Lock-Outs: The newly embedded right to strike turns out to be a retractable privilege

Labour  •  December 17, 2024  •  Harry Glasbeek

There is a new epidemic in Canada. It is the use of the lock-out by large employers in some federally regulated sectors. For instance, the lock-out was used by Canadian National Railway Co. and Canadian Pacific Kansas City Ltd. last August. Another lock-out was announced on 5 November by members of the BC Maritime Employers Association, who operate port terminals across the length of the British Columbia coast and, in Montreal, on 10 November, the Maritime Employers Association locked-out its workers.

In each case, there had been prolonged negotiations between the employers and their unions. They had gone nowhere. Workers had determined that they had no option left but to use their legal right to withhold their labour in concert. To put themselves in this position they had abided by all the rules, and there are many: they had given notice to bargain, had begun to negotiate in good faith, waited out a ‘cooling period’, and eventually, had given the notices required to take strike action. This occurred after 9 months in the railways’ case, after 20 months and 11 months of bargaining in the BC and Montreal ports’ cases. Limited strikes were called, trying to force the employers to come to the bargaining table with better offers than they had up to then.

There had been no unthinking action by hotheaded unionists. They had adhered to all the legal constraints which forbid the spontaneous use of the strike as a bargaining weapon.

As soon as the employers could see that the unions had reached a point where full economic warfare was to be the next legally permitted union step, they announced that they would use their equivalent of the right to strike, namely a lock-out. It is a new twist on an old story. This paper argues that the new popularity of this tool speaks volumes to some naked truths about the state of Canadian unions and the limits of their legitimated powers. These truths do not paint a pretty picture.

The argument is that, after a long, long history of bloody fights (accounts of deportations, flagellations, jailings, and deaths of working-class activists dot the history books), North American workers won a measure of legitimacy for unions. Today, law is prepared to force employers to recognize unions and to bargain with them in good faith in certain confining and constraining circumstances. In essence, this legitimation of unions and collective bargaining is not to be permitted if it presents a serious challenge to the dominant ideology. Its premise is that the use of collective power to off-set the built-in inequality guaranteed by the protection of the private ownership of the means of production by the very few must be tightly controlled. Our kind of unionization and collective bargaining brings some material relief but is not to be allowed to confront either the logic or the realities of capitalism, far from it! Canada’s capitalists have been able to count on law and the State to minimize the impact of the working class’s drive to unionize, a drive forced on workers by the parlous circumstances in which they find themselves if they cannot take collective action.

Why Workers Need to Unionize

If workers are not unionized, their power to bargain for terms and conditions of employment is truly illusory. This is so because there is nothing in liberal philosophy that requires there to be any measure that gives everyone what they need to meet their survival. It is up to each and every one of us to look after ourselves. To this end, we are cast as masters of our own fate. Thus, it has come to be that workers – like all other individuals – are treated as legal sovereigns, as legally sovereign as other individuals who own property and do not have any immediate fears that they will be unable to provide for both their needs and wants. These starting points undermine the very political philosophy, liberalism, which they are intended to serve. As John Galsworthy wrote in The Forsyte Saga:

“If a man had money he was free in law and in fact, and if he had no money, he was free in law and not in fact.”

Law ignores this elemental truth. It treats property-less working-class people who enter into contracts to sell their personal attributes to propertied sovereign individuals as having made a self-interested choice, one they did not have to make. Hence, law holds, these ‘free’ contracts are to be enforced without question. It is a bizarre starting point. The underlying reasoning is that workers are legally free to sell bits of themselves.

Individual contracts of employment entail exchanges of incompatible things. The investment of people’s bodies and minds are seen to be no different in kind to investments of money. This fantastic assumption permits law to enforce the terms of the sale of bodies and minds of sentient beings as if they were commodities, like, say, screw drivers. Yet work-for-wages contracts are easily distinguishable from other contracts and should be treated differently. Workers occupy a dual character when entering into a contract of employment. They are deemed to be both (i), the owners of the screw drivers they sell (their personal attributes) and (ii), to be the screw drivers they are selling. They are both the subject/party and object/commodity of the contract. Skipping straight past this unusual aspect of contracts of work for wages, law goes on to assume that, as it does with ordinary contracts entered into between sovereign individuals, it must not second-guess the terms and conditions to which these sovereign individuals have agreed.

