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JS380 (30)
Lecture 5

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Department
Justice Studies
Course
JS380
Professor
Stefan Idziak
Semester
Winter

Description
Lecture 5: Arguments for Allowing Speech  parents ought to understand the implications of the legislation on education  teachers have only one employer, they can't move, and the employer is vastly more powerful  the speech was relevant to teaching  role of teachers has a big impact on the public  schools are public places where speech should be encouraged Arguments Against  teachers have a greater access to parents' than the employer o may also have a particular influence  teachers may have a captive audience during parent teacher interviews.  National Day of Protest: 1976 was a one-day work stoppage o some employers called this an illegal strike.  In BC, tehse were not illegal strikes because at time there was still the purposive requirement, and here the employees did not have a subjective intent to elict an employment related response from the employer.  In NS, the CA found it was an illegal strike even though they also had the purposive language o Union political freedom does not include work stoppages. o strikes are only to be used when negotiations break down.  Wherevere there was no purposive language, the stoppage was found to be a strike.  In General Motors Canada Ltd. [1996] OLRB, the union had a day of protest o claimed this was protected by 2(b) o court agreed it fell under 2(b), but also found that it was a resoanble limit under s. 1. Grain Workers' Union Local 333 v. BC Terminal Facts  P represents employees at the Vancouver grain terminals  there is a collective bargain between the P and the D  the colelctive bargain allowed workers to refuse to cross picket lines establshed by other unions in job actions  a different bargaining unit went on strike in the harbor, and so the P workers refused to cross  D wants this declared an illegal strike  Union wants to rely on 2(d) and 2(b) in order to protect their actions Analysis  strike under the code is any cessation of work done in concert that is desinged to restrict or limit output o and strikes are prohibited during the term of a collective bargain  Unon has a refusal-to-cross clause in its contract, but these are not recognized as valid federally  BOard concluded that the attempt of the union to rely on the terms of the bargain that allowed them to refuse to cross could not be effective, because you cannot have clauses giving right to strike outsdie of statutory bargaining period o didn't vioalte 2(b) ebcause neither the purpose nor the effect of the legislation infringed freedom of expression o no 2(d) since no right to strike  D says union is trying to use 2(b) to get a right to strike, and there is no such right under the labour trilogy o labour trilogy deals with strike under 2(d), not 2(b) o 2(b) has been examined in the past with respect to striking (K-Mart, Pepsi- Cola) o labour trilogy old and may be time to revist  So SCC has recognized he importance of picketing under 2(b) and has held that 2(d) includes the irght of emjployees to organie and engage in collective bargaining.  so key question here will be whether the definition of the "strike" in the code infringes 2(b), and whether that infringment may be upheld under s. 1  Purpose of the prohibition o not to resptrict expression, but to limit the consequences of mid-contract strikes, particularly the oecnomic disrpution caused by unpredictable work stoppages  statutory prohibition of strikes is absolute, regarless of the expressive content of the workstoppage  not aimed at preventing any particular message  prohibtion etemporary, as it applies onlywhere collective agreement in force. o so the purpose is not to lmit expresion  doesn't matter why they are striking, we don't care about that, only that the strike doesn't cause chaos  Effect of the prohibition o limits ability to express their support for striking workers  by requiring the employees to cross a picket line, prohibition actually makes the workers do things that make them appear to support the employer/not support the strike o to show an effect-based limitation at law, must find a limitation, then see whether it goes to the Irwin toy factors  political/scoial decision making  seeking truth  individual self-fulfillment o labour disputes deal with fundemental legal, political, adn social issues, and opicketing brings debate about labour conditions into the public ream o clear has a political/social dimension o refusing to cross picketline a power means of expressing solidarity, partiuclarly where it means lost wages o the refusal to cross was a message in support to striking workers  especially inthe public sector, strikes are political, since the primary target of the strike is government and public opinion  public sector strikes also have a political dimiension since they deal with the appropriate alocation of public resources, the level of public resources to be provided, and so on.  so when workers were refusing to cross, they were sending a mesage that they supported the striking workers in order to put pressure on the government o so the effect of that act is to discourage employees from participating in social and political decision making in the community o so 2(b) infringed.  also could look at this from the perspective of individual self- fulfillment, since those in the labour union typically view refusal to cross as a moral obligation  Can the restriction be justified under s. 1?  Purpose- aoviding social and economic costs of labour unrest and strikes, yes pressing and substantial  clearly a rational connection between prohbition of mid-contract strikes and avoid industrial unrest  minimal impairmnet of rights o possibly, because Parliament could have provided an exception where the union has managed to get a provision which permits unions to refuse to cross o this is a common term in BC o nope, current balnket prohbition is within the range of reasonable solutions  carving out excpetion would underminet he objetive of increasingin inudstrial stability  proprotionality of impact on the right o probition does limit ablity to express solidarity, but they are still able to do other things  join the picketline outside work hours for example o in light of the costs of industrial conflcit, the infringement is proprotionate Analysis (concurring in result) Blais JA  doesn't think 2(b) violated here  strike activity had no social or political purpose o instead, it was an instrusion into a private contractual dispute between employees and employers o there was no direction towards any political issue here o only political dimesnion was that employer was government, and this is not enough o plus, workers free to support in other ways  effect of refusal to cross only felt by e
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