In defence of the right to strike.

• Author: Yates, Charlotte A.B.
• Position: UNBLJ Forum: Recent Developments in Canadian Labour and Employment Law

In October 2007, the Canadian Autoworkers (CAW) signed ah historic deal with the automotive parts firm, Magna International, that gave up the right to strike in exchange for the opportunity for Magna employees to vote to join the CAW unimpeded by their employer. This voluntary concession of one of labour's fundamental rights sparked a furor of debate over the importance of the right to strike in contemporary industrial relations. Was this deal a sell-out of labour rights or a harbinger of innovation and change to labour-management relations in Canada?

The CAW's concession of the right to strike carne at the very moment that the Autoworkers had joined with other unions in Nova Scotia to form a coalition of health care unions to defend the right to strike from provincial governments' attempts to remove health care workers' right to strike. Since then, the Ontario provincial government has ordered striking Toronto transit workers back to work while the newly elected federal Conservative government introduced an economic statement that included provisions to suspend federal government employees' right to strike.

These instances illustrate the renewed debate over the place of the right to strike in current economic affairs. Ironically, these encroachments on the right to strike come at the very time when levels of strike activity in Canada are at an all time low. These low rates of strike activity underline questions about the real importance of the right to strike for unions and their capacity for effectiveness. Do low strike rates suggest that the 'age of strikes' has come to an end? Have we reached a time when unions can and should give up the right to strike as a weapon more suited to the 'old' economy, or 'old' unions who are themselves better suited for the industrial than the post-industrial age? Or should unions continue to defend the right to strike and if so why? This research note explores some answers to these questions that underline the critical importance of defending the right to strike.

STRIKE STATISTICS

To begin the discussion we need to examine patterns of strike activity and unionization in Canada. Whether measured in terms of total number of strikes or person days lost due to strikes, Canada's strike rate has declined precipitously over the last twenty-five years (See Table 1), with the low point reached in 2003. Between 2003 and 2005 there was a noticeable increase in the number of strikes and person days lost as a result of strikes, although these numbers remained low in historic comparison. According to Ernest Akyeampong of Statistics Canada, strikes in the period from 2003-2005 were concentrated in Quebec and Ontario and, most interestingly for the purpose of this article, were concentrated in manufacturing, education, and health and social services. (1) Although strikes in the information and cultural industries only accounted for 2 percent of total strikes, this industry accounted for approximately 25 percent of total workdays lost to strikes in Canada in 2005 due to the effect of the strike at the Canadian Broadcasting Corporation. Such an impact on lost time is explained by the fact that this strike was prolonged, a characteristic of many strikes in Canada. Briskin shows that strike duration has increased significantly in Canada since the 1960s, with average strike duration growing from 22.3 workdays in 1960-64 to 41.1 workdays in 2000-2004. (2)

It is not surprising that unions and their core activities of collective bargaining and collective action, including strikes, have come under attack. Increased economic competition, the neo-liberal celebration of individualism at the expense of collective action, and a deluge of commentary that compares unions to dinosaurs which have served their purpose has eroded the legitimacy of unions and opened them up for criticism and attack. For the last twenty-five years, employers have stepped up their opposition to unionization (3) and demanded concessions from unions, threatening plant closure or de-investment if their demands are not met. For their part, governments have systematically curtailed unions' collective bargaining rights and right to strike. In addition to sweeping re-writes of many provincial labour codes that have made it harder for unions to organize workers or gain effective redress from employers that break the law, governments have relied increasingly on back-to-work legislation, with a noticeable upswing in its usage since 2000. (4) In a recent article, Joseph Rose noted that governments have moved away from assigning arbitrators to settle disputes ended by back-to-work legislation, and instead have begun unilaterally imposing terms of agreement. The penalties for defying such legislation are harsh. Governments have withdrawn the right to strike from some groups, such as nurses in Alberta, or used the designation of 'essential' services to all but withdraw the right to strike for other public sector workers,

Not surprisingly, under this kind of pressure union density in Canada has been slowly though steadily declining, with especially steep declines in the private sector. In 1997, union density in Canada stood at 31 percent compared to 29 percent in 2008, and in the private sector dropped from 22 percent to 16 percent in the same period. (5) Unions have had increasing difficulty in recruiting new members over the past ten years. (6) Under these conditions, it is not surprising that strike rates are in decline and that unions such as the CAW look to cutting deals with employers that exchange increased membership and union density in their core industry, the automotive industry, for the right to strike. Do these recent trends and events justify giving up the right to strike as part of adjusting to the 'new' economy? In the remainder of this article, I will advance three reasons why the right to strike continues to be critically important to unions and why it must be defended by unions as well as governments.

'YOU CAN'T GIVE UP WHAT YOU DIDN'T HAVE': INDUSTRIAL CITIZENSHIP AND THE RIGHT TO STRIKE

In...