Not only does this line of reasoning treat the investment of what makes individuals as truly equivalent to the investment of outer body money, a qualitative distortion if ever there was one, it also leads to the enforcement of terms and conditions which leave workers oppressed and impoverished. As Justice Higgins, a famous and unusually candid labour judge of yesteryear, wrote:

“The power of the employer to withhold bread is a much more effective weapon than the power of the employee to refuse labour. Freedom of contract under such circumstances is surely misnamed; it should rather be called despotism in contract … the worker is in the same position as Esau when he surrendered his birthright for a square meal or as a traveller, when he had to give up his money to a highway man for the privilege of life.”

The immorality of this legal approach, and the immiseration it guarantees, forces workers to take all possible steps to avoid having to compete as individuals with other workers bargaining as individuals for scarce jobs. They form unions. They try to put themselves into a position where they can exert more pressure when negotiating. By reducing competition among themselves, they can – at least to some extent – reduce the employers’ economic power to impose terms by diktat. This natural reaction to the problems they face has been met by legal hurdles ever since liberal law allied itself with the needs of capitalist relations of production.

A Softening of Law’s Anti-Union Built-in Structures and Ideology?

A legal system that treats the right of private property ownership by individuals as sacrosanct and endorses as valid and legitimate any contracts entered-into by supposedly equally sovereign individuals, logically regards every attempt to combine for the purposes of bargaining as a priori assaults on the rights of individual property owners and on the logic of the pristine nature of free contracting by individuals. Hence, while the misery of the working class forced it to form unions, the law always has regarded this inevitable impulse, and still regards it, as an aberrational exercise, one which must be contained. Employers had no trouble enlisting the State, its courts, and its police to pronounce conduct engaged in by unions as wrongful, as punishable.

Workers persisted, and as they won voting rights, they found some allies. Even as they continued to be smeared by the pundits of the day, even as they were being legally and physically repressed by the judiciary and police, they kept on forming unions and, gradually and unevenly, various nation states began to accept a reality: workers would continue to form unions and some accommodations had to be made. As Eric Tucker wrote [ref.: Eric Tucker, “That indefinite zone of toleration: Criminal conspiracy and trade unions in Ontario, 1837-1877,” Labour/Le Travail, 27, 1991], a vaguely defined, sometimes ephemeral, zone of tolerance evolved. This, of course, was not the same as unions being accepted as legitimated institutional actors in our political economies.

We came closer to that with the enactment of the Wagner Act (1935) in the US and the adaptation of it in Canada (1944). It provided that, should unions comply with some rather arduous, time consuming, and generally enfeebling rules – some of which were set out above – they could use the right to strike to make economic gains in some sectors of the economy, one workplace at a time. This is where we still are today. The central feature is that the collective withholding of labour is seen as a gloss on the idealized competitive market in which individuals are to pursue their selfish economic interests. It is a mechanism to give some workers an opportunity to make economic gains they otherwise could not win. This is something, but not much. The Wagner Act model does not see the right to strike as a fundamental, irrevocable right. This is why workers and their allies were hopeful when, in 1982, Canada included the Charter of Rights and Freedoms in its Constitution. Section 2(d) of the Charter provides for a guaranteed freedom of association. Unions claimed that, for this freedom to have any meaning, it must include the right of workers’ associations, that is, unions, to have the right to strike. Else what would be the point of having a right to associate?

Initially, the judiciary set its face against this seemingly incontrovertible logic. Again and again, the courts decided there still was no right to strike. The Wagner model, as implemented by Canada’s various Labour Relations Acts, amounted to the grant of a set of limited privileges. They did not have the same legal stature or status as the more fundamental rights given by courts to sovereign individuals to own property and to enter into freely concluded contracts as individuals. The labour statutes merely modified these judicially sanctified rights in specific and limited circumstances.

