Definitive Report - Report No 392, October 2020

Case No 3348 (Canada) - Complaint date: 15-FEB-19 - Closed

Allegations: The complainant organization alleges that by enacting Bill C-89, an Act to provide for the resumption and continuation of postal services, the Government of Canada interrupted collective bargaining between the Canadian Union of Postal Workers (CUPW) and the Canadian post and referred the dispute to mandatory mediation followed by compulsory and binding arbitration, thereby violating workers’ fundamental rights to organize, collective bargaining, and freedom of association

1. 309. The complaint is contained in two communications dated 7 February 2019 and one communication dated 25 March 2019 submitted by the Canadian Union of Postal Workers (CUPW). The Canadian Labour Congress (CLC) supported the complaint in a communication dated 15 February 2019.
2. 310. The Government of Canada transmitted its observations on the allegations in communications dated 19 July 2019, 14 January 2020 and 11 September 2020.
3. 311. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 312. In the first communication dated 7 February 2019, the complainant organization alleges that the Government of Canada violated Conventions Nos 87 and 98 by enacting Bill C-89, an Act to provide for the resumption and continuation of postal services.
2. 313. According to the complainant, by enacting Bill C-89, the Government interrupted collective bargaining between the CUPW and the Canada Post Corporation (hereinafter the Post), stripping CUPW members from the right to strike, and referring the dispute to mandatory mediation followed by compulsory and binding arbitration.
3. 314. The complainant organization explains that the CUPW represents over 50,000 members, a majority of whom are employed by the Post as letter carriers, mail service couriers, postal clerks, mail handlers, mail despatchers, technicians, mechanics, electricians, electronic technicians, and rural and suburban mail carriers. The union’s Urban Postal Operations (UPO) bargaining unit is composed of over 43,000 members, while the union’s Rural and Suburban Mail Carriers (RSMC) bargaining unit is composed of over 9,300 members.
4. 315. According to the complainant organization, after the CUPW served the Post with its notice to bargain with respect to the UPO and RSMC units’ collective agreements pursuant to the Canada Labour Code on 14 November 2017, the union and the enterprise engaged in negotiations over several months commencing on 24 November 2017. The RSMC unit’s collective agreement expired on 31 December 2017 and the UPO unit’s collective agreement expired on 31 January 2018.
5. 316. The complainant states that on or about 29 June 2018, the union applied for conciliation under the Code in order to pressure the enterprise to bargain meaningfully. The Minister of Labour appointed conciliation officers in July 2018. Faced with the continued intransigence of the enterprise in bargaining, the union conducted democratic strike votes across the country in August and September 2018, in accordance with the Code. CUPW members overwhelmingly voted in favour of undertaking strike action if necessary to pressure the enterprise to compromise and reach a collective agreement that would meet their collective needs and achieve their collective workplace goals. Of the members who voted, 95.9 per cent from the RSMC unit and 93.8 per cent from the UPO unit voted in favour of a strike mandate.
6. 317. On 5 September 2018, the Minister of Labour appointed two mediators to assist the parties. On 7 September 2018, after months of negotiations, the enterprise for the first time presented global offers on the bargaining issues to the union, which, in its view, did not come close to addressing fair working conditions for postal workers.
7. 318. The complainant organization indicates that on 19 September 2018, the union initiated an essential services agreement with the Post to ensure the safety of live animals and the processing and delivery of pension and social assistance cheques to pensioners and low-income people in the event of a postal service disruption. Under the agreement, CUPW members agreed to volunteer to process and deliver live animals, such as bees and chicks, and social assistance and pension payments from the federal, provincial and municipal governments.
8. 319. The CUPW was in a legal strike position as of 26 September 2018. The complainant organization states that since no agreement was reached in mediation, it was clear to the union that its members would have to exercise their fundamental right to strike in order to promote meaningful negotiations. On 16 October 2018, the union gave 72 hours’ notice to the enterprise and the public that postal workers would go on rotating strikes, in accordance with their rights under the Code.
9. 320. Between 22 October and 27 November 2018, postal workers engaged in rotating strikes at discrete locations across the country. The complainant indicates that no strike lasted more than two consecutive weekdays and that the CUPW implemented a national overtime ban on 1 November 2018. Throughout this period, postal workers delivered government cheques to the most vulnerable members of the public, including senior citizens, individuals with low incomes and others who received pension and social assistance cheques. The complainant organization believes that the rotating strikes were a critical means for postal workers to publically protest their treatment by the Post, express their workplace grievances to their respective communities, and demonstrate their solidarity with each other. It explains that there were certain crucial issues, such as letter carrier health and safety, which postal workers decided could only be resolved by strike action in light of the enterprise’s response in negotiations.
10. 321. On 24 October 2018, the Minister of Labour appointed a special mediator to assist the parties in their negotiations during the strike. On 7 November 2018, the Labour Minister extended his mediation mandate under the Code for a period of four days (until 10 November 2018).
11. 322. On 8 November 2018, the Canadian Prime Minister indicated to the media that his Government might soon use all options to end the dispute if the parties did not bridge their differences soon. According to the complainant organization, it was understood that the Government’s action would take the form of back-to-work legislation. The Post made an offer on 14 November 2018, which it stipulated would expire at midnight on 18 November 2018. On 17 November 2018, the union made a comprehensive offer in response to the enterprise’s 14 November offer. On 18 November 2018, the union provided contract language to accompany its offer. On 19 November 2018, the enterprise refused the union’s offer. The enterprise also withdrew its 14 November offer, instead proposing a cooling off period with compulsory arbitration and offering up to 1,000 Canadian dollars (CAD) to each employee to give up their fundamental right to strike during the holiday and shopping period. This was the last official response the union received from the enterprise. On 20 November 2018, the Minister of Labour publicly indicated that the Government would introduce back-to-work legislation if the parties were not able to reach a deal over the next few days.
12. 323. On 22 November 2018, Bill C-89, an Act to provide for the resumption and continuation of postal services (the Act), was introduced. In introducing the back-to-work legislation the Labour Minister stated that the Government had a responsibility to Canadian businesses and that the strikes have created backlogs of mail and parcels just days before an expected rush of millions of additional parcels from Black Friday and Cyber Monday online sales. The Minister further noted that older Canadians, persons with disabilities, low-income earners, as well as Canadians living in rural, remote and northern areas who rely on physical mail delivery, including indigenous peoples, are disproportionately affected during postal strikes. The Government brought a motion to expedite the passage of the Bill, which, according to the complainant organization, drastically reduced the time allotted for its consideration and debate. That same day, on 22 November 2018, the union sent a proposal to the enterprise and the mediator seeking to bridge the gap between the two parties. However, despite the mediator’s efforts over the course of the next several days, the enterprise refused to negotiate with the union. With Bill C-89 on the verge of passing, the enterprise did not even respond to the CUPW’s proposal or make a counter offer.
13. 324. The complainant organization indicates that Bill C-89 was introduced by the Senate on 24 November 2018. The Senate did not sit on Sunday, 25 November 2018. The Bill received Royal Assent on 26 November 2018, a mere four days after it was introduced. The Act came into force on 27 November 2018.
14. 325. According to the complainant, the Act violates postal workers’ freedom of association and expression, and compromises the essential integrity of the process of collective bargaining because it forces CUPW members to return to work and prohibits any further strike action during a period when such strikes would otherwise have been lawful (that is, the period before a new collective agreement is in place). The Act prohibits strike action even though no essential services were affected, the parties had entered into an essential services agreement, and any harm to the public caused by the rotating strikes was minimal. It also compels and muzzles speech on the part of CUPW officials by requiring them to communicate to postal workers that they must resume their job duties and to take all reasonable steps to ensure that their members comply with the back-to-work law.
