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BC Labour Relations Board Issues Conflicting Decisions on the Constitutionality of the Strike Provisions of the Labour Relations Code
April 2, 2004

The BC Labour Relations Board recently issued two conflicting decisions on whether the definition of “strike” in the Labour Relations Code (the “Code“) violates the Canadian Charter of Rights and Freedoms (the “Charter“). Both cases arose as a result of single day strikes which the respective Unions described as “political protests”.

The term “strike” is defined broadly in the Code. The definition provides:

“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 of services, but does not include

(a) a cessation of work permitted under section 63(3), or

(b) a cessation, refusal, omission or act of an employee that occurs as the direct result of and for no other reason that picketing that is permitted by or under this Code.

Most strikes are, of course, directed at the employer of the striking employees, and are designed to place economic pressure on the employer. However, the definition of “strike” is broad enough to capture any withdrawal of services by employees, whether it be for collective bargaining purposes or in protest against the government. In the two recent cases, the unions challenged the constitutionality of the definition of “strike” on the basis it infringed their right to engage in political protest.

One case arose as a result of a one day strike by the Hospital Employees’ Union. The “protest” was called to protest the passage of government legislation that altered the terms of the union’s collective agreement. The second case involved a single day withdrawal of labour by members of the BC Teachers’ Federation to protest government legislation that brought their collective bargaining dispute to an end, and imposed new terms in their collective agreement.

The employers in both instances filed applications before the Labour Relations Board seeking declarations that the job actions amounted to an unlawful strike. Both unions defended their members’ actions on the basis that the right to protest was protected by Section 2(b) of the Charter, which guarantees freedom of expression. Both unions argued that the Code definition of strike was unconstitutional to the extent that it prevented them from engaging in such political protests.

In Health Employers’ Association of British Columbia and the Hospital Employees’ Union, Vice Chair Jan O’Brien determined that the single day “protest” engaged in by the HEU was protected under the Charter as free expression. She found that the Code definition of “strike” was overly broad because it prohibited employees from withdrawing their labour (for short periods, such as a day), as a form of political protest against the government.

In British Columbia Teachers’ Federation and the British Columbia Public School Employers’ Association, Vice Chair Saunders reached the opposite conclusion. He concluded that the single day withdrawal of services engaged in by BCTF members was unlawful under the Code, and that the definition of “strike” was constitutionally valid.

These conflicting decisions leave the state of the law in this area uncertain. Both cases will likely be reconsidered by the Labour Relations Board. Harris & Company was counsel for the Employer in both cases.

Health Employers Association of British Columbia and Hospital Employees’ Union, BCLRB No. B64/2004, February 24, 2004

British Columbia Teachers’ Federation and British Columbia Public School Employers’ Association, BCLRB No. B92/2004, March 19, 2004