If a union and an employer are unable to reach a collective agreement through negotiations, they may try to resolve the impasse through job action:
- The union and the employees engage in job action by going on strike
- An employer engages in job action by locking out the employees
Job action is intended to put pressure on the other party to the collective bargaining dispute to try to resolve a bargaining impasse. While a strike or lockout can be disruptive, it can be a highly effective tool for resolving a collective bargaining dispute.
The Board has exclusive jurisdiction to decide whether a strike, lockout, or picketing is lawful, as well as whether an employer is using replacement workers in contravention of Section 68 of the Code.
The Board can decide if the location and timing of the picketing is lawful. Conduct on the picket line, where the picketing is otherwise lawful under the Code, may fall within the jurisdiction of the courts.
What is a strike?
"strike" includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slowdown or other concerted activity on the part of employees that is designed to or does restrict or limit production or services, but does not include
(a) a cessation of work permitted under section 63 (3), or
(b) a cessation, refusal, omission or act of an employee that occurs as the direct result of and for no other reason than picketing that is permitted under this Code, and "to strike" has a similar meaning;
Most often, a strike will involve the employees refusing to work until their bargaining demands are met. It can also include any concerted action by the employees which is intended to or does restrict or limit the employer's production or services, including:
- overtime bans
- not following official work rules and hours exactly in order to reduce output or efficiency (work to rule)
The objective of a strike is to put pressure on the employer in collective bargaining. If employees refuse to work for some other reason (for example, because of a concern for their health and safety), it may not be a lawful strike.
What is a lockout?
"lockout" includes closing a place of employment, a suspension of work or a refusal by an employer to continue to employ a number of his or her employees, done to compel his or her employees or to aid another employer to compel his or her employees to agree to conditions of employment;
A lockout occurs when the employer closes a place of employment or suspends the work to be done by the employees in the bargaining unit.
The objective of a lockout is to put pressure on the employees and their union in collective bargaining. If the employer suspends work or closes the operation for other reasons (for example, because there isn't enough work or for a seasonal shut down), it isn't a lockout.
When can a party engage in job action?
The union can't go on strike and the employer can't lock out its employees during the term of the collective agreement. Even after the collective agreement has expired, the parties can't engage in job action until after certain steps have been taken.
The union can only strike and the employer can only lock out after:
- the parties have engaged in collective bargaining
- a vote has been held and the majority of the employees voting support a strike (or the majority of the members of an employer's association support a lockout), and the results of that vote have been filed with the Labour Relations Board
- strike or lockout notice has been given to the other party and filed with the Board at least 72 hours in advance
- if a mediator was appointed to help the parties, at least 48 hours have passed since the mediator reported out of the dispute
- if essential services are in dispute, until the Essential Services Order is finalized
Votes and return of poll
A union or an employers' association can't give notice or engage in job action unless a majority of the employees or employer members have voted in favour of job action (a mandate).
A vote must follow the requirements in the Code and Regulations. Otherwise, how a strike or lockout vote is held is up to the party holding the vote. If you have questions about the voting process, you may wish to review the union or employer association's constitution or bylaws.
The mandate established by a successful vote remains in effect for three months. Even if the bargaining agent doesn't intend to act on it immediately, a copy of the return of poll must be promptly filed with the Board once the voting ends.
If the party directly affected by the vote feels the requirements for a vote have not been met, they can challenge the vote. However, the vote must be challenged within five days of the return of poll Schedule 2: Return of Poll (Strike or Lockout Vote) being filed with the Board.
SCHEDULE 2: RETURN OF POLL (STRIKE OR LOCKOUT VOTE)
To challenge the vote:
- Complete an application by written submission (i.e. letter).
- Make sure the application has the information required as per the Rules
- Submit the application by email, mail, or courier to the attention of the Associate Chair of Mediation
- Serve the other party as required by the Rules
- Arrange to pay the $100 filing fee
Strike or lockout notice
Even once it has a strike or lockout mandate, the union can't go on strike and the employer can't lock out their employees until
- they have given notice to the other party and to the Board, and
- 72 hours have passed since notice was given
There are two exceptions to the 72-hour notice period.
- The Board may extend the notice period in labour disputes involving perishable goods
- If a mediator has been helping the parties, they can't engage in job action until 48 hours after the mediator reports out. In some circumstances, this may result in the notice period being longer than 72 hours
There is no requirement that the parties engage in job action at the end of the 72-hour notice period. Once notice is given, the employer can lock out its employees and the union can strike at any point while their mandate remains in effect except where the dispute involves essential services. Where essential services are involved, if the union or the employer don't act on their strike or lockout mandate at the end of the 72-hour notice period, they must give another 72-hours notice before they can engage in job action.
If the union or employer's association doesn't act on its mandate to strike or lock out within three months of the vote, it must hold another vote and get a fresh mandate before engaging in job action.
Filing strike or lockout notice
The written strike or lockout notice must be served on the other party and filed with the Board during the Board's business hours. If a union, employer, or employers' association wants to serve strike or lockout notice to the other party outside of the Board's normal business hours, they must arrange this with the Associate Chair of Mediation ahead of time.
If the notice is received:
- during business hours, the 72-hour waiting period starts at the time notice is received
- outside of normal business hours, the 72-hour waiting period starts at 8:00 AM the next business day
The Board will not accept a strike or lockout notice until it has received a copy of the return of poll from the union or the employer's association. This means that, even if a party files the notice, the 72 hours do not begin to run until the return of poll is filed.
