Notes on Panitch and Swartz From Consent to Coercion

From Consent to Coercion: The Assault on Trade Union Freedoms originally published in 1985 and with this third edition published in 2003 is essentially reading in the study of labour in Canada. The book traces the history of free collective bargaining in Canada, from its origins in 1944 (Privy Council Order ___ ), through the era of the Fordist accord, and through the period of neoliberalism and monetarism. ‘Free collective bargaining’ is the ability for a group of workers to as a group negotiate the terms of their work with their employer without fear of repression or coercion (e.g. being jailed, beaten-up, fired, etc.).┬áThe authors caution on the use of the word ‘free’:

The use of the word free does have a crucial double meaning. It suggests that a balance of power exists between capital and labour, that they face each other as equals, otherwise any bargain struck could scarcely be viewed as one which was freely achieved. It also suggests that the state’s role is akin to that of an umpire who works to be involved in applying, interpreting, and adjusting impartial rules. In the case of the first meaning, the structural inequality between capital and labour is obscured; in the second, the use of the state’s coercive powers on behalf of capital falls from view. (13)

In Canada, the right to freedom of association underpins the ability/right to bargain collectively

Myth of gradualism, that things get gradually better over time. Inevitable progress.

On the certification process:

The certification approach to union recognition did more than just weaken the apparent importance of militant organization. It directed the efforts of union leaders away from mobilizing and organizing and toward the juridical arena of the labour boards. In this context different skills were necessary. It was crucial, above all, to know the law–including legal rights, procedures, and precedents. These activities tended to foster a legalistic practice and consciousness in which union rights appeared as privleges bestowed by the state, rather than democratic freedoms won, and to be defended by, collective struggle. The ban on strikes during collective agreements and the institution of compulsory arbitration to resolve disputes while agreements were in force has a similar effect. Under these circumstances it was unnecessary to maintain and develop collective organization between negotiations. (21)

This recalls to me two things. First, the idea of rights being bestowed rather than taken or enacted is something that I wrote about in my paper on the low-skill TFWP in relation to citizenship. Second, the effects of the institutionalization and bureaucratization union activities is something that I learned about recently in a conversation with a fellow student who is involved with the IWW. The IWW sees the elaborate legal processes surrounding the labour board and labour law in general as a strategy for the control of the labourer’s essential and greatest power: the right to withhold his or her labour.

I’ve seen statistics about the stagnation of real wages since the early 1980s. Given what the authors describe was happening in the 1980s (i.e. the legislation of wage stagnation) it seems that the changes in wage levels (or restraints in wage levels) that occurred then have never been overcome–they laid the groundwork for the lack of increase in real wages.

The 1980s featured ‘permanent exceptionalism’ where along with supposedly temporary wage restraints, public and private sector employees’ workplace rights were restricted in a long-term manner.

Another crucial aspect of this book is its focus on the public sector employees and their relationship to their employer, i.e. the state itself. There is an inherent conflict of interest that the state has in so far as it is both an employer and at the same time is the highest authority in the land. Employers in the private sector are beholden to labour laws set out by the legislature and the courts, but the state as employer is not restricted by the law insofar as it can change laws that it sees undesirable. In order for free collective bargaining to take place, both sides of the table (i.e. employers and employees) must be in a relatively equal place. But this can never be the case with public sector employees. Panitch and Swartz demonstrate that since the early 1980s the state in negotiations with its employees the state has increasingly exploited its position as a super-employer, mostly by enacting back-to-work legislation and restricting the right to strike, a right which trade unionists see as a fundamental right of workers. One way that the government has increased its control over the ability of its workers to strike has been by designating certain occupations as essential services, thereby removing their right to strike. The extent to which successive governments have pushed the definition of essential services has even come to the attention of the International Labour Organization (ILO); from 1974 to 1991 fully 34% of all complaints to the ILO of violations of trade union rights in the G7 group of countries came from Canada.

The The tone of the ILO rulings are invariably diplomatic expressing “concern” and suggesting appropriate “ammendment,” but a degree of exasperation has crept in even here. As one ruling pertaining to Nova Scotia put it:

‘The Committee of Frreedom of ssociation recalls that the right to strike could be restricted in the strict sense of the term, i.e. services whose interruption would endanger the existence or well-being of the whole or part of the population. The ban on strike activity for employees of the Art Gallery, Boxing Authority and Communications and Information Centre appears to the Committee to go far beyond this criterion.’

By the end of the 1980s, this tone of exasperation was unmistakable even in relation to the federal government. in their ruling on complaints two against two instances of federal back-to-work legislation enacted within two months of each other in 1987, the ILO dismissed out of hand the federal government’s defense that such legislation was ‘relatively uncommon’ in Canada, and flatly asserted that the Canadian government’s actions were “not in conformity with the principles of freedom of association.” (57)

Challenges by unions to this increasing use of coercion by the state have mostly come via asserting that the freedom of association guaranteed in the charter must imply the right to strike and bargain collectively.

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