15. 326. The complainant organization indicates that the Act replaces the right to strike with an arbitration process that is unfair and inadequate for the following reasons: (i) it severely restricts the parties’ right to choose their own, mutually agreeable arbitrator, as the parties are each limited to submitting the names of three individuals that they consider qualified and the Minister is provided with the authority to select the arbitrator if there are no names in common; (ii) it precludes the parties from defining the issues in dispute at mediation–arbitration and provides this power to the Minister; (iii) it severely restricts the parties’ right to select a mutually agreeable arbitration process and provides this power to the mediator–arbitrator; (iv) it limits to a maximum of fourteen days the parties’ right to engage in mediation for a period of time of their choosing; and (v) the Act enforces its provisions by imposing substantial offences and fines of up to CAD50,000 per day on CUPW officials and CAD100,000 per day for the CUPW for violations of any provision of the Act. The complainant organization underlines that the offences and penalties have a chilling effect on the fundamental freedoms of association and right to organize as persons will prefer to remain silent rather than risk the perils of prosecution. The complainant refers to the Committee’s previous conclusions concerning similar issues in relation to the postal services in Canada. In the complainant’s view, since postal workers are not public servants and do not perform work that constitutes an essential service as that term is defined in domestic and international law, there is no justification for interfering with their fundamental freedoms.
16. 327. According to the complainant organization, the Government’s justification for violating CUPW workers’ fundamental rights lies primarily on the impact of the strikes on the economy, especially in view of the proximity to the end of year holiday season. The complainant recalls that, in addition to staging limited and rotating strikes, the CUPW has implemented and respected minimum service protocols to ensure that live animals were delivered, and that vulnerable groups received their social assistance cheques. It recalls in this respect that in Case No. 2894, the Committee had expressed its concern at the Government’s decision to issue a full back-to-work order given that protocols were negotiated “precisely to avoid negative repercussions for third parties and ensure that the basic needs of vulnerable users would be met in the event of a strike”. The complainant organization therefore believes that concerns for vulnerable population should not be used as a justification for violating workers’ rights.
17. 328. The complainant organization indicates that the Government of Canada has a repeated history of violation of postal workers’ fundamental rights. Out of the 13 rounds of CUPW bargaining since 1978, the federal Government has resorted to back-to-work legislation on six occasions (1978, 1987, 1991, 1997, 2011 and 2018). In most of these, a complaint was submitted to the Committee, which time and time again identified the violation of workers’ rights and issued recommendations that the Government continuously chooses to ignore. In 2015, Case No. 2894 was also brought before a national court, which ruled the then back-to-work legislation Bill C-6 as unconstitutional and in violation of workers’ rights as guaranteed by the Canadian Charter of Rights and Freedoms.
18. 329. The complainant alleges that many of the grave problems that the CUPW is trying to solve through the current bargaining process are indeed a consequence of negative collective agreements imposed through the threat of forced arbitration. It considers that this pattern of behaviour by the Canadian Government has contributed to the deteriorating relations between the union and the enterprise, and weakened the application of the principle of voluntary negotiation. With the habitual recourse to back-to-work legislation, the enterprise has little pressure to negotiate in good faith and can count on the Government’s intervention to remove workers’ rights and impose forced and binding arbitration. The complainant organization suggests that this is what happened again in this case. It believes that the Post had no intention to reach a settlement, explicitly asked for binding arbitration, and faced with the CUPW’s refusal, the Government imposed it upon the union only five days later through Bill C-89.
19. 330. According to the complainant organization, the continued violation of workers’ freedom of association and right to organize and collective bargaining is furthermore of concern given Canada’s recent ratification of Convention No. 98. It concludes that the Government’s refusal to respect workers’ fundamental rights, in spite of renewed formal commitment to its protection and repeated recommendations from the ILO, not only represents a threat to its workers, but also to the international rights-based system and the rule of law.
20. 331. In its second communication dated 7 February 2019, the complainant alleges that the disabling injury rates in the Canadian postal services are the highest in the federal sector. It indicates that, since the Act came into force, urban postal workers have worked thousands of hours of forced overtime, rural and suburban mail carriers, of which two thirds are women, worked roughly 250,000 hours without pay, and at least 315 disabling injuries have been suffered. The complainant organization also informs that other unions, labour activists, and concerned citizens have risen in protest against this back-to-work legislation in more than 27 cities across the country. Despite the peaceful nature of demonstrations, six people were arrested in Halifax on 2 December 2018 for forming a picket line in front of a Canada Post facility. These labour activists, who are not CUPW members, were each charged with obstructing police and mischief.

B. The Government’s reply

1. 332. In a communication dated 19 July 2019, the Government, recalling the complainant’s allegations that Bill C-89, an Act to provide for the resumption and continuation of postal services, was enacted in violation of Conventions Nos 87 and 98, respectfully disagrees with this characterization and requests that the complaint be dismissed.
2. 333. The Government states that it is strongly committed to free collective bargaining and the constructive settlement of labour disputes as the basis for sound industrial relations. These principles form the foundation of Part I of the Canada Labour Code, which establishes a framework for collective bargaining, provides for mediation and conciliation assistance to help resolve bargaining disputes, and defines rights and obligations during strikes and lockouts. Further, the Canadian Charter of Rights and Freedoms guarantees freedom of association, which the Supreme Court of Canada has determined includes the right to participate in a meaningful process of collective bargaining, including the right to engage in strike action.
3. 334. The Government indicates that its commitment to the constructive settlement of labour disputes is exemplified by the work of the Federal Mediation and Conciliation Service (FMCS). Thanks to the FMCS’ efforts, the overwhelming majority of disputes in the federally regulated private sector are resolved through mediation or conciliation without a work stoppage. During fiscal year 2017–18, mediators and conciliation officers provided extensive assistance to parties in 245 collective bargaining disputes, helping the involved parties to find common ground and negotiate new collective agreements. Of these disputes, 94 per cent were resolved without a work stoppage. This success is in keeping with recent results: from 2006–07 to 2017–18, of the approximately 3,455 collective agreements that were negotiated under Part I, there have been only 89 work stoppages. In recognition of its importance, the Government committed in Budget 2019 to enhance the FMCS’ capacities by increasing its funding by CAD1 million annually from 2019–20 to 2023–24. For the few labour disputes that do result in a work stoppage, it continues to support the parties as they work to reach a negotiated settlement.
4. 335. As regards industrial relations in the federal jurisdiction, the Government explains that Part I of the Code is the legislative framework governing workplace relations and collective bargaining for private-sector employers and trade unions under federal jurisdiction. In 2018, approximately 972,000 employees (or 6.2 per cent of all Canadian employees) were employed by about 22,000 enterprises subject to Part I. About 34 per cent of these workers were unionized. Although Part I applies to only a small portion of Canada’s labour force, the critical role of the infrastructure and other industries falling within the federal private sector, as well as certain Crown corporations (including the Post), are of considerable economic and social importance to Canada.
