Earlier this year, the BC Labour Relations Board issued two conflicting decisions regarding the legality of “political” strikes or walkouts. One panel ruled such strikes were always unlawful during the term of a collective agreement. A second panel held unions had the right to engage in such “political” strikes during the term of a collective agreement, on the basis that such strike activity was a form of expression, protected by Section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter).
Original Panel Decisions
The issue first arose when the BC Teachers’ Federation (“BCTF”) and the Hospital Employees’ Union (“HEU”) engaged in separate one day strikes aimed at protesting government legislation that changed the terms of their respective collective agreements. The government had, through legislation, imposed a new collective agreement on the BCTF after the BCTF and the British Columbia Public School Employers’ Association (“BCPSEA”) failed to conclude an agreement in collective bargaining. With respect to the HEU, the government passed legislation during the term of the collective agreement between the Health Employers Association of BC (“HEABC”) and the HEU, which substantially altered the terms of the existing collective agreement.
In response to the one day walkouts, both BCPSEA and HEABC brought separate applications before the Labour Board, seeking to have the walkouts declared to be unlawful strikes.
In response to the employer applications, both unions argued that the refusal of their members to attend work was a political protest. They argued that the definition of “strike” within the Labour Relations Code violated freedom of expression under Section 2(b) of the Charter on the basis it limited the rights of their members to engage in political protest. In response, the employers argued the definition of “strike” did not limit the freedom of expression guaranteed within Section 2(b) of the Charter, or alternatively, if it did, that the limit was “saved” by Section 1 of the Charter, as a reasonable limit in a free and democratic society.
The two applications were heard by two different Labour Board Vice-Chairs. The Vice-Chairs reached conflicting conclusions. The Vice-Chair in the BCPSEA and BCTF case concluded the definition of strike was constitutional, and that the “protest” engaged in by BCTF members was, therefore, an unlawful strike.
The Vice-Chair in the HEABC and HEU case reached the opposite conclusion. She held the definition of “strike” with the Code was overly broad because it captured, and hence made unlawful, one day walkouts which were political in nature. She held that to the extent that the current definition of “strike” made such protests unlawful, the definition was unconstitutional. The Vice-Chair concluded that the one day withdrawal of services by HEU members was constitutionally protected free expression. Therefore, the walkout was lawful.
Both decisions were the subject of reconsideration applications. The cases were consolidated and heard together due to the similarity of issues involved in each case.
Reconsideration Decision
The reconsideration decision, BCLRB No. B395/2004, released on December 17, 2004, goes some distance in clarifying the law. However, there still remain some grey areas and the matter may be destined ultimately to be decided in the courts.
The three Vice-Chairs on the reconsideration panel (Mullin, Fleming and Brown) were not unified in their analysis or conclusions. However, the following results and guidelines can be drawn from the decision.
First, the reconsideration panel unanimously concluded that the definition of strike within the Code violates the freedom of expression guaranteed in Section 2(b) of the Charter to the extent it prohibits unionized employees from withdrawing their services to engage in political protests.
Second, a majority of the reconsideration panel concluded that in almost all circumstances, the restriction on freedom of expression resulting from the current definition of “strike” is a reasonable limit justified in a free and democratic society. Therefore, in almost all circumstances, the current definition of “strike” within the Code is constitutional and enforceable, even where the “strike” may be a political one.
Third, there does remain some uncertainty in what the Board described as “exceptional” cases. A majority held that in cases where government changes the terms of a collective agreement (through legislation) during the term of that agreement, a short (perhaps one day) walkout by employees, as a political protest, might be lawful. However, the legislative imposition of a new collective agreement (after the expiry of an old collective agreement, as happened in the BCPSEA vs. BCTF case) would not fall into this “exceptional” category.
Lastly, unions cannot claim Charter protection for any “political” walkout where the union engages in conduct during the walkout that is violent, or incompatible with the rights of others. The reconsideration panel was unanimous in overturning the original panel’s decision that the HEU walkout was lawful, on the basis that HEU members had engaged in conduct that was incompatible with the rights of others. During their “protest”, HEU members had engaged in such activities as the blockading of hospital emergency entrances and the intimidation of persons attempting to enter health care facilities.
The reconsideration panel determined that both walkouts were unlawful. Therefore, the result of the original decision in the BCPSEA vs. BCTF case was upheld, while the original decision in HEABC vs. HEU was overturned.
Harris & Company represented both employers in these cases.