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Is a “Day of Protest” an Unlawful Strike?

UPDATE: As predicted, the OLRB has ruled that the threatened day of protest is in fact a strike, and since the teachers are not in a legal strike position, an unlawful strike.  Here is the decision.

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I’ve been swamped with deadlines so far this year, so behind on blogging.  But damned if labour law stuff doesn’t keep happening!

Is a Day of Protest a Strike?

So, labour law students, what do you think about this planned “Day of Protest” that some Ontario teachers plan to engage in tomorrow? My kids are super pleased,  but Is it lawful?   McGuinty and the Liberals say no, but the unions and the NDP say it is lawful.  Somebody must be wrong.

Walk through the analysis.  Where do you start?  How about with the definition of a “strike”.  Look at the standard definition used in the Ontario Labour Relations Act:

“strike” includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow-down or other concerted activity on the part of employees designed to restrict or limit output

Do you think that definition catches a bunch of employees agreeing to take a day off work to engage in a political protest?

Next, look at Section 46. It says that every collective agreement is deemed to prohibit a strike during its term.  I assume that the collective agreement imposed by the Liberals includes a ban on strikes.  So if the protest is a ‘strike’, then it would violate both Section 46 of the Act, and the no strike clause in the collective agreement.  The teachers clearly are not in a legal strike position right now.

Consider also Section 83. It says that it is unlawful for someone to do anything that they ought to know might cause an unlawful strike.  Like, say, encouraging workers who are not in a legal strike position to go on strike.

So, if an organized walk out to engage in a protest is a strike, and a strike is unlawful, on what basis could the unions and the NDP be saying that the protest is lawful?

The Charter Argument

I have been too busy to follow the arguments carefully in the news.  However, I have to assume that the argument is that the law banning workers from engaging in a one day political protest is a violation of the Charter of Rights and Freedoms.  That argument has been made before.

The most analogous case would be that involving a walk out by B.C. teachers in 2002 in a similar situation.  The teachers were unhappy about legislation that restricted their collective bargaining rights, so they engaged in a one day protest in the form of a work stoppage.  When that work stoppage was declared an unlawful strike, the teachers’ union alleged that the definition of strike, insofar as it prohibited teachers from engaging a political protest against the government, violated their ‘freedom of expression’ in Section 2(b) of the Charter.  The B.C. strike definition is very similar to Ontario’s:

“strike” includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slowdown or other concerted activity on the part of employees that is designed to or does restrict or limit production or services,

The teachers unions lost that argument at the level of the B.C. Court of Appeal.  Here is the decision.

The Court ruled that political protest of the sort the teachers engaged in was protected expression.  Moreover, the definition of strike in the B.C. legislation infringed Section 2(b) of the Charter by restricting the teachers expression. However, the Court ruled that the violation was ‘saved’ by Section 1 of the Charter.  As I explain in my Beginners’ Guide to the Charter and Work Law, Section 1 allows a government to pass a law that violates its citizens fundamental freedoms if the violation is a reasonable limitation, considering other competing concerns.

The Court found that the limitation on mid-contract strikes, including political protests, was a reasonable limitation on the teachers’ freedom of expression, given the pressing competing interest the state has in creating stability in workplaces during the term of collective agreements, and in protecting the public from undue harm caused by a work stoppage.  The Court explained the ‘strike’ definition as follows:

There is general agreement that at some point legislative intervention to restrict political protest work stoppages is justified.  The Legislature has imposed a standard based on the effects of the work stoppage, one that is “designed to or does restrict or limit production or services”.  This can be fairly described as a bright line test, leaving little ambiguity or discretion in the Board charged with the supervision of its application.  No distinction is made between collective bargaining strikes and protest strikes and no question of characterizing a strike as one or the other arises.

The union argued that the complete ban on all protest strikes is too broad.  The law should only prohibit protests that cause a “significant disruption” to the public interest should be banned.  The Court said that standard is too vague to be left to judges, and that discretion on drawing the line between lawful protest and unlawful strikes should be left mostly to legislatures.  A ban on midterm contract walkouts did not prevent teachers from engaging in other forms of protest and expression outside working hours.  Therefore, the ban in political protests in the definition of a strike was saved by Section 1.

What do you think it all means?

So, the precedent is not on the teachers’ unions side for now.  But these Charter cases are complicated and can take years to decide.  Already there are several cases on their way up the court system questioning whether there is a Constitutional right to strike.  If there is, then that might change the issues and arguments, possibly creating different outcomes than in the past.  The rules governing the Charter and work law are very fluid these days.

It would not surprise me to hear that the Labour Board has issued an order finding the planned walkout is unlawful.  The Board acts incredibly fast when it comes to banning work stoppages it finds to be unlawful. Recall the order banning a strike by TTC workers issued from the bedside of the OLRB Chair in the middle of night! I understand there is a hearing set for this afternoon.  We will have to see how this plays out in the next 12 hours.  My kids are hoping for another ‘strike’ day, as they call it.

Question to Consider

The law that imposed the collective agreement is itself the subject of a Charter challenge.  If that law is later struck down as unconstitutional, do you think that fact should be relevant to the decision of whether this planned protest should be treated as unlawful?

Do you think there should be a legislative ban on strikes during a collective agreement?  There isn’t in the U.S.

