By David Doorey, Professor, York University
The strike at Canada Post is now into its second week. I’m frankly surprised that the Liberals haven’t just dusted off their new favorite Canada Labour Code Section 107 toy to order an end to the strike, like they’ve done three times already this year. A postal strike is far more disruptive to Canadians than a Westjet strike, but the Liberals were prepared to use s. 107 at Westjet. The use of s. 107 to bypass parliament and undermine the independence of the Canada Industrial Relations Board to end strikes may well eventually be struck down as unconstitutional, but the Liberals have already opened that can of worms, so it’s a little surprising that they are drawing the line at ordering an end to a postal strike at the busiest time of the postal year. Maybe there’s a concern that CUPW will not go lightly into the interest arbitration night and that yet another use of Section 107 could provoke a major fight with the labour movement.
Regardless, this week, I came across an interesting notice posted by CUPW to its members. The notice described how some CUPW members had been contacted by Canada Post (CP) and informed that they have been laid-off.
In several regions across the country, Canada Post has been calling CUPW members to lay them off. While some are saying it is temporary, we’ve heard stories that it may be more permanent. These types of phone calls are merely a scare tactic by Management. We urge members not to panic if you receive such a call.
Today, the Toronto Star confirmed that Canada Post is laying off workers “temporarily.” A Canada Post spokesperson is cited as saying that “the organization has informed employees that the collective agreements are no longer in effect and their conditions of employment have now changed, as per the Canada Labour Code — referring to the section of the code that covers lockout notices.” What in the world is she talking about? Because the collective agreement and the statutory freeze are expired, the employer is just free to start laying off strikers? Huh?
I’m still not sure what Canada Post is up to here. However, let’s walk through this unusual fact situation for fun, like it’s a labour law exam question, with the caution that I know nothing more than what appears in the CUPW notice to members. Namely, that some members have been called by CP management and told they are now laid-off.
There may be much more to the real facts than this, so especially if you are a CUPW member, do not treat this as legal advice! Talk to your union. This is just a hypothetical labour law exercise for class discussion.
Here’s the Labour Law exam question: During collective bargaining and in the midst of a legal strike, CUPW learns from members that Canada Post has been phoning individual striking CUPW members to inform them they are laid off. Analyze whether Canada Post’s actions raise any legal concerns. In your response, identify any possible statutory provisions that could be relevant to your analysis.
First off, I confess that I have never heard of an employer laying off employees who are already not working because they are on strike. Can an employee have two legal statuses at once: on strike and also laid off? Seems nuts. And what is the point of laying off a striking employee? What benefit does the employer receive by sending the layoff notice? I mean, other than spooking the workers? Is there some economic benefit to the employer, some cost saving associated with categorizing employees as “laid off” rather than “on strike”? We aren’t given sufficient facts to address this latter question.
Let’s begin with the most obvious legal point: It’s Illegal to layoff, or even to threaten to layoff employees because they exercised their legal right to strike. The Canada Labour Code is quite explicit about this (s. 94(3)(vi). Therefore, right away CP is breaking the law, unless it can demonstrate that the layoffs are unrelated to the fact that the laid off workers went on strike. How would it do that? I don’t know. Presumably CP would argue that the layoffs are the result of circumstances that have nothing to do with the strike.
For example, maybe CP argues that it implemented a restructuring plan that was in the works before the strike? But if that were the case, the duty to bargain in good faith (s. 50) required CP to raise the possibility of layoffs occurring due to restructuring with CUPW before making calls to CUPW members. Since CUPW appears to have learned about the layoffs directly from members who received the calls, we can assume that whatever “non-strike” related reason for the layoffs the employer might point to had not been a subject of prior collective bargaining.
The statutory freeze (in s. 50) that prohibits employers from making unilateral changes to working conditions has expired by the date of a legal strike. However, an employer still has a duty to bargain during a strike and the unilateral implementation of mass layoffs without any warning or prior discussion with the union would certainly seem to make a mockery of that duty.