5. 336. The Government further indicates that the Minister of Labour is responsible to Parliament for the administration of the Code. The FMCS, which is tasked with administering the Code’s dispute resolution provisions, is responsible for fostering harmonious relations between trade unions and employers by assisting them in the negotiation of collective agreements and their renewal and the management of the relations resulting from the implementation of the agreements. Finally, the Canada Industrial Relations Board (CIRB) is an independent, representational, quasi-judicial tribunal created by section 9 of the Code. The CIRB’s mandate is to support constructive labour-management relations in federally regulated sectors. In order to fulfil its mandate, the CIRB provides a variety of dispute resolution services. It objectively adjudicates matters where necessary, but it also focuses on providing mediation assistance at all stages of a proceeding.
6. 337. Part I of the Code sets out the following general framework for collective bargaining in federally regulated industries, in particular the following: (i) exclusive bargaining rights are granted by the CIRB to unions (also referred to as bargaining agents) when they can demonstrate majority support from employees; (ii) employers and bargaining agents have an obligation to negotiate in good faith; (iii) strikes and lockouts are not permitted while a collective agreement is in force; (iv) the bargaining process begins when a notice to bargain is given by one party to the other to start negotiating the renewal of a collective agreement; (v) if bargaining reaches an impasse, parties can file a notice of dispute with the Minister of Labour, who may appoint an impartial conciliation officer to assist the parties in resolving their differences; (vi) the conciliation process is for a period of 60 days unless it is extended by the parties by mutual agreement; (vii) a legal strike or lockout cannot take place until a notice to bargain has been given, the conciliation process has taken place, a 21-day cooling off period has elapsed since the end of the conciliation process, a strike vote has been taken, and a 72-hour strike or lockout notice has been given; (viii) the Minister can refer specific issues to the CIRB; and (ix) the Minister may appoint a mediator at any time, either at the request of the parties, or on the Minister’s own initiative; the appointment of a mediator does not influence the acquisition of the right to strike or lockout.
7. 338. With respect to the role and mandate of the Post, the Government indicates that Canada is the second largest country in the world with a total area of 9,984,670 square kilometres. The population of Canada is over 37 million. While the majority live in cities, almost 9 million Canadians live in rural and remote areas of the country, which occupy 9.5 million square kilometres, or around 95 per cent of Canada’s territory. The Post serves the public by providing postal services to all Canadians located in rural and urban areas in a secure and financially self-sustaining manner. It was created via the Canada Post Corporation Act and has a single shareholder, which is the Government of Canada. The Post is a Crown corporation reporting to the Minister of Public Services and Procurement and Accessibility. It is in fact a group of three companies, including Canada Post (Canada’s exclusive postal service), Purolator Holdings Limited (Canada’s largest integrated freight and parcel service) and the SCI Group (a supply chain solutions company). Canada Post is by far the largest of these three segments, being responsible for over 77 per cent of the Post’s revenues, and employing just under 80 per cent of its combined workforce. The Government specifies that the work stoppages referred to in its response took place exclusively within the Canada Post segment.
8. 339. Canada Post delivers almost 8.3 billion pieces of mail, parcels and messages annually to 16.2 million addresses. A significant number of these addresses are in rural and northern regions of the country where other delivery companies do not go. Because of its mandate, Canada Post is required to ensure that packages and parcels from other parcel delivery companies reach Canadians in these regions, providing “last mile” service from central distribution hubs to these areas. Canada Post is also Canada’s largest and most affordable parcel delivery service in its own right. Its parcel services connect Canadians with thousands of small, medium and large businesses via websites and e-commerce platforms.
9. 340. According to the Government, in Canada, mail is one of the most convenient, inexpensive ways to connect seniors, low­income Canadians and persons with disabilities to the services upon which they rely. Canada Post is also an essential lifeline to Canadians who live in rural and remote areas for the delivery of items, such as prescription drugs. Further, small and medium-sized businesses rely heavily on Canada Post’s letter mail and ad mail services to reach and serve their clients and customers (for example, by sending and receiving invoices and payments).
10. 341. As regards the relationship between the Post and the union, the Government indicates that the Post is one of the largest employers in Canada, with a workforce of approximately 64,000 employees. A large part of the Canada Post workforce is unionized, with several unions representing different segments of workers. The largest of these unions is the CUPW, which represents two bargaining units: the UPO and RSMC. The UPO unit represents approximately 42,000 members who work as plant and retail employees and letter carriers in urban locations while the RSMC unit represents 8,500 members who work as mail carriers in rural and suburban locations. CUPW members work in the Canada Post segment of the Post.
11. 342. The Government then provides a brief overview of the Post’s and the CUPW’s long history of acrimonious collective bargaining that has often resulted in work stoppages. The CUPW started representing employees at Canada Post in January 1975. The Government of Canada has provided extensive assistance to these parties throughout their 44 years of collective bargaining by appointing conciliation boards, conciliation officers and mediators to support the parties in reaching mutually acceptable collective agreements. During this time, Ministers of Labour have also extensively engaged the parties directly to encourage them to settle their disputes. However, a profound reciprocal distrust between the CUPW and the Post has continued over the years, which has had a dampening effect on collective bargaining. This history demonstrates that the parties have been unable to reach collective agreements and they have failed time and time again to renew them without government intervention.
12. 343. Reaffirming its commitment to free collective bargaining as the basis for sound industrial relations, the Government states that consistent support and encouragement was given to the Post and the CUPW throughout the entirety of the 2017–18 round of collective bargaining. From before bargaining began, through negotiations, and through the work stoppages, the Minister of Labour was engaged and the parties were provided with hundreds of hours of mediation and conciliation support.
13. 344. In 2016, the parties agreed to participate in relationship development meetings (also known as preventive mediation sessions) with the FMCS outside the normal collective bargaining cycle in an effort to improve their relations. This represented one of the few times in the 44 year history of antagonistic relations between the parties that they had agreed to meet outside the bargaining cycle. In the Government’s view, it also demonstrated its respect for the Committee on Freedom of Association’s recommendation in Case No. 2894, in which the Committee “welcomed the Government’s pledge to contact the parties to offer its recently expanded preventive mediation services at an appropriate time”. As such, mediators appointed by the Relationship Development Programme within the FMCS held sessions with the parties between 2016 and late 2017. Unfortunately, these sessions did not lead to more amicable relations between the parties during the 2017–18 bargaining cycle.
14. 345. The 2017–18 round of collective bargaining between the Post and two bargaining units of the CUPW began when the CUPW served the Post with notice to bargain collectively in November 2017. Shortly thereafter, the CUPW applied to the Minister of Labour for early mediation assistance, which began in January 2018. The collective agreements between the Post and the RSMC unit and the UPO unit expired on 31 December 2017, and 31 January 2018, respectively.
15. 346. The parties maintained their adversarial stance and little meaningful progress was made at the bargaining table. The CUPW then filed a notice of dispute with the Minister of Labour on 29 June 2018. In response, the Minister promptly appointed conciliation officers on 9 July. Conciliation officers worked with the parties for 60 days but, again, little meaningful progress was made during their mandate.
16. 347. With conciliation completed, the 21-day cooling off period began on 4 September 2018. The Minister once again appointed mediators to assist the parties in concluding an agreement during this period. She also met personally with representatives from the union and the employer to try to effect positive changes at the bargaining table. During the cooling off period, the CUPW held strike votes. The results of these votes were released on 11 September with 93.8 per cent of UPO members and 95.9 per cent of RSMC members voting in favour of a strike mandate.
