Can Air Canada flight attendants be penalized for defying the back-to-work order? Here’s what experts think

Employment & Labour Lawyer Sundeep Gokhale on what case can CUPE make to defy the federal government’s return-to-work order.

With Air Canada flight attendants defying the federal government’s back-to-work order, labour experts say there have been past cases where workers were penalized for similar moves but it’s unclear whether that will happen in this case.

The Canada Industrial Relations Board (CIRB) ordered union leaders Monday to direct their members back to work to end the “unlawful strike” of more than 10,000 flight attendants, The Canadian Press reported. The flight attendants walked off the job Saturday after failing to reach a new contract agreement over unpaid work and what it called “poverty wages.”

Sundeep Gokhale, employment and labour lawyer and partner at Sherrard Kuzz LLP, told CTV News Channel Monday the decision to declare the strike illegal was not surprising since the directive by federal Jobs Minister Patty Hajdu on Saturday was clear. Hajdu asked the CIRB to impose binding arbitration and order an end to the job action through Section 107 of the Labour Code.

However, the Canadian Union of Public Employees is challenging the CIRB order in Federal Court and flight attendants are continuing their strike, which the airline says has resulted in an estimated 500,000 customers’ flights being cancelled as of Monday.

Gokhale said there is precedent going back to the 1970s when union leaders were jailed as a result of similar conduct. “I’m not sure we’re going to see that here,” he said, noting it may depend on the union’s response as it argues the back-to-work order is unconstitutional.

He said it was surprising to see the amount of defiance in the workers.

“We haven’t seen this type of defiance in quite a long time in terms of an outright refusal despite government orders as well in legal decisions requiring employees to return to work,” he said.

Steven Tufts, an associate professor and labour expert at York University, told CP24 on Sunday that it will take time to sort out the situation.

He said unions have been financially penalized in the past for violating back-to-work orders, though charges and imprisonment are rare. “We’ll see if we get to that point over the next few days,” he said.

With files from The Canadian Press