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
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
cannot hire temporary workers in Fed jurisdiction when for an
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
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.
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.
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
During lawful stirke employer hired replacement workers.
when srtike concluded, agreement was that struck workers would return in order of
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
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
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
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  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
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
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