Reasons for decision
Grain Workers Union, Local No. 333, C.L.C.,
applicant,
and
British Columbia Terminal Elevator Operators’ Association; Saskatchewan Wheat Pool; James Richardson International Limited; United Grain Growers Limited, d.b.a. Agricore United; Pacific Elevators Limited; Cascadia Terminal,
respondents,
and
Public Service Alliance of Canada; Canadian Labour Congress,
intervenors.
Board File: 26373-C
International Longshore and Warehouse Union-Canada; International Longshore and Warehouse Union, Local 500; International Longshore and Warehouse Union Ship & Dock Foremen, Local 514,
applicants,
and
British Columbia Maritime Employers Association; Vancouver Wharves Ltd.,
respondents,
and
Public Service Alliance of Canada; Canadian Labour Congress,
intervenors.
Board File: 26375-C
CITED AS: British Columbia Terminal Elevator Operators’ Association
Neutral Citation: 2008 CIRB 428
November 27, 2008
Application filed pursuant to section 18 of the Canada Labour Code, Part I (the Code).
Application for reconsideration–Definition of “strike”–Reconsideration of interim orders issued by the Board in respect of applications for a declaration of illegal strike and the Board’s decision on related Charter issues–Whether the original panel committed an error of law when it determined that the refusal to cross a picket line constituted a “strike” within the meaning of section 3 of the Code–The definition of strike is an objective one–The Board has consistently held that even if an employee has an individual right to refuse to cross a picket line that was obtained through collective bargaining, when that right is exercised in combination, in concert or in accordance with a common understanding, it will constitute an illegal strike under the Code–The parties cannot bargain provisions into their collective agreement that permit or cause employees to violate the legislative prohibition against mid-contract work stoppages–The unions have not persuaded the reconsideration panel that the original panel committed an error of law.
Application for reconsideration–Canadian Charter of Rights and Freedoms–Freedom of expression–Whether the original panel committed an error of law when it determined that the Code prohibition against mid-contract strikes, which it interpreted to include the refusal to cross a picket line, does not infringe section 2(b) of the Charter–The restriction on mid-contract work stoppages is content-neutral and the effect of the restriction does not deprive workers of the right to express their message of support and solidarity for other workers engaged in a legal strike against their employer, or otherwise control or restrict the content of their message–It merely regulates the physical consequences of strike activity without adversely impacting on the content of the message or the workers’ ability to otherwise demonstrate worker solidarity–The original panel did not err when it held that neither the purpose nor the effect of the prohibition against mid-contract work stoppages, which restricts the union members’ right to refuse to cross a picket line, infringes on their freedom of expression.
Application for reconsideration–Canadian Charter of Rights and Freedoms–Freedom of association–Whether the original panel committed an error of law when it determined that the Code prohibition against mid-contract strikes, which it interpreted to include the refusal to cross a picket line, does not infringe section 2(d) of the Charter–The Code prohibitions were not intended to and do not have the effect of undercutting or undermining the ability of the union members to join together to pursue their common goal of negotiating workplace conditions and terms of employment with their own employer–The Code simply prevents work stoppages of any kind, including refusals to cross another union’s picket line, from occurring during the term of a collective agreement, in the interest of industrial certainty and stability–While the Board recognizes that the concept of union solidarity is critically important to trade unionists, this important tenet of the union movement should not be interpreted in such a manner as to trump the broader public interest in labour peace that is reflected in the Code–The Code provisions do not infringe the applicants’ freedom of association as protected by section 2(d) of the Charter–In particular, the Board finds that the definition of “strike” contained in section 3 of the Code, insofar as it may partially nullify the effect of the provision in the unions’ respective collective agreements that permit employees to collectively refuse to cross a picket line, does not violate section 2(d) of the Charter.