Do you think the definition of “strikes” should include a protest against a government’s public policies?  Or should a strike be defined more narrowly as a work stoppage designed to put pressure on the employer in collective bargaining?

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3 Responses to Is a “Day of Protest” an Unlawful Strike?

  1. Chris Davidson Reply

    January 10, 2013 at 6:10 pm

    Twitter sugests one of the teachers’ unions is relying on this case from the Harris era: Ontario (Attorney General) v. Ontario Teachers’ Federation, 1997 CanLII 12182 (ON SC), http://canlii.ca/t/1vvfw
    The court refused to enjoin a political protest at the time. The court’s decision was based, however, on the legislation that governed teachers’ strikes at the time. That legislation said that strikes “against the board” were prohibited during the term of collective agreements. It wasn’t clear to the court that a political protest was against the board.
    That legislation was replaced, however. Currently the Education Act (not the LRA) governs teachers’ strikes. The Education Act now provides,

    277.2 (1) The Labour Relations Act, 1995 applies with necessary modifications with respect to boards, designated bargaining agents and Part X.1 teachers, except where otherwise provided or required by this Part. 1997, c. 31, s. 122.

    [...]
    Strike

    (4) For the purposes of subsection (1),

    (a) the definition of “strike” in section 1 of the Labour Relations Act, 1995 does not apply; and

    (b) “strike” includes any action or activity by teachers in combination or in concert or in accordance with a common understanding that is designed or may reasonably be expected to have the effect of curtailing, restricting, limiting or interfering with,

    (i) the normal activities of a board or its employees,

    (ii) the operation or functioning of one or more of a board’s schools or of one or more of the programs in one or more schools of a board, or

    (iii) the performance of the duties of teachers set out in the Act or the regulations under it,

    including any withdrawal of services or work to rule by teachers acting in combination or in concert or in accordance with a common understanding. 2000, c. 11, s. 20; 2003, c. 2, s. 20 (2); 2009, c. 25, s. 40.

    So Mike Harris seems to have closed that particular loophole that held the teachers in 97. However, the fact that the legislation governing teachers’ stikes used to impair freedom of expression, freedom of association and freedom of assembly less than the current legislation is evidence that the current restriction on the right to strike is not minimally impairing of any one of those three fundamental Charter freedoms.

    Furthermore, whithout reading the BC case, if the collective agreement in force in the BC case was freely negotiated or determined by interest arbitration, that would distinguish the constitutional analysis under s. 1. I think there’s difference between finding that it’s reasonable in a free and democratic society to impair constitutional rights becasue of an agreement freely entered into (or concluded by an impartial third party) and concluding it’s reasonable in a free and democratic society to limit constitutional rights based on unilaterally promulgated legislation. In other words, if parties want to be in a collective agreement, it might be reasonable to limit their right to strike. If, however, parties have absolutely no desire to be in a “collective agreement” is it reasonable that the imposed agreement (or really Bill 115) simply takes that right away?
    Of course you could always just follow Langille and say that an individual teacher undoubtedly has a right not to show up at work (though she may be fired) and that, therefore, it is unacceptable under 2(d) of the Charter to target a walkout because it’s a group of teachers not a single one (though the entire group of some 76,000 teachers may be fired). Even that level of protection would probably help ETFO because I don’t know where you can find 76,000 new teachers on Monday.

  2. Jody Reply

    January 10, 2013 at 7:14 pm

    Fascinating post! Now for your Explain That To Your Client time.
    First Question:
    The PSFA may call teachers’ imposed working conditions a “collective agreement”, but does that make it true? (IF you aren’t sure what I’m asking try substituting the words “Magical Singing Unicorn” for “collective agreement” and I think you’ll understand).
    Background: I looked up a few explanations of “contract” under Ontario law. As far as I can see, a contract requires unrestricted negotiation and the un-coerced agreement of all parties affected by the contract. Am I correct in saying that this standard, what Minister Broten imposed could not be called a contract? (Negotiations were nil and there was no agreement involved, also no arbitration was allowed.) My Google search seemed to indicate that a collective agreement is just a contract made with a union. Since a “collective agreement” is a type of contract, requiring un-coerced agreement, how can one be imposed by a third party like the Minister of Education? Sure, she has the right to impose something under Bill 115 but if it’s something other than a contract/collective agreement, I wonder if these rules and court decisions still relate to the situation.

  3. Ethel Reply

    January 12, 2013 at 11:01 pm

    “Alas, justice is considerably slower for employees”

    I think you need to compare apples with apples. I assume emergency hearings and decisions are also held in cases of lockouts.

    The freedom of expression applies whether a person is an employee or an employer (or neither). Generally speaking, where the right to strike applies, there is also a right to lockout employees. Both actions involve some breach of the employment agreement.

    A Court undertaking a balance of public interests on important constitutional matters has to consider the wider implications.

    If we accept that freedom of expression has been violated, and that employees should be able to engage in a protest strike despite the purported restrictions, we must also accept that an employer can lockout employees in equivalent situations as a form of protest and free expression.

    As mentioned in the above comment, an employment agreement and collective agreement is just a form of contract. A strike and a lockout both involve a breach of contract. If we accept that our freedom of expression is violated by resticting our ability to deliberately breach an employment agreement, we must also accept that the same applies to other contracts between private parties.

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