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The federal government’s modifications to the Canada Labour Code through Bill C-39 have been generating a lot of questions. Why, first of all, are federal policymakers claiming that this obvious attack on the right to strike is not what it looks like? In what way will these measures “modernize” labour relations in Canada?
The labour legislation in Bill C-39, also known as the Building Canada Strong Act, is contained in omnibus legislation meant to bolster the federal government’s “major projects” agenda. It includes a wide variety of provisions, ranging from deregulation of environmental standards to several amendments to federal labour law.
The controversial part of the labour law amendments, that the labour movement strongly opposes, are provisions that codify the power of the Labour Minister to end strikes. This occurs through Section 107 of the Code, and a referral to the Canada Industrial Relations Board (CIRB) that can order a return to work and binding arbitration.
However, it takes only a modest grasp of Canadian trade unionism to know that strikes will continue despite Bill C-39. Nor will the claim of modernization hold up to any serious assessment. The legislation leaves Canada’s outdated enterprise based bargaining system unchanged and unequipped to resolve the important labour relations issues of the 21st century: income inequality, technological change, employment insecurity and precarious work, and the absence of rights and voice for the majority of workers in the private sector.
Although Bill C-39 will certainly not modernize labour relations, it is clearly intended to curtail strikes. Government House Leader Steven MacKinnon spelled it out: There are “too many” lockouts, strikes and threats of job action, which “harms” investment and employment, he said when C-39 was introduced. The labour legislation, bundled with environmental deregulation, was tabled just one week after the Canada Investment Summit that brought global financial investors to Toronto in September. C-39 was a signal to investors that the federal government will prioritize their interests.
The mechanics of strikebreaking
The Canada Labour Code covers about 1 million workers in the federal jurisdiction of interprovincial and international transportation, telecommunications, broadcasting, postal services, banking and uranium mining. These industries, which have a higher level of union coverage, have disproportionate influence on the logistics of the Canadian economy. Bill C-39 is intended to prevent major labour disputes such as the 2025 Air Canada flight attendants strike, and a series of longshore strikes and lockouts from 2022 to 2024 in BC, Montreal and Quebec City.
The laser focus of a new dispute resolution mediation process will apply to bargaining where either a strike or lockout occurred in the previous round of bargaining, where arbitration was imposed, or where a contract of five years or longer is being renegotiated.
The government wants to extend the bargaining and conciliation processes before workers can strike. However, the current law already takes a very long time before these workers can legally strike.
As it stands, bargaining may begin in the last four months before a contract expires and can continue well past the expiry date. Before a legal strike can take place, the law requires a conciliation period in which a third party conciliator will attempt to help the parties come to a negotiated agreement. It can take up to 15 days for a conciliator to be appointed, and up to 60 days of conciliation—followed by a 21 day cooling off period. In all, this adds up to 96 days following a request for conciliation before workers can withdraw their labour, assuming the contract has expired—in most cases, it is long past.
The modifications proposed in Bill C-39 would change the timelines by requiring those major rounds of bargaining to begin no later than 180 days prior to the contract expiry and by extending the conciliation period to 90 days from the previous 60. During that 90 days, the federal government can appoint a special mediator for 21 days if normal conciliation has not led to an agreement. If the special mediation also fails, the report and recommendations of the special mediator will be made public.
If a strike then occurs and the minister deems that it “adversely affects, or may adversely affect, the national interest,” the minister can invoke Section 107, and direct the CIRB to order an end to the strike and place the parties in binding arbitration.
The diabolical element in this design is that the mediator’s report will be delivered to the minister about 15 days before the union is in a legal strike position. Given the federal government’s recent record of dramatically increasing interventions in federal bargaining, unions see this timeline as facilitating a pre-emptive opinion that a strike would be “adverse to the national interest.” A strike could begin, but the government would have already decided to end it within days or hours by a prewritten Section 107 directive from the minister to the CIRB.
Provoking defiance
Unions in federally regulated industries rightfully see this as a mechanism to take the threat of a disruptive, major federal strike off the table, forcing them into a binding arbitration. In this scenario, the arbitrator would not feel pressure from a mobilized union membership on picket lines, often with strong public support, and would instead proceed from the mediator’s report, which the union would likely have already rejected.
The flaw in the government’s reasoning is the assumption that workers and their unions will go along with this setup, and focus on influencing the mediator rather than using strikes and job actions to pressure employers.
In the case of flight attendants in 2025, Air Canada workers with the Canadian Union of Public Employees (CUPE) defied Section 107 directives to end their strike—and continued its defiance after the CIRB repeated the order. With Air Canada’s operations in chaos, the union and the airline then reached a tentative agreement to end the strike. CUPE National Executive Board declared in September that the union would again defy orders to end a strike if C-39 passes unamended.
