Last year, Liberal lawyers were desperate to find a way to block a dockers strike, which was costing the capitalists billions. Because of their unpopularity, the Liberals didn’t want to use back-to-work legislation. So they dug up Section 107 of the Labour Code which has now become their favourite strikebreaking weapon.
With apologies for the word salad, Section 107 reads:
The Minister, where the Minister deems it expedient, may do such things as to the Minister seem likely to maintain or secure industrial peace and to promote conditions favourable to the settlement of industrial disputes or differences and to those ends the Minister may refer any question to the Board or direct the Board to do such things as the Minister deems necessary. (our emphasis)
When they used Section 107 against the dock workers, the Liberals gave the final decision to the CIRB—though they ordered the workers back to work while the CIRB deliberated.
They’ve since refined their approach further. As of this summer, they have a new interpretation of Section 107: the Minister of Labour may order the CIRB to impose anything on unions at any time for any reason. One email to the Board and it will impose binding arbitration, without even a debate in parliament and without deliberation within the Board itself.
The government has since done this three times. In June, they instructed the Board to force WestJet workers back to work. This was a false start. Due to vague wording in the directive, the Board did not immediately stop the strike, against the Liberals’ wishes.
They did not make the same mistake again. Clarifying their wording, the other two times succeeded. They forced the locked-out railway workers into binding arbitration in August, and recently did the same to the dockers of B.C., Montreal, and Quebec City. The supposedly “independent” CIRB complied with all this, even stating that they have no right to contradict the Minister of Labour.
The effect is clear. With this new trick, the Minister of Labour is the “King of Labour Law” and the unions are his subjects, to borrow the words of labour law professors David Doorey and Sandrine Haentjens.
How did we get here?
Many people have probably not heard of the CIRB until this year. And for good reason: until recently, the most important strikes were attacked not with Section 107 orders to the CIRB, but with “back-to-work legislation”. This has long been the preferred method of breaking strikes.
A few examples: the postal workers faced back-to-work legislation in 2011 and 2018. The government crushed the Montreal dockers in 2021 with it. Back-to-work legislation has also been used at the provincial level, notably against construction workers in Quebec in 2013 and 2017. The list could go on.
The general rule for decades was that any important strike that impacted profits would be legislated back to work, especially when it threatened the profits of the capitalist class as a whole.
The Board
So why this shift to using the CIRB? The use of back-to-work legislation has become a liability.
The strike of CUPE education workers in Ontario in 2022 was a turning point. The workers defied back-to-work legislation, and other unions threatened a general strike in support. Faced with the power of the working class, the government had to retreat with its tail between its legs. This proved that back-to-work legislation can be defeated. Governments now have to think twice before using it.
But the question is broader. The Liberals are hanging on by a thread. Whether they could even get back-to-work legislation passed in parliament is uncertain. And no one wants to be seen crushing workers. But capitalism in crisis requires that they drive down wages, so the capitalists still need their government to step in and help them break strikes.
To square this circle, the government’s new trick with the CIRB is ideal. Instead of the cumbersome process of tabling a law and debating it in parliament—where the NDP would probably try to block the legislation and could even be forced to bring down the government—emails are exchanged behind closed doors. Instead of the government, it’s technically the CIRB that ends the strike. This saves face for the government.
Class war
As outrageous as this is, violations of workers’ rights are in the DNA of our epoch.
During the postwar boom, the capitalists could afford to buy class peace and guarantee a certain living standard. At least a pretence of democracy and the right to strike was maintained. Illusions in bourgeois democracy were built up—if you play by the rules, then you get a fair deal.
Now the capitalists need to break strikes more than ever. The system in crisis demands that they push down wages and living standards. But the workers won’t just let it happen. Strikes unfolding through regular, legal channels—with the power of the working class today—is too much of a threat.
This contradiction sends the capitalists searching for crafty, undemocratic means to break strikes. More and more they are willing to violate even the pretense of democracy to do so. That’s exactly what this use of the CIRB is. The Minister of Labour can end a strike by decree, bypassing all democratic channels.
But playing around with Section 107 is risky. If the government isn’t playing by their own rules anymore, then workers will ask why they should. This is very dangerous for the system, which relies on people’s belief in playing by the rules of democracy to prevent revolution.
This is unmasking the state in the eyes of millions. They will realize more and more that to fight for its interests, the working class cannot submit to capitalist governments. This process will eventually end—as the workers see that this system cannot guarantee even their meagre standard of living—in a revolutionary situation.
Class peace is dying. An epoch of class war is upon us. The labour movement needs to acknowledge this fact and draw all the conclusions that flow from it. That means, first of all, that the state’s decrees—whether from back-to-work legislation or the CIRB—cannot be respected. They must be defied. When union leaders submit to these decrees—which they almost always do—the workers’ only weapon, the strike, is lost. And without the threat to strike, rotten contract after rotten contract—plummeting living standards—will result. To forge a way forward, the labour movement needs revolutionary, class struggle ideas.
