Legal News

Federally Regulated Employees: Charter Does Not Protect Illegal Strikes

The Canada Industrial Relations Board recently confirmed that a collective refusal to cross a picket line by federally regulated employees constitutes a strike, and that legislative prohibitions against mid-contract strikes do not violate employees’ freedom of expression or freedom of association rights under the Charter of Rights and Freedoms.

In 2004, members of Public Service Alliance of Canada set up picket lines at Lower Mainland grain terminals in connection with a legal strike against their employer, the Canadian Grain Commission. Employers involved in the transportation of grain observed that their employees refused to cross the PSAC picket lines. The collective agreements governing the employees in question included provisions permitting union members to refuse to cross picket lines.

Various employers affected by their employees’ refusal to cross the PSAC picket lines applied to the Board for declarations that the unions representing their employees were involved in illegal strikes. The Board declared such strikes illegal, subject to a hearing where further arguments would be considered regarding whether the employees’ rights to freedom of expression and association under the Charter had been infringed. In 2007, the Board issued a decision on the employees’ Charter rights concluding, first, that the employees’ collective refusal to cross the picket line constituted a strike under the Canada Labour Code; and second, that the Canada Labour Code prohibition against mid-contract strikes (including the refusal to cross a picket line) does not infringe employees’ rights to freedom of expression and association under the Charter.

The Board’s original decision was upheld in a reconsideration decision issued November 27, 2008. The reconsideration panel unanimously affirmed that a concerted refusal to cross a picket line constitutes a strike under the Code. Though the collective agreements in question contained provisions permitting employees to refuse to cross picket lines, the Board found that “the parties cannot bargain provisions into their collective agreement that permit or cause employees to violate the legislative prohibition against mid-contract work stoppages.” The Board went on to find that a prohibition against mid-contract strikes does not impair freedom of expression. Further, the Board rejected the unions’ argument that the relevant Code provisions interfered with the unions’ bargaining rights in a manner similar to the circumstances addressed in the Supreme Court of Canada’s decision in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia (Bill 29).

This is an important decision for federal employers faced with politically motivated strikes by employees. It confirms that a collective refusal to cross a picket line may be an illegal strike in violation of labour relations legislation even if a collective agreement permits such a refusal. Moreover, the decision alerts employees and unions to the fact that the Charter rights to freedom of expression and association do not protect political strikes that are contrary to labour relations legislation.

British Columbia Terminal Elevator Operators’ Association et al., CIRB Decision No. 428