17. 348. In spite of the mediators’ best efforts to encourage the parties to negotiate new collective agreements without a work stoppage, the parties were unable to reach an agreement. On 16 October 2018, the CUPW gave notice that it would commence targeted, rotating strikes on 22 October 2018. These strikes duly began on 22 October 2018. Over the subsequent five weeks, strike activity took place in a mix of large and small cities across Canada, including several shutdowns of the Post’s largest processing centre in Toronto. The CUPW also began an overtime ban on 1 November, encouraging its members to refuse work in excess of eight hours per day and 40 hours per week. In time, backlogs began to accrue at key depots and sorting facilities and, on 16 November 2018, it was reported that the Post had requested postal services in other countries to halt mail and parcel delivery to Canada.
18. 349. On 24 October 2018, the Minister of Labour appointed a special mediator to work with the parties to assist them in negotiating new collective agreements in order to bring an end to the strike action. At the end of his first mandate, the special mediator reported that no significant progress had been made at the bargaining table. Despite this diagnosis, the Government indicates that the special mediator was re-appointed two more times (on 7 and 20 November 2018) because it wanted to do everything in its power to support the parties in reaching a negotiated settlement of their collective bargaining dispute. Unfortunately, the parties were still unable to make any meaningful progress in their collective bargaining. During this time, the Minister also intervened personally with the parties and asked them to seek voluntary arbitration to resolve their differences, again to no avail.
19. 350. On 22 November 2018, the Government introduced Bill C-89 in the House of Commons. In speeches and public appearances, Government Ministers reiterated their regret at having to introduce the legislation and once again encouraged the parties to negotiate an end to the work stoppages to avoid the need for the Bill. Strikes continued and the parties made no meaningful progress. The Bill received Royal Assent on 26 November 2018. As a result, the parties were required to resume postal services on 27 November 2018.
20. 351. The Government stresses that it did everything possible to avoid recourse to legislation. It was only contemplated once it had attempted everything in its power to bring the parties to a negotiated agreement, once there was no indication of progress being made at the bargaining table, and once the five-week-long strikes had caused significant economic and social harm, which, if the strikes had persisted, would only have compounded and deepened. It argues that the Act presented a neutral, unbiased means for the parties to resolve their issues through mediation or, if necessary, arbitration based on balanced guiding principles, while ending the economic and social harms caused by the strikes. The Government regrets that it became necessary to intervene, but is convinced that this measured legislation was necessary and justified.
21. 352. As regards the economic impacts of the work stoppage, the Government acknowledges the ILO Committee on Freedom of Association’s comment in Case No. 2894 that “economic considerations should not be invoked as a justification for restrictions on the right to strike”. However, it believes that when negotiations are at a seemingly unbreakable impasse despite over a month of strike action, governments and the Committee would be remiss if they did not consider the real economic harm the strikes were causing third parties, and if they did not give these considerations at least some weight in examining the decision to intervene.
22. 353. Based on an analysis by its Department of Finance, the Government explains that the changing economy, where customers and vendors can conduct business while being separated by great distances, results in greater reliance on “network industries” such as digital services, financial services, and logistics including mail and parcel services. A constraint on services vital for commerce undermines the reliability of vendor–customer commitments. Such commitments are what underpin a well-functioning market economy. When the services of Canada Post, which has the exclusive privilege to deliver mail and is a significant player in Canada’s parcel delivery market, are significantly interrupted or fully constrained, an important strain is placed on business activity.
23. 354. According to the Government, the Post estimates that its domestic parcel volumes constitute approximately 50 per cent of the Canadian domestic parcel market and approximately 70 per cent of the Canadian domestic e-commerce market. Strikes affecting the Mississauga Gateway parcel processing plant, which handles two thirds of Canadian parcels, led the Post to suspend delivery time guarantees from 13 November 2018. They were only restored on 20 December 2018 – 23 days after the parties were required to resume postal services by the Act. Further rotating strikes during the holiday season would have continued to push this backlog higher. Especially in the context of holiday season purchasing, there was very limited capacity for competitor carriers to take on additional parcel delivery. The Government recalls that one retailer, for example, indicated that it anticipated shipping more than a million orders during the holiday season but that it could not achieve this without reliable service from the Post and that another important employer confirmed this by stating that no one can replace the Post in the short term.
24. 355. As a result of the Post’s importance to Canadian parcel delivery, the Government indicates that the strike action had an important impact on e-commerce demand, with major outlets reporting 20–30 per cent fewer orders than in the previous year. Still others reported order cancellation because of delivery uncertainty. Many companies are dependent on sales from “Black Friday” (23 November) to early January to survive and some generate up to 40 per cent of their annual sales at this time. When companies lose sales during this period due to strike-related uncertainty, these sales are not likely to be made up later as the event (for example, “Black Friday” and “Cyber Monday” sales) or the occasion (for example, Christmas) will have passed. Third party losses are therefore more likely to be permanent during this time.
25. 356. The Government states that these impacts on demand, and employers’ anticipation of further impacts as the strikes went on, led to a reported reduction in seasonal hiring and/or working hours by several e-commerce and other companies. One such retailer reported that 800 workers were directly affected by the work stoppages, either through seasonal staffing reductions of 50 per cent, or through a reduction in their hours of work. Another major online retailer reported that the strikes had resulted in significant idle labour and that the company had been forced to implement voluntary and mandatory time off for employees. Apart from hiring, retailers indicated significant incremental costs resulting from the work stoppages, including incentivizing in-store pickup of merchandise, and other costs. These initial indicators were borne out, as one major Canadian retailer reported a 50 per cent drop in net earnings in its third quarter ending 29 December 2018, largely owing to the strikes at Canada Post.
26. 357. Apart from these large retailers, the work stoppage also affected small and micro-businesses, such as those who make and sell products through online marketplaces. Although data is more difficult to obtain related to these businesses/entrepreneurs, it is likely that the impacts of the work stoppage were more acute for them as their profit margins are thinner, lessening the likelihood that they were able to find alternate shipping arrangements or absorb increased costs.
27. 358. The Government informs that another sector affected by the work stoppage involved companies that produce direct marketing mail (for example, flyers). In 2017, the Post delivered 4.8 billion pieces of direct marketing mail, 75 per cent of which were neighbourhood mailings. The strikes negatively impacted the Post’s ability to guarantee timely delivery of these mailings, leading some advertisers to reallocate funds (for example, to newspaper ads), causing layoffs in direct mail companies. The Government believes that, were the strikes allowed to continue or expand, businesses that design and/or print direct mail may have been forced to implement temporary layoffs on a much more widespread basis.
28. 359. Lastly, the Government indicates that the five-week-long strikes interfered with financial transactions for many businesses. Large companies in the financial, telecommunication and utilities sectors are among the Post’s top 20 letter mail customers, partly owing to the large volume of financial transactions with their retail customers. A 2016 survey of 1,202 small, medium and large businesses regarding the postal needs and perceptions of Canadians indicated that virtually all Canadian businesses still rely on Canada Post for time-sensitive or important letter mail. The survey found that small and medium-sized enterprises (SMEs) in rural areas are more dependent on Post services, as alternate courier costs are higher or their services unavailable. According to the Canadian Federation of Independent Business, over half of SMEs still rely on paper cheques and invoices.
29. 360. As regards the social impacts of the work stoppage, the Government of Canada acknowledges the Memorandum of Understanding (MoU) agreed between the Post and the CUPW to ensure the delivery of federal and provincial socio-economic benefit and pension cheques as well as live animals (for example, chicks and bees). The Government was aware of this MoU prior to the onset of the strikes. However, it argues that despite the MoU, the work stoppages created pronounced social impacts, which would only have deepened if the strikes had continued.