What happens when the Board receives strike or lockout notice? Once the Board accepts the strike or lockout notice for filing, it sends written confirmation to the union and employer. This letter indicates when the 72-hour waiting period has started and when job action can begin. When a party files a strike or lockout notice they must include contact information for both parties.
During a strike or lockout (job action), an employer often continues to run its business or operation. For example, it might ask managers to do some of the work of the employees in the bargaining unit that is on strike or locked out. People who do that work are referred to as replacement workers.
However, in order to protect the integrity and viability of the bargaining unit, the employer’s use of certain types of replacement workers is restricted. A violation of these restrictions, even a relatively minor one, is an unfair labour practice.
What kinds of replacement workers can the employer not use?
An employer can’t use the services of a person who
- is hired/engaged after notice to bargain was given or bargaining actually started (whichever happened first)
- ordinarily works at another of the employer's place of operations,
- is transferred to a place of operations where a strike or lockout is taking place, if the transfer was after notice to bargain was given or bargaining started (whichever happened first), or
- is employed, engaged, or supplied to the employer by another person
to perform the work of an employee in the bargaining unit that is on strike or locked out.
An employer also can’t use any of the individuals in the categories listed above to do the work of a person so that they can do the work of an employee in the bargaining unit that is on strike or locked out.
The limits on replacement workers in the Labour Relations Code (the Code) can include volunteers.
An employer can’t require a person who ordinarily works at the struck or locked out location to do the work of the employees in the bargaining unit without that person’s consent.
However, if there is an essential services order in place, managers or others may be required to do the work of the employees in the bargaining unit, even if they don’t want to.
What if I think replacement workers are being used?
During job action, the union and the employees in the bargaining unit that are on strike or locked out have limited access to information about what is happening inside the work location.
However, the Board does require the union to support an application with as much specific information as possible such as who went into the worksite, for how long, and who they are. The union must also say why it believes these individuals are unlawful replacement workers.
Picketing is when an employee attends the place they normally perform work and attempt to persuade people not to:
- enter the place of business, operations, or employment
- deal in or handle the employer's product
- do business with the employer
Picketing is a way for employees to increase the pressure on their employer in order to resolve the collective bargaining dispute. Employees can only picket when the union is lawfully on strike or the employer has lawfully locked them out.
Employees can only picket at the site of the lawful job action. This means employees can only picket at a location if:
- it is where they normally perform work for the employer
- the work performed there is an integral and substantial part of the employer's operation, and
- the location is under the employer's control and direction.
Ally picketing: A union may apply to the Board for permission to picket at an ally's place of work. An ally is a person who, in the board's opinion, in combination, in concert or in accordance with a common understanding with an employer assists the employer in a lockout or in resisting a lawful strike.
If the Board finds that the person (including a company) is an ally, it can permit picketing by the union at the ally's location.
Common site picketing: Where more than one business operates where a union may lawfully picket, the Board generally limits the union's picketing to minimize the effects on third parties to the dispute.
The purpose of a common site picketing order is:
- to balance the union's ability to picket in pursuit of its legitimate objectives, and
- to limit the effect of the picket on businesses that are not involved in the labour dispute.
Filing an application
The Board processes applications under Part 5 of the Code on an urgent basis.
Before filing an application under Part 5, make sure to first review the Code, the Regulation, the Rules and the information below.
If you anticipate that you may be filing an application outside the Board’s normal business hours, if possible contact the Registry in advance, during normal business hours, to let the Board know. The Board ensures that a Vice-Chair is on duty on weekends and statutory holidays to deal with emergency situations and can be reached at the Board’s after-hours phone number. If you are filing outside of business hours and need the Board to deal with the application on an expedited basis, you must contact the Vice-Chair on duty.
Before the Board will accept your application, you must serve a copy of it on any responding parties. Unless the responding party agrees in advance, it is not enough to email or fax the application to a respondent, it must be personally served as set out in Rule 6(1).
You must submit a written application (by email, fax, mail, or courier) that includes, at a minimum:
- details of the conduct you say amounts to a violation of Part 5 of the Code, including what was done, by whom, where, and when
- the basis on which you say that the conduct is unlawful
- any other information required by the Rules, and, in particular, Rule 27
- the date and time you propose for the hearing, if requesting one
- the urgent exceptional circumstances, including any anticipated harm, if you are asking for a hearing within 24 hours
- confirmation you have served the respondent(s) as required by the Rules or confirm the respondent(s) agreement to accept service by another means
- arrangements to pay the $100 filing fee
Filing by email? The Board only accepts supporting information in PDF, MP3, or MP4 format. Supporting information cannot be provided by a file-share link at this time.
Processing the application
The Board will schedule urgent applications quickly and may immediately set a time, date, and place for an oral hearing. Unless the Board decides otherwise, hearings are held in Vancouver.
The hearing may be set at a time outside normal business hours, such as evenings, weekends, or statutory holidays.
It is important to know that once an urgent hearing is scheduled, the Board will only adjourn it if the Board decides it is appropriate to do so. Scheduling conflicts, including for counsel, tight timeframes, or inconvenience are not generally considered valid reasons for an adjournment. All adjournments (including those proposed by agreement) are granted at the Board's discretion and may be subject to conditions.
A party who intends to raise a preliminary objection to the application, including any issues with respect to service, must advise the Board and the other party at the earliest possible opportunity. The objection must set out the factual and legal basis on which the party intends to rely.
The Board may hold an urgent informal meeting with the parties on a without prejudice basis.
Leading decisions provide useful information on how the Labour Relations Board applies the Labour Relations Code (the Code) and information on what is or is not covered by the Code.