This then raises another question. If CP decided to layoff strikers and did not first raise this with CUPW in the ongoing negotiations, then by calling the employees directly to inform them that they have been laid off, CP may have violated yet another law: interference with the representation of employees by CUPW and interference in the administration of the union (s. 94). As a general rule, employers can’t bypass the union and communicate directly with workers about fundamental changes to working conditions. Based on the very limited facts we are given in the exam question, there is a real question about whether Canada Post crossed a legal line by calling up strikers and saying, essentially, “I know you are on strike right now, but we’ve decided to lay you off. Oh, and we didn’t tell your union that we were going to do this.”
Students would get bonus points for a brief discussion of potential Employment Insurance implications arising from our fact scenario. I suppose it’s possible that by taking the position that the strikers have been laid-off for reasons unrelated to the strike, Canada Post could open the possibility for the workers to claim unemployment insurance benefits. The Employment Insurance Act disqualifies workers from regular unemployment benefits if the reason they are not working is “because of a work stoppage attributable to a labour dispute” (EIA, s. 36). However, if Canada Post claims in the Record of Employment provided to laid-off workers that the reason for the separation of employment has nothing to do with a labour dispute, then the workers should be entitled to benefits.
However, I have serious doubts that EI adjudicators would see it this way. It would be surprising if striking workers received EI benefits simply because the employer woke up one day and decided to label the workers as “laid-off for reasons unrelated to the strike.” If I was a striker and I received a ROE stating I am laid off because of a lack of work not attributable to the strike, then I would certainly claim EI benefits. I would love to see how that claim is adjudicated. But I have doubts that the workers would win their claims. [As an aside, it would be odd for an employer to help strikers receive EI benefits, since having replacement income helps a striker withstand the financial hit that accompanies a strike.]
This EI issue though points to a conundrum: either the layoff is because of the strike, in which case Canada Post may have run afoul of the Canada Labour Code rule prohibiting employers from laying off workers because they strike, or the layoff is somehow unrelated to the strike, in which case the strikers should (in theory) be entitled to unemployment insurance. So, which is it?
Ultimately, though, at the end of the day, not much is likely to turn on the fact that the employer decided to treat strikers as if they are on layoff. The important question is what happens to the strikers when the strike is over. The law is clear on this point: striking workers have job rights that entitle them to return to work at the conclusion of a strike (CLC, s. 87.6). Labeling the workers “laid-off” doesn’t effect this legal rule.
The exception to this golden rule is that an employer does not need to recall a striker if there is no work for them to do. It’s always possible that there is less work after a strike than before and, as a result, some workers will not be recalled, at least not immediately. It’s not uncommon that it takes a while for employers to ramp back up and that temporary layoffs are imposed in the interim. It’s also possible that employers lose work permanently during a work stoppage with the result that some layoffs become permanent (terminations). There is nothing unlawful about an employer needing fewer workers because there is less work to be done. This happens all the time. Provided that the layoffs are done in accordance with return-to-work protocols and/or collective bargaining provisions, that’s fine.
But this assessment of whether there is a demand for fewer workers when the strike ends is to be made at that time. Right now, it is merely hypothetical and also a matter for negotiations how many workers will be recalled when the strike eventually ends, and under what conditions. Canada Post can’t unilaterally make these decisions in the middle of collective bargaining by simply slapping the label “laid-off” on striking workers.
To conclude, it is not entirely clear why Canada Post decided to start phoning CUPW members to tell them they are laid off. We know one thing: that provocative move will seriously piss off CUPW leadership and the workers at a time when the parties should be looking for common ground. Therefore, you have to wonder what useful labour relations purpose is served by the move. Maybe Canada Post doesn’t really care that its action might be illegal, since they know there is no big scary sanction that would be ordered beyond “stop breaking the law”. Or maybe Canada Post is just throwing a grenade to pressure the Minister of Labour to intervene.
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There you go. What grade would you give me for that response? What point(s) am I missing or is there something completely wrong in my analysis (which is entirely possible, given that I wrote this hypothetical analysis off the top of my head without spending hours doing legal research!).
Again, our labour law exam question is hypothetical and based on very limited facts. Let’s keep an eye on this story as it develops. If CUPW ends up filing an unfair labour practice challenging the layoff notices, I will circle back to this story in a follow up post.
DD//