30. 361. The Government indicates that Canadians with disabilities, seniors, those with lower income and education levels, and indigenous peoples are more reliant on postal service for personal communications, transactions, and parcel delivery, in part because they have less access to the Internet due either to limited financial means and/or living in rural, remote and northern locations. The costs of postal alternatives, such as courier companies, can be prohibitively high for these groups, especially in rural and remote areas, or completely unavailable in remote northern areas, where Canada Post is the only option.
31. 362. The Government points out that the strikes also had serious implications for several charities that provide critical help and services to these vulnerable Canadians. According to a survey by the Association of Fundraising Professionals (AFP), many charities receive over half of their annual donations during the final three months of the year. Another survey by the AFP showed that four in ten Canadians preferred to donate by receiving mailed forms from charities. Both during and after the five-week-long strikes, charities performing vital social functions (for example, running homeless shelters, food banks, soup kitchens and helping new immigrants) reported that donations had decreased.
32. 363. For instance, one nation-wide charity, which is the largest non-governmental direct provider of social services to Canadians, reported on 23 November 2018 that it had received 40 per cent fewer donations via mail than at the same time the previous year. On 20 December 2018, an Ottawa-based charity operating homeless shelters reported a decrease in donations of approximately CAD150,000 compared to the 2017–18 holiday period. Lastly, another charity, which runs the largest food bank on Vancouver Island, reported on 20 November 2018 that it had experienced a 23 per cent decline in donations compared to the same period in 2017. The Government underlines that these examples reflect only those charities whose losses were reported in the national media, and believes that likely far more organizations, and thus far more important services to vulnerable Canadians, were impacted by the strikes.
33. 364. According to the Government, almost 9 million Canadians live in rural and remote areas, where access to the Internet is more limited and/or of poorer quality, limiting access to required documents. Seniors and those with lower income and education levels are more prominent in these areas. Just under half (48.2 per cent) of Canada’s total indigenous population live in rural or remote areas, representing almost 2.5 per cent of Canada’s total population. Canadians living in the north are more reliant on parcel delivery services than other Canadians, receiving approximately double the per capita parcel average in Canada in 2017. In a letter to the Toronto Star newspaper on 22 November 2018, a concerned citizen wrote about the negative impact the strikes were having on her work sending much-needed supplies to shelters, soup kitchens, day-care centres and schools in Nunavut and the Northwest Territories. She explained that, while mail disruption is an inconvenience to many Canadians, “it is an impossible situation for those in remote fly-in communities in Northern Canada, who must rely on Canada Post for all of their deliveries”.
34. 365. The Government indicates that in 2012, close to 2 million Canadians reported mobility disabilities. 45 per cent of these are seniors, and women are slightly over represented at all ages by about two percentage points. This group tends to have significantly lower income than those without disabilities (25 per cent less for men), is 21 per cent less likely to have the Internet at home, and 25 per cent less likely to conduct online transactions. Persons with disabilities are more inclined to consider mail delivery as essential than Canadians without mobility issues by a margin of 20 per cent. Aside from rural areas, Canadians with lower education and income are 27 per cent less likely to be connected to home Internet and 37 per cent less likely to conduct online transactions than other Canadians. With less access to the Internet, telephones or cell phones, this group is 17 per cent more likely than other Canadians to consider letter mail as essential. Overall, 13 per cent of Canadian households lack Internet service, according to 2015 data.
35. 366. The Government explains that the Act ordered the immediate end to ongoing work stoppages and required the resumption and continuation of postal services on the day following its passage. It extended the collective agreements of both bargaining units from the day they expired until the day that new collective agreements are established. The period of the work stoppages was excluded from the extension of the collective agreements. The legislation prohibited any further work stoppages until after new collective agreements were established. It also prohibited the employer from dismissing or disciplining any employee for having participated in strike action. It also set out fines that would apply to any person or party who contravenes any of its provisions, and explicitly precluded imprisonment in cases where a person is in default of a payment of such a fine. The Act entitled any employee who was disciplined or discharged during the period of the work stoppages that were excluded from the extension of the collective agreements to refer the matter for final settlement to an arbitrator selected by the employer and the union. If the employer and union were unable to agree, the matter would be referred to an arbitrator appointed by the Minister upon request by either party.
36. 367. On the issue of mediation–arbitration, the Act launched a neutral and objective process to resolve outstanding issues between the parties. Each party was given the opportunity to participate in the selection of the mediator–arbitrator by proposing the names of three individuals they would like to have as the mediator–arbitrator to the Minister within 48 hours of the legislation coming into force. If both parties proposed the same person, the legislation required the Minister to appoint that person as mediator–arbitrator. However, if the parties did not propose the same person or a party failed to propose any names, the Minister would appoint the mediator–arbitrator after seeking advice from the Chairperson of the CIRB to ensure impartiality. Regardless of the way in which the mediator–arbitrator was selected, the legislation required that he or she attempt to resolve issues through mediation for seven days. This mediation period could be extended for up to seven more days if the parties agreed. If mediation failed on any issues, the mediator–arbitrator was required to arbitrate all outstanding issues through an arbitration model of his or her choosing – whether traditional interest arbitration or final offer selection. The mediator–arbitrator was required to resolve all outstanding issues, report to the Minister on the resolution of each issue and provide copies of that report to the parties within 90 days of his or her appointment. The legislation also required the parties to reimburse the Government in equal parts for any costs relating to the appointment of the mediator–arbitrator and the performance of the mediator–arbitrator’s duties under the Act.
37. 368. If the mediator–arbitrator was required to decide outstanding issues through arbitration, the mediator–arbitrator’s decisions were to be guided by certain principles that are set out in the legislation. These principles reflected the interests of both parties and included the need: (i) to ensure that the health and safety of employees is protected; (ii) to ensure that employees receive equal pay for work of equal value; (iii) to ensure the fair treatment of temporary or part-time employees, and other employees in non-standard employment, as compared to full-time, permanent employees; (iv) to ensure the financial sustainability of the corporation; (v) to create a culture of collaborative labour-management relations; and (vi) to have the employer provide high-quality service at a reasonable price to Canadians.
38. 369. The legislation provided that the day after the day on which the mediator–arbitrator submits his or her final report to the Minister, new collective agreements were to become binding on the parties. These collective agreements were to include any agreements negotiated by the parties before or after the mediation–arbitration process began, as well as every decision made by, or final offer selected by, the mediator–arbitrator. Nothing in the legislation prohibited the parties from independently negotiating new collective agreements. In fact, the legislation explicitly stated that the parties are free to enter into new collective agreements at any time before the mediator–arbitrator reports to the Minister. If the parties were successful in doing so, the mediation–arbitration process would end and the parties would proceed in their relationship under those collective agreements. The legislation was also explicit that it was not to be interpreted so as to limit the rights of the parties to amend any provisions of the new collective agreements in accordance with Part I of the Code.
39. 370. Recalling the Committee’s conclusions in relation to Bill C-6, an Act to provide for the resumption and continuation of postal services, which was enacted in 2011 by a previous Canadian government (Case No. 2894), the Government contends that there are important differences between Bill C-6 and the current Act.
40. 371. In the case of Bill C-6, the Government announced its intention to introduce back-to-work legislation on 15 June 2011, one day after CUPW members were locked out by Canada Post following eight days of strike action. On the other hand, the Government points out that the current Act was only introduced after strikes had continued for more than four weeks, once it had exhausted all options to promote a negotiated settlement and once the economic and social harm caused by the strikes was more pronounced and was likely to deepen and compound. The Government indicates that the actual and potential harms were also more acute than in 2011, as the 2018 work stoppages occurred during the holiday season, when many businesses earn up to 40 per cent of their annual sales, and charities and non-profit organizations rely on Canada Post to reach donors and receive donations.
