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Lecture 5

JS380 Lecture Notes - Lecture 5: Trade Union, Bargaining Unit, Kmart


Department
Justice Studies
Course Code
JS380
Professor
Stefan Idziak
Lecture
5

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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

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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.
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