CN and Right to Strike

CN Rail is active at the national and international level opposing the right to bargain, strike, and the right to strike effectively (i.e., blocking the use of scabs).

In the rail sector, they are opposed to right to strike and seem to want to replace right to strike with an interest arbitration scheme.

Their arguments are multi-pronged:

1. supply chain disruptions have a role in driving inflation
2. rail is essential in the supply chain
3. right to strike lengthens strikes (because it provides workers too much bargaining power)
4. replacement workers are essential in sustaining important supply chains during labour disputes (aka "Critical Infrastructure")
5. ports and rail should be considered an "essential service"
6. Interest Arbitration should replace bargaining/right to strike.

CN uses the phrase "protect the continuity of the supply chain" in their opposition to anti-replacement workers legislation, Bill C-58.

CN is open about these positions and has included this in all submissions to government and comments on anti-scab legislation and port/rail strikes.

Ports are explicitly identified under the ILO conventions as not part of essential services. All of this is an attempt by rail companies to get around specific Constitutional ensured rights to bargain and strike.

I think that the right to strike effectively is the last essential component that will end-up in front of the Supreme Court, which will include replacement workers.

CN and other rail companies are currently engaged in bargaining with Teamsters and in conciliation. They are not close and Teamsters is set for strike action.

Unifor is in bargaining in the rail sector towards the end of the year. As such, it is likely this dispute is also tied into CN's campaign to undermine the right to strike and the use of replacement workers. Replacement workers were ready and trained day one for the Autoport strike.

Here is the background page on the Autoport bargaining:

There is a current action against the International Labour Organization (ILO)'s interpretation of the international ILO convention that protects the freedom of association and its relationship to the right to strike at the International Court of Justice.

The employer association is making the challenge and the International Trade Union Confederation (ITUC) is responding. Unifor not currently part of the ITUC unions as it is outside the CLC.

The question put to the ICJ by the employer group is:

Is the right to strike of workers and their organizations protected under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)?

• ICJ Brief
• ICJ Case 191

CN is part of Federally Regulated Employers – Transportation and Communications (FETCO).

Please see here some videos outlining FETCO's position for each sector and their proposed amendments:

• FETCO news

My understanding is that FETCO (and the employers they cover) are using the term "critical" to describe these parts of the infrastructure because of the government's definition of what constitutes Critical Infrastructure. The government's focus on Critical Infrastructure is informed by the pandemic, supply chain crises during and resulting from the pandemic, and its impacts on the inflation crisis.

Specifically, Critical Infrastructure involves:

• Water
• Safety
• Finance
• Food supply
• Electricity
• Transportation
• Communications
• Public safety

The employers are leaning heavily on their own interpretation of (and submissions to the) recent federal review of programs to enhance resilience of critical infrastructure.

Public Safety describes CI as:

Critical Infrastructure (CI): refers to processes, systems, facilities, technologies, networks, assets and services essential to the health, safety, security or economic well-being of Canadians and the effective functioning of government. CI can be stand-alone or interconnected and interdependent within and across provinces, territories and national borders. Disruptions of CI could result in catastrophic loss of life, adverse economic effects, and significant harm to public confidence. CI includes both physical and digital infrastructure. Physical infrastructure refers to the built environment, including buildings, vehicles, computer hardware and other assets. Digital infrastructure refers to electronic systems and assets, like data and software.

While some of these are also "essential" services allowing some specific limits to strike action, not all of them are essential. Especially not ports, rail, and communications infrastructure under the ILO Conventions. This is because an interruption to one via strike does not constitute a complete shutdown of all trade in goods of a country or constitute an immediate harm to life.

If a strike of any of that did constitute an essential service interruption, there are ways to deal with that under current legislation, bargaining frameworks, and within Bill C-58.

FETCO's definition of critical infrastructure covers pretty much everything, which is why it is an outlandish position for them to take. Essentially, they are saying that the right to strike effectively (through banning replacement workers) must be curtailed in all parts of this infrastructure. As in, everywhere because it is all linked to critical infrastructure.

This is a major distortion of this program. The purpose of outlining critical infrastructure is to measure the systemic risks facing that infrastructure in Canada from a national security and economic security standpoint.

The risks outlined by the government relate to major natural disasters, terrorist attacks, pandemics and health crises, and war.

The focus of the government is to mitigate the risks of these things happening and reduce their impact when they do happen—with the knowledge that they cannot be avoided entirely.

There is no need to interfere with Charter Rights when ensuring systemic protection of critical infrastructure. The goal of the government is to have a plan that ensures resilience of infrastructure in the face of disruptions so that emergency measures that limit Charter Rights can be avoided.

The "balance" between Charter Rights and protecting critical infrastructure does not mean banning strikes, making strikes completely ineffectual by allowing replacement workers, or undermining other rights workers have won. It means having plans in place where some parts of critical infrastructure could be taken off line via strikes, so that this does not have an uncontrolled cascading impact on the entire economy.

This is not a new problem and countries with anti-scab legislation have not had cascading collapses of their economy resulting from local strike action.

We know that stopping full cascading collapse of essential services is rather easy to accomplish and we do this in every strike.

There is no question that strikes can be a challenge to parts of critical infrastructure, but they are not on a scale of the COVID-19 pandemic, as is claimed by the FETCO.

As I have outlined previously, the impacts of climate change and geopolitics are much larger than the impacts of strikes. In fact, strikes mostly have limited to no medium to long-term impact on critical infrastructure or supply chains.

The limited impact on that infrastructure is because strikes:

• are avoidable via free and fair bargaining
• are short lived and have no lasting impact
• have a timing that are well known and easily prepared for

Charter Rights cannot be undone simply because there is a threat that workers might create some inconvenience along a small part of a supply chain leading into some critical infrastructure.

Critical Infrastructure does not equal essential services along that supply chain.

Critical Infrastructure:

• Public Safety's Definition of Critical Infrastructure
• Defence definition of critical infrastructure