In Quebec, as in the rest of Canada, employers who have negotiated a collective agreement with their employees can rightfully expect that no cessation or slow-down of work will occur until the next collective bargaining round. Throughout the term of a collective agreement, a union or group of employees may not resort to strikes in order to contest measures taken by an employer. This is considered a reasonable limit to the employees’ right to strike.
According to the British Columbia Court of Appeal in British Columbia Teachers' Federation v. British Columbia Public School Employers' Association1, this same limit applies when cessation of work is exercised as a means of political protest.
Litigation background and the Court’s decision
The case began in 2002 with the British Columbia Parliament’s introduction of three bills aimed at resolving certain labour relations disputes between the government and its employees who are members of the two appealing unions, the BCTF2, representing teachers, and the HEU3, representing health care workers. These two bills, which had the effect of imposing a collective agreement on the BCTF and amending the terms of the HEU’s existing collective agreement, fuelled controversy.
The day these bills were passed, the BCTF protested by organizing a one-day labour stoppage. One year later, the HEU did the same, also as a means of protesting the bills. The two concerted work stoppages were held despite the fact that both unions were at the time bound by a valid collective agreement and that an interlocutory judgment pronounced by the British Columbia Labour Relations Board had previously declared that such strikes fell under the definition of “strike” in the Labour Relations Code4 (hereafter referred to as the “Code”) and were therefore illegal.
The definition of the word “strike” in the Code includes any “cessation of work, … refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slowdown or other concerted activity on the part of employees that is designed to or does restrict or limit production or services” 4. This definition is very similar to that of the Quebec Labour Code5.
Claiming the legality of their strike, the two unions argued that it is necessary to distinguish between a “collective bargaining strike”, wherein a strike is held as part of a collective bargaining process and aims at putting pressure on an employer, and a “political protest strike”, which aims at putting pressure on a government and which should remain possible even between two periods of collective bargaining. By forbidding the unions to hold political protest strikes, the Code’s definition unreasonably restricted the right to freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms6 (hereafter referred to as the “Canadian Charter”), and was therefore unconstitutional.
The Court of Appeal’s judgement acknowledged this distinction between a strike held as part of collective bargaining and one held as a means of political protest, and concluded that the latter is a form of expression guaranteed by the Charter.
Moreover, the Court of Appeal determined that prohibiting any type of strike while a collective agreement is in force, including a political protest strike, has the effect of limiting a means of expression and therefore contravenes the right to freedom of expression guaranteed by the Canadian Charter. Having decided that a freedom of expression infringement had taken place, the Court then had to determine whether prohibition of a political protest strike between periods of collective bargaining constituted a reasonable limitation on this freedom. The Court focussed particularly on the minimal impairment test, whereby, in order to be in compliance with the Canadian Charter, the act must abridge the freedom of those concerned as little as possible while still accomplishing the legislative objective at hand.
In evaluating this criterion, each of the two unions submitted its own solution to what should constitute minimal impairment in this case. The first put forth that, at the very least, any peaceful strike held as a political protest and free of criminal or tortious conduct should be permitted. The Court rejected this argument based on the fact that a political protest of indefinite scope and duration would be protected without the possibility of introducing a useful solution. The other union proposed permitting protest strikes providing there was no significant adverse effect on the public interest. The Court of Appeal also set this submission aside on the grounds that the concept of significant disruption of the public interest is a vague standard capable of a wide variation in its application.
In evaluating the objective of the provision, which is to maintain stable industrial relations, the Court instead upheld that the strike prohibition during the term of a collective agreement is a reasonable restriction on the right of expression, justified, among other reasons, by its minimal impairment of the rights of unionized employees, particularly given the possibility for these employees to participate in such demonstrations outside of working hours.
The British Columbia Court of Appeal’s decision in this matter is of great interest to Quebec employers, all the more so because the definition of “strike” set out in Quebec’s Labour Code, like that of British Columbia, includes any type of strike, be it as part of a collective bargaining process or as a means of political protest. It is thus possible to submit that, according to the current state of law, any concerted cessation of work, regardless of the objective, is illegal if held while a collective agreement is in force. In the future, unions should therefore refrain from requesting that their members demonstrate their disagreement during working hours while bound by a collective agreement.