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You are here: Home / Employee Relations / More news on Air Canada: pilots challenge the back-to-work legislation

By Christina Catenacci, BA, LLB, LLM, PhD | 2 Minutes Read March 23, 2012

More news on Air Canada: pilots challenge the back-to-work legislation

 

Image: www.aircanada.com

The Air Canada pre-emptive back-to-work legislation saga continues. Last week, I wrote about the pre-emptive back-to-work legislation. Now the pilots have challenged the legislation in court arguing that it prevents strikes or lockouts, forces the pilots to keep flying, and coerces the pilots to accept a contract imposed by arbitration in a process that is completely skewed given it was designed to favour the airline’s position. The pilots’ main argument is that the legislation is constitutionally invalid as it violates the Canadian Charter of Rights and Freedoms, namely section 2(d), involving the freedom to associate. The president of the pilots’ union called the legislation “Draconian overkill.”

The pilots argue in their application that that forcing them to fly conflicts with their legal obligations under the Canadian Aviation Regulations because the Regulations prohibit pilots from flying if they have any reason to believe they are unfit to properly perform their duties. The union notes that the pilots have been under a significant amount of stress as a result of the  Air Canada’s unwillingness to negotiate a fair collective agreement, along with the Minister of Labour’s and Parliament’s removal of their only means of engaging in meaningful collective bargaining with the back-to-work legislation.

Perhaps limiting the workers’ rights to collectively bargain and strike and the employer’s right to lock out the workers was not the most efficient way to deal tough contract negations where pension security was one of the main issues. Perhaps government interference only made things worse in terms of employee morale and union relations.

Regardless of one’s view, there is now a Charter claim and a decision will have to be made about whether the back-to-work legislation is valid.

What do you think will happen? Given recent case law, we know that unless employees are engaged in essential services (this is quite limited), their right to strike cannot be restricted. In accordance with Canada’s international obligations, if employees are prevented from striking by unilaterally declaring numerous services as “essential,” that legislation could be ruled unconstitutional under section 2(d) of the Charter, unless justified under section 1.

In this case, the pilots’ services were not declared essential, but the pilots were prohibited from striking or collectively bargaining by being forced to fly and participate in a one-sided final selection arbitration.

Do you think that the court will find a section 2(d) Charter violation?

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci, BA, LLB, LLM, PhD
Christina Catenacci, BA, LLB, LLM, PhD, is a member of the Law Society of Ontario. Christina worked as an editor with First Reference between 2005 and 2015 working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk, and First Reference Talks blog discussing topics in Canadian Labour and Employment Law. She continues to contribute to First Reference Talks as a regular guest blogger, where she writes on privacy and surveillance topics. Christina has also appeared in the Montreal AI Ethics Institute's AI Brief, International Association of Privacy Professionals’ Privacy Advisor, Tech Policy Press, and Slaw - Canada's online legal magazine.
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Article by Christina Catenacci, BA, LLB, LLM, PhD / Employee Relations, Human Rights, Union Relations / Air Canada, back-to-work legislation, Canadian Aviation Regulations, Charter, Charter of Rights and Freedoms, Collective Bargaining, employment law, final selection arbitration, Industrial Relations, Labour Law, lockouts, not fit to fly, pilots, prevents collective bargaining, prevents freedom to associate, prevents lockouts, prevents strikes, stress, strikes

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About Christina Catenacci, BA, LLB, LLM, PhD

Christina Catenacci, BA, LLB, LLM, PhD, is a member of the Law Society of Ontario. Christina worked as an editor with First Reference between 2005 and 2015 working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk, and First Reference Talks blog discussing topics in Canadian Labour and Employment Law. She continues to contribute to First Reference Talks as a regular guest blogger, where she writes on privacy and surveillance topics. Christina has also appeared in the Montreal AI Ethics Institute's AI Brief, International Association of Privacy Professionals’ Privacy Advisor, Tech Policy Press, and Slaw - Canada's online legal magazine.

Reader Interactions

Comments

  1. Christina Catenacci says

    March 27, 2012 at 11:56 am

    Thanks for your comment, Inga.
    Christina

  2. Inga says

    March 27, 2012 at 11:39 am

    Yes I think the court will find a Charter violation. Although by Air Canada not flying, many remote parts of our very large country will become isolated and stranded at Air Canada’s whim.

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