Economic Sanctions Chapter 9

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Economic Sanctions Chapter 9

• The legal regulation of strikes and lockouts

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Outline of lecture

• Rationale for strikes and lockouts in the private
  sector
• Weiler extract at pp.9-13.
• Data on Strikes, p.9-10 and Globe and Mail
  handout
• When can workers strike?
• a. the peace obligation what it is and why
  we have it, pp. 9-310, 9-1112
• b. timely strikes pp.9-14-15
• 4. Definition of strike pp.9-1011

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Outline of lecture cont

• 5. Political strikes, pp. 9-1214
• (The purposes of strikes and the relationship to
  the issue of timeliness)
• 6. Employer Sanctions
• a. lockouts, p.9-15
• b. Replacements workers, pp.9-15-22.
• 7. Last Offer Votes, p.9-22.
• 8. The Status of striking workers, p.9-23.
• 9. Remedies for illegal strikes and lockouts.
• 10. The Right to Strike and The Charter

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1. Rationale for Strikes and Lockouts

• Weiler extract industrial pluralism
• Rationale for strikes and lockouts
• Free market- parties hurt each other (employer
  loses profits and market share and employees
  loose wages) until they decide to settle their
  difference.
• Self-determination
• Substantive intervention by state no good
• Strikes are not justified because the right to
  strike is an individual human right but for its
  instrumental value in resolving interest disputes

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Controversial assumptions in Weiler extract

• Empirical
• That employer wants the status quo. This
  assumption is empirically out-dated. It was
  written in 1980 before massive restructuring in
  Canadian economy, globalization, and the rise of
  neo-liberalism. Increasingly employers want roll
  backs in wages, fringe benefits and job
  protections.
• Normative
• Is the rights to strike a fundamental individual
  right in Canada or internationally?

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2. Data on Strikes and Lockouts

• BC data, p. 9-10.
• International data, Globe and Mail handout
• NB it is the threat of strike rather than actual
  strikes that lead to negotiation. More than 90
  per cent of strikes concluded without resort to
  economic sanctions.

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3. When Can Workers Go on Strike?

• a) Peace obligation, pp.9-310, 9-1112.
• What it means? s.57
• What the quid pro quo is? s.84 and grievance
  arbitration
• Reserved rights
• The effect of the peace obligation.

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3. When Can workers go on strike? ( cont)

• Timeliness, p. 9-1415
• See the 8 conditions that must be fulfilled that
  are set out on p.9-14. A breach of these
  conditions means that the strike is illegal.

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4. Definition of a strike, pp.9-1011.

• s. 1(1) strike includes cessation of work,
  refusal to work, slowdown
• Conduct that adversely affects production or
  services, and
• common understanding
• Two elements impact on production, concerted
  activity, common understanding
• Exceptions
• s.63(a) health and safety
• (b) non-affiliation clauses, which typically
  are in construction and which are subject to
  Board regulation under s.70
• Result of honouring a picket line

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5. Political Strikes, pp.9-1214.

• Look at definition of strike in s.1(1). Is there
  a clause modifying the purpose for which workers
  engage in collective action?
• If no purpose clause, then all strikes that occur
  when there is a collective agreement in effect,
  regardless of whether they are politically
  motivated are not, are illegal.
• Does the Charter protect (s.2(b)) politically
  motivated mid-term strikes?

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Political strikes, pp.9-1214

• Prior to 1984 when there was a subjective element
  (similar to the definition of lockout) in the
  definition of strike, the BC Board had held that
  political strikes were not strikes for the
  purpose of the BC Code
• Two cases (one in involving teachers BCTF and
  the other involving hospital workers (HEU) arose
  at approximately the same time that raised the
  issue of whether a mid-term strike (one which
  occurred when a collective agreement was in
  effect) for purposes of political protest were
  protected by s.2(b) of the Charter.

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Political strikes cont

• The panels in the 2 cases agreed that political
  strikes were prima facie protected expression
  under s.2(b(.
• However, they disagreed on whether or not the
  ban on political strikes in the BC Code was a
  justifiable limitation under s. 1.
• The panel hearing the teachers case held that
  the prohibition was justified, whereas the panel
  hearing the hospital workers case held that it
  was not justified.

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Political Strikes cont

• Reconsideration of the 2 cases
• All 3 members of the reconsideration anel agreed
  that political strikes were prima facie
  protected however, each provided a separate
  analysis of s. 1.
• Fleming a complete ban on political mid-term
  strikes is not justified. However, political
  strikes which have a significant adverse
  consequence on the public interest can be
  prohibited. Thus, the question concerns the
  frequency and scope of such conduct. He held that
  the teachers strike was protected, but that of
  HEU was not.
• Brown an absolute ban on mid-term political
  strikes was justified on the grounds that a
  bright line , rather than an ex post facto
  determinaiton, was necessary for maintiang a
  stable econmic structure.

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Political Strikes cont

• Mullen held that the Board had no jurisdiction to
  declare that the definition of strike in the Code
  was unconstitutional, although the Board could
  determine that the Code was inapplicable to a
  particular political strike.
• While he agreed with Browns result that the
  prohibition on both strikes were justified he
  did not support an absolute ban on mid-term
  strikes.
• He noted that legislation like Bill 29 (which was
  the subject of a successful constituional
  challenge as we shall see in the final lecture of
  this course) that rewrote collective agreements
  mid term might support a constitutional exception
  depending upon the form of protest. Thus,
  according to him, the nature of the legislation
  and the nature of the protest were crucial for
  determining the constitutionality of mid-term
  political strikes.