41. 372. According to the Government, Bill C-6 also required the Minister of Labour to appoint an arbitrator she deemed appropriate, without recourse to the parties or any other person, whereas the current Act permitted the Post and the CUPW to each submit the names of three persons they would like to see serve as mediator–arbitrator. If both parties submitted the same name, the Act required the Minister to choose that person as mediator-arbitrator. If the parties did not submit the same name, the Minister was required to consult the Chairperson of the CIRB, an independent and neutral party, before appointing a mediator-arbitrator. The Government states that this mechanism was designed to ensure an impartial mediation and/or arbitration process, and that nothing in the Act prohibited the parties from jointly determining a suitable mediator-arbitrator and each submitting that person’s name to the Minister.
42. 373. The Government recalls that Bill C-6 imposed arbitration immediately, without prior mediation, which differs from the additional opportunity for a voluntary, mediated settlement that the Act offered by providing for up to 14 additional days of mediation. Moreover, while Bill C-6 provided for the resolution of outstanding issues through binding arbitration by final offer selection, the current Act allowed the independent mediator–arbitrator to choose the most appropriate method of arbitration to resolve any remaining issue in dispute between the parties, and nothing in the Act prohibited him or her from determining the arbitration method in consultation with the parties.
43. 374. The Government further recalls that, even though it sent outstanding issues to binding arbitration, Bill C-6 explicitly prescribed both the length of the parties’ new agreement and the maximum wage increases to be included therein, and these provisions were to be unalterable by the parties until the expiration of that collective agreement. For its part, the current Act did not prescribe the maximum wage increases, the duration, or any other term of the parties’ new collective agreements, as it allowed the parties to bargain or make representations to the mediator–arbitrator in order to establish every term and condition of the new collective agreements.
44. 375. With respect to the principles set out to guide the arbitration awards, the Government indicates that Bill C-6 emphasized “the need for terms and conditions of employment that are consistent with those in comparable postal industries and that will provide the necessary degree of flexibility to ensure the short- and long-term economic viability and competitiveness of the Post, maintain the health and safety of its workers and ensure the sustainability of its pension plan”. In doing so, the arbitrator was required to take into account “(a) that the solvency ratio of the pension plan must not decline as a direct result of the new collective agreement; and (b) that the Post must, without recourse to undue increases in postal rates, operate efficiently, improve productivity and meet acceptable standards of service”. The Government argues that, on the other hand, the current Act set out guiding principles that direct the mediator–arbitrator to consider issues important to both the employer (for example, ensuring its financial sustainability) and the union (for example, ensuring that workers receive equal pay for work of equal value), and to their bargaining relationship (for example, creating a culture of collaborative labour-management relations).
45. 376. Even though the Government reaffirms its support for the right of trade unions to submit complaints to the ILO’s Committee on Freedom of Association, it states that it respectfully disagrees with the assertions contained in this case. While the complainant organization argues that any harm to the public caused by the rotating strikes was minimal, the Government indicates that it did not consider introducing back-to-work legislation until it became clear that bargaining was at a complete stalemate and the strike action was having serious negative impacts on third parties. The Government believes it has a responsibility to act when all other means to resolve the dispute have been exhausted, there is no expectation of a negotiated settlement in the foreseeable future, and work stoppages are causing significant economic and social harm to third parties. It stresses that every indication from the parties as well as the special mediator was that the work stoppages could be expected to continue indefinitely, the parties were unable to see eye-to-eye and negotiate an end to the stoppage.
46. 377. The Government of Canada also states that it respectfully disagrees with the argument that the Act compels and muzzles speech on the part of CUPW officials. It recalls that achieving the legislative objective of the Act required the end of the work stoppages and the resumption of full postal services on the day following Royal Assent. To achieve an end to the strikes and the resumption of full postal services, the Act required CUPW officials to inform members that the law required them to return to and/or continue their work at that time. While employees were required to return to work, the Act did not prohibit them from freely expressing their views by engaging in other activities commonly associated with strikes, such as demonstrating, leafleting, and other measures to raise awareness of issues in the collective bargaining process.
47. 378. As for the allegation that the parties’ right to choose their own, mutually agreeable arbitrator is severely restricted, the Government of Canada views it as a mischaracterization of section 8 of the Act. It recalls that nothing in the Act could be interpreted as preventing the parties from jointly selecting an appropriate mediator–arbitrator and submitting that person’s name to the Minister and that its preference would have been for the parties to select a mediator–arbitrator in this way. The Government argues that the legislation provided for an alternate, unbiased method of selecting a mediator–arbitrator due to the continued animosity between the parties and the strong possibility that they would not be able to agree on a suitable mediator–arbitrator. When the parties did not submit matching names, the Minister sought the advice of the Chairperson of the independent CIRB and appointed a neutral, highly skilled and highly experienced mediator–arbitrator to help the parties reach just collective agreements.
48. 379. The Government also indicates its disagreement with the complainant organization’s reading of section 9 of the Act and its argument that the parties are precluded from defining the issues in dispute at mediation–arbitration. It argues that this provision did not provide that the Minister of Labour is responsible for defining the issues in dispute between the parties. Nonetheless, the Government recalls that it acknowledged the CUPW’s interpretation of this clause and, on or about 15 January 2019, the Minister clarified the intent of the legislation as permitting the mediator–arbitrator to define the issues in dispute in consultation with the parties, after which the issues in dispute have been defined by the parties.
49. 380. In response to the allegation that the parties’ right to select a mutually agreeable arbitration process is severely restricted since the mediator–arbitrator has full authority to impose final offer selection process, the Government indicates that on or about 22 January 2019, the mediator–arbitrator consulted the parties on their preferred form of arbitration. It recalls that the parties agreed that they preferred traditional interest arbitration and the mediator–arbitrator selected this method to resolve outstanding issues.
50. 381. With respect to the allegation that the Act limits the parties’ right to engage in mediation for a period of time of their choosing, the Government recalls that over one year’s worth of relationship building, mediation and conciliation support were provided to the parties and that these services could have been extended nearly indefinitely had the parties wished. Even after Bill C-89 was tabled, the special mediator continued to work with the parties to try to resolve the outstanding issues and avoid the need for the legislation. While all of these attempts failed, the Government states that it continued to hope for a mediated solution, and so the Act required a minimum of seven days of mediation (with the possibility of extension to 14 days) before recourse to arbitration. According to the Government, the Act still prioritizes a negotiated settlement by making clear that if the parties are able to negotiate an agreement outside the arbitration process, that agreement has full effect and the arbitration process ends. Moreover, the guiding principles set out in the Act include issues of importance to both parties and actually encourage the parties to reach a mediated solution.
51. 382. As regards the alleged chilling effect resulting from the Act’s enforcement of its provisions, the Government indicates that most Acts of Parliament that require or prohibit a specific action set out consequences in cases of non-compliance and argues that it is natural that the Act would include measures to encourage both parties to comply with the legislation. It recalls that the Act included several prohibitions on employer conduct (for example, disciplining or discharging an employee for having participated in the strikes), which were also punishable by the same fines. According to the Government, beyond discouraging the parties from violating its provisions, the penalties in the Act did not have any impact on freedom of expression or freedom of association. As is evidenced by the CUPW’s public releases criticising the legislation, Canada Post and the Government of Canada, these compliance measures have clearly not had the effect of silencing the union or its representatives.