Application for reconsideration–Canadian Charter of Rights and Freedoms–Whether the original panel committed an error of law when it determined that, if the employees’ rights under section 2(b) and/or 2(d) of the Charter had been infringed, that such infringements were justified under section 1 of the Charter–The unions take issue with the manner in which the original panel defined and identified the legislative objective to be assessed under the justification analysis–The unions maintain that the original panel improperly stated the legislative objective too broadly and the true objective was a more narrow one of regulating work stoppages related to collective bargaining–The original panel correctly identified the broader objective of preserving industrial peace and stability by regulating all forms of mid-contract work stoppages, as this properly takes into account the public interest aspect and the objectives of the Code–The prohibition against all forms of mid-contract work stoppages is rationally connected to that objective–The unions argue that with respect to justification for infringement of rights under section 2(d) of the Charter, the Supreme Court of Canada has set out a specific and much more narrow or limited scope for justification under section 1 in B.C. Health Services–The reconsideration panel is not persuaded that an entirely new standard for justification of interference with rights under section 2(d) of the Charter has been created by the Supreme Court in B.C. Health Services–The Court relied on and applied the traditional Oakes test analysis and confirmed the notion that the legislator need not show that it chose the least drastic measure, but only that the measure chosen falls within a range of reasonable alternatives–Restricting mid-contract work stoppages only minimally impairs the applicants’ freedom of expression and does not impair their right to collective bargaining–The reconsideration panel cannot envision a less intrusive but equally effective means of preserving industrial peace during the term of a collective agreement–The original panel made no error of law or policy.
The Board was composed of Ms. Elizabeth MacPherson, Chairperson, and Mr. Graham Clarke and Ms. Judith M. MacPherson, Q.C., Vice-Chairpersons. Hearings were held in Vancouver, British Columbia, on May 13 and 14, 2008.
Appearances
Mr. Charles Gordon, for the Grain Workers Union, Local No. 333, C.L.C;
Mr. Bruce A. Laughton, Q.C., for the International Longshore and Warehouse Union-Canada, International Longshore and Warehouse Union, Local 500, and the International Longshore and Warehouse Union Ship and Dock Foremen, Local 514;
Mr. David Tarasoff, for the Public Service Alliance of Canada, and the Canadian Labour Congress;
Mr. Chris E. Leenheer, for the British Columbia Terminal Elevator Operators’ Association, Saskatchewan Wheat Pool, James Richardson International Limited, United Grain Growers Limited, d.b.a. Agricore United, Pacific Elevators Limited and Cascadia Terminal;
Ms. Delayne M. Sartison, for the British Columbia Maritime Employers Association and Vancouver Wharves Ltd.
These reasons for decision were written by Ms. Elizabeth MacPherson, Chairperson.
I–Nature of the Application
[1] These are two applications made pursuant to section 18 of the Canada Labour Code (Part I–Industrial Relations) (the Code) for reconsideration of interim orders issued by the Canada Industrial Relations Board (the CIRB or the Board) in respect of applications for a declaration of illegal strike (Board file no. 24610-C, September 24, 2004 and Board file no. 24624-C, October 4, 2004), and the Board’s decision on related Canadian Charter of Rights and Freedoms (Charter) issues, rendered on June 8, 2007 (British Columbia Terminal Elevator Operators’ Association, 2007 CIRB 384). The original declarations of illegal strike were granted in 2004 subject to the hearing of further arguments raised in each case alleging infringement of the employees’ rights under sections 2(b) and 2(d) of the Charter. Because the events leading to each of these two declarations were substantially the same, the Board consolidated its proceedings, heard the parties’ Charter arguments together and issued a single set of reasons for decision (British Columbia Terminal Elevator Operators’ Association, supra). These applications for reconsideration were similarly consolidated for the purpose of hearing and determination.
[2] Section 18 of the Code reads as follows:
18. The Board may review, rescind, amend, alter or vary any order or decision made by it, and may rehear any application before making an order in respect of the application.
