Empty Promises: Why Workplace Pension Law Doesn't Deliver Pensions by Elizabeth Shilton (review)

The June 2017 bankruptcy filing of Sears Canada and the consequent cuts to the pensions it owes to its retired employees briefly returned public attention to, among other problems, serious gaps in Canada's workplace-based pension system. When companies like Sears, or Nortel, go down, thousands of workers not only lose their jobs but also face deep cuts to their legally-promised (but often under-funded) pensions. Alongside these dramatic failures, even profitable companies like the "Detroit Three" auto-makers have been pulling the plug on the provision of secure, defined benefit (db) type pension plans in favour of defined contribution (dc) alternatives (often on a "two tier" basis). Even many public sector employers have taken up pension restructuring as a key strategy for managing the impact of austerity budgets and revenue losses. Canadian capitalism in the early 21st century is resolving some of its contradictions on the backs of current and future retired workers.

Elizabeth Shilton's Empty Promises provides a timely legal history of Canada's workplace pension plans that offers vital context for understanding these negative developments. As a long-time labour-side pension lawyer, her general conclusions will shock those in the labour movement still trying to make the remaining workplace pensions work. She describes "a system that has been declining for decades and may well be in its terminal phase.… Workplace pension plans should be declared a failure." (172–173) Shilton's path to this conclusion features a select history of the legal record on pensions – legislative, regulatory, contractual, and judicial – to tell an intensely political story. Though analytically incomplete in certain respects, this book should nonetheless provoke a deep rethinking of working-class strategies for meeting basic economic needs in later life.

The book's first few chapters set out an early history of pension provision in Canada. By selecting a short list of typical early private sector plans, Shilton develops the primary thesis she threads throughout the text – that pension plans were "conceived and designed to meet the needs of employers." (15) Given that these earliest plans pre-dated organized trade unions by several decades, it is hardly surprising that their initiation and design was exclusively an employer affair. This meant that while they offered workers the appealing prospect of wage continuation after retirement, employer control transformed them into powerful tools to enforce workforce discipline. Plans at the Grand Trunk Railway (1874) and Bell Canada (1917) are profiled as having such a degree of employer discretion over payment that any individual – working or retired – could lose it if they stepped wrong, including by organizing: "Railway employers … Grand Trunk among them, had a history of using pension sanctions as an anti-strike weapon. Striking employees might be denied pensions altogether, or receive reduced pensions, because the company refused to credit pre-strike service towards their pensions. Even retired employees actually receiving pensions might find their pensions affected if they failed to support the company during a strike." (21–22)

But even among employees who behaved well, Shilton points out that extraordinary restrictions on eligibility – such as an age 50 with 20 years service "vesting" rule – made qualifying for the pension both difficult and rare. The result was a powerful employer tool of social control that cost employers very little. Shilton cites a 1938 study of pension coverage that concludes that while about 30 per cent of the labour force of that time worked for employers with a pension plan, only about half of that number were eligible to enroll (frequently white collar or management employees) and only a very small percentage of those who did would actually retire with a pension.

The middle chapters of the book, tracing the post-World War II consolidation of the pension system we are familiar with today, provides further support for the author's central argument of continuing employer control. Even when the emerging trade unions gained legal recognition and succeeded in making...