Beware the strike in protest's clothing: Labour relations board holds that a political protest is still an unlawful strike 

publication 

January 2013

Employment and Labour Bulletin

Just before 4:00 am on January 11, 2013, at the end of a marathon hearing that started at 10:00 am the day before, the Chair of the Ontario Labour Relations Board (the "OLRB"), Bernard Fishbein, issued a cease-and-desist order against the Elementary Teachers' Federation of Ontario (the "ETFO"). In doing so, the OLRB crushed the ETFO's plans to stage a politically motivated walkout in protest of the collective agreements imposed by the Putting Students First Act, 2012 ("Bill 115").

background

On January 2, Ontario Minister of Education Laurel Broten (the "Minister") filed a successful application with the OLRB pursuant to section 11 of Bill 115 that imposed collective agreements on certain bargaining units represented by the ETFO. Among other things, the collective agreements (which are effective until August 31, 2014) compel a wage freeze, a reduction of and prohibition against carry-over of sick days, and a prohibition against strikes or lock-outs for a two-year period.

On January 11, Ontario elementary school teachers staged a one day walkout to voice their strong disapproval of Bill 115 and the unilaterally imposed collective agreements. In a show of solidarity with the ETFO, the Ontario Secondary School Teachers' Federation announced that Ontario high school teachers would hold their own walkout on January 16. Faced with the prospect of a 76,000-teacher strike, the Minister scrambled to appear before the OLRB in order to prevent the closure of Ontario schools. 

a strike is a strike is a strike ...

The Minister alleged that the impending walkout was an unlawful strike pursuant to Bill 115 and the Labour Relations Act. Specifically, the Minister argued that the walkout offended section 9(4) of Bill 115, which states that any strike in contravention of the collective agreements is "an unlawful strike ... for the purposes of the Labour Relations Act." In other words, the walkout was unlawful because it was explicitly prohibited by the terms contained in the collective agreements imposed by Bill 115.

The Minister also argued that preventing the walkout was in the public interest.

In response, the ETFO argued that the walkout was not a "strike" but rather a "day of protest" or day of "political unrest", and therefore not unlawful. Specifically, the ETFO claimed that their politically-motivated protest was protected under the right to freedom of expression guaranteed by the Charter of Rights and Freedoms (the "Charter").

The OLRB sided with the Minister.

In particular, the OLRB explained that there is no difference between a "strike" and a "political strike" for the purposes of a freedom of expression challenge under the Charter. Indeed, the OLRB has held in past decisions that politically motivated strikes and non-politically motivated strikes are both forms of expression that warrant the protection of the Charter.1 However, it is also trite law that the provisions of the Labour Relations Code that prohibit unlawful strikes are reasonable limits on the right to freedom of expression and are therefore justifiable under section 1 of the Charter.2 Therefore, employees must utilize alternative forms of political expression during the term of a collective agreement:

Does an absolute prohibition on strikes during the currency of a collective agreement significantly restrict the means or ability of unions and employees to express themselves on political issues or engage in political debate? No, not unduly, having regard to the other means of persuasion available. There is a whole range of alternative means of political expression which do not impose economic damage on others or disregard contractual commitments and obligations under the Labour Relations Act.3

Further, the OLRB held that this case was not distinguishable from prior decisions on the grounds that the collective agreement in question was unilaterally imposed (as opposed to negotiated between employer and union). In other words, a strike that occurs during the term of a collective agreement – whether politically motivated or not – is an unlawful strike for the purposes of the Labour Relations Act.

the ETFO's constitutional challenge

The OLRB also rejected the ETFO's argument that the Minister's action should be deferred to the jurisdiction of the Ontario Superior Court on the grounds that the walkout was connected to the ETFO's broader constitutional challenge of Bill 115's validity (launched in 2012). According to the OLRB, it had the jurisdiction to consider the walkout because the matter at issue was strictly connected to the lawfulness of the January 16 strike and not the ETFO's constitutional challenge.

In light of the OLRB's decision, which is open to appeal, Bill 115 will remain in full force and effect until the constitutional challenge regarding its validity is decided later this year. 

by Lai-King Hum and Paul Boshyk

1 Ontario Hospital Assn. v OPSEU, [2003] OLRBRep. 622.
2 CAW-Canada v General Motors of Canada Ltd., [1996] OLRBRep. 409.
3 Ibid., at para. 167.

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2013