Chapter
Six
Work stoppages
Generally
speaking, a strike is a refusal to work by employees acting with a common purpose.
The usual purpose of a strike is to compel an employer to agree to terms and conditions of
employment. A strike need not be a complete stoppage of work. For example,
overtime bans and work slowdowns can constitute a strike. A withdrawal of services
by employees, which arises from a legitimate concern for their own safety or health, or to
enforce a non-affiliation clause, is not a strike.
Similarly, a lockout is a restriction by
the employer of work that normally would be available for employees, generally by
suspending work or closing the place of employment. It is generally intended to compel
those employees, or to aid another employer to compel employees, to agree to terms and
conditions of employment.
The Code prohibits both strikes and
lockouts during the life of a collective agreement and every agreement must contain a
provision prohibiting "wildcat" strikes or lockouts. Any differences
arising during its term must be settled through the grievance and arbitration procedures
set out in the collective agreement.
Bargaining requirements
Even
if there is no collective agreement in force, certain legal preconditions must be
satisfied before a strike or lockout can begin. These preconditions are:
·
The
union and employer must first have engaged in collective bargaining;
·
A vote
must have been held to determine if the majority of employees favour a strike, or, in the
case of an accredited employers' organization, if the majority of the employers in the
organization favour a lockout;
·
Strike
or lockout notice of 72 hours must have been given to both the other party and to the
Board; and,
·
If a mediation officer has
been appointed by the Labour Relations Board or by the Minister of Labour and Citizens'
Services, that appointment must have come to an end, and 48 hours have passed.
These
restrictions are intended to ensure that bargaining takes place before strikes and
lockouts begin. They also ensure that strikes and lockouts are supported by the
majority of those who will be taking the action, and that the potential disruption caused
by a strike or lockout is reduced by providing notice that it is about to occur.
What are the consequences of an unlawful strike or lockout?
If
any of the preconditions mentioned above are not met, an application
may be made to the Board. A variety of remedies, including
cease and desist orders, are available to the Board. In the
case of strike and lockout votes, the Board may order that a vote
taken has no effect if the regulations governing such votes have not
been followed.
Unlawful
strikes and lockouts generally cause the most concern for the
parties involved and to others who are inconvenienced by such
actions. Any party alleging an unlawful strike or lockout can
ask the Board to hold a hearing on short notice. If the Board
finds that the strike or lockout is unlawful, it will order that it
be stopped. It may also make other remedial orders.
These orders, like any Board orders, may be filed in the Supreme
Court of British Columbia and are enforceable as court orders.
Since all collective agreements prohibit strikes and lockouts during the term of the
agreement, unlawful strikes and lockouts also violate the collective agreement.
Compensation for damages from wildcat actions can be claimed through the grievance
arbitration process in the collective agreement.
Sometimes individuals or organizations that are not involved in the
collective agreement are damaged by a wildcat strike. They may seek
compensation by suing those responsible for the wildcat action in
the courts if the Board has first determined that there has been a
contravention of the Code.
Strike and lockout votes
As
mentioned above, a strike or lockout vote must be held before a strike or lockout is
legal. In both cases, the vote is by secret ballot and all persons affected are
entitled to vote. All employees in the bargaining unit (except those excluded from
membership under the religious objections provision) can participate in a strike
vote. The vote must be conducted in accordance with the Labour Relations
Regulation. This regulation requires the party conducting the vote to appoint a
returning officer. It also sets out the form of ballot to be used which reads:
"Are you in favour of a
strike/lockout? Yes_____ No_____".
A
majority of those voting must be in favour of supporting a strike or lockout to meet the
legal requirements of the Code.
Notice requirements
A
strike can be called only within three months after the date of a favourable strike
vote. If a strike is not called during that time, another vote must be held in order
to renew the union's strike mandate. The same restriction applies to lockout votes.
A
union must give 72 hours written notice of its intention to strike to both the employer
and the Labour Relations Board before actually engaging in strike activity.
Similarly, an employer must give 72 hours written notice of a lockout. In certain
instances, as when perishable property is involved, the Board may lengthen the normal
72-hour period of strike or lockout notice. If services designated as essential are
involved, the union or employer must provide a new 72-hour notice if one notice period
ends without any strike or lockout.
Continuation of benefits
Most
existing health and welfare benefits normally provided by the employer must continue to
legally striking or locked-out employees provided the union pays the total costs or
premiums of such benefits. This means that striking employees do not have their
benefits coverage interrupted as long as the union is willing to pay for them.
Picketing
When
a legal strike or lockout is in progress, the Code allows employees to picket.
Picketing is a peaceful means by which employees can increase the pressure on their
employer to agree to terms and conditions of employment favourable to them. The
purpose of the picket line is to persuade persons not to do work for, or do business with,
the employer. A picket line, however, cannot be used to forcibly prevent persons
from entering an employer's premises.
Striking
or locked-out employees are entitled to picket where they normally perform work that is an
integral and substantial part of the employer's operation and which is under the control
and direction of the employer. Other operations of the employer may not be
picketed. For example, if the employer operates at more than one location, the
striking or locked-out employees can picket only the location for which their union is
certified and at which they perform their work.
With
the permission of the Board, picketing may also be conducted at other sites; for example,
where an employer attempts to have "struck work" performed away from its own
premises. Striking or locked-out employees may also picket the place of business of
an "ally" of their employer. An ally is a person who assists an employer
in a lockout or in resisting a lawful strike. Ally picketing is restricted to the
site at which the ally performs work for the benefit of the employer who is directly
involved.
Where
more than one employer carries on business at the same site (referred to as a "common
site"), the Board generally restricts picketing so that it affects only the employer
involved in the labour dispute or the ally of that employer. The Board has the
discretion to regulate picketing at a common site to ensure that the union has a way to
picket in pursuit of legitimate objectives. This means that in some circumstances
the Board can allow regulated picketing at a common site that affects third parties.
Such circumstances occur when the union has no other way of picketing at the workplace of
the striking or locked-out employees.
Replacement workers
Just
as the picketing provisions limit the lawful things employees can do during a strike or
lockout, the replacement worker provisions of the Code limit what an employer can
do. Employers are prohibited from using newly hired employees to replace employees
who are engaged in a legal strike or who are locked out.
An
employer can continue to operate during a labour dispute by using non-bargaining unit
personnel at that operation. Management staff cannot be transferred or used from
other operations or facilities of the employer, however, unless they were transferred
before the notice to commence collective bargaining for the new agreement was given.
Any
person who is not in the bargaining unit at the operation has the right to refuse to do
work of bargaining unit members during a strike or lockout. To protect this right,
employers are not allowed to penalize or discipline employees who refuse to do such work.
Are striking or locked-out workers still employees?
Yes, striking or locked-out workers are still considered to be
employees of the employer despite their involvement in a labour
dispute. They continue to be protected by the provisions of
the Code. Workers who are disciplined by the employer for
activities during a strike or lockout can use their grievance
arbitration procedure to determine the fairness of the discipline.
Frequently the settlement reached between the union and employer to
end the work stoppage will include an agreement on employees who
have been disciplined during the dispute.
