Title: Economic Sanctions Chapter 9
1Economic Sanctions Chapter 9
- The legal regulation of strikes and lockouts
2Outline 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
-
-
3Outline 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
41. 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
5Controversial 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?
62. 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.
73. 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.
83. 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.
94. 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
105. 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?
11Political 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.
12Political 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.
13Political 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.
14Political 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.
156. 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
166. 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.
176. 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.
186. 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.
196. 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. -
207. 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.
217. 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.
228. 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)
239. 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.
249. 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
259. 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
269. 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
2710. The Charter and the Right to Strike
- Does freedom of association in s.2(d) of the
Charter include the right to strike?