Part 5 Applications - Strikes, Lockouts and Picketing
The purpose of this Information Bulletin
is to provide general information and guidance about Part 5 applications.It is not a legal document and is subject to the
provisions of the Labour Relations Code, the
Labour Relations Regulation, the Labour Relations Board Rules and the published decisions
of the Board.
References (Code, Regulation, Rules)
Part 5 of Code; LRB
Rules 27 and 31(2)
Part 5 of the Labour Relations Code governs strikes, lockouts
and picketing.Section 57 prohibits strikes
or lockouts during the term of a collective agreement.Section 67 states that there shall be no picketing, other than that permitted by
the Code.Section 139 of the Code gives
the Board exclusive jurisdiction to decide such related questions as:
·whether an activity
constitutes a strike, lockout or picketing,
·whether a collective
agreement is in full force and effect,
·whether a person is
bargaining collectively or has bargained collectively in good faith, and
·whether a person is an
ally and whether the Board will permit picketing of the ally.
An application for a declaration that an
activity constitutes an unlawful strike, lockout or picketing, and for a cease and desist
order against such activity, is often referred to as a "Part 5" application.The term also includes applications by trade
unions under Section 65(4) of the Code to picket alternative locations and
"allies" of a struck employer.The
replacement worker provisions of the Code are also contained in Part 5 (see Information
Bulletin No. 18).
Section 65(6) of the Code provides that
where two or more employers carry on business at a common site, and one employer is
involved in a legal strike or lockout, the Board may make an order restricting picketing.The picketing shall be restricted in such a manner
as to limit its effect to the employer involved in the strike or lockout, or an ally of
that employer.If it is impossible to limit
the picketing without prohibiting picketing, the Board may regulate the picketing as it
considers appropriate.The employer involved
in the dispute is normally not entitled to bring a common site application.
The Board has exclusive jurisdiction over
picketing which arises from a collective bargaining dispute and affects a provincially
regulated employer.The Board does not have
jurisdiction to address:
·picketing at an
undertaking regulated under the Canada Labour Code,
emanates from a labour dispute under federal jurisdiction,
·conduct that does not
constitute picketing such as permissible consumer leafleting,
·illegal conduct on a
·picketing a federal
employer as an ally of a provincial employer involved in a strike or lockout.
Consumer leafletting, where it is
conducted peacefully, without placarding, barricading or impeding access, and without
coercion, is not picketing.
A person alleging that activity prohibited
by Part 5 of the Code is taking place must file an application with the Board, in
accordance with Board Rule 27, specifying the sections of the Code breached, as well as
the remedy sought.
The application must include all material
facts upon which the applicant relies, as well as the specific orders and declarations the
applicant seeks.It must also include the
name of the applicant, the parties alleged to be violating Part 5, any other person who
will be affected by the application, and their respective addresses and phone numbers.
In accordance with Board Rule 27, the
·state the date, time
and location that the applicant wishes to appear before the Board to apply for the order
it seeks, which will normally be at least twenty-fourhours after a copy of the complaint and a copy of Rule 27 have been served upon the
respondent and any other interested party,
·where a hearing is
requested within twenty-four hours after service, the urgent circumstances which
necessitate an expedited hearing of the application, and the nature of any anticipated or
Rule 27(5) provides that a
respondent may be required by the Board to file a written reply to a Part 5 application.A respondent is rarely required to do so, however,
because of the expedited time frames.
and Lockout Votes
Rule 31(2) requires that applications
challenging strike or lockout votes must be made within 5 days of the return of poll being
filed, unless otherwise permitted by the Board.
Prior to filing, the applicant should
phone the Board's Registry at (604) 660-1300 to advise of the application and its nature,
and to seek confirmation of a hearing date, time and location.A Vice-Chair is on duty on weekends and statutory
holidays to deal with emergency situations and can be reached at the Boards cellular
phone number: (604) 644-3033.Parties who
anticipate the possibility of such a situation are asked, if at all possible, to contact
the Registry in advance, during normal business hours.
Documents must be served on all
respondents at the same time as filing with the Board.Applicants should confirm with the Registry when the documents have been served.
If a respondent does not attend the
hearing, the applicant must be able to prove that the respondent was served with a copy of
the application by affidavit or testimony of the server.
Upon receipt of the application, Board
personnel (e.g., the Registrar, Deputy Registrar or a Special Investigating Officer) will
contact the parties by telephone.If the
Board schedules the hearing in accordance with the request in the application, no written
notice of the hearing will be provided by the Board.If the Board schedules the hearing at a time or place other than that requested,
the Board will notify the parties by phone and/or in writing.
In an effort to resolve the dispute, an
informal meeting of the parties with an officer of the Board will normally be held.Such informal hearings are "without
prejudice".The majority of Part 5
applications are resolved through this process, which saves the parties time and money.It also furthers the Board's objective of
encouraging the parties to reach mutually acceptable solutions to their disputes.
The Board may issue interim orders to
grant relief to a party pending final resolution of an application.The conditions under which such orders will be
issued are outlined in Information Bulletin No. 25 (Procedural Matters).
When a solution is not found through the
informal process, a Panel of the Board will proceed to hear and adjudicate the
application.If the Panel determines that
there has been a violation of Part 5, an order may be issued, with or without reasons.Again, the need for an expedited decision may
determine the procedure which is followed.
In circumstances where the usual procedure
may be sufficiently timely, the Board may exercise its discretionunderBoard
Rule 17(2) to hold a hearing by telephone conference.When requesting a hearing by telephone conference, the applicant must establish a
case of extreme urgency (e.g., irreparable harm to the applicant or serious injury to the
public interest).The specific procedures for
telephone conferences are set out in Fletcher
Challenge Canada Limited, BCLRB No.
of Telephone Hearing
If the Board schedules a hearing by
telephone conference, the Registry will prepare a Notice of Hearing which will be sent by
facsimile to the applicant and must be served by the applicant along with its application
and supporting documents.
In accordance with Rule 10(1), the
Registrar may require that a statutory declaration be filed with the Board prior to the
telephone conference, and the panel may also require a statutory declaration to support
any facts relied on during the conference call.
Challenge Canada Limited (Crofton Pulp and Paper Division),
BCLRB No. B218/93, 19 CLRBR (2d) 147 (refusal of
overtime constituting strike action)
Canadian Pacific Forest Products Limited (Gold River
Pulp Mill),BCLRB No. B45/94,
(refusal of overtime constituting strike action)
MacMillan Bloedel Limited (Powell River Division),
BCLRB No. B80/94 (applicant for cease and desist order
required to show union was responsible for picketing activity before union is named in the
British Columbia Distillery Company Limited, BCLRB
No. 24/75,  2 Can LRBR 183 (plant closure deemed unlawful lockout)
Natural Glacial Waters Inc., BCLRB No. B329/2000
(requirement to bargain collectively before strike vote)
BCLRB No. B285/2001
(picketing delivery sites; whether striking employees did enough work at site to picket
Superior Poultry Processors,
BCLRB No. B274/2000 (Board's
discretion to direct longer strike notice for protection of perishable property)
Board decisions since January 1, 2000 are
available without charge on the Internet at www.lrb.bc.ca.
Board decisions can also be
Canada Law Book Inc.
240 Edward St.
Aurora, OntarioL4G 3S9
Telephone (toll free) 1-800-263-2037
LRB Staff provide general information and
assistance to the public, but they cannot act as your representative or advisor.For answers to specific concerns related to your
situation, you should consult a lawyer or an advisor experienced in labour relations.For general clarification, call the Board's
Information Officer at 660-1300.