Back-to-work legislation: When negotiations fail

A tool of last resort. Another way to subvert the rights of workers. The only way to assure me that my essential services will be available.

Back-to-work legislation. Saviour or subverter - it all depends which side of the fence you live on.

What is back-to-work legislation?

It's a special law passed by the government - federal or provincial - that orders an end to a labour-management dispute.

When is it used?

Back-to-work legislation is generally used to end a strike - or lockout - in an industry that the government decides is essential to the operating of the economy. It can also be used to end an illegal strike, either by a group that is deemed essential and is therefore prevented by law from going on strike, or workers who have gone out in violation of an existing contract.

Typically, back-to-work legislation is imposed only after some time has passed, further efforts at reaching a settlement have failed, and there is considerable public pressure to end the dispute.

When was back-to-work legislation first used?

On Aug. 22, 1950, Canada's railway unions launched a nationwide strike, shutting down the rail system from coast to coast. At that time, the country depended on the railways to ship everything from food to clothing across the country. Without the freight trains, there were fears that factories would be unable to ship their goods to market and store shelves could go empty.

As well, the railway workers were branded unpatriotic because their job action did not support the Korean War effort.

On Aug. 29, Prime Minister Louis Saint-Laurent introduced Bill-1, The Maintenance of Railway Operation Act. It ordered an end to the strike and imposed a process for settling the dispute between the workers and the rail companies.

The legislation passed second and third reading, was approved by the Senate and given royal assent the next day. Within days, the railway workers were back on the job.

A byproduct of the strike was the boost it gave to Canada's fledgling trucking industry.

How often is it used?

Since 1950, the federal government has introduced back-to-work legislation 31 times, usually to end strikes by railway workers, grain handlers and port workers. It has used back-to-work legislation to end several postal strikes, as well as a 1977 strike by air traffic controllers.

The last time the federal government used the tool was in 1999, to end a series of rotating strikes by public sector workers. The law extended collective agreements that had expired, and permitted the government to set the terms and conditions of employment. The law was passed after a tentative agreement had been reached.

Back-to-work legislation has also been used by provincial governments, usually to end disputes in the fields of health care, education and public transit.

The heavy hand of the law has been used to end transit strikes in Toronto several times. The usual pattern in the city - where about 1.5 million people a day depend on public transit - is for the province to legislate an end to a strike within a few days.

The law was also used to end a four-month-long transit strike in Vancouver in 2001 - B.C.'s longest transit strike ever. The government had decided that the bargaining process was not working, so it ordered the workers back and appointed a special mediator to resolve the issues.

Are there other options?

Sometimes there are. Governments pondering back-to-work legislation sometimes opt for a sort of "back-to-work lite" - legislation that requires workers to return to their jobs (whether they are on strike or locked out). The bill includes a "cooling-off" period, after which negotiations are given another chance.

That option was considered during Vancouver's transit strike.

What if the legislation is ignored?

In 1946, unions won the right to collect dues from everyone covered by a contract it negotiated with an employer. But there was another side of that coin - they were also forced to face economic penalties for illegally withdrawing their services.

Under back-to-work legislation, those penalties are spelled out. They usually involve heavy fines against a union, moderate fines against individuals and - sometimes - jail time for ignoring a back-to-work order.

In 1999, Bill C-76, the legislation used to end the rotating strikes by public sector workers, called for fines of $50,000 per day against the union and $1,000 a day for individuals ignoring the back-to-work order. No fines were levied in that dispute.

But in 1978, Jean-Claude Parrot, then leader of the Canadian Union of Postal Workers, was jailed for two months for defying back-to-work legislation.

In October 2005, the B.C. government extended until June 2006 the terms of an expired contract with the province's teachers after they had begun a work-to-rule campaign. The teachers walked out, defying the new contract. On Oct. 9, a judge ruled the teachers were in contempt of court for violating what was essentially a back-to-work order.

"We are taking a stand against a law that is so unjust that it attacks rights that people in Canada have fought for for years and years," Jinny Sims, president of the B.C. Teachers Federation, told CBC News.

B.C.'s labour minister - Mike de Jong - said the government would not negotiate with teachers as long as they remained off the job.

"If we're talking about moving forward and talking about things like class size and class composition … we're happy to have those discussions. But it's awfully tough to do that when a group we look to to set an example is out there breaking the law."