A labour dispute which develops into a strike or a lockout can cause financial disruptions to an employer's business. In a unionized environment, employees are legally entitled to strike and management is entitled to lock out its employees. However, not all strikes and lockouts are legal. One of the most effective ways to shut down a strike or lockout is to prove its illegality. It is for this reason that we have highlighted the key steps which employers and unions must follow to ensure that a labour dispute remains within the scope of the Canada Labour Code or the Ontario Labour Relations Act as well as examples of unlawful strikes and lockouts.

In federally-regulated workplaces in Canada, the relationship between the employer and the union is guided by the Canada Labour Code. In Ontario, this relationship is governed by the Labour Relations Act, which is overseen by the Ontario Labour Relations Board. The majority of labour relationships in Ontario fall under the purview of the Labour Relations Act.

What is a strike or lockout?

During collective bargaining, employers and unions are entitled to use their collective bargaining power to further their own economic positions. Strikes and lockouts are used as tools to advance this goal.

A strike occurs when there is a cessation of work, a refusal to continue work, a slow-down or other concerted activity initiated by employees for the purpose of slowing down the employer's output. As such, while many people think of a strike as consisting of picketers marching around a closed workplace, picketing is only one activity that can take place during a strike.

These actions differ from a lockout which occurs when the employer either shuts the place of employment, suspends work, or refuses to continue to employ a number of employees in an attempt to compel those employees to agree to terms of employment.

Is the lockout or strike legal?

Many steps are required, both in the provincial and the federal sectors, to be in a position to engage in a lawful strike or lockout. The process to engage in a lawful strike or lockout is set out in the Canada Labour Code and Labour Relations Act. We have included below the various steps which must generally be completed before being able to engage in a lawful strike or lockout. This process may vary based on a variety of factors, including ministerial discretion and parties' consensus.

Preconditions

1) Bargaining:

First, the employer and the union representatives are required to engage in collective bargaining negotiations in order to negotiate a first or a new collective agreement setting out the terms and conditions. The legislation sets out a process to provide notice to bargain which occurs within the last few months of a collective agreement's operation (or as otherwise provided by a collective agreement) or, in the case of a first collective agreement, a few days after the union secured a certificate of representation. Both Acts stipulate that the parties must bargain in "good faith."

If the negotiations fail to produce an agreement between the parties, parties must either apply for a conciliator (provincial) or file a Notice of Dispute (federal) with the Minister of Labour explaining that the negotiations have reached an impasse.

2) Conciliation Process

No strike or lockout is lawful until after the parties have met with a conciliator appointed by the Ministry of Labour. The conciliator's role is to attempt to narrow the issues in dispute and, ideally, to bring the parties to full agreement.

At the federal level, the Minister will appoint a conciliation officer within 15 days after a Notice of Dispute has been filed with the Ministry of Labour at the request of a party. Generally, a conciliation officer has a 60-day mandate to attempt to resolve the labour dispute. At the conclusion of the conciliation stage and following the delivery of a report to the Ministry, a 21-day cooling off period is initiated which precedes the acquisition of any strike or lockout rights.

In Ontario, a conciliation officer is appointed for a period of 14 days before he or she has to report to the Minister on the result of the conciliation. This period may be extended with the agreement of the parties or by the Minister. If bargaining is still unsuccessful between the parties, one party will usually ask for a "No-board" report to be issued. It is only 17 days after the issuance of the "No Board" report that a legal lockout or strike can occur.

3) Strike Vote

Before exercising their right to strike, members of the union must vote in support of the strike. The strike vote is secret and must be conducted by the union. More than 50 per cent of those voting must vote in favor of the strike.

At the federal level, the strike vote must be held within the last 60 days prior to the notice to strike or any longer period agreed to by the parties. The union is required to provide the employer and the Minister of Labour with a copy of the notice at least 72 hours before the strike action occurs. The 72-hour notice period also applies to federally-regulated employers prior to a lockout.

At the provincial level, unions must hold such a vote within 30 days before the expiry of the collective agreement or any time thereafter. If this is the first collective agreement for a provincially-regulated union, the vote can only occur once a conciliation officer has been appointed. It is important to highlight that unions in the construction industry may be exempt from some of these conditions.

Federal and provincial employees may also be required to negotiate an essential services agreement prior to striking.

Once all these steps are accomplished, parties may engage in a lockout or a strike until they come to an agreement to end the labour dispute or, as sometimes occurs, are ordered to do so under back-to-work legislation.

Examples of unlawful strike or lockout

In light of these various steps and other statutory requirements, there are many circumstances in which a party may be engaged in an unlawful strike or lockout both at the provincial or the federal level. This includes the following:

Strikes cannot be used by a group of employees as an attempt to gain bargaining rights where there is no union rather than going through the certification process. Also, it cannot be used by unions holding bargaining rights to increase or redefine the scope of the bargaining unit.

A strike is unlawful if no strike vote has taken place with the requisite amount of support from the employees.

A union may not engage in a strike to show support for another union that is engaged in a dispute with another employer (or even the same employer). Nor can it commence a strike as a result of a dispute with management in the course of a collective agreement's operation and prior to the acquisition of the right to strike.

Picketing or other forms of "striking" that are unruly or accompanied by violence or vandalism will also be considered unlawful.

An unlawful lockout may occur when an employer terminates or does not recall laid-off employees and, instead, moves their work to another office or location controlled by the same employer. In order to be considered unlawful, the purpose of the work relocation must be to force the employees to accept new employment conditions.

Finally, it is contrary to the Ontario Labour Relations Act for employees and employers to even make threats of an unlawful strike or lockout.

Conclusion

As we can see, strikes and lockouts can only be used under specific circumstances. Otherwise, they may be found unlawful. As such, employers and unions must be careful prior to engaging in such activities. If their actions are found to be illegal, employers, a person who acts on behalf of an employer, trade unions, or a person who acts as an officer or representative of a trade union may notably be convicted of an offence, face financial penalties or fines or be ordered, or be ordered to pay damages depending on the jurisdiction and circumstances. Therefore, if a labour dispute occurs, it is critical that the parties comply with the Labour Relations Act and the Canada Labour Code.

The authors wish to thank Laura Konkel, articling student, for her contribution.