CUPE is following a well-trodden path of non-compliance when workers found government intervention an intolerable denial of rights on behalf of employers. The Quebec Common Front in 1972 famously refused to end their strike against the Quebec government—and three union federation leaders were each sentenced to one year in jail. In 1978, Jean-Claude Parrot also took jail time for leading the Canadian Union of Postal Workers in disobedience of federal back to work legislation. Saskatchewan nurses in 1999, B.C. hospital workers in 2004, B.C. teachers in 2005, Alberta corrections officers in 2013, and Ontario education workers in 2022 all took job actions that flouted government and labour board orders.
In other cases, even the intention of a union to defy government orders was enough to forestall interventions. In 2014 at the Port of Vancouver, Unifor said it would defy proposed legislation by the B.C. legislature to end a strike by owner-operator truck drivers, and the provincial government withdrew the legislation. In 2015, Unifor made it known that it “would not accept” a federal government-ordered settlement in bargaining with CN Rail. The union’s resolve was a factor influencing both the government and CN to reach a negotiated settlement without intervention.
There is also, of course, a long history of strikebreaking legislation that had become routine in Canadian labour relations. Provincial governments have legislated to prevent or end strikes 36 times since 2000. However, in six of these cases, courts found all or part of the Acts or related legislation unconstitutional, most notably the Supreme Court’s 2015 decision that struck down essential-services laws in Saskatchewan that prevented public-sector strikes. That decision established that the right to strike is a constitutional right—an indispensable component of meaningful collective bargaining protected by the Charter of Rights and Freedoms’ freedom of association provisions.
Since the SCC Saskatchewan decision, provincial governments have used strikebreaking legislation far less often, from 26 times from 2000-2014 to 10 times between 2015 and 2026. In 2022, the Ontario government and in 2025, the Alberta government, resorted to the notwithstanding clause of the Constitution to protect their anti-labour laws, although in Ontario unions threatened a general strike and the provincial government repealed the legislation within days.
A federal government addicted to intervention
But it is the federal Liberals—who came to office in 2015 repealing anti-labour laws from the Harper government among their first acts—that have been most defiant of the right to strike. The Harper government enacted back-to-work legislation four times: twice in railroad disputes and at Canada Post and Air Canada, and also invoked Section 107 at Air Canada (which did not result in an order to arbitrate). After 2015, Liberal governments intervened at double the pace, ending 10 federal labour disputes, through two back-to-work statutes and using Section 107 referrals eight times.
At least nine of the federal and provincial interventions have resulted in current legal challenges over the constitutional right to strike, and seven specifically contest the use of Section 107 that Bill C-39 will further entrench. Some legal scholars predict that the courts will significantly narrow the use of Section 107, if not strike it down entirely.
A significant cohort of federal policymakers reject this arc of workers’ rights and continue to see the right to strike merely as a means of mediating the greater powers of capital and the state, not as a human right like other Charter rights that can be wielded to alter fundamental conditions of work and power relationships. From that perspective, the remedy for labour’s demands that may disrupt the economy is simply more mediation—and, when that fails, intervention.
There is actually a glimpse of modernization in Bill C-39: one that, while not preventing strikes, could offer alternatives for collective bargaining. A recommendation arising from the West Coast Longshore Industrial Inquiry is a limited nod towards broad-based bargaining allowing employers and the CIRB, as well as unions, to apply for geographic certification in the longshoring sector—in the case of B.C., a certification and collective agreement covering all of the west coast ports.
The idea of geographic certifications is also suggested across the federal jurisdiction, but only after a cumbersome process and Ministerial approval, and only where a pooled labour force already exists. In short, the government is not serious about sectoral approaches to modernize bargaining that will extend collective agreement coverage, achieve sector wide wage gains, enhance employment security and reduce precarious work. Nor does C-39 modernize labour law for technological change, with its existing provisions dating from the 1970s.
A modern labour code and labour relations system could potentially tackle these generational issues for Canadian workers at empowered bargaining tables. Strikes could occur less often but with greater consequences in the context of national and provincial social dialogue. Until then, governments and employers can expect legal (and so-called illegal) strikes to continue unabated.
About the author
Fred Wilson
Fred Wilson is retired Director of Strategic Planning with Unifor (previously Assistant to the President with the Communications Energy, and Paperworkers Union of Canada). Author of A New Kind of Union (Lorimer, 2019). Follow his writing on labour and issues at medium.com/@jefred.wilson