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6. Employer Sanctions

• A. Lockout, pp.9-15.
• Definition s.1(1)
• 2 elements
• 1. conduct that affects employees job security,
  and
• 2. purpose to get employees to agree to
  conditions of employment
• Impact of subjective element of the decision
• allows bona fide closures, layoffs, discipline,
  and discharge, and
• permits capital strikes for political purposes.
• s.63(1) employers rights to suspend or
  discontinue business preserved so long as it is
  not a lockout and the burden of proof is on the
  employer to establish that it is not a lockout
  (s.63(2)). What must employer do show that the
  closure etc was not for the purpose of compelling
  employees to agree to terms and conditions of
  employment

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6. Employer Sanctions cont

• B. Restrictions on Replacement Workers,
  pp.9-1522.
• Historically, and currently in all Cdn
  jurisdictions except for BC and Quebec, an
  employer could/can minimize the disruption caused
  by a strike by hiring replacement workers or
  transferring workers from a workplace that is not
  on strike to perform the work of the struck or
  locked out employees.

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6. Replacement workers contd

• Most jurisdictions prohibited hiring professional
  strike breakers (Like Pinkertons in the Royal Oak
  Mine case)
• Some jurisdictions (BC and Quebec) and prohibited
  the hiring of replacement workers or transferring
  workers from locations that are not on strike.

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6. Replacements Workers, cont

• Pros and cons of ban, pp.9-1722
• Replacement Worker Ban in BC, s.68
• An employer cannot employ the following people
  to do the work of an employee is a bargaining
  unit that is on strike
• a) someone who was hired after notice of
  bargaining
• b) someone who ordinarily works at another of the
  employers premises
• c) someone who was transferred from another
  operation after the notice to bargain and
• d) someone who is supplied by another person.

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6. Replacements Workers, cont

• Further restrictions in s.68
• s.68(2) the employer is prohibited form
  compelling any person (this includes managers)
  from performing struck work and s. 68(3)
  prohibits the employer from discriminating
  against a person who exercise their right to
  refuse.

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7. Last Offer Votes, 9-22.

• Purpose-
• allows the employer to go behind the union and
  test the employees views before a strike. Allows
  the minister to protect the public interest by
  going behind the union to test the employees
  support.

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7. Final offer, cont

• Statute, s.78
• 2 situations in which an employers final offer
  can be put to a vote
• 1. before the strike or lockout the employer can
  request (s.68(1))
• 2. during a strike the Minister may direct a
  vote on the final offer - condition Minister
  must consider it to be in the public interest
• Effect
• If the employees vote in favour of the agreement
  it is binding on the union and employer and the
  dispute is over.

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8. Status of Strikers, p.9-23

• S.1(2) makes it clear that when employees are on
  strike they are still employees for the purpose
  of the Code
• S.62 on the request of the union the employer
  must continue to provide benefits so long as the
  union pays for these benefits (pays the employees
  and employers contributions)

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9. Remedies for Unlawful Strikes and Lockouts

• Basic Position in BC
• The Board has exclusive jurisdiction to determine
  all questions of fact and law regarding picketing
  and strikes. However, the courts have
  jurisdiction to deal with serious injuries and
  property damages resulting from strike s and
  lockout and to deal with damages resulting from
  illegal strikes and lockouts.

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9. Remedies for Unlawful Strikes and Lockouts

• Statutory Provisions ss.69, 70, 71, 135, 136,
  137, 139.
• s. 69 simple conspiracy to injure is not unlawful
  if done in furtherance or contemplation of a
  trade dispute unless it would be unlawful if
  performed by an individual
• s.70 Any interested person can complain to the
  board that an agreement between one or more
  employers or one or more unions is substantially
  affecting trade and issue a declaration
  respecting the declaration, agreement or
  combination. This provision allows the Board to
  regulate hot cargo declaration.
• s.71 the Board will not issue order under Part 9
  (the general remedial provision) if the person
  applying for the order has engaged in improper
  conduct. This is a clean hands requirement

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9. Remedies for Unlawful Strikes and Lockouts,
cont

• S.135 Board orders can be filed in the Supreme
  Court of BC and they are enforceable as orders of
  the Court.
• S. 136 The Board has exclusive jurisdiction
  regarding the regulation of strike and lockouts
• S.137 (1) s a privative clause re-enforcing that
  the Board has exclusive jurisdiction to regulate
  strikes and lockouts
• S.137(2) preserves the jurisdiction of the court
  to entertain proceedings and make orders with
  respect to wrongful acts or omission causes
  immediate danger of serious injury to an
  individual or actual obstruction or physical
  damage to property

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9. Remedies for Unlawful Strikes and Lockouts,
cont

• S.137(3) prohibits ex parte injunctions regarding
  strikes or lockouts
• S.137(5) if the Board has made a declaration that
  a strike or lockout is unlawful then a court has
  the jurisdiction to award damages for losses or
  injury suffered as a consequence of the conduct
  contravening Part 5 (which deals with strikes and
  lockouts)
• S.139 (w) The board ahs exclusive jurisdiction
  to determine whether an activity constitutes a
  strike or lockout

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10. The Charter and the Right to Strike

• Does freedom of association in s.2(d) of the
  Charter include the right to strike?