Saturday, December 7, 2013

False Equivalence Between Lock-outs and Strikes by Greg

I'll have a few observations to make about the Wall government's new essential services legislation (PDF). But let's start by treating the restrictions within Bill 128 as a primer on a commonly-misunderstood issue in labour law.

It may seem natural to treat strikes and lock-outs as matching activities on the part of unions and employers respectively. But there are in fact important differences between the two. And Bill 128 highlights exactly why those differences shouldn't be ignored.

By statute, a "strike" is defined to include a far wider range of activity than a "lock-out". Compare these definitions from the current Trade Union Act, RSS 1978, c T-17 (definitions which are carried over into the Saskatchewan Employment Act):

2(j.2) “lock-out” means one or more of the following actions taken by an employer for the purpose of compelling employees to agree to terms and conditions of employment:
(i) the closing of all or part of a place of employment;
(ii)   a suspension of work;
(iii) a refusal to continue to employ employees;
...
(k.1) “strike” means any of the following actions taken by employees:
(i) a cessation of work or a refusal to work or to continue to work by employees acting in combination or in concert or in accordance with a common understanding; or
(ii) other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output or the effective delivery of services;

The definition of a "lock-out" as restricted by labour legislation is thus limited to a closed list of actions carried out by an employer - and even those actions are only regulated when they're aimed toward the single purpose of compelling employees to accept terms and conditions of employment. In contrast, a "strike" is defined to include - and thus to prohibit - any activity carried out in concert by employees which affects work output, regardless of the purpose of that activity and regardless of whether the activity is of a type previously contemplated by the legislature.

The distinction in statutory language also gives rise to differing constitutional implications. The definition of a "strike" is expressly intended to limit "concerted" activity by employees, arguably representing a direct attack on the Charter freedom of association (even on a relatively restrictive interpretation of that freedom). And the contrast between open and closed lists of activities also results in greater infringement of freedom of expression and other rights which may be affected by statutory restrictions: an employer might be able to limit overtime as an exercise of its management rights, but workers are prohibited from engaging in a parallel response in concert.

As a result of the asymmetry between the definitions of "strike" and "lock-out", a statute which treats both concepts identically may in fact impose far more restrictions on unions and employees than employers. And even as Bill 128 reduces the number of obviously one-sided impositions on unions and workers found in the Public Service Essential Services Act ("PSESA"), it operates as a case in point.

Bill 128 also creates identical preconditions to and limitations on the commencement of strikes and lockouts with no regard for the greater amount of activity restricted by the definition of a "strike". See e.g.:

  • section 7-5, which prohibits any strike or lockout before an essential service structure is in place within a workplace. This limitation on strikes could include e.g. informational pickets which incidentally affect the provision of services;
  • section 7-19(3), which requires that any strike or lockout be stopped where the opposite party challenges the effectiveness of a work stoppage, again with no distinction between types of strikes; and
  • sections 7-25 and 7-26, which prohibit both any lock-out of essential services employees, and any union authorization of any strike activity by such employees. (While Bill 128 does eliminate PSESA's provision prohibiting an individual essential service employee engaging in strike activity outside of work time, it arguably still prohibits a union from encouraging an employee to do so.)

Bill 128 also conflates the constitutional significance of the two definitions: the "right to strike" and "right to lock-out" are treated as being mirror images of each other (section 7-19(1)), with the same remedy arising from a breach of either. And the result of an employer asserting its "right to lock-out" is a prohibition against a union making use of its right to strike - even if a union and its members conclude that the obligation to provide essential services does not impede either their ability or their desire to engage in strike activity.

In summary, any legislation which limits strike activity - including general labour relations legislation - should be far more sensitive to the wide range of activity governed by the definition of a "strike" than is currently the case. And we should recognize that a provision limiting strikes and lock-outs under the current statutory definitions may result in a significant advantage to employers over unions and employees.

This blog consists of general legal information only, and does not constitute the provision of legal advice to any person or organization. Please contact me at gfingas@grj.ca if you require legal advice related to labour, employment or privacy issues.

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