Workers’ right to strike is under attack. Over the past several years, governments across the country have resorted to back-to-work legislation and other coercive means to force striking union members back to their jobs. The federal Liberals have repeatedly used section 107 of the Canada Labour Code to issue legally questionable back-to-work orders. The governments of Doug Ford in Ontario and Danielle Smith in Alberta have both invoked the notwithstanding clause in attempts to shield their strikebreaking legislation from litigation.

Most unions have complied with these unjust dictates and taken their battles to court, but not all have opted for this route. Education workers in Ontario and flight attendants at Air Canada both showed that resistance is possible and that mass direct action by workers can force anti-labour governments to back down.

This recent wave of repression and resistance calls for historical contextualization and reflection, both to understand how we got here and to strategize a way forward. Luckily, Canadian labour scholars have produced a wealth of research about how we ended up with such a limited right to strike, how governments have honed their tools of worker repression, and how unions should respond. Here are a few essentials.

Labour Before the Law: The Regulation of Workers’ Collective Action in Canada, 1900-1948 (2001)

In this seminal book, Judy Fudge and Eric Tucker examine how states regulated workers’ struggle before what has come to be called “the postwar compromise” created a legal regime that afforded workers various rights while constraining employers. It is essential reading on life before and after so-called “industrial pluralism.”

Fudge and Tucker show that “before the law” workers frequently engaged in militant collective action, and lacking the select protections later afforded by industrial pluralism, found themselves before courts and other purveyors of repressive authority. Yet the detailed set of rules regulating collective action under postwar industrial pluralism didn’t end government repression or grant workers inviolable rights. At this time, governments sought to contain worker power not through coercion but through consent. By granting workers a limited set of rights, including the ability to strike under narrowly defined circumstances, the postwar compromise secured industrial peace through hegemony.

To understand how we found ourselves within the narrow constraints of so-called industrial pluralism, Labour Before the Law is an excellent place to start.

From Consent to Coercion: The Continuing Assault on Labour (2023 [1985])

The postwar compromise was never as secure as it appeared. Particularly as public-sector workers gained the rights to form unions and strike in the 1960s, governments and employers were already looking for a way out of the settlement.

In 1985, Leo Panitch and Donald Swartz published From Consent to Coercion: The Assault on Trade Union Freedoms, a book that detailed governments’ growing use of back-to-work legislation. Panitch and Swartz coined the term “permanent exceptionalism” to describe how governments continually violated workers’ right to strike, each time citing some exceptional circumstance that necessitated repressive overreach. The book was reprinted and updated two more times before Bryan Evans and Carlo Fanelli reworked and revised a fourth edition in 2023. This is indispensable reading for anyone concerned with the history of back-to-work legislation and Canada’s sorry record on labour rights.

Unions in Court: Organized Labour and the Charter of Rights and Freedoms (2017)

Since the turn of the 21st century, something odd has happened. On the one hand, unions have won a series of Supreme Court cases recognizing collective bargaining and striking as Charter-protected rights. On the other hand, governments have deployed back-to-work orders frequently, despite such actions running afoul of these supposed constitutional protections. What gives, and why have unions, once averse to judicial intervention in labour relations, come to embrace “Charter activism”?

In Unions in Court, Larry Savage and Charles Smith probe how and why unions came to depend so heavily on a constitutional law strategy, to the detriment of building the capacity of workers to resist unjust employer and government actions on the shop floor and in the streets. If you’re looking for a historically grounded critique of unions’ overreliance on the courts, this is it.

“What’s Law Got To Do With It?: Historical Considerations on Class Struggle, Boundaries of Constraint, and Capitalist Authority” (2003)

These next three recommendations have one thing in common: they all object to the way that the law constrains worker action.

In this first article, which appears in Marxism and Historical Practice: Interpretive Essays on Class Formation and Class Struggle (Vol. I), Bryan Palmer provides a historical tour de force laying bare how the law has always stifled class struggle. He shows how various legal regimes have been upended and reconstituted by workers’ frequently illegal collective resistance. As governments cemented the postwar compromise between labour and capital, unions largely discarded this defiant tradition for the stability of regulated labour relations. Yet the temporary reprieve of the postwar compromise left unions ill-equipped to mount an effective response when capital decided to unilaterally withdraw from the deal. Against the backdrop of growing capitalist power and continued union quiescence, Palmer calls for recovering labour’s history of civil disobedience.

Reviving the Strike: How Working People Can Regain Power and Transform America (2011)

Next up, a book that will have you ready to down your tools, whatever they might be, and hit the picket line. Reviving the Strike is a clarion call for centring the strike as the fundamental tactic of working-class struggle.

Author Joe Burns criticizes the many less-confrontational strategies adopted by unions in lieu of the strike. Ultimately, he argues, the “production-halting strike” is the only option for winning working-class power and remaking society. If you’re looking to get back to basics, this no-nonsense book compellingly shows that collectively withdrawing our labour is the sole path to power. Though targeted to an American audience, the book has plenty to offer labour activists in Canada.

“Nonunion Workers Deserve the Right to Strike” (2022)

Via Esperluette on Flickr, licensed under CC BY 2.0. The Maple logo overlaid.

Last, and I hope not least, is an article I wrote a few years ago arguing that workers who aren’t currently union members should still have a right to strike. Many people are shocked to find out that the right to strike is technically not a right held by workers in Canada, but by unions. Only when workers are members of a certified union can they withdraw their labour with legal protection. In other words, if a group of non-union workers want to take collective action against their boss, they can be fired with cause in Canada. In the United States, the right to strike extends to all workers covered by the National Labor Relations Act, not just union members. Non-union workers can take “concerted action,” as the legislation calls it. Although adopting such a law modeled on the U.S. example wouldn’t be a panacea for the many woes of labour, this change would mean that all workers could exercise their collective power without fear of reprisal. In this way, it could allow more workers to experience the benefits of collectivity and perhaps encourage them to form or join a union officially. After all, if the strike is the basis of worker power, it only makes sense that *all *workers have the power to use it.

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