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Sympathy Strikes Not Protected by Charter
June 16, 2009

The Federal Court of Appeal recently ruled that provisions of the Canada Labour Code which prohibit sympathy strikes do not violate the right to freedom of expression guaranteed under the Canadian Charter of Rights and Freedoms.

In 2004, members of the Public Service Alliance of Canada engaged in a lawful strike action against Canada Grain Commission. Members of the Grain Workers’ Union, Local 333 and the International Longshore and Warehouse Union, Local 500 refused to cross PSAC’s picket lines to attend work. Both unions had collective agreement provisions which allowed their members to honour legal picket lines.

The Canada Industrial Relations Board held that the refusal to cross PSAC’s picket lines constituted an illegal strike and ordered the employees back to work. The sympathetic unions challenged the decision on the basis that the CIRB’s interpretation of the Code violated the right to freedom of expression and freedom of association under sections 2(b) and (d) of the Charter.

The Federal Court of Appeal dismissed the unions’ appeals. The majority found that that the strike activity engaged in was not a form of expression protected by the Charter. As a result, the Code prohibitions on mid-contract strike activity did not infringe the right to freedom of expression in section 2(b) of the Charter. The minority held that although section 2(b) was infringed, the definition of strike was saved by section 1 of the Charter as being a reasonable and justifiable limit on the right to freedom of expression. The Court did not address the union’s arguments regarding section 2(d) of the Charter. A similar issue was considered by the BC Court of Appeal, in HEU & BCTF et. al. v. HEABC & BCPSEA(2009) BCCA 39 which was summarized on our website earlier this year. In that case, the Court found that the mid-contract strike activity was a form of political expression protected by the Charter. However, the Court concluded that restrictions on such activity in the BC Labour Relations Code was saved by section 1 of the Charter.

The Federal Court of Appeal decision confirms the CIRB’s longstanding interpretation of the Code prohibiting federal sector employees from engaging in sympathy strikes, even where their collective agreement expressly permits such activity.

Grain Workers’ Union, Local 333 et. al v. B.C. Terminal Elevator Operations’ Association et. al., 2009 FCA 201