Written by Peter Cameron
As COVID19 swept through Canadian meat and poultry processing plants, union leaders urged companies to close the worst-affected plants until employees could be tested, isolated if infected, and have their contacts traced; and until plants and processes could be modified to better protect employees. Sometimes employers did close plants, but often only after delays resulting in more infections.
Is there more that unions themselves can do in these extreme circumstances? In particular, can a union legally shutdown a facility where a pandemic is raging and where clearly its continued operation is a danger to the health and lives of the union’s members?
In most jurisdictions, individual workers have a right (and often a duty) to refuse unsafe work. For example, under BC’s Workers Compensation Act, “every worker must… take reasonable care to protect the worker’s health and safety and the health and safety of other persons who may be affected by the worker’s acts or omissions at work…”. This appears to cover a worker’s refusal to work in circumstances where he or she is exposed to life-threatening illness.
Beyond the rights of workers as individuals, is there a collective right to refuse work? Could the union legally initiate a full-scale work stoppage, involving all of its members at the workplace, in order to compel the employer to make changes necessary to protect the employees’ health?
Relative to the law in many other democracies, labour law in Canadian jurisdictions is very restrictive with respect to legally permissible strikes. The basic outline of our labour laws was established by a regulation (PC 1003) enacted during World War II, when uninterrupted production was paramount. PC1003 barred strikes during the life of a collective agreement and, in exchange, the regulation provided unions and employees with the right to a process of binding arbitration to resolve mid-contract disputes. This key tradeoff was carried forward into federal and provincial labour laws after the war.
From labour’s perspective, this tradeoff has its limitations. These are especially evident where arbitration is inherently unable to address an urgent problem in an effective and timely way. Some jurisdictions (including BC) have exceptions to the prohibition against everymid-contract job action.
Although BC has a typical (and typically broad) definition of ‘strike’ in its Labour Relations Code, another provision of the same Code provides an exception. The definition itself is comprehensive, including “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…”.
However, the definition is subject to a later qualification in section 63 of the Code, which provides that any “act or omission by a trade union or by the employees does not constitute a strike if… it is required for the safety or health of those employees…“.
Putting the rule together with the exception results (at least arguably) in this:
Even during the life of a collective agreement, a concerted activity of employees in accordance with a common understanding, designed to restrict production, is nota strike (and therefore is not contrary to the Code), provided that the activity is required for the safety or health of those employees.
In the case of a virus that is infecting an employers’ workforce, a dispute could arise with respect to the measures needed to protect the employees’ health, including a temporary plant closure. This is a classic example of a dispute where arbitration cannot provide a timely remedy.
In jurisdictions without the same kind of legislative provisions as BC, any purported illegality of job action during the life of a collective agreement, in circumstances where arbitration is clearly inadequate, may be open to a Charter challenge.
Before initiating a COVID-related work stoppage, it would be important for the union to make other attempts to persuade the employer to suspend its operations. The union would also need to ensure that employee health is the real reason for the work stoppage, and that the health issue doesn’t get mingled with other differences the union may have with the employer.
The above comments deal only with the question of legality. The practical considerations facing union leaders in a specific case may be significant, and may weigh against a work stoppage. But, where inaction from the employer and government is endangering the lives of the union’s members, it can’t hurt the union’s cause to consider self-help.
Peter Cameron, “Could a Union-Led Work Stoppage to Combat COVID be Legal in Canada? ” Canadian Law of Work Forum (May 19 2020): http://lawofwork.ca/?p=12521