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Friday, June 17, 2011

Easy way to end strikes is wrong way

Winnipeg Free Press - PRINT EDITION

Easy way to end strikes is wrong way

Is the easiest way out also the best way out? Canadians are faced with two major work stoppages that could seriously affect the smooth operation of our daily lives. A strike of the postal employees and a lockout of some employees connected with Air Canada can undoubtedly result in disruption of these public services.
The Conservative government promptly announced that it will legislate the operations back to work because the interruption of the service will cause unacceptable harm to our economy. It is unlikely that there will be strong public criticism of the government decision although both the NDP and the Liberals have indicated they will vote against the legislation. It is a regrettable sign of our times that legislation ordering, in effect, people to work or to maintain a business operation under threat of fine or imprisonment does not result in greater concern and resistance on the part of the people concerned and on the part of civil rights advocates in general.
In the 1960s, I was deeply involved both politically and legally in court cases that resulted in judges ordering people to cease striking and to resume working. The resistance to such orders was vehement and prolonged, extending as far as the Supreme Court of Canada.
I recall telling a visiting labour lawyer from Cincinnati that a Manitoba judge had, in effect, ordered striking employees back to work.
In the most succinct and compelling comment that I have ever heard on the subject, the lawyer said: "If a judge can order a person to work, he can order them to work harder. And if they don't then he can order a sheriff to stand next to them with a whip and see to it that they work harder."
The greatest argument against back-to-work legislation is that it offends one of our basic fundamental freedoms.
Traditionally, English law would not enforce a contract for personal services by enjoining a person to work. It could and would award damages for breach of contract but it would not order the performance of personal services. To do so would be to enforce a form of slavery. The same rule would apply in Canada where an individual is concerned.
When we recognize the right to collective bargaining we implicitly recognize that the group would have the right to bargain and would be treated as if the group was an individual. That is, the group would not be ordered back to work.
Back-to-work legislation is the easy way out. But it is purchased at a huge expense. The price that we pay is freedom.
And it is not simply the freedom of the union members ordered to work that is affected. The denial of freedom to one citizen is the denial of freedom to all, and eternal vigilance is the price of liberty.
If we permit the government to encroach on the liberty of some, we inadvertently accept the principal of encroachment itself, and we begin a march on the road to serfdom.
There are other ways of dealing with unacceptable work stoppages that do not involve coercive legislation. In Manitoba, we enacted legislation that prevents judges from ordering people to work.
In the eight years that I was part of that government, I never participated in passing a law terminating a strike. Indeed, there was an occasion when the minister of labour announced he would legislate against a transit strike. I promptly announced that I would not support such legislation, and the NDP caucus supported me. No such legislation was passed, and the strike was promptly settled when both sides realized the government would not get them off the hook.
There are methods of dealing with work stoppages short of legislation. If the contending parties are made aware that the government will not resolve their dispute, they will be more likely to arrive at a collective agreement. But other possibilities are available. They may not be easy. They may be condemned by the union and by management alike. But they will preserve the sanctity of the freedom of the individual. That is worth doing.
Sidney Green is a Winnipeg lawyer and former NDP cabinet minister.
Republished from the Winnipeg Free Press print edition June 17, 2011 A14

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