's always going to be now naysayers in the back room. Because getting a deal is never easy in these circumstances, there's going to be naysayers saying let's take our chances with back-to-work legislation and an arbitrator appointed by the government might see things our way.

Honourable senators, the right to collective bargaining is a fundamental right protected under the freedom of association in our Charter. Small wonder that this government assiduously avoided the thirtieth anniversary of the Charter, when its actions are increasingly being seen by Canadians as undermining the rights and freedoms enshrined in that document.

Let us be clear: It is not enough to pay lip service to collective bargaining. If you believe that disputes are best resolved by the parties themselves — if you believe that the government should only intervene in private sector disputes as a last resort — then you will undoubtedly conclude, as I have, that this back-to-work legislation at this time is simply wrong — wrong for the 5,000 workers who have lost any real right to collective bargaining, wrong for labour relations in this country, and ultimately wrong for Canada.

It is not only workers and labour unions who are concerned by the Harper government's actions; employers and major corporations recognize the long-term problems this will very likely cause.

Ian Lee, a professor at Carleton University's Sprott School of Business, who will also be appearing this afternoon, was interviewed a few days ago by The Globe and Mail. He said that CP and other federal employers are worried that they are losing control of the bargaining agenda and will suffer financial pain in the long term. In his words, the companies "aren't jumping for joy" at Ottawa's intervention because they want to negotiate collective agreements with labour leaders and sign contracts.

They understand that these back-to-work laws are government-imposed, short-term fixes that actually can prevent the parties from reaching negotiated settlements that all sides agree to and accept, and that then allow management and the employees to focus on the work that needs to be done, rather than on simmering labour disputes.

Benjamin Dachis and Robert Hebdon of the C.D. Howe institute — not exactly a left-wing organization — published a report in 2010 entitled The Laws of Unintended Consequence: The Effect of Labour Legislation on Wages and Strikes. They found that:

. . . resort to "back-to-work" legislation reduces the likelihood of a freely settled contract in the next round of negotiations, perpetuating the cycle of government intervention.

In other words, honourable senators, this is not the way to end labour strife or of the need for government to intervene. It is the way to perpetuate it.

Barrie McKenna, the respected business columnist at The Globe and Mail, interviewed Mr. Dachis about this report in the context of the CP dispute. He said that the reason for this cycle is simple: Intervention lets both sides off the hook. Knowing the government is ready to step in discourages both the employer and the employees from tackling the toughest issues at the bargaining table. In his words:

Intervention makes a freely bargained contract down the road less likely. The government not only kicks the can down the road, but makes the two sides less likely to reach a mutually agreeable outcome.

Honourable senators, this is not only bad government, this is bad public policy.

For these reasons, I will not be supporting this bill. This is not the direction we should be going with labour relations in this country.

However, I cannot conclude without acknowledging something the government has done right, although I should warn honourable senators that it is faint praise. This bill is not as bad as previous back-to-work bills presented by this government over the last year. I know it is hard to believe.

I was pleased to see that the government evidently recognized that certain clauses that were included in previous bills were, as we on this side strenuously argued at the time, simply wrong-headed. Specifically, I was relieved to see that this government did not include a final offer selection clause in Bill C-39. Equally important, the government is not, as it has done before, micromanaging the work of the arbitrator by legislating detailed terms of reference and guiding principles that the arbitrator must follow.

What is not in the bill is a small step in the right direction; but that there is a bill at all, so early in the collective bargaining process, is a giant step in the wrong direction, in my view.

The government simply should not be intervening in labour disputes at this early stage. It sends the wrong message to the parties, and ultimately it is self-defeating, as the C.D. Howe Institute has confirmed.

It is regrettable that the government is showing once again its conviction that a free market economy should operate freely for everyone, except for the workers. While it frequently expresses concern for hard-working Canadians, some hard-working Canadians count, but many — too many — simply do not. Exercise your constitutional right to join together for a stronger bargaining voice and do better for your family, and you are suddenly sidelined and marginalized. You are not the right kind of hard-working Canadian for this government. You are the kind that the heavy hand of Prime Minister Stephen Harper will brush away, as is being done again today.

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