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Economic Sanctions Chapter 9

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Title: Economic Sanctions Chapter 9


1
Economic Sanctions Chapter 9
  • The legal regulation of strikes and lockouts

2
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

3
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

4
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

5
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?

6
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.

7
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.

8
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.

9
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

10
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?

11
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.

12
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.

13
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.

14
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.

15
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

16
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.

17
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.

18
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.

19
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.

20
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.

21
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.

22
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)

23
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.

24
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

25
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

26
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

27
10. The Charter and the Right to Strike
  • Does freedom of association in s.2(d) of the
    Charter include the right to strike?
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