[3] There is no absolute right to reconsideration of Board decisions. Pursuant to section 15 of the Code, the Board has made regulations setting out the circumstances in which it will exercise its power of reconsideration under section 18. The Canada Industrial Relations Board Regulations, 2001 (the Regulations) provide as follows:
44. The circumstances under which an application shall be made to the Board exercising its power of reconsideration under section 18 of the Code include the following:
(a) the existence of facts that were not brought to the attention of the Board, that, had they been known before the Board rendered the decision or order under reconsideration, would likely have caused the Board to arrive at a different conclusion;
(b) any error of law or policy that casts serious doubt on the interpretation of the Code by the Board;
(c) a failure of the Board to respect a principle of natural justice; and
(d) a decision made by a Registrar under section 3.
[4] The applications for reconsideration invoke section 44(b) of the Regulations. The Grain Workers Union, Local No. 333, C.L.C. (the GWU), the International Longshore and Warehouse Union-Canada, the International Longshore and Warehouse Union, Local 500 and the International Longshore and Warehouse Union Ship & Dock Foremen, Local 514 (collectively, the ILWU), allege that the original panel of the Board made errors of law when it reached the conclusion that the prohibition against mid-contract work stoppages contained in the Code does not violate the rights of the employees that they represent to freedom of expression and freedom of association, which are protected by sections 2(b) and 2(d) of the Charter respectively. The applicants are supported in this contention by the Public Service Alliance of Canada (the PSAC) and the Canadian Labour Congress (the CLC), who were granted intervenor status to address the Charter issues raised in the original applications and in these applications for reconsideration. As the intervenors expressly adopted the arguments of the applicants in these applications, for ease of reference the applicants and the intervenors will be referred to collectively as “the unions” in this decision.
[5] The employers of the union members represented by the applicant unions are the British Columbia Terminal Elevator Operators’ Association (the BCTEOA), Saskatchewan Wheat Pool, James Richardson International Limited, United Grain Growers Limited, d.b.a. Agricore United, Pacific Elevators Limited, Cascadia Terminal, the British Columbia Maritime Employers Association (the BCMEA), and Vancouver Wharves Ltd. For ease of reference, they will be referred to collectively in this decision as “the employers.”
[6] On the day that the Board’s original reasons for decision were issued, the Supreme Court of Canada issued its landmark decision in Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27; [2007] 2 S.C.R. 391 [B.C. Health Services]. It is common ground that this decision expressly overturned earlier decisions of the Supreme Court of Canada, which had held that the section 2(d) guarantee of freedom of association did not extend to protect the objects of such association, including collective bargaining. Because of the timing of the release of the two decisions, the original panel of the Board did not have an opportunity to consider the implications of the Supreme Court of Canada’s decision.
[7] While the full scope of the Supreme Court of Canada’s decision in B.C. Health Services, supra, has yet to be determined, there is no doubt that it is now the law of the land that section 2(d) of the Charter protects the capacity of members of labour unions to engage, in association, in collective bargaining on fundamental workplace issues. The decision stands for the proposition that, while the Charter does not cover all aspects of collective bargaining, ensure a particular outcome in a labour dispute, or guarantee access to any particular statutory regime, it does protect the right of employees to associate in a process of collective action to achieve workplace goals. If the government substantially interferes with that right, it violates section 2(d) of the Charter.
[8] Due to the coincidence in timing of the Board and Court decisions on section 2(d), and the importance of this Charter issue to the parties and to the labour relations community generally, the Board has agreed to exercise its reconsideration powers under section 18 of the Code and to review the September 24, 2004 and October 4, 2004 interim orders and its decision on the Charter issues (British Columbia Terminal Elevator Operators’ Association, supra).