52. 383. In conclusion, the Government of Canada reiterates its commitment to the ILO principles espoused in Conventions Nos 87 and 98. In its view, it did everything in its power to encourage free collective bargaining and assist the parties in resolving their differences, and did not enact back-to-work legislation until it became clear that such a measure was necessary to end the bargaining impasse and ongoing significant harm to third parties. It stresses that the legislation that it enacted ensured a neutral and objective process to resolve outstanding issues between the parties. The Government hopes that the evidence provided in its response will help the Committee understand the full suite of circumstances necessitating the back-to-work legislation, and respectfully requests that the Committee reject the complaint.
53. 384. In response to the second communication from the complainant organization, the Government argues that the CUPW incorrectly suggests a link between the Act and the arrest of six individuals by local law enforcement for causing disruptions (for example, for mischief, trespassing and obstructing police officers) at Canada Post facilities after the Bill’s passage. The Government points out that their arrests were not pursuant to any provision of the Act.
54. 385. In its communication dated 14 January 2020, the Government updates the Committee on the status of the arbitration and indicates that, on 18 November 2019, the mediator–arbitrator requested a further extension of her arbitration mandate until 20 June 2020. The extension was granted by the Minister of Labour on 17 December 2019.
55. 386. In its communication dated 11 September 2020, the Government informs that the mediator-arbitrator issued her award on 11 June 2020 and provides a copy. This award constitutes the revised collective agreements between the CUPW and the Post, effective from the date of the award through to 31 January 2022. The Government indicates that the mediator-arbitrator favoured the CUPW’s position on 14 issues and the Post’s position on nine issues, and that a further 11 issues were agreed amicably between the parties. It therefore views the mediator-arbitrator’s award as supporting its position that the dispute resolution procedure provided for under the Act was neutral, objective and oriented towards delivering collective agreements that are fair for both parties.

C. The Committee’s conclusions

1. 387. The Committee notes that, in the present case, the complainant organization alleges that by enacting the Act to provide for the resumption and continuation of postal services (Bill C 89), the Government of Canada interrupted collective bargaining between the CUPW and the Post and referred the dispute to mandatory mediation followed by compulsory and binding arbitration, thereby violating workers’ fundamental rights to organize, collective bargaining, and freedom of association.
2. 388. The Committee notes the chronology of events provided by both the Government and the complainant as follows: the CUPW served the Post with its notice to bargain on 14 November 2017. The union and the enterprise engaged in negotiations over several months commencing on 24 November 2017. The RSMC unit’s collective agreement expired on 31 December 2017 and the UPO unit’s collective agreement expired on 31 January 2018. On or about 29 June 2018, the union applied for conciliation. The Minister of Labour appointed conciliation officers in July 2018. The union conducted democratic strike votes across the country in August and September 2018; 95.9 per cent from the RSMC unit and 93.8 per cent from the UPO unit voted in favour of a strike mandate. On 5 September 2018, the Minister of Labour appointed two mediators to assist the parties. On 7 September 2018, after months of negotiations, the enterprise for the first time presented global offers on the bargaining issues to the union. On 19 September 2018, the union initiated an essential services agreement with the Post. The union was in a legal strike position as of 26 September 2018. On 16 October 2018, the union gave 72 hours’ notice to the enterprise and the public that postal workers would go on rotating strikes. Between 22 October and 27 November 2018, postal workers engaged in rotating strikes at discrete locations across the country. On 24 October 2018, the Minister of Labour appointed a special mediator to assist the parties in their negotiations during the strike. On 7 November 2018, his mediation mandate was extended for a period of four days. On 8 November 2018, the Canadian Prime Minister indicated to the media that his Government might soon use all options to end the dispute. The enterprise made an offer on 14 November 2018. On 17 November 2018, the union made a comprehensive offer in response. On 19 November 2018, the enterprise refused the union’s offer and withdrew its own offer. On 20 November 2018, the Minister of Labour publicly indicated that the Government would introduce back-to-work legislation. On 22 November 2018, Bill C-89 was introduced. That same day, the union sent a proposal to the enterprise and the mediator but the enterprise refused to negotiate. The Bill received Royal Assent on 26 November 2018 and the Act came into force on 27 November 2018.
3. 389. The Committee notes that, in the complainant’s view, the Government of Canada, through the passage of Bill C-89, violated Conventions Nos 87 and 98. The complainant adds that such strikes would otherwise have been lawful, that no essential services were affected, that the parties had entered into an essential services agreement, that any harm to the public caused by the rotating strikes was minimal, and that the Act enforces its provisions by imposing substantial offences and fines.
4. 390. The Committee further notes the complainant’s allegation that the Act replaces the right to strike with an imposed arbitration process that: (i) severely restricts the parties’ right to choose their own, mutually agreeable arbitrator, as the parties are each limited to submitting the names of three individuals that they consider qualified and the Minister is provided with the authority to select the arbitrator if there are no names in common; (ii) precludes the parties from defining the issues in dispute at mediation–arbitration and provides this power to the Minister; (iii) it severely restricts the parties’ right to select a mutually agreeable arbitration process and provides this power to the mediator–arbitrator; and (iv) limits to a maximum of 14 days the parties’ right to engage in mediation for a period of time of their choosing.
5. 391. The Committee notes that the Government disagrees with the complainant’s characterization of the Act and requests that the complaint be dismissed. It notes the Government’s general statement that: (i) its commitment to the constructive settlement of labour disputes is exemplified by the work of its Federal Mediation and Conciliation Service; (ii) Canada Post, a Crown corporation subject to the federal industrial relations legislation, is an essential lifeline to seniors or disabled citizens and persons who live in rural and remote areas for the delivery of necessities and critical items, such as prescription drugs and welfare, pension or other social benefit or government assistance cheques mailed by federal, provincial and territorial governments; (iii) Canada Post and the CUPW have a long history of acrimonious collective bargaining that has often resulted in work stoppages; and (iv) the Government renews its commitment to uphold ILO principles of freedom of association and the right to collective bargaining.
6. 392. The Committee further notes the Government’s explanations that: (i) it only resorted to act after it had attempted everything in its power to bring the parties to a negotiated agreement and there was no indication of progress being made at the bargaining table; (ii) the strikes were causing real economic harm to third parties, as the important strain that they placed on business activity directly affected workers through layoffs, reduced working hours or seasonal staffing reductions; (iii) despite the MoU agreed to by the parties, the work stoppage had a significant impact on charities, since many of them receive over half of their annual donations during the final three months of the year, and on vulnerable persons, such as seniors, people with disabilities, residents in rural and remote areas, indigenous peoples and those with lower income and education levels, who are more reliant on postal service for personal communications, transactions, and parcel delivery; and (iv) the Act presented a neutral, unbiased means for the parties to resolve their issues through mediation or, if necessary, arbitration based on balanced guiding principles, without prohibiting them from independently negotiating new collective agreements.
7. 393. The Committee further notes the Government’s indication that: (i) while the Act required employees to return to work, it did not prohibit them from freely expressing their views by engaging in other activities commonly associated with strikes; (ii) nothing in the Act prevented the parties from jointly selecting a mediator–arbitrator; (iii) the issues in dispute have been defined by the parties; (iv) after consulting the parties on the form of arbitration, the mediator–arbitrator selected traditional interest arbitration, which was their preferred method; (v) if the parties are able to negotiate an agreement outside the arbitration process, that agreement has full effect and the arbitration process ends; and (vi) the same fines apply to both parties and only mean to prevent them from violating the Act’s provisions.
