Toronto Ontario - The federal government is once again trampling on workers' right to strike.
 
On 9 May 2024 federal Minister of Labour Seamus O'Regan used an obscure section of the Canada Labour Code to pre-empt looming job actions by the Teamsters Canada Rail Conference (TCRC) at Canadian National Railway (CN) and Canadian Pacific Kansas City (CPKC).
 
It seems recent overtures to organized labour, such as passing anti-scab legislation, haven't appreciably changed the Liberals' overall approach to unions and strikes in strategically important industries.
 
As work stoppages on the rails loomed, O'Regan requested "clarity" from the Canadian Industrial Relations Board (CIRB) concerning whether certain rail services could be deemed essential and thus maintained during a strike.
 
The union and the companies had previously filed negotiated "maintenance of activities" agreements, which set out which portions of a struck workplace must remain in operation during a work stoppage for safety reasons.
 
According to these agreements, there were no such "essential services" impacted by a rail strike.
 
O'Regan's decision to have the CIRB investigate the maintenance of activities agreements effectively freezes the timeline for strike action by Teamster rail members until the CIRB undertakes its investigation and issues a determination.
 
Although it's unclear how long the CIRB process may take, a strike notice can still be issued as early as 72 hours after the Board releases its report.
 
Though what may happen during negotiations in the meantime remains an open question.
 
Strike action was previously set for 22 May 2024 before the federal government's intervention.
 
If no tentative agreements had been reached by then, the Teamsters strike would have disrupted both freight and passenger rail across the country.
 
In other words, workers in a highly strategic sector could have gone on strike, if not for government interference.
 
Now, instead of exercising their supposedly Charter-protected right to strike
 
after a difficult bargaining process, union members are left in limbo awaiting a decision from the CIRB. Both the union and employers made submissions to the Board on 21 May 2024 in response to the government's action.
 
The parties now have until the end of the month to file replies.
 
O'Regan made this "incredibly frustrating" decision, as the union described it, on the grounds that a major railway strike could endanger public safety and health by limiting or halting fuel and agricultural product shipments.
 
Negotiations for new collective agreements covering the more than 9,000 Teamsters at CN and CPKC began to break down in February, in large part over the companies trying to force considerable concessions related to working time on union members.
 
A contentious round of bargaining with both companies has been ongoing since the previous fall.
 
At one point in late February, CPKC attempted to circumvent the union by mailing out contract "options" directly to workers and refusing to provide an electronic version of the mailing to the union negotiating team.
 
The union correctly understood this as disrespect for the collective bargaining process and filed a complaint against the company with the CIRB for attempting "to bargain directly with and to unduly influence employees."
 
The union then had to file a second unfair labour practice complaint against CPKC for unilaterally changing work rules related to rest periods and pay, despite such actions during bargaining being unlawful.
 
Rather than bargain in good faith, the companies filed notices of dispute and requested a federal conciliator to assist with contract talks on 16 Feb 2024, though no deal was reached during the conciliation period.
 
Having met only a few times with the union prior to this, the TCRC indicated they were surprised by the companies' decision to file.
 
Though perhaps the TCRC shouldn't have been so surprised by the companies' lack of movement at the bargaining table and notice of dispute.
 
According to CPKC itself, nine of the last 10 collective bargaining rounds have involved the use of federal conciliators.
 
This time around, conciliation started 1 Mar 2024 and ended on 1 May 2024 with no major improvements to negotiations.
 
As the TCRC put it in their press release following the notice of dispute, "Both carriers have enjoyed unprecedented growth and financial success over the past number of years. Denying employees the right to share that success is simply a non-starter. To the contrary, both CPKC and CN are focused on stripping existing rights instead of building a relationship and treating the membership with the respect it deserves."
 
By refusing to take members' concerns seriously, the companies were "rushing toward a work stoppage" the union said.
 
"A stoppage on a scale that Canada has likely never experienced."
 
Union members then gave the TCRC an overwhelming strike mandate in early May, voting 97.3 percent in favor of strike action.
 
Members were clearly behind their union, insistent in their demands, and ready to take action.
 
By pre-empting the TCRC's right to strike, the government is effectively doing the work of the employers.
 
In fact, it could be argued that this federal overreach goes beyond the employers' actions, given that the union and the two employers previously agreed to "maintenance of activities" agreements, which expressly stated that no portion of the rail network was an essential service.
 
Under the shadow of the CIRB investigation, negotiations have since resumed.
 
But with the Teamsters' strike threat neutralized for the time being, the union's bargaining power has been undermined.
 
Indeed, since O'Regan's request to the CIRB, the company seems to have grown more intransigent.
 
Following the government's intervention, CPKC offered to proceed to binding arbitration, which the union declined.
 
Meanwhile, CN tabled new wage raise offers of 3 percent in 2024 and 2.5 percent in 2025, but continued to insist on "concessions" the union characterizes as jeopardizing rail safety, including having train crews work longer than current 10 hour limits.
 
Working time has been a persistent issue for rail workers over the last several years.
 
New rules from Canada's Transportation Safety Board capped train crew shifts at 12 hours last May, down from 16.
 
In June, a Federal Court judge found Canadian Pacific guilty of contempt of court for forcing employees to work "excessively long" hours in 2018 and 2019, in violation of the Teamsters collective agreement.
 
As the Teamsters noted at the time of the Federal Court decision, the Transportation Safety Board of Canada has identified crew fatigue as a factor in at least 32 train derailments since the early 1990s.
 
The TCRC's collective agreements provide working time and rest period protections beyond those stipulated by federal regulation.
 
The union wants to protect these important rights.
 
The company on the other hand has characterized its efforts to extend hours as "a more modern agreement."
 
The union has maintained that company efforts to extend working hours and eliminate rest periods for train crews is a risk to public safety, and one worth striking over.
 
Given recent rail accidents in the United States, it's worth taking the union's concerns seriously.
 
As it stands, union members on Canada's railways have temporarily had their right to strike suspended through a bureaucratic ploy.
 
The right to strike is supposed to be Charter-protected and not simply curtailed when using it may cause disruption.
 
For the Liberals, however, there are more pressing concerns than worker's rights.
 
Adam D.K. King.