The Right to Strike, Outside of the Wagner Model
The Right to Strike: Implications of Saskatchewan Federation of Labour v. Saskatchewan
A Workshop in Honour of the Late Prof. Bernie Adell
Centre for Law in the Contemporary Workplace
Queen’s University
April 24, 2015
Prof. Kevin Banks
Faculty of Law
Queen’s University
Three Scenarios
Scenario 1
A group of employees at a non-union chemical plant walks
off the job to protest perceived health and safety risks at
work. The employer tells those in safety-sensitive positions
to return to work immediately or face discharge, and tells
those in non-safety-sensitive positions that they must return
to work the following day or face discharge.
Three Scenarios
Scenario 2
An Ontario agricultural employer informs the union
representing its non-managerial employees that, having
carefully listened to and considered union contract
proposals, it is unwilling to make any changes to terms and
conditions of employment. The union threatens strike
action to back up its demands. The employer tells the union
that any striking worker risks immediate dismissal.
Three Scenarios
Scenario 3
A group of excluded middle managers at a large privatized
Ontario energy producer, upset at employer changes to their
pension plan, forms an association to attempt to negotiate with
the employer over them. The employer refuses to deal with their
representative, saying that it prefers to deal with them on an
individual basis and remains committed to competitive
compensation. In response, the association threatens a work to
rule campaign. The employer responds by saying that any
manager participating in such action may be immediately and
permanently replaced.
Three Questions
1. Who has the right to strike?
1. Can exclusion from statutory protection of the right to
strike amount to substantial interference with it?
1. If so, and if this cannot be justified under section 1, what
must change in the law for it to meet constitutional
requirements?
1. Who has the Right to Strike?
A purposive approach: freedom of association as
enabling vulnerable individuals to empower themselves:
The purpose of freedom of association encompasses the
protection of “collective activity that enables those who
would be vulnerable and ineffective on their own to meet
on more equal terms the power and strength of those
with who their interests interact, and perhaps conflict”.
(MPAO, para 54 (endorsing the dissenting reasons of
Dickson CJ in Alberta Reference)
Who Has the Right to Strike?
Right strike empowering workers who are vulnerable:
The right to strike is essential to realizing these values
and objectives through a collective bargaining process
because it permits workers to withdraw their labour in
concert when collective bargaining reaches an impasse.
… The ability to strike thereby allows workers, through
collective action, to refuse to work under imposed terms
and conditions. This collective action at the moment of
impasse is an affirmation of the dignity and autonomy of
employees in their working lives. (SFL, para 54, referring
to the above passage in MPAO)
Who Has the Right to Strike?
Employees as a class presumptively vulnerable:
“ Free expression in the labour context can also play a significant
role in redressing or alleviating the presumptive imbalance
between the economic power of the employer and the relative
vulnerability of the individual worker”… The same reasoning
applies to freedom of association… Individual employees
typically lack the power to bargain and pursue workplace goals
with their more powerful employers.” (MPAO, paras 69-70)
“ This Court has long recognized the deep inequalities that
structure the relationship between employers and employees,
and the vulnerability of employees in this context. (SFL, para 55)
Who Has the Right to Strike?
Once this presumption is in place, there is no principled
reason to restrict the right to strike to employees covered
by statutory protections, or to certain industries or
occupations (subject to special considerations regarding
managers, below).
The ILO Committee on Freedom of Association has said
that the failure of Canadian law to give excluded
employees protections genuinely comparable to those
offered by labour relations statutes is inconsistent with
Convention 87, which states that it applies to all workers
“without distinction whatsoever.”
What About Managers?
Deciding who is in an employment relationship for purposes of
the Code means, in essence, examining … control exercised
by an employer over working conditions and remuneration,
and corresponding dependency on the part of a worker. In
other words, the test is who is responsible for determining
working conditions and financial benefits and to what extent
does a worker have an influential say in those
determinations? The more the work life of individuals is
controlled, the greater their dependency and, consequently,
their economic, social and psychological vulnerability in the
workplace.
McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC
39, [2014] 2 S.C.R. 108, at para 27)
What About Managers?
