If a union and an employer are unable to reach agreement through the bargaining process, there are a number of options available. The two most frequently used are mediation (which is covered in Chapter Eight of this guide) and strikes or lockouts.
Generally speaking, a strike is a refusal to work by employees acting with a common purpose. The usual purpose of a strike is to compel an employer to agree to terms and conditions of employment. A strike need not be a complete stoppage of work. For example, overtime bans and work slowdowns can constitute a strike. A withdrawal of services by employees, which arises from a legitimate concern for their own safety or health, or to enforce a non-affiliation clause, is not a strike.
Similarly, a lockout is a restriction by the employer of work that normally would be available for employees, generally by suspending work or closing the place of employment. It is generally intended to compel those employees, or to aid another employer to compel employees, to agree to terms and conditions of employment.
The Code prohibits both strikes and lockouts during the life of a collective agreement and every agreement must contain a provision prohibiting "wildcat" strikes or lockouts. Any differences arising during its term must be settled through the grievance and arbitration procedures set out in the collective agreement.
Even if there is no collective agreement in force, certain legal preconditions must be satisfied before a strike or lockout can begin. These preconditions are:
_The union and employer must first have engaged in collective bargaining;
· A vote must have been held to determine if the majority of employees favour a strike, or, in the case of an accredited employers' organization, if the majority of the employers in the organization favour a lockout;
· Strike or lockout notice of 72 hours must have been given to both the other party and to the Board; and,
· If a mediation officer has been appointed by the Labour Relations Board or by the Minister of Labour and Citizens' Services, that appointment must have come to an end, and 48 hours have passed.
These restrictions are intended to ensure that bargaining takes place before strikes and lockouts begin. They also ensure that strikes and lockouts are supported by the majority of those who will be taking the action, and that the potential disruption caused by a strike or lockout is reduced by providing notice that it is about to occur.
Strike and lockout votes
As mentioned above, a strike or lockout vote must be held before a strike or lockout is legal. In both cases, the vote is by secret ballot and all persons affected are entitled to vote. All employees in the bargaining unit (except those excluded from membership under the religious objections provision) can participate in a strike vote. The vote must be conducted in accordance with the Labour Relations Regulation. This regulation requires the party conducting the vote to appoint a returning officer. It also sets out the form of ballot to be used which reads:
"Are you in favour of a strike/lockout? Yes_____ No_____".
A majority of those voting must be in favour of supporting a strike or lockout to meet the legal requirements of the Code.
A strike can be called only within three months after the date of a favourable strike vote. If a strike is not called during that time, another vote must be held in order to renew the union's strike mandate. The same restriction applies to lockout votes.
A union must give 72 hours written notice of its intention to strike to both the employer and the Labour Relations Board before actually engaging in strike activity. Similarly, an employer must give 72 hours written notice of a lockout. In certain instances, as when perishable property is involved, the Board may lengthen the normal 72-hour period of strike or lockout notice. If services designated as essential are involved, the union or employer must provide a new 72-hour notice if one notice period ends without any strike or lockout.
When a legal strike or lockout is in progress, the Code allows employees to picket. Picketing is a peaceful means by which employees can increase the pressure on their employer to agree to terms and conditions of employment favourable to them. The purpose of the picket line is to persuade persons not to do work for, or do business with, the employer. A picket line, however, cannot be used to forcibly prevent persons from entering an employer's premises.
Striking or locked-out employees are entitled to picket where they normally perform work that is an integral and substantial part of the employer's operation and which is under the control and direction of the employer. Other operations of the employer may not be picketed. For example, if the employer operates at more than one location, the striking or locked-out employees can picket only the location for which their union is certified and at which they perform their work.
With the permission of the Board, picketing may also be conducted at other sites; for example, where an employer attempts to have "struck work" performed away from its own premises. Striking or locked-out employees may also picket the place of business of an "ally" of their employer. An ally is a person who assists an employer in a lockout or in resisting a lawful strike. Ally picketing is restricted to the site at which the ally performs work for the benefit of the employer who is directly involved.
Where more than one employer carries on business at the same site (referred to as a "common site"), the Board generally restricts picketing so that it affects only the employer involved in the labour dispute or the ally of that employer. The Board has the discretion to regulate picketing at a common site to ensure that the union has a way to picket in pursuit of legitimate objectives. This means that in some circumstances the Board can allow regulated picketing at a common site that affects third parties. Such circumstances occur when the union has no other way of picketing at the workplace of the striking or locked-out employees.
Just as the picketing provisions limit the lawful things employees can do during a strike or lockout, the replacement worker provisions of the Code limit what an employer can do. Employers are prohibited from using newly hired employees to replace employees who are engaged in a legal strike or who are locked out.
An employer can continue to operate during a labour dispute by using non-bargaining unit personnel at that operation. Management staff cannot be transferred or used from other operations or facilities of the employer, however, unless they were transferred before the notice to commence collective bargaining for the new agreement was given.
Any person who is not in the bargaining unit at the operation has the right to refuse to do work of bargaining unit members during a strike or lockout. To protect this right, employers are not allowed to penalize or discipline employees who refuse to do such work.