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“Political Strikes” Not Protected by the Charter
April 17, 2007

In early 2002, the BC Teachers’ Federation and the Hospital Employees’ Union organized a day of walkouts and rallies to protest legislation which imposed several collective agreements in the public sector. When employers sought restraining orders from the Labour Relations Board, the unions challenged the constitutionality of the definition of “strike” in the Labour Relations Code. They argued that the protestors’ actions were political protests protected by section 2(b) of the Charter rather than strikes, and so if they fell within the Code definition of “strike” that definition was illegal.

The original panels of the Labour Relations Board split as to whether the prohibition of political protest rallies involving work stoppages violated the Charter. On reconsideration, the Board found that the Code‘s definition of “strike” infringed section 2(b) but was saved by section 1 of the Charter, and was therefore constitutionally sound. The unions applied to BC Supreme Court for judicial review.

The Court concluded that the definition of “strike” in the Code did not infringe section 2(b) because it did not prohibit political expression and individuals were still free to exercise their right to political expression by attending political rallies. The definition, the Court ruled ,does restrict the time and form of political protest in a way that captures political protest rallies during working hours while a collective agreement is in place. That restriction does not, however, offend the Charter because the purpose of the right to political expression has “never been associated with a right to breach employment contracts”: it is an implied term of every employment contract that employees attend work, at their workplace, during their contracted hours of work.

The Court also determined that the definition of “strike” would be saved section 1 of the Charter in any event because “the overall objective of certainty, stability and the preservation of industrial peace” justified restrictions on mid-contract work stoppages in a free and democratic society.

The unions are expected to appeal the decision of the Supreme Court.

HEU & BCTF et al v. HEABC & BCPSEA (2007) BCSC 372