Lecture 10: Industrial Conflict
while collective bargain in force, union cannot strike
o all bargains by law must have clause prohibiting strikes during the collective
o so characterizing an activity as a strike or not a strike is important in order to
determine the legality of the action
strikes are needed as weapons, since unlike other agreements, parties canno simply
strikes have different characters in the private and public sectors
work stoppage causes loss of prudction, business, customers
may damage the business itself, but workers also suffer
creates incentive for both sides to agree
employer saves a lot of money during strike
not worried about losing business, since no competition
pressure comes from public who are angry about not getting their
but they may get angry at public wokrers instead
Industrial Pluralism and Industrial Conflict
while collective bargaining highly regulated, the ultimate means of dispute resolution
remains the use of economic sanctions
o if union cannot win strike/lockout, it will not get a favorable agreement
so strikes are critical, but a large goal of labour law is avoiding their detrimental
First efforts at regulating strikes basically just banned them outright.
o but could not contain unrest.
Moved towards pluralist approach which relied more on dialogue and accomodation
o employers required to recognize and bargain with unions, and the use of
economic sanctions is tighting restricted
Some have argued that strikes should be banned altogether and replaced with
o reasons not to adopt this
absence of agreed upon standards for assessing wages
impossibility of abirtrators to fully understand all the economic
variables in a market economy
dnager of less acceptable bargains.
in addition, concerns about public spending have made governments
less likely to accept arbitrated outcome in the private sector.
So governments try and push parties away from strikes, without trying to set out the
content of the agreement.
o this puts the focus on trying to ensure equality of bargaining power.
Paul Weiler, Reconcilable Differences: New Directions in Canadian Labour Law (1980)
some argue that Canada's labour unrest should be met with a ban on striking and a
turn to arbitration
o we don't allow striking most of the time, why not eliminate it all together but most experts agree there is a natural connection between the right to strike and
the right to make a free collective bargain
at heart of collective bargain is the freedom of contract between employer and
o only parties to the contract truly know what is in their best interests
o they should be free to fix the terms of employment in a mutually acceptable
right to freely agree entails right to disagree, to not reach a compromise.
o but unlike in the contract arena, parties simply can't just walk away.
o we allow unions to provide a countervailing weight against the employers
superior bargaining power.
The employer would not reach an argeement at all if he had his druthers- status quo
is the preferrable state.
o union must be able to pressure employer away from this state
Striking acts as a weapon that can force the employer to face teh consequences of
failing to agree
o employer will realize it is less painful simply to come to agreement, even if
the must move away from their perferred condition.
often the very prospect of strike can provide the needed incentive to come to
since strikes play such an intrinsically necessary part of our bargaining system, we
can't simply ban them.
Weiler here writing during a time of unrest, where the economic slowdown blunted
the power of unions. Employer didn't really losemuch from temporary shutdowns
when there was little demand in the first place
o strikes tend to be more successful the higher the demand for labour.
A Constitutional Right to Strike?
Since the Charter, there have been many challenges from union going after laws that
limti the right to strike
o right to strike not contained in Charter expressly, but unions argue it is
implicity in 2(d) and 2(b)
o mainly 2(d) is argued.
Reference Re Public Service Employee Relations Act (Alberta) (1987) CLLC
Statute removed the right to strike from public sector wokers
Analysis: Led Dain
2(d) does not icnlue the right to bargain collectively/strike.
2(d) is a broad right intended to cover many kinds of organizations, and not just
o there is thus broad ramifications from the idea that organizations have a right
to engage in particular activities on the ground that the acitivty is essential to
give the association meaningful existence
right to strike not necessary to give meaning to 2(d)
o look at the way totalitarian regimes restrict the basic association of people
o this is what 2(d) is designed to stop . modern right to bargain collectively no a fundamental right or freedom, but rather
the creation of legislation and the courts.
unions arguing that the right to strike is a necessary incident of the right to associate
under s. 2(d)
freedom of association is a response to the totalitarian regimes where meetings are
forbidden, curfews enforced, etc.
Value of freedom of association lies in the attainment of individual goals through the
aid and cooperation of others.
o also promotes general social goals
educates members in the operation of demonatric institution
allow effective sexpressio nof opolitical views thus influencing policy
so freedom of asosciation serves the individual interest, strengthens the social order,
and supports democratic ogvernment.
however, an organization is no more than the people tha mke it up
o a group of people has no particular rights beyond the sum of the inidividual
o since you can't have an individual right to bargain collectively, it makes no
sense to say there is a right to strike.
Scope of 2(d)
o Various theories as to what is covered.
Right to associate limited to a right to associate with others in pursuit
of common purposes
Protects the right to exercise constitutional rights in common
somewhat less restrictive
the principle that individuals are entitled to do in common what they
may lawfully do alone.
collective acitivtes are protected where they are fundamemtnal to our
culture and by common assent are deserving of protection.
consititutional protection of all acitivities which are essent