It was not until 2015, 33 years after the Charter of Rights and Freedoms became part of our Constitution, that the Supreme Court of Canada ruled, in the Saskatchewan Federation of Labour v. Saskatchewan case, [Ref.: [2015] SCR 245] that section 2 (d) of the Charter protected the legislative permission for workers to withhold their labour in combination. Governments may no longer interfere with the right arbitrarily.

Understandably, the 2015 Supreme Court of Canada decision was welcomed by labour supporters as a major victory. It came at a time when, driven by capital’s assault to turn back workers’ gains made during the thirty years following the end of World War II, there had been a co-ordinated attack on the collective rights of workers in sectors that are often labelled as essential to society. It was led by governments of all stripes. The alarming intensification of these assaults was documented by Panitch and Swartz, who noted that governments were eager to take away the legislative rights workers had in order to strike in a large number of public and quasi-public sectors [Ref.: From Consent to Coercion: The Assault of Trade Union Freedoms, 3rd ed., 2003, Garamond. The pattern is holding as the 4th ed, title, by Evans, Fanelli, Panitch, Swartz, suggests, From Consent to Coercion: The Continuing Assault on Labour, 2024, UTP.] Many of those restrictions had led to the legal challenges by the unions affected. They had failed to persuade courts until 2015. Things, it was now anticipated, were about to change for the better.

What Has Not Been Won

In that 2015 case, Madame Justice Abella, writing on behalf of a majority of the judges (two still refused to give the right to strike any constitutional standing), fell over themselves to say how significant it was for workers to have a right to strike. Not to treat it as a constitutionally enforceable right would, wrote Abella, ignore “the fundamental power imbalance which the entire history of modern labour legislation has been scrupulously devoted to rectifying … the ability to strike … allows workers … to refuse to work under imposed terms and conditions … to overcome their vulnerabilities as individuals to the strength of their employers.”

So, the judiciary is – and always has been, today’s judges now wrote – aware of the fact that individual bargaining between employers and workers leaves workers at the mercy of their employers. So, they are willing, now, to protect them somewhat.

But the judges did not suggest that they would stop enforcing work-for-wages contracts entered-into by workers as individual bargainers, as sovereign actors making their decisions in their own interest. Even as they finally acknowledge that it makes sense for legislators to give workers some countervailing economic powers, they cannot bring themselves (a) to denounce the principles of individualism, (b) the right for individual owners of the means of production to do as they like with their property, or (c) the legitimacy and primacy of individual contract-making. That is, they hang on tight to legal features that they played a major role in refining and that make workers so pathetically vulnerable. The basic conditions for market capitalism and the ideology it supports are maintained and perpetuated, even as the judiciary recognizes the dreadful outcomes they produce.

So, the first thing to note is that the 2015 decision protects only those individuals who have had the good sense and fortune to have formed unions under our labour relations statutes. The judges must think it is sad, somewhat incomprehensible to their sophisticated minds, that so few workers have decided to be represented by unions. In Canada, we once reached a unionization rate of 40% but have hovered mostly around 33 to 35 per cent, that is, unionization has been confined to roughly one-third of all workers, most of them in the public and quasi-public sectors of our economy. As has been argued above, workers know they must collectivize. Obviously, then, it must be difficult for the majority who do not unionize to do so. The size, type of employment places (for example, small employers are impractical targets for this kind of collective bargaining), the legal hurdles to be cleared, and the ideological sway of individualism and preservation of wealth inequality have played inhibiting roles. Just one ‘for instance’: if employers refuse to give union organizers access to their premises, those organizers must meet the workers individually, all too often secretly to re-assure the workers they are safe when pursuing their legal rights. Unionization is still treated as aberrational, somewhat shady.

The constitutionalization of the right to strike offers the disadvantaged, non-unionized workers no relief from judicially supported oppressions. The pro-worker stance evinced by Abella and her fellow travellers in the Supreme Court undoubtedly makes them feel self-righteous. While, in the context of the Charter’s interpretations until 2015, the decision is fairly described as progressive, it is only a small step on the road that needs to be travelled for the majority of Canadian workers to get some protection from the crudest kinds of exploitation.

