10/12/2011 10:32 EDT | Updated 10/13/2011 02:32 EDT

Canada Post Union Taking Harper Government To Court Over Back-To-Work Order

AP File

OTTAWA - Canada Post workers threw the future of Canada's labour movement into the hands of the courts Wednesday, launching a case that could test the Conservative government's aggressive stance on the rights of unionized labour.

The Canadian Union of Postal Workers' constitutional challenge to back-to-work legislation came as Air Canada flight attendants saw their right to strike abruptly stalled by the government's use of what experts suggest is an obscure legal loophole.

"This is government which appears to be addicted to back-to-work legislation," said Paul Cavalluzzo, the lawyer representing postal workers.

"And if workers rights are going to be trampled on so cavalierly, then I think workers have to stand up and the only avenue left for them is to fight for their constitutional rights in the courts."

The Harper government insists its interventions in both public and private sector job actions are necessary to protect a shaky economy.

"We received a strong mandate from Canadians to complete and protect our economic recovery," said a statement from Labour Minister Lisa Raitt's office.

The Tories have spent the days since the Commons resumed sitting this fall trumpeting a focus on job creation.

Their moves on the labour front send an opposite signal, said David Camfield, a labour studies professor at the University of Manitoba.

The workers caught up in a fight with the government are employed in some of the best jobs in Canada, he said.

"If you ask the question of who is actually defending the quality of work in Canada right now, I don't think there's much evidence that it's the federal government."

Observers have warned for months that the Tories were on a collision course with the labour movement.

It began when they first introduced back-to-work legislation to end a strike by a different group of Air Canada workers in June. The two sides reached a deal before the bill was passed.

The Canada Post back-to-work bill followed. It was introduced after close to 50,000 Canada Post workers were locked out by the Crown corporation in June after 12 days of rotating strikes by the union.

The union views the bill as illegitimate because it favours management by laying out salary provisions and other specific terms, which the union says infringe on workers' rights.

They're hoping the case eventually ends up at the Supreme Court.

"You can't keep intervening, the government can't keep intervening, otherwise you're going to destroy the process and the long term impact of that is going to be very prejudicial in this economy," said Cavallazzo.

"Collective bargaining works."

The government may yet move ahead with a back-to-work bill in the current Air Canada dispute. But with the strike looming Wednesday and the House of Commons not sitting, Raitt referred the matter to the Canadian Industrial Relations Board instead.

While the matter is before the board, the flight attendants can't strike, even though they have a legal mandate to do so.

The board says it has been asked to determine whether flight attendant services need to be maintained "to prevent an immediate and serious danger to the safety or health of the public."

Raitt has also asked the board whether the rejection of two tentative agreements by Air Canada employees "created conditions that are unfavourable to the settlement of the industrial dispute at hand."

"This referral smacks of political game playing," said Bob Barnetson, a labour relations professor at Athabasca University.

"Stewardesses as essential workers? Give me a break. Will waitresses and concierges be essential services next?"

Barnetson said there is simply no compelling public policy reason for the government to be acting as it is with the labour movement.

"The bottom line is that governments cannot compel workers to work. They can cajole, threaten and punish, but doing so comes with significant political cost," he said.

But the Harper government believes it does have public support, suggested Ian Lee of Carleton University, who notes most Canadians are not members of a union.

What the government is trying do to, said the public policy specialist, is cut down on the number of days lost to strike action by designating more workers as essential.

Canada has four times the OECD average in days lost to strikes.

"They're determined to confront that policy problem," Lee said.

In fact, the Harper government realized it had a problem three years ago and commissioned a study into the issue of work stoppages in Canada.

The 216-page study presented a number of options to cut down on the labour disruptions.

"The federal government should initiate a 'surge' of new and improved initiatives to radically transform 'old-style' labour relations, utilizing modern dispute resolution techniques to meet the challenges of industrial relations in an era of global competitiveness," said the 2008 report, written by Peter Annis, a long-time labour lawyer who has since been appointed as a judge.

Back-to-work legislation, the report says, "represents a worst-case scenario for the conduct and reputation of industrial relations."

The bill that forced Canada Post employees back to work also marked former NDP Leader Jack Layton's legislative last stand.

Layton led his party through a 58-hour filibuster in the House of Commons designed to stall passage of the law, in order to give both sides more time to talk.

A month later, faced with a new cancer diagnosis, he stepped down as leader and died in August.