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?