The Right to Strike, Outside of the Wagner Model

The Right to Strike: Implications of Saskatchewan Federation of Labour v. SaskatchewanA Workshop in Honour of the Late Prof. Bernie Adell

Centre for Law in the Contemporary WorkplaceQueen’s University

April 24, 2015

Prof. Kevin BanksFaculty 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 ScenariosScenario 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 Charter-protected 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