There is a timely and interesting discussion of the current political protests in Egypt and the Middle East in a post by Professor Brian Langille on the U of Toronto Law School blog.
This New York Times piece explains how labour actions were being used by protesters to aid the political movement pushing foran end to the dictatorships. Brian is explaining how the political protests that have taken down dictatorships would be violations of Canadian labour law if happened here. That is because any agreement by more than one employee to not report to work is a strike under very restrictive strike laws in Canada, regardless of the reason for not reporting to work.
As Brian notes:
The result is anyone participating in events such as we admire in Egypt would be violating Canadian law. They could be legally ordered
back to work by the labour relations board or a court, and subjected to real penalties if they disobeyed, whether they were members of a union or not…. The idea that Canadian law prohibits here, what is going on there, should give us at least pause and perhaps reason to become a little concerned. The truth is, our labour laws, properly interpreted, have and should have nothing to say about this issue.
Although many Canadians these day like to whine incessantly about how unionized workers are always striking, in fact, strikes are rare and Canada has one of the most restrictive rights to strike of all democratic countries. A key motivation of Prime Minister Mackenzie King in the early 1940s when he introduced our modern labour law model (in the legislation called P.C. 1003)–still largely in place today–was to restrict strikes, which were becoming more frequent during the War years as workers enjoyed a rare moment of bargaining power owing to labour shortages.
There are two key points to understanding the restrictive strike regimes in Canada. The first is that Canadian law hands employers a key benefit that employers in other countries must bargain to obtain–a ban on strikes during a collective agreement. For example, Section 79 of the Ontario Labour Relations Act says this:
Where a collective agreement is in operation, no employee bound by the agreement shall strike and no employer bound by the agreement shall lock out such an employee.
In other countries, including the U.S., employers need to bargain a no strike clause into a collective agreement, if it values this restriction. Here, the government gives that benefit to the employer as a statutory gift and refers all disputes arising a collective agreement to labour arbitration. Canadian law also bans strikes by nonunion workers and many unionized workers who the goverment believes should have no right to strike, with the result that well over 2/3 of Canadians have no legal right to strike. Even among unionized workers that do have a legal right to strike, that right is contigent upon first satisfying a series of legal hurdles, such as government conciliation, strike votes, and waiting periods. The result is that the window in which a strike is lawful in Canada is extremely small relative to most other democratic nations, and under constant threat these days of becoming even smaller (see discussion of how the Ontario government is considering banning all strikes by transit workers).
Secondly, the definition of a strike is extremely broad. Look at the definition in the Ontario LRA:
“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
It includes a “work to rule”–complying with the terms of your contract with the aim of harming the employer’s economic goals, as I noted recently. And, as noted above, it includes any agreement by more than one employee to not report to work. Period. If three employees agree to call in sick on the same day, that’s a strike. Brian uses the example of employees who don’t come to work so they go to a Blue Jay game. That’s a strike. It doesn’t matter why they called in sick.
This means that if a bunch of employees decide to skip work one day in order to attend a political protest challenging what they perceive to be abusive, repressive political actions by the state, they are violating labour laws. There are lots of Canadian cases where this very thing has happened, including this case involving employees of General Motors found to have engaged in an illegal strike when they attended a political protest challenging public policies in Ontario in 1996.
Do you agree that labour law should be used to ban protests against political parties and political agendas?