Many middle managers are not responsible for
determining and do not have an influential say in their
working conditions and financial benefits. They may be
“vulnerable” in the sense that matters for section 2(d)
protections.
While MPAO recognizes that employee organizations
must be free of management influence, this leads no
further than to the conclusion that managers should
bargain separately.
What About Managers?
ILO Committee decisions support the view that managers
have full freedom of association rights, though they may be
required to bargain separately from the employees that
they supervise.
What About Managers?
Query whether an “undivided loyalty” standard resulting
in categorical exclusion from all protections will withstand
section 1 scrutiny.
• Doubtful that loyalties to an employee association
and efforts to deal collectively with an employer
necessarily and per se impair loyal performance of
employment responsibilities of all managers.
Less intrusive means may include subject matter
restrictions, confining exclusions to most senior levels
and positions of labour relations confidence.
2. Exclusion as Substantial
Interference?
The Right to Strike and the Common Law
• At common law employees are free to withdraw their services,
individually or collectively.
• But their action either constitutes a termination of the contract upon
reasonable notice (if such notice is given), or a repudiatory breach of
the duty of fidelity, entitling the employer to treat the contract as
terminated by the employees, and giving rise to potential employee
liability for failure to provide reasonable notice of termination. (CPR
v. Zambri, SCC, 1962)
• The latter situation in turn provides legal immunity to an employer
decision to terminate or constructively dismiss in response to a
strike, and effectively shelters decisions to discriminate or retaliate
from liability.
Effects of Exclusion
As Bernie Adell observed: this common law right is “of dubious value to
the high proportion of the workforce whose services can more easily
be replaced or done without, and whose jobs would be in immediate
jeopardy if they took strike action under common law rules”.
B. Adell, Regulating Strikes in Essential (and Other) Services, 17
C.L.E.L.J. 413 (2013) at 432.
Effects of Exclusion
“History has shown, and Canada’s legislatures have
uniformly recognized, that a posture of government
restraint in the area of labour relations will expose most
workers not only to a range of unfair labour practices, but
potentially to legal liability under common law inhibitions
on combinations and restraints of trade,” and that “this
forecloses the effective exercise of the freedom to
organize,” leaving some workers with no way to protect
their interests except by quitting their jobs.
(Dunmore, paras. 20 and 41)
Exclusion as Substantial Interference
A legislative regime that excludes certain groups of
workers may substantially interfere with Charterprotected activity in that it “encourages or sustains” a
violation of freedom of association by private conduct”,
by licensing or affirmatively permitting private actors to
violate protected freedoms. (Dunmore, paras 24-26)
In such a case the exclusion will violate the Charter and
a court may order positive government action by way of
a remedy. (Dunmore, paras 24-26. Baier v Alberta, 2007
SCC 31 at para 27.)
3. What Positive Action Might be
Constitutionally Required?
Canadian labour law history and ILO Committee
jurisprudence with respect to Canada’s international
obligations suggest:
(1) limiting the legal exposure of employees, and
(2) providing accessible and effective recourse.
ILO Obligations
Article 8.2 of C87 requires that the law of the land not be
such as to “impair the exercise” of those rights.
This implies that the law should not empower private
actors to undermine those rights, and that a state can be
held accountable in international law if this happens.
The CFA has characterized certain employer acts based
on private law rights as violations of freedom of
association, implying that the law should not enable such
acts. Among them are dismissing workers for union
membership or activities.
ILO Obligations
The 1998 Declaration on Fundamental Principles and
Rights at Work states that all member states are to
“respect . . . and realize . . . in accordance with the [ILO]
Constitution . . . principles concerning . . . fundamental
rights [including] . . . freedom of association and the
effective recognition of the right to collective bargaining.”
ILO supervisory bodies have consistently affirmed that
“protection against all acts of anti-union discrimination” is
fundamental to freedom of association, as is “access to
means of redress which are expeditious, inexpensive
and fully impartial.”
Meeting Constitutional Requirements
Can the common law be interpreted and applied in
accordance with Charter values, and would this provide
sufficient protection to worker freedom of association?
