Deja vu ... all over again: the assault on workers' rights in New Brunswick: 1988-2008.

• Author: Mann, Tom
• Position: UNBLJ Forum: Recent Developments in Canadian Labour and Employment Law

INTRODUCTION

New Brunswick's labour legislation has been seriously eroded over the last twenty years. Long-established legislation that has protected workers has been slowly depleted. This erosion has the potential to alter the future of the province. Although New Brunswick's labour legislation has long been the site of recurring struggles over the definition of eligible employees, specification of bargaining units and rights of collective action, a direct assault on trade union freedoms has been aimed at the protection of workers.

This article will examine the changes in New Brunswick's labour laws since 1988 using the criteria established by Harry W. Arthurs in "What Immortal Hand or Eye? Who Will Redraw the Boundaries of Labour Law", which questions the reasons for the re-drawing of the "boundaries of protection" for workers. (1)

Many of the protections once found in New Brunswick's labour legislation have been amended, modified or quashed. The result is that many well-established values and principles that previous generations considered fundamental labour and human rights have been taken away. To appreciate this erosion of protection, an examination of the development of labour law in New Brunswick and in Canada is helpful.

THE ORIGINS OF LABOUR LAW IN NEW BRUNSWICK

Unions and collective bargaining were entirely legal in Canada after 1872; however, most labour relations law prior to the 1940s was about evading the reasonable expectation that workers and unions would enjoy some protection for union membership and collective bargaining in dealing with employers.

Provincial labour legislation began in 1900 with the adoption of the Federal Conciliation Act. The Act established a federal Department of Labour which was staffed by officers who provided conciliation of labour disputes at the request of the parties concerned.

At this time, Canadian workers gained workplace protection through legislated structures like the 1907 Industrial Dispute Investigation Act (IDIA) which applied to mining, transportation, communication companies, and utilities. It had, however, a limited impact as it offered no more than a de facto form of union recognition through the conciliation process. The fundamental problem of industrial relations remained the gross disparity of bargaining power between employers and workers.

Following the Winnipeg General Strike in 1919, the IDIA was amended to provide for the appointment of a conciliation board prior to a work stoppage taking place. However, jurisdictional disputes arose and the IDIA was challenged in the 1925 case of Toronto Electric Power Commissioners v. Snider on the basis that the federal government was acting beyond its proper constitutional jurisdiction. (2) The court held that the IDIA did not apply to municipal employees and therefore appointment of a conciliation board in a labour dispute in the provincial or municipal sectors was outside the Minister's jurisdiction. The federal IDIA's assumption of competence was successfully challenged when the case proceeded to the Judicial Committee of the Privy Council of England which issued a decision that limited application of the Act to federal works and undertakings.

When amending the IDIA in the light of the constitutional decision, the Government of Canada made the statute applicable to industries and provincial labour jurisdictions if the respective provincial legislature so determined. New Brunswick took up the offer in 1938. Thus, the predominance of provincial jurisdiction in labour matters and the limits of federal jurisdiction were established.

The first Annual Report from the Department of Labour indicates that new legislation was introduced between 31 October 1937 and 31 October 1938: An Act respecting Labour and Industrial Relations.

Issues of labour relations came to the national forefront in 1944, largely due to the Second World War. Since much of the workforce was involved in the war, supply and demand issues related to available labour became prominent and resulted in many work stoppages, exposing voids in labour legislation. This newfound national significance enabled the federal government to use its power over matters relating to "peace, order and good government" per ss. 91 and 92 of the Constitution Act 1867 to enact labour legislation that would normally have been outside of its constitutional jurisdiction.

It was during the war, early in 1944, that the Wartime Labour Relations Regulations known as PC1003 were promulgated. Among other things, PC1003 provided a legal framework for access to collective bargaining supervised by the Wartime Labour Relations Board. The regulations included a requirement for parties subject to the regulations to meet and bargain in good faith similar to that established by the Wagner Act in the United States in 1935. PC1003 became the framework for the legalization of the collective bargaining process as it is known today.

The central features of PC 1003 included: the establishment of a right for managerial employees to form and join unions, the prohibition of employer acts designed to prevent employees from organizing, the authorization of labour boards to certify unions and the exclusivity of representation, the requirement that employers bargain in good faith, prior to resorting to economic sanction, and the requirement that the parties participate in government-sponsored conciliation during the term of the collective agreement parties and that no party engage in strikes or lock-outs during that conciliation.

Following the repeal of the federal wartime regulations in 1948, virtually all provinces (and the federal government) adopted the United States' Wagner-style labour relations statutes, covering all employees in the private sector. The Industrial Relations Act of today is a direct descendant of those laws which have been the site of recurring struggles over the definition of eligible employees, the specification of bargaining units, and the rights of collective action.

In 1948, workers in Canada received another boost to the legitimacy of their established rights to organize and bargain collectively. The International Labour Organization (ILO), an agency of the United Nations, spelled out the details of the right to freedom of association in its conventions. The Government of Canada supported the adoption of both key labour rights conventions, No. 87 (Freedom of Association and the Right to Organize) and No. 98 (The Right to Organize and Collective Bargaining), confirming the right to bargain collectively and the right to strike. It was not until the 1960s, however, that public sector employees across the country gained the right to organize and collectively bargain with their employers in the federal and provincial jurisdictions.

Public sector bargaining legislation was introduced in New Brunswick in 1968 under Premier Louis Robichaud with the Public Service Labour Relations Act, which mirrored the Federal Public Service Labour Relations Act by allowing for public sector employees to commence organizing into unions and bargaining collectively. The legislation provided "boundaries of protection" for most provincial government employees in New Brunswick similar to those governing workers and their unions in the private sector.

The Industrial Relations Act and the Public Service Labour Relations Act both afforded workers the right to withdraw their services and strike to support bargaining demands following the exhaustion of a conciliation process.

THE DECLINE OF WORKER PROTECTIONS

In his text "Collective Bargaining In Canada--Human Right or Canadian Illusion", Derek Fudge explains that almost every jurisdiction in Canada has experienced a major violation of the bargaining rights of its citizens over the last twenty-five years. (3) Collective agreements have been virtually shredded. Freely negotiated wages and benefits have been taken away. Employers' proposals have been legislatively imposed on workers and the right to strike has been removed in complete disregard for the rights that have been entrenched since the 1940s. In New Brunswick, both the private and the public sector have been hit by this phenomenon.

Harry W. Arthurs has outlined three possible intersecting causes of diminished worker protections in labour legislation:

The "original sin" of inept conceptualization or poor drafting of labour laws and/or; A subsequent "fall from grace" occasioned by the emergence of new paradigms at work and/or; The deliberate...