By Ida Martin
Imagine there is a group of federal government employees that are engaging in a lawful strike. Because of the physical location of your workplace, your employees can’t get to work without crossing the picket line. Your workers are unionized and have decided they won’t cross the picket line of the striking federal employees. As such, they are not at work. Can you require them to cross the picket line? What if there is a clause in your collective agreement that states that the company doesn’t expect members of the union to cross a picket line? Can you still insist?
According to a recent Federal Court of Appeal decision, G.W.U., Local 333 v. B.C. Terminal Elevator Operations’ Assn., you can. Even if your collective agreement states that the union isn’t expected to cross a picket line.
There was a lawful strike between the Public Service Alliance of Canada (PSAC) and the federal government. Members of the Grain Workers’ Union (GWU) and the Longshore and Warehouse Union (ILWU) decided they would not cross PSAC’s picket line and didn’t show up for work with their employers. The affected employers applied to the Canada Industrial Relations Board (CIRB) for declarations that the GWU and the ILWU members were engaged in illegal strikes and requested orders requiring them to return to work, despite the following provision in their collective agreements:
“The Union agrees that in the event of strikes or walkouts, the Union will not take similar action on the ground of sympathy, but will continue to work. The companies do not expect members of the Union to pass a picket line.”
This case has attracted a lot of attention because the union argued that requiring employees to cross a picket line is contrary to the Canadian Charter of Rights and Freedoms, specifically the freedoms of expression and association:
2.Â Â Â Everyone has the following fundamental freedoms:
b) Â Â Â freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
d) Â Â Â freedom of association.
The unions argued that the definition of “strike” in the Canada Labour Code (defined as including a cessation of work or a refusal to work or to continue to work by employees, in combination, in concert or in accordance with a common understanding, and a slowdown of work or other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output) is so broad that it violates the Canadian Charter of Rights and Freedoms by requiring employees to either cross a picket line or be illegally striking.
Union’s argument rejected
Neither the CIRB nor the Federal Court of Appeal (on appeal) agreed with the unions’ Charter argument. The CIRB said that treating a work stoppage caused by a refusal to cross another union’s lawful picket line as a “strike” doesn’t infringe on union members’ rights to free expression. Its reasoning was that:
- the purpose of the strike definition is to promote industrial peace and stability;
- the strike definition regulates only the timing and manner, and not the content, of the union members’ expression; and
- the strike definition was not a substantial interference with union members’ rights to collective bargaining.
The majority of the Federal Court of Appeal agreed with the CIRB:
- the strike activity at issue “had neither a social nor political purpose”; and
- the strike definition did not offend Charter expression rights in either purpose or effect.
Importance of decision
This decision is important because it preserves the ability of federally regulated employers to require their employees to continue to work despite a lawful picket by another union at their worksite. This decision also confirms that the CIRB may treat a work stoppage caused by a refusal to cross another union’s lawful picket line as an illegal strike for the purpose of preserving industrial peace and stability. This is true even where there are privately negotiated collective agreement provisions dealing with picket lines.
The unions have filed an application for leave to appeal to the Supreme Court of Canada. If leave is granted, it will be interesting to see how the Supreme Court of Canada deals with this issue.
Contact the author, Ida Martin