The right to strike is still to be enjoyed only by a relatively small number of people. More, it remains a feeble right for those who are to enjoy it: its scope and influence do not add all that much to working-class power and influence.

Even as the power to strike was called a right by the Supreme Court of Canada, the right they set out to safeguard is the right as it is defined by the labour relations statutes (enacted, it is to be remembered, to blunt judge-made law). Those statutorily created collective bargaining entitlements stipulate that the right to withhold labour in concert cannot be used legally for anything except to get a collective agreement when one does not exist. It cannot be used to remedy employers’ violations of an existing agreement; it cannot be used to marshall the social and political power and influence that inhere in working class collectivized use of their economic power to confront an unacceptable government policy or the failure to provide social assistance to those who need it, be they the houseless, evicted renters, asylum seekers, battered women and children, etc. It cannot be used to give succour to workers in other fights in Canada or elsewhere, or to support environmentalists, oppressed peoples anywhere, etc. Of course, these same unions’ adversaries, the owners of wealth, are free to use their power to withhold their property to any end they like, including badgering governments into giving them subsidies and refraining from regulations that might underwrite the well-being and security of non-propertied people. They can use their economic power, including their power to withdraw their property, that is, their legal equivalent of the right to strike, to meet their economic, social, and political goals, no questions asked, no limitations imposed.

The newly legally endorsed right, then, is a very limited statutory right. With some exceptions (usually agreed-to by employers), it can only be used to reach a collective agreement for one bargaining unit, at one place of work. It is a plant-by-plant, employer-by-employer model. It is the grant of some economic power to affect one employer. It is the smallest step up from individual bargaining possible that can be labelled collective bargaining. It follows that large firms that divide themselves up into a whole series of legally independent but economically integrated firms can make it very difficult for their workers to organize. Recent herculean efforts to organize at outfits like Amazon and Starbucks make the point: it may be possible to organize an Amazon warehouse or Starbucks outlet and get bargaining rights vis-à-vis it, but very difficult to negotiate with the real adversary. The use of the corporate form exacerbates the capitalist class’s ability to exploit the one workplace bargaining model to the great disadvantage of the working class. More generally, the use of the right to strike by one class against the other class is not on the legal agenda; nor is national, regional or industry-wide bargaining.

This is why the OECD, having created typologies of bargaining systems that ranked nation states on the basis of how centralized bargaining was, put Canada at the bottom of the ladder it constructed. It is as far away from the kind of centralized bargaining regimes found in countries that best reduce competition between workers, such as Belgium, France, Finland, Iceland and Switzerland, as it can be and still be called collective bargaining. That workers and their allies believe it is a major victory to have this limited right to bargain and strike safeguarded by the Charter of Rights and Freedoms speaks volumes. As feminists used to say: “No, we haven’t come a long way.”

Still, the 2015 decision did deliver some positive news.

What Was Won

It is going to be harder for governments to use their political clout to strip employees in the public and quasi-public sectors of their entitlements to use the strike to win economic battles. In the immediate past, as Panitch and Swartz documented so well, it has been dead easy. In large part, this was so because, in the public sectors, the application of the Wagner Act model made little conceptual sense.

As has been emphasized, that model is meant to give workers more economic heft when they bargain about their own terms and conditions of work. Their specific employer is to be confronted by the possible loss of profits if it cannot reach an agreement that satisfies the union. It is a market-based model, one step up from the classic individual versus individual model. In the public sector, however, the target is a government, a non-market actor. From this, two related conceptual problems arise.

First, the employer is not operating a commercial enterprise; it is not interested in making a profit and suffers no economic loss when the provision of services and goods come to a halt. Indeed, it may be saving money. The threat to the government as an employer is that it will lose political face and influence if it does not deliver services and goods. Its answer to the problem caused by a market threat will be a political one, a sphere in which their workers have been given no equivalent tool to participate as a collective.