[9] The issues before the reconsideration panel are:
(a) whether the original panel committed an error of law when it determined that the refusal to cross a picket line constituted a “strike” within the meaning of section 3 of the Code;
(b) whether the original panel committed an error of law when it determined that the Code prohibition against mid-contract strikes, which it interpreted to include the refusal to cross a picket line, does not infringe section 2(b) of the Charter;
(c) whether the original panel committed an error of law when it determined that the Code prohibition against mid-contract strikes, which it interpreted to include the refusal to cross a picket line, does not infringe section 2(d) of the Charter; and
(d) whether the original panel committed an error of law when it determined that, if the employees’ rights under section 2(b) and/or 2(d) of the Charter had been infringed, that such infringements were justified under section 1 of the Charter.
[10] A Notice of Constitutional Question was served on the Attorney General of Canada and the Attorneys General of the provinces on February 7, 2008. No submissions were received from any of these sources.
[11] For the reasons below, the Board has determined that it will not rescind, amend, alter or vary the interim orders made by it on September 24, 2004 and October 4, 2004, or the decision on the Charter issues rendered on June 8, 2007.
II–Facts
[12] The facts leading to the original decisions of the Board are set out in British Columbia Terminal Elevator Operators’ Association, supra. None of the parties to this application took issue with the Board’s findings of fact, and so they will not be set out extensively here. Briefly, in both cases, employees represented by the GWU and the ILWU exercised a right contained in their respective collective agreements to refuse to cross a picket line that had been set up by members of another union, the PSAC, in the context of that union’s legal strike against the Canadian Grain Commission. Bargaining between the PSAC and the Canadian Grain Commission takes place under the Public Service Labour Relations Act, while the relationship between the parties to this application are regulated by the Code. The members of the GWU and the ILWU were not, at that time, in a legal position to strike against their own employers. The employers applied to the Board for declarations of illegal strike. The issue before the Board was whether the refusal by members of the GWU and ILWU to cross the PSAC picket line constituted an illegal strike under the Code, and if so, whether a cease and desist order was warranted. The unions also argued that, if the Board were to find that such activity constituted an illegal strike, then this interpretation of the definition of “strike,” when taken together with the prohibition against mid-contract strikes contained in section 88.1 of the Code, amounts to a violation of the employees’ Charter protected rights to freedom of expression and association.
III–Positions of the Parties
A–The Unions
[13] The unions submit that the refusal to cross a picket line should not be interpreted as a strike within the meaning of the Code, as to do so violates their members’ section 2(b) and 2(d) Charter rights.
[14] With respect to section 2(b) of the Charter, the unions submit that the act of refusing to cross a picket line is expressive and is protected by section 2(b) of the Charter. They claim that the reasoning in British Columbia Terminal Elevator Operators’ Association, supra, unduly limits the Charter right to freedom of expression, and thus constitutes an error of law. According to the GWU, the original panel departed from the required Charter analysis. It states that although the Board answered the question as to whether the conduct had expressive content, it did not address the questions of whether the method or location of the expression removed the conduct from Charter protection, as raised in Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62; [2005] 3 S.C.R. 141 [City of Montréal], or whether the statute infringes on that protection, either in purpose or effect, the second step analysis set out by the Supreme Court of Canada in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 [Irwin Toy]. The GWU submits that the original panel departed from the requisite analytical framework and applied reasoning that was fundamentally inconsistent with the proper analysis for determining whether the Charter right to freedom of expression had been infringed.
[15] The intervenors’ submission is slightly different. They argue that the original panel did follow the proper analytical approach by answering all three questions, but made an error in concluding as it did. They maintain that the original panel erred when it answered the third question, finding that the purpose or effect of the prohibition against mid-contract strikes did not infringe the right of expression. They submit the original panel was wrong to conclude that there was no link between the activity and the message and to simply say there are other means by which the workers can express themselves, does not mean there has not been infringement.
[16] The unions also argue that the reasoning of the original panel is contrary to what was the law then, and what is now the law, under section 2(d) of the Charter.
