Labor & Employment Law

Defining Strike Related Activity

By Michael Fitzgibbon

The Ontario Labour Relations Board in the context of arranging a hearing into allegations that certain conduct amounts to an unlawful strike under the Ontario Labour Relations Act, 1995, discussed the "strike" provisions in the Act:

Strikes are permitted only where there is no collective agreement in force, and the bargaining parties have completed the compulsory conciliation process contemplated by the statute.  ?Strikes? at any other time are unlawful; moreover, the definition of ?strike? is quite elastic, and encompasses any work refusal by a group of employees ?in concert, in combination, or in accordance with a common understanding?.  Those words have been held to encompass a broad range of collective activity including: slowdowns, ?hot cargo arrangements?, ?sympathy strikes? and a concerted refusal to cross picket lines as an expression of solidarity with the actions of another trade union.  The definition is intentionally cast in very broad terms, and has been so construed by both the Board and the Courts. 

* * *

... the Act guarantees that, once a collective agreement is signed, there can be no strike or lock?out during its term of operation.  Moreover, the Act also prohibits behaviour on the part of a trade union or an officer, official or agent of a trade union that may counsel, procure, support or encourage an unlawful strike. 

As the Chair of the Board noted in General Motors of Canada Ltd.:

It suffices to say that if there is a work place dispute while a collective agreement is in operation, employees are obliged to use the grievance arbitration procedure to resolve that dispute. They cannot go on strike. Any work stoppage is unlawful. Moreover, an unlawful strike exposes the employees to discipline or discharge, and exposes the union to substantial damages for any production lost as a result of the strike.

These are tough cases, not for the legal principles, but for the broad repercussions they have on the workplace parties.  

Full post as published by Thoughts from a Management Lawyer on November 11, 2010 (boomark / email).