Written by Craig Bavis, Victory Square Law Office, Vancouver
Labour relations has always been a little different in BC, and the current dispute, the Canadian Merchant Service Guild strike against Seaspan, is no exception. The Guild crews the Seaspan tugboats which operate from docks in North Vancouver, the same location as Seaspan’s subsidiary, Vancouver Shipyards. The tug division is regulated by the Canada Labour Code, which contains no restrictions on picketing, while the shipyards are regulated by BC Labour Relations Code, which regulates common site picketing and does not permit secondary picketing.
The Guild is a federal union picketing a common site of a federal and provincial employer. The Guild members are a small union and while important to Seaspan, tug operations are insignificant compared to its shipyards which have the federal government contract to build non-combat vessels under the federal shipbuilding strategy. The almost 1,000 shipyard employees, who are members of a multi-union poly-party certification with a current collective agreement, have not crossed the Guild picket line to report to work for the last three weeks. Surely that’s an illegal strike, isn’t it? No says the BC Labour Relations Board, in a recent decision called Vancouver Shipyards, which dismissed the Shipyards’ illegal strike application.
Unlike every other Canadian jurisdiction in Canada, workers in unions regulated by the BC Code have the right to refuse to cross a picket line because the definition of strike excludes a “cessation, refusal, omission or act of an employee that occurs as the direct result of and for no other reason than picketing that is permitted under this Code’. While it is easy to recognize picketing, the shipyards and its union disagreed on whether a federal picket line at a provincial employer is picketing under the BC Code.
Shipyards said no, based on the origin of the dispute theory that a picketing stemming from a federal dispute is not ‘permitted under the BC Code’. The Union said yes based on the location theory of the picketing, occurring at a provincial worksite. The Guild‘s action meets the definition of picketing in the BC Code “attending at or near a person’s place of business, operations or employment for the purpose of persuading or attempting to persuade anyone not to … do business with that person” but the Guild cannot picket as “provided by the Code” (s. 67) because it is not a person under the BC Code which “does not include a person in respect of whom collective bargaining is regulated by the Canada Labour Code.”
This issue was last addressed the early 1980s when the TWU put up federal picket lines at provincial worksites to protest BC Tel management working on telephones during a strike. The BC Labour Relations Board had regulated this picketing until the BC Court of Appeal ruled in the 1981 decision British Columbia Ferry Corporation v. Telecommunication Workers’ Union that although the province had jurisdiction to regulate federal picketing at provincial sites, the BC Code as drafted did not give the LRB that jurisdiction. This created what constitutional lawyers call a lacuna, which is filled by the common law. Twenty-one years later, the Supreme Court of Canada explained in RWDSU v. Pepsi-Cola Canada that under the common law, picketing is per se legal.
In light of these considerations, the BC Labour Relations Board rejected the location and origin theory of picketing in favour of a simpler test: Is the picket line lawful? Because the BC Code could, but did not prohibit or regulate federal unions picketing at provincial sites, lawful federal picket lines are “permitted by the Code” and BC workers have a right to refuse to cross them. The Board wrote:
Respecting a picket line is fundamental to union solidarity and has long been recognized and enshrined in the Code as an exception to the definition of strike. Taking the words “picketing permitted under this Code” in their entire context and in their grammatical sense harmoniously with the scheme and objects of the Code and the intention of the Legislature, as well as Charter values, I am persuaded the Legislature intended the language in subsection (b) of the definition of strike in the Code to create an exception for honouring lawful picket lines, regardless of whether that picket line is federally or provincially regulated. I find this interpretation is consistent with the purpose and context of the language in the Code, labour relations principles, and Charter values.
This dispute, and the BCLRB ruling caught many in the labour community by surprise, and we will continue to watch and see how this issue develops. It will probably put similar language at the top of the Canadian labour movement’s wish list for other jurisdictions.