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JS380 (30)
Lecture 7

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University of Regina
Justice Studies
Stefan Idziak

Lecture 7: Economic Sanctions Available to the Employer Definition of "Lockout"  Lockout is any closure or suspension of work by the employer to compel their employees to agree to terms or conditions  has purposive language since there are many other reasons an employer might cease operations.  does not include an unconditional plant closure- this is not a locout.  typically has the same timeliness as a strike, and can arise wherever a strike would be legal.  Only restriction is the ongoing duty to bargain in good faith.  the employer's analog to a strike  does have a purposiv eelement- shutdown must be for the purpose of compelling employees to agree to terms and conditions of employment o this is because employers have a lot of otehr reasons to close a business, and in the labour contxt we need to distinguish labour-related shutdowns from other kinds of layoffs and plant closures.  part of this is realted to the fact that once the bargaining freeze is over, the employer can unilaterally change the terms of employment.  lockouts are more common where the employer can hire replacement workers o replacement workers allowed in some provinces in order to keep business viable and to mirror the right of the union to look for work elsewhere o but in BC, no replacement workers allowed Westroc Industries Ltd. v. United Cement, Lime and Gypsum Workers Internation Union [1981] Can LRBR OLRB Facts  company had manufacturies in several provinces.  during bargaining at one plant, company believed the union was deliberately proloning bargaining so all the units could go on strike at once.  So the employer locked the union out, and hired some replacement workers.  Board found good faith from the employer Analysis  employer may hire temporary workers in Ontario  so as long as not motivated by animus, the employer can put pressure on the unio by replacing the worker.  Strikes and lockouts to be treated in much the same way. o employer intended to have the power to pre-emptively lock out. o as long as not motivated by animus.  A timely lockout aimed at presurring union is part of the bargaining process.  Right to bargain collectively doesn't mean union has the right to have all the advantages.  Where hiring of replacements or lockout motivated at avoiding agreement or punishing employees, thisis illegal.  permanent replacements is also unacceptable, since it would mean the employer was not trying to reach agreement with the union  but here the employer hired temporary workers and paid them the union rates. o clearly temporary and the union can come back to work once the bargain is settled.  temporary workers not much worse for union than simply being locked out, and in as much as they may keep the business in working shape, may be good for union.  not allowing any workers or lockouts would give the union a huge strategic advantage.  No evidence of animus.  when and if the workers want to come back to work, the board will closely scrutinize the employer to make sure he hasn't actually hire permanent workers Ratio  employers may use pre-emptive lockouts when in good faith in order to put pressure on the union, as long as the procedural steps are met  in ontario at least the use of temporary workers is fine, keeps parties in relative bargaining positions and ensures the long term viability of the business. Canadian Association of Industrial, Mechancial and Allied Workers v. Paccar of Canada [1989] SCC  Unilateral employer-instituted changes to working conditions following the statutory freeze are ok as long as the employer gives the union a chance to accept the proposed terms before acting on its own, and the employer's conduct must otherwise show a desire to conclude an agreement. Legal Forums Regulating Industrial Conflict  nowadays primarily the job of labour relations boards, but used to be mainly the courts o regulating labour was basically a combination of criminal and tort law o common law of trespass and injuctions and so on used to regulate industrial disupates  Now collective bargain constrains when and how strikes can happen, and labour boards give remedies such as cease and disist o may occasionally lead to penal and quasi-criminal sanction.  some activites and some strikes and lockous may lead to actions in the civil courts, labour board proceeding, a criminal prosecution, and an arbitration o each will have a different set of rules and different available remedies. o all are subject to the charter  historically courts were the ch
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