8. 394. The Committee recalls that it has already been called upon to examine the adoption of back-to-work legislation by the Government of Canada in Case No. 2894, in which it requested the Government to make every effort in the future to avoid having recourse to back-to-work legislation in the postal sector and to limit its interventions to ensuring the observance of any agreed minimum service protocol.
9. 395. As regards the Act, which ordered the postal workers back to work and thus terminated the ongoing strike action, the Committee once again recalls that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests, and that the right to strike may be restricted or prohibited: (1) only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 752 and 830]. In this regard, the Committee recalls that it has considered that postal services do not constitute essential services in the strict sense of the term [see Compilation, para. 842].
10. 396. Furthermore, the Committee has been asked on previous occasions to examine complaints concerning the compulsory continuation of postal services to the detriment of the legitimate exercise of the right to strike. On these occasions, three of which involve cases concerning Canada, the Committee has concluded that it was difficult to concede that such stoppages were likely to result in consequences characteristic of essential services in the strict sense of the term [see Case No. 1451 (Canada), 268th Report, para. 98; Case No. 1985 (Canada), 316th Report, para. 321; and Case No. 2894 (Canada), 367th Report, para. 336]. Although it has always been sensitive to the fact that a prolonged interruption in postal services can affect third parties who have no connection with the dispute, and that it may, for example, have serious repercussions for companies or directly affect individuals (in particular recipients of unemployment benefits or social assistance and elderly people who depend on their pension payments), the Committee nevertheless considered that, whatever the case may be, and however unfortunate such consequences are, they do not justify a restriction of the fundamental rights of freedom of association and collective bargaining, unless they become so serious as to endanger the life, safety or health of part or all of the population [see Compilation, para. 851].
11. 397. The Committee recalls nevertheless that it has considered that a minimum service could be appropriate as a possible alternative in situations in which a substantial restriction or total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met [see Compilation, para. 867]. The Committee welcomes the steps that were taken by the parties to the dispute to adopt a minimum service protocol to allow for the processing and distribution of socio-economic cheques and the delivery of live animals. While further observing the Government’s indication that the prolonged strike was likely to also have important negative effects on third parties, such as seniors, indigenous peoples or persons with disabilities who are more reliant on the post due either to limited financial means or living in rural and remote areas, the Committee considers that, rather than issuing a full back-to-work order, the Government could have called upon the parties to amend the minimum service protocol to ensure that the basic needs of the groups referred to could be met.
12. 398. As regards the long list of instances referred to by the Government where real economic harm had resulted or was likely to result from the work stoppage (vendor–customer commitments, e-commerce demand, direct marketing mail, heavy volume financial transactions, etc.), the Committee recalls that economic considerations should not be invoked as a justification for restrictions on the right to strike; however, when a service that is not essential in the strict sense of the term but is part of a very important sector in the country is brought to a standstill, once again, measures to guarantee a minimum service may be justified [see Compilation, paras 791 and 868].
13. 399. The Committee observes the extensive efforts made by the Government to support and encourage the parties in the settlement of the dispute, including the provision of the services of conciliation officers, mediators and special mediator who met with the parties extensively for hundreds of hours and the personal interventions and attempts by the Minister of Labour to facilitate the conclusion of a negotiated agreement. The Committee takes note of the Government’s indication that on 11 June 2020, the mediator-arbitrator issued her award, which constitutes the revised collective agreements between the parties, effective from the date of the award through to 31 January 2022. It notes that the Government stresses that its position that the dispute resolution procedure provided for under the Act was neutral, objective and fair is supported by the mediator-arbitrator’s award which favoured the position of the CUPW on 14 issues and the position of the Post on nine points, while the other 11 issues were agreed amicably between the parties.
14. 400. The Committee recalls that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, that is, in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term namely, services, the interruption of which, would endanger the life, personal safety or health of the whole or part of the population. It considers that a system of compulsory arbitration through the labour authorities, if a dispute is not settled by other means, can result in a considerable restriction of the right of workers’ organizations to organize their activities and may even involve an absolute prohibition of strikes, contrary to the principles of freedom of association [see Compilation, paras 816 and 822]. Bearing in mind the mediator-arbitrator’s conclusion that the parties were not far apart on many issues, and duly acknowledging the many steps taken by the Government, the Committee invites the Government to continue to make its best efforts to avoid having recourse to back-to-work legislation in the postal sector and to limit its interventions to ensuring the observance of any agreed minimum service protocol bearing in mind the above considerations.
15. 401. As regards the process to appoint the mediator–arbitrator, while recalling that, in mediation and arbitration proceedings, it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but, if the confidence of both sides, on which the successful outcome even of compulsory arbitration really depends, is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned [see Compilation, para. 858], the Committee takes due note of the Government’s indication that the parties were given the opportunity to participate in the selection of the mediator–arbitrator and that, since they did not propose the same person, the appointment was made by the Minister after seeking advice from the Chairperson of the CIRB to ensure impartiality.
16. 402. Furthermore, the Committee appreciates that, as highlighted by the Government, nothing in the Act precluded the employer and the union from entering into new collective agreements at any time before the submission of the mediator–arbitrator’s report to the Minister. The Committee thus acknowledges the commitment of the Government to favouring the process of collective bargaining as the best method for arriving at a collective agreement, as well as the will and efforts of the Government following the adoption of the Act to encourage the parties to resume negotiations through mediation and reach a mutually acceptable collective agreement. The Committee further notes the Government’s emphasis on the fairness and neutrality of the mediator-arbitrator’s award, including the fact that 11 of the 34 points for decision were agreed amicably by the parties.
17. 403. More generally, the Committee notes with interest the Government’s indication that, between 2016 and late 2017, the parties participated in preventive mediation sessions organized by the FMCS’ Relationship Development Programme outside the normal collective bargaining cycle in an effort to improve their relations. Although these sessions did not lead to more amicable relations in the postal sector, it welcomes the Government’s commitment to the constructive settlement of labour disputes and its decision to enhance the FMCS’ capacities by increasing its funding by CAD1 million annually from 2019–20 to 2023–24. It encourages the Government to continue to engage the parties so that they might agree outside of the framework of any dispute to the methods for its resolution. The Committee firmly believes that such a system could go a long way to improving the industrial relations climate in the sector and contributing to the resolution of disputes to the satisfaction of all parties concerned.
18. 404. Finally, the Committee notes the complainant’s allegations that labour activists, who are not CUPW members, were charged with obstructing police and mischief following peaceful demonstrations in protest against this back-to-work legislation. It further notes, however, the Government’s observations that the six individuals referred to were arrested by local law enforcement for causing disruptions (for example, for mischief, trespassing and obstructing police officers) at Canada Post facilities after the Bill’s passage and that these measures were not pursuant to any provision of the Act. Given the lack of detail provided by the complainant as to the nature of these arrests, the Committee trusts that they were not due to the simple fact of organizing or participating in a peaceful strike and will not pursue its examination of these allegations.

The Committee’s recommendations

1. 405. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee invites the Government to continue to make its best efforts to avoid having recourse to back-to-work legislation in the postal sector and to limit its interventions to ensuring the observance of any agreed minimum service protocol bearing in mind its considerations in the conclusions.
   • (b) Welcoming the Government’s commitment to the constructive settlement of labour disputes and its decision to enhance the FMCS’ capacities by increasing its funding, the Committee encourages the Government to continue to engage the parties so that they might agree outside of the framework of any dispute to the methods for its resolution.