Two, what striking public employees threaten, therefore, is the right of an elected government to implement its policies that it is mandated to carry out on behalf of the public. The government/employer is always in a position to argue that its interest in having the provision of goods and services continue as planned must trump the narrow self-interest of workers whose only goal is to look after themselves – especially if their gains come at the expense of the public. Governments are entitled (maybe, even obliged) to order selfish workers to work as required. They are aided by the media who scour the planet as they look for individuals who are likely to suffer hardships as public service workers pursue their ‘selfish’ needs.

In short, in the public service proper, governments are able to take the high moral ground as they crush their own workers. Franklin Delano Roosevelt, seen as the force behind the Wagner Act model, wrote that the process of collective bargaining as usually understood, “cannot be transplanted into the public service.” But we have done just that and it has been easy, until now, for governments to declare that some workers may not have any bargaining rights, or that some are to be declared essential when a dislocation is threatened, or that they need to enact legislation that forces workers back to work after they have begun a legal strike.

The governments’ ability to justify these restrictions on strikes rest on the awkwardness of applying a private market model to the non-profit sectors of the polity. But, while these justifications are presented as based on this kind of logic, all too often they are used to advance the cause of capitalists in the private sector. Thus, when President Reagan sacked all the air traffic workers in the US because they were striking illegally, it was not just his ire at their temerity that led Reagan to act so strongly. Joseph A. McCartin [Ref.: “Professional Air Traffic Controllers’ Strike (1981), in Eric Anderson, ed., Encyclopedia of U. S. Labor and Working Class History, CRC Press, 2006] remarked that Reagan was ‘laying down a marker,’ and Alan Greenspan observed that “[M]ost importantly, his action gave weight to the legal right of private employers, previously not fully exercised to use their own discretion to both hire and discharge workers.”

The Saskatchewan Federation of Labour has made this government repression of its own workers (and, thereby, of all workers) much more difficult. It demands that any right to strike that employees have been granted must not be taken away in such a manner that they no longer will have any effective countervailing power with which to match their employers. In that Saskatchewan case it was easy to find that the government had acted unilaterally. It had designated workers as essential without engaging the workers in any kind of consultation process (unilaterally creating a reserve army of scabs) and with not even the slightest attempt to provide the workers to be deprived of their rights to bargain collectively with an adequate, roughly equivalent, means of exercising power, to have a meaningful voice. This arrogant attack on workers helped the bench of Supreme Court of Canada, in this case, to speak so positively about the need to give workers some countervailing power, to have a right to strike that ought not to be taken away without consideration of their needs. Employers, including government employers, are now expected to respect workers’ rights to have a significant, collective-like, mechanism of adjustment when settling terms and conditions of employment. In particular, the Supreme Court of Canada decision makes it more onerous for governments to justify enacting provisions ordering striking workers back to work on conditions that they had been legally entitled to reject. Governments are expected to provide them with an alternative dispute resolution scheme that offers something like the balance of power that existed before the right to strike was removed. What this may require in any one case is not clear yet and will be tested in time, but the spirit of the ruling is clear. Governments are expected to be more respectful of the right of their workforces to act collectively, even if the strike weapon is temporarily removed.

The advance that the 2015 decision offers is welcome because it makes it more difficult for governments to justify their attacks on their own workers. Their claim that to look after the interests of one and all should be permitted to hold sway over the more narrow self-interest of the few is to be weighed against the right to strike which now has been given more weight as a Canadian value than it had before. But it is only a partial victory.

The Lock-Out Weapon

Even though the right to strike has been given a more anchored legal standing, this does not negate the argument that, in some spheres, it still should not be used or, if allowed, be sparingly used. Obvious examples are the many workers who are currently denied the right to strike. They find themselves in occupations which, we presume, society has agreed should not to be allowed to cause serious interruptions, whether they are in the for-profit sector or not. The justification, once again, is that workers cannot interfere with public welfare even if they are not in sectors directly run by government. What is arresting is that the justification is based on the fact that workers in these strike-less occupations, often would be in very powerful bargaining positions precisely because we need them so much. Yet, there is no suggestion that the now Charter-protected right to strike should be extended to any of these workers.

For some of these workers, this denial of strike rights inflicts little material hardship, but for many of them, the outcomes are nasty, indeed they are precisely the kinds of outcomes that the Supreme Court of Canada told us that workers should be allowed to alleviate by striking.

