Class Notes (806,741)
Canada (492,424)
JS380 (30)

lec 2.docx

6 Pages
Unlock Document

University of Regina
Justice Studies
Stefan Idziak

Lecture 2: Employee Status During a Strike  right to strike not granted by the constitution, but implied from the statutory ight of employees to take part in the "lawful" activities of unions, from the restrictions on when and how a strike can be effected, and from the prohibition of employer retaliatory action designed to eradicate the union or punish strikers. o protection is afforded strikers when the strike is legal.  Someone who is on strike is not held to have been fired  Some provinces allow replacement workers, though no provinces allow the use of professional strikebreakers  In Ontario, may hire permanent replacement workers after 6 months  Temporary replacement workers must vacate jobs when striking workers return o legal in all provinces except BC and Quebec, which do not allow the use of any replacement workers. o temporary workers but not premanent replacement workers in teh Federal jurisdiction  cannot hire temporary workers in Fed jurisdiction when for an improper motive  Reasons to allow temporary replacements o parallels rights of union members to get outside work o preserves teh business o avoids knock on effect on other business o exposes the true market value of the labour in quesiton  Reasons against o avoiding violence o allowing new hires upsets balance of power in favor of employer R. v. CPR [The Royal York Case] (1962) Ont. H.C. Facts  appeal of a prvicial court dismissal of an unfair labour practice charge o hotel sent out letters that required employees to either accept new terms or resign, and if they didn't, they would be fired.  LRA said that no one can be deemed to have quit or been fired simply as a result of not working during a strike or lockout. Analysis McRuerc  this was an unlawful labour practice  employees may be on strike and the employer cant strike them o even if some other employees are coming to work.  if this wasn't the case, the employer could just unilaterally aly down terms, and if the unoin didn't like it, they would be deemed to have quit and lose all their pension rights, insurance rights, seniority rights  the prohibition against firing occurs until the strike is resolved and the employees come back to work, the employee takes work with other employers, the employmee dies or becomes incapable of work Ratio  Just because you are not coming to work during a strike or lockout does not mean you have quit or been fired  the employment relationship will continue until the strike ends, the employees move on to other work, or the employees die/incapable of work Aftermath of Royal York  decision upheld all the way to SCC  in CPR v. Zambri (1962) o court found that the right to strike is implied by the act which said all persons free to join union of their choice and participate in lawful activiteis  since stirking is lawful, employee has the right under the LRA o obiter- Locke  thought that where the employer has replacement workers, not necessary that the employees must be hired back on  LRA allowed replacement workers.  if the employer has no work for the struck workers too bad.  IN some provinces the use of profession al strike breakers has been forbidden  in Quebec and BC even temporary strike breakers are not allowed  Where replacements allowed, the contraversial issue is whether the employer can maintian operations by using permanent replacements without committing the unfair labour practice of refusing to employ someone due to legal activities of union o so legislators in ontario and manitoba added language ensuring that the struck workers would have their jobs back  In Ontario you can hire replacement workers after 6 months Canada Air Line Pilots' Association [CALPA] vs. Eastern Provincial AIrways Ltd. (1983) CLRB NS Facts  During lawful stirke employer hired replacement workers.  when srtike concluded, agreement was that struck workers would return in order of seniority  and seniority wouldn't effect the replacemet workers  Union claimed this violated the labour code, since it would mean the struck workers would only come back after the replacement workers  employer said that there is no guarantee that employees will be renstate Analsyis  Court basically agreed with the union, bringing in new people and suspending priority rights so as to cut out the unionized pilots violates the section 184(3)(a)(Vi) of hte Canada Labour Code o can't discriminate against a person because that person has participated in a legal strike  this is exactly what the employer was trying to do by putting terms suspending seniority into the new collective agreement Ratio  you can't put the union behind the replacement workers in terms of positions or seniority since this is defacto hiring permanent replacement workers Aftermath  CLC ammended to say that struck workers must be returned to wrok in preference of any replacement workers who started at the workplace after strike started. Mini-Skool Ltd. (1983) OLRB  baiscally there was legislation which allowed workers to come back individually for the first 6 months of a elgal strike  The board held it was not unfair for the lawyer to prefer the employees who came back early to more senior employees who stuck it out, as long as this wasn't based on anti-union animus  in a similar case, Shaw-Almex Ltd. the employer couldn't show that the feelings of loyalty was based on skills or something, so the board found animus.  in Ottawa Citzen [1999] the employer filled vacancies following a legal strike with the replacement workers rather than those who had been on strike. o the employer was able to show this was based on competence rather than anti-union animus, so that was ok. Replacement Worker Laws  Quebec has anti-strikebreaker laws o during strike or lockout, employer can't use most kinds of employees to perform work o can only use managers who were hired before the bargainig started  so greatly limits ability of the employer to keep the business going. o breach leads only to a non-binding report and eventual prosecution, and the prosecution won't resolve until aftr the strike  only true erelief injuncitve which doesn't always work out for union o however seems to have worked pretty well and now is well regarded in Quebec  BC prohibits replacement workers o includes people who ordinarily work at a diferrent site, or are transferred to the struck location after the date notice to bargain is given o unlike Quebec, BC allows striking workers to return to work even if the rest of the union keeps the strike going. Paul Weiler "Striking a New Balance: Freedom of Contract and the Prospects for Union Representation" (1984) 98 Harv. L. Rev. 351  Why should we allow employers to keep business going during a strike? o maybe it shouldn't  gives employer big advantage at the bargaining table  means the workers are not making money but the employer still is.  most effective against small, disadvantaged groups of workers. o but there are good reasons o permanent replacement workers are not far, because they but at risk the strikers jobs and the possibility of collective bargaining in the future.  not justified by the legitimate interests of the employers, most of whom can recruit even iwthout promising permanent positions. o but temporary workers allow the employer to keep the business going  even if its just through the use of management.  But how does this relate to Americna labour law o the presumption is that deadlocks at the bargaining table should be resolved
More Less

Related notes for JS380

Log In


Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.