August 7, 2024
On August 2, 2024, the Canada Industrial Relations Board published its final decision addressing issues that arose in the context of AMFA’s strike at WestJet, June 28 – June 30, 2024. The decision confirms a prior oral ruling by the Board and upholds Canadian unionized workers’ constitutional right to strike. It also marks the end of a prolonged dispute between labour and management at WestJet and the start of a new era of productive relations.
The Board’s decision, at 2024 CIRB 1151, addressed AMFA’s right to strike following Labour Minister Seamus O’Regan’s referral of the parties to binding arbitration under section 107 of the Canada Labour Code. Minister O’Regan’s referral, dated June 27, 2024, directed the Board to submit the parties to arbitration “in keeping with the objectives of section 80 of the Code” and in order to “secure industrial peace.” The referral was silent on AMFA’s right to strike. AMFA had argued that any suspension of its right to strike was unconstitutional.
In its background section, the Board’s decision describes the parties’ bargaining history including the three unfair labour practice charges filed against WestJet, the Company’s threatened lockout of its employees, and the members’ rejection of the first tentative agreement by 97.5%. The decision also details a previous ruling by the Board, dated June 20, 2024, in which it had declined to stay a potential AMFA strike while the Board considered a prior section 80 referral by the Minster, which also could have resulted in binding arbitration.
In its analysis, the Board’s decision emphasizes the aberrant nature of the Minister’s section 107 referral, noting that it was “not aware of another instance in which the Minister has asked it to order binding arbitration under section 107” and observing that back-to-work laws are historically within Parliament’s exclusive purview. Such legislation is then subject to judicial scrutiny and constitutional challenge. The Minister’s referral had “usurped” the Board’s discretion to determine whether or not to settle the terms of a collective agreement.
The Board then addressed the referral’s reference to section 80. Section 80 referrals are made in exceptional circumstances where there is confirmed “bad faith” and “intransigence” exhibited by the parties. There had been no such finding with respect to AMFA-WestJet negotiations. Unlike other sections of the Code, section 80 contains no reference to the suspension of a union’s right to strike. And as borne out of the Board’s jurisprudence, including its June 20, 2024, ruling, a section 80 arbitration and a strike can happen simultaneously.
The Board next considered whether the referral’s reference to “industrial peace” should be understood as limiting AMFA’s right to strike. It determined that the referral was ultimately silent on the issue of AMFA’s right and, therefore, had to be interpreted consistently with the guarantees found in the Charter of Rights and Freedoms. The Charter requires that unionized employees be afforded a “meaningful process of collective bargaining.” The Board was also guided by references in the Code to “free collective bargaining” and the “constructive settlement of disputes.” It found that AMFA’s strike was consistent with those principles, noting particularly that labour disputes can and should be settled through the free bargaining process. Relying on the Supreme Court’s decision in Saskatchewan Federation of Labour v. Saskatchewan, the Board confirmed that the right to strike is an integral component of the bargaining process. The Board therefore could not interpret the Minister’s referral as abridging AMFA’s right to free collective bargaining nor its members’ right to free association.
The remainder of the Board’s decision addressed the flurry of additional filings made by WestJet in an attempt to prevent AMFA’s strike. The Board found that the applications were either baseless or else mooted by the subsequent strike. It additionally found that having reached a collective agreement through free bargaining, there was no longer any need for the parties to participate in the Section 107 arbitration process.
The Board’s decision represents a historic win for organized labour in Canada. Application of the constitutional principles recognized by the Board ensures that professional workers can obtain the pay and conditions their labour deserves. The AMFA-WestJet collective agreement represents an industry-changing contract for Canadian aviation. AMFA and its members look forward to implementing the new agreement, won through hard work and solidarity.
It is important for AMFA to set the standard for the industry and ensure AMEs are appropriately rewarded for the work they perform, not only at WestJet, but throughout the country. The expertise of the AME is crucial to the success of the airlines and ensures public safety.
The focus now shifts to working with WestJet to restore the workplace culture that WestJet has traditionally been known for. Through collaborative efforts in implementing the collective agreement, we can look forward to a stable work environment where quality is the priority. As AMFA’s mission states – safety in the air begins with quality maintenance on the ground.
Fraternally,
National Executive Council (NEC)