Typically, we do not permit firefighters and the police to strike. They are offered other dispute settlement processes. Healthcare workers may be denied the right to strike. For firefighters, police officers, and doctors, this denial of the exercise of outright economic warfare works out quite well; it does not do so for orderlies, cleaners, caterers, personal service workers, or nurses in the healthcare sectors. And it is particularly harmful to the essential producers of food. Our governments go out of their way to set up formal schemes that will allow our farmers to exploit migrant labour. They enter into arrangements with other countries to have impoverished foreigners come to do work in circumstances where they do not get full access to Canada’s social welfare schemes and that leave them vulnerable to poorly paid and unsafe work conditions. Typically, they cannot leave their employer and are subject to abrupt deportation if employers judge them to be troublesome. Other special visa workers, who often come to study and/or with a vague promise that they may obtain immigrant status, also do poorly paid work with little protection. All this speaks to the lack of commitment to truly empower the working class, despite all the talk about the high value we put on allowing workers to unionize and strike.

And, recently, it has become obvious that, increasingly, our governments and political leaders are willing to increase the number of spheres in which we should take rights away from workers to protect something called, but not clearly defined as, ‘the public interest’. The cases that opened this short paper fit that bill. They are situations in which a lot of people will be affected by an interruption to normal production. Interruptions by strikes in transport services, schools, airlines, rail transport, long distance hauling, shipping, grain elevator operations, post services, and garbage collection are of this kind. Our political mind-set is that, over and above making strike rights available to settle disputes, government could, and should, play a role to avert interruptions in these many sectors of the economy.

The 2015 Saskatchewan decision makes this more difficult. This pleases neither the employers facing an unwanted interruption to their operations nor governments worried about the political capital (and funds from capitalists) they might lose. It transpires that our supposedly even-handed, neutral law furnishes a neat way out.

Nothing in our collective bargaining laws prevents an employer from removing its investment. Its right to do with its property as it decides is protected by our liberal legal system. Private sector employers, one would have thought then, needed no equivalent to the workers’ right to strike written into the collective bargaining laws. Wrong. Law has given employers a matching right; the right to lock-out its workers. That is, it can put pressure on workers while leaving all its operational needs ready to start up again as soon as workers come to their senses. Until recently it was a rarely used tool.

The recent cluster of lock-outs by employers in airlines, railways, and stevedoring, has arisen because they give a clear signal to the governments that they, the employers, having procrastinated during lengthy bargaining periods and confronted by a dissatisfied workforce, have no intention to make an agreement and are unwilling to take the chance that they may have to cave in to the workers’ demands. By locking-out the workers, they are telling the always amenable government (Note the eagerness to use back-to-work legislation over the last few decades!) that there are going to be huge public losses, economic and political, unless it intervenes. The government pretends for a while that the normal market mechanism – let workers strike and see which blinks first – should be allowed to work, then reaches out for a provision found in collective bargaining law ([Ref.: Section 107 of the Canada Labour Code] that permits the Minister of Labour to refer the matter to an administrative board. It is to decide whether the unresolved bargaining issues can be resolved by normal means or whether an alternative mechanism must be found. Voila: no need to debate the matter in Parliament; no political decision to be made by government as to which side it favours; no need for government to say that the Charter-protected right to strike is about to be negated. But the militance, the solidarity, the effectiveness of the strike, have been put into a deep freeze.

Inevitably, unions have announced that they will go to the courts to have them decide whether this run around the Charter decision that endorsed the right to strike is unconstitutional. They may even win. Eventually. In the meanwhile, the cat has lost some more skin.

In sum: the working class, having made some legal gains, still has very limited scope for resistance; the capitalist class remains virtually unimpeded as it pursues its ceaseless drive for private accumulation of socially produced wealth. And should it lose some of its tools, it has shown, again and again, that it will find new ones (from back-to-work legislation, to the designation as essential workers, to the creation of large strike-free zones, to lock-outs, etc.), aided and abetted by complicit legislators and judicial functionaries.

This is not good. •