If not, what might legislators be required to do, at a
minimum?
Interpreting the Common Law in
Accordance with Charter values.
“Although s. 2 (b) of the Charter is not directly implicated
in the present appeal, the right to free expression that it
enshrines is a fundamental Canadian value. The
development of the common law must therefore reflect
this value.”
(R.W.D.S.U., Local 558 v. Pepsi-Cola Canada
Beverages (West) Ltd., [2002] 1 S.C.R. 156, 2002 SCC
8, para 20)
The Common Law and Charter Values:
A Thought Experiment
Limiting Legal Exposure
Exercising the right to organize, to bargain collectively
and to strike might be treated as not constituting
abandonment, or anticipatory breach of the common law
duty of fidelity.
In the case of the right to strike, courts might require
notice to mitigate serious risks to safety or property.
The Common Law and Charter Values:
A Thought Experiment
But dismissal upon reasonable notice (for any reason)
would remain available.
This would leave the most vulnerable employees still
very vulnerable, due the short notice periods required to
dismiss them. For them at least, pay in lieu would
provide little disincentive to discriminatory dismissal.
Further, employer liability and employee compensation
would bear an arbitrary relationship to infringement of
freedom of association.
The Common Law and Charter Values:
A Thought Experiment
The common law might in addition treat dismissal tainted
by discriminatory animus against associational activity as
cause for aggravated damages, as a breach of duty of
good faith and fair dealing in the manner of dismissal.
The Supreme Court has identified “dismissal meant to
deprive the employee of a pension benefit or other right”
as an example of conduct that might breach the duty.
(Honda v. Keays, para 59).
The Common Law and Charter Values:
A Thought Experiment
Sanctions, harassment or other coercive measures falling
short of constructive dismissal might be addressed as
violations of the emerging obligation to treat workers with
civility, decency, respect and dignity (CDRD) during the life of
the employment contract, if the discriminatory action is a
reprisal for the exercise of freedom of association.
CDRD jurisprudence suggests that reprisal against an
employee for seeking to exercise what he or she understands
to be contractual or statutory rights will breach the duty. (See
e.g. Hanni v. Western Road Rail Systems (1991) Inc., [2002]
B.C.J. No. 563, 17 C.C.E.L. (3d) 79 (B.C.S.C.).
The Common Law and Charter Values:
A Thought Experiment
Accessible and effective recourse?
Labour boards and the ILO committees have long
preferred reinstatement in cases of discriminatory
dismissal, for good reasons.
Would the courts revisit the common law reluctance to
require specific performance in employment?
In Pepsi the Court reiterated that “far-reaching changes
to the common law must be left to the legislature” (para.
22).
The Common Law and Charter Values:
A Thought Experiment
Accessible and effective recourse (cont’d)?
• Could employee associations bring actions on their
members’ behalf?
• What about the disincentives associated with cost
awards?
Legislative Action Required?
Access to unfair labour practice protections (prohibitions,
procedures and remedies) to excluded employees, in LRAs or
elsewhere?
• In Ontario (but not elsewhere), for managers and
professionals, this might be done by revisiting Board
jurisprudence regarding who is a person for the purposes of
sections 5, 72, and 76 of the Act.
• Is striking now a “lawful activity of an employees’ association”
for the purposes of the Agricultural Employees Protection
Act?
What about legal personality for, and protection from interference
with employee associations?
Looking Back on Where We are Now
“The fundamental premise of the complainant’s argument is that a
managerial person is free to join a trade union and to participate in its
lawful activities… and that that right is protected by section 61. Where,
precisely, does that argument lead? Did the Legislature intend to
confer upon a managerial person a protectable right to join an
organization which has no legally enforceable right to represent him in
collective bargaining? Does it follow, if the complainant’s argument is
accepted that a managerial person can hold elective office in the union,
participate in bargaining on its behalf, note in ratification and strike
votes, and, where the law otherwise permits join in strike action with
other members of the union? We prefer a construction of the statute
which avoids these questions.”
Ottawa General Hospital (No.2), [1974] O.L.R.B. Rep. Oct. 715