Judge orders Canada Post union deal arbitrator to quit

Canada’s Federal Court of Justice has ordered the arbitrator appointed by ministers to decide on a major new union deal with Canada Post to quit. Guy Dufort was the second arbitrator to be appointed by the Canadian government to decide on a new collective bargaining agreement with the Canadian Union of Postal Workers (CUPW) since the union’s members were ordered back to work just over a year ago.

The first appointee, Justice Coulter Osbourne, resigned last November under pressure from the union regarding his lack of French language skills.

Retired labour lawyer Dufort was put forward for the role by Canada’s labour minister, Lisa Raitt, in March 2012, but the union challenged the appointment in court, claiming that the latest appointee was biased towards Canada Post because of his past work with the company and his links to Canada’s governing Conservative Party.

Today, the Federal Court of Justice agreed with the union, stating that a “reasonable and sensible person” would think the arbitrator biased in Canada Post’s favour if deciding on a union contract.

Dufort was a prosecutor for Canada Post from 1998 to 2003 during the company’s long-running pay equity dispute, while he was also involved with the Conservative Party until 2010, including two bids to become a member of Canada’s Parliament.

In today’s judgement, the Court acknowledged Canada Post’s point that Dufort had initially been included on a list of names suggested by CUPW as potential arbitrators, and the company’s frustration at further delay in a contract process that has already suffered several setbacks.

“Reasonable”

But, Judge Danièle Tremblay-Lamer said: “I believe a reasonable and sensible person who has studied the issue in depth may reasonably fear that an arbitrator who has not only been the prosecutor for Canada Post for many years in a similar case involving significant losses for Canada Post in 2011, but which in addition to attending recently in various partisan activities and maintained links with the ministers concerned, may serve the interests of one party or the government, even unwittingly.”

Evidence heard in court had included the fact that Dufort had the Canadian labour minister and transport minister listed as “friends” on his Facebook page. The pair were removed from Dufort’s Facebook list in May 2012.

The Judge also concluded that a more impartial arbitrator was needed in the contract dispute with CUPW “to avoid creating a rotten climate in labour relations for years to come”.

Canada Post has been in negotiations on one form or another for nearly two years with CUPW for a new labour deal for its 48,000 urban and suburban-based members. Last year the dispute came to a head when the union organised a series of one-day rotating strikes around Canadian cities, to which Canadian Post then responded by locking workers out of facilities across the country.

At the end of June 2011, the Canadian government legislated postal workers back to work with the bill setting basic terms like a salary increase, but leaving the main details of a new labour contract for arbitration to resolve.

Canada Post has not yet responded to a request from Post&Parcel to comment on the latest setback to its negotiations with CUPW.

“Flawed”

The union welcomed the decision, stating that the judgement supported its view that Dufort had been wrong to refuse his resignation from the arbitrator position.

“This decision shows that we have been right to oppose this flawed process,” said CUPW national president Denis Lemelin. “The government is not getting it right.”

The union said it has now written to Minister Raitt asking for a mediator to be appointed, to take a more conciliatory approach to deciding the contract, rather than a “winner takes all” arbitrator, who would decide a final offer based on the proposals of one side or the other in the dispute.

“Forced settlements do not work,” said Lemelin. “We want to be proactive and obtain a fair deal for our members.”

Under last June’s back-to-work legislation, Canada Post and CUPW could still agree to a new labour deal without going to arbitration. The Crown Corporation offered a fresh offer to the union at the end of last month, with the added warning that since its financial situation is continuing to decline in the light of ongoing mail volume reductions, a proposal it now submits to an arbitrator could be even more restrictive.