[17] The unions state that the effect of requiring the employees they represent to cross the PSAC picket line, despite the provision in their collective agreement permitting them not to do so, precludes that activity because of its associational nature. They contend that if a single member of the union declined to cross the picket line, that act would have been lawful under both the Code and the collective agreement. However, because the employees’ refusal was done “in combination, in concert or in accordance with a common understanding,” the same act is rendered unlawful by the statute. In the unions’ view, the prohibition on refusing to cross a picket line is targeted because of its associational quality, and this in itself constitutes an infringement of the Charter protected right to freedom of association. According to the unions, the original panel erred in finding that section 2(d) is not infringed simply because there is no constitutional protection of the right to strike. The unions allege that, in making this finding, the original panel failed to address the essential differences between a right to strike within the statutory framework, and exercising a contractual right to refuse to cross a picket line.
[18] In their submission, the defining feature of the unions’ case is that the respective collective agreements each contain a provision, which is the product of collective bargaining, that permits employees to refuse to cross a picket line. The effect of the original Board decisions is to require members of the unions to cross a picket line, despite the fact that they have a freely bargained right under their collective agreement not to do so. As a result, the unions argue, the Board’s decisions invalidate a significant collective agreement provision, without any consultation, and amounts to a substantial interference with collective bargaining, in violation of their section 2(d) Charter rights as now defined by the Supreme Court of Canada in B.C. Health Services, supra.
[19] The unions also state that the statutory prohibition interferes with collective bargaining and affects the ability of union members to come together and pursue common goals. They contend that because the statute has the effect of nullifying a longstanding provision in the collective agreement that was freely negotiated by the parties, it interferes with collective bargaining. They point out that in B.C. Health Services, supra, the Supreme Court of Canada found that unilaterally nullifying negotiated terms is one of the acts that, by significantly interfering with meaningful collective bargaining, could have the impact of violating the procedural right to collective bargaining.
[20] The unions state that the second aspect of the “substantial interference” test outlined in B.C. Health Services, supra, is whether the legislative measure or government conduct in issue respects the duty to consult and negotiate in good faith. They argue that interpreting the statutory definition of “strike” so as to prohibit the right of employees to respect picket lines constitutes a virtual denial of the process of good faith bargaining and consultation.
[21] The unions cited two cases in support of their position. In Re Durham (Regional Municipality) Police Services Board and Durham Regional Police Assn. (2007), 164 L.A.C. (4th) 225 (Knopf) [Durham], an interest arbitrator considered whether she had jurisdiction to remove a provision of the collective agreement that established minimum levels of constable deployment when it was alleged by the employer that the provision conflicted with the police chief’s statutory exclusive jurisdiction over operational matters. In that case, the arbitrator ruled that the legislation should be read and applied to give effect to the constitutional protection that the Supreme Court had granted to collective bargaining in B.C. Health Services, supra. The arbitrator went on to say that “a statute should not be interpreted or applied in a way that would substantially interfere with or undercut the ability of an association or union to engage in the process of negotiating working conditions.” The arbitrator held that, absent a clear directive that staffing and deployment are outside the scope of bargaining, the statute had to be interpreted to continue to allow the parties to engage in the process of negotiating such working conditions. While the collective agreement could not take away the police chief’s authority over operational matters, it could provide for cost impacts or organizational consequences for certain of the chief’s operational decisions.
[22] The unions also cited Confédération des syndicats nationaux c. Québec (Procureur général), [2007] J.Q. no 13421 (Que. S.C.) (QL), which held that a statute passed by the Quebec government to reform the health and social services network infringed the section 2(d) right to freedom of association, as individuals were not able to freely choose with whom they wished to combine for the purposes of collective bargaining. The unions rely on this decision for the proposition that the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights instruments that Canada has ratified, and that the ILO Freedom of Association Committee has held that “[t]aking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful” (International Labour Office, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body, 5th (revised) ed. (Geneva : ILO, 2006), at para. 651).
[23] The unions made it clear that they do not claim that the Charter protects the right to strike. Rather they say that the right not to cross a picket line, when there is a provision providing for that right in the collective agreement, is not a “strike” within the meaning of the Code. They claim that, as the process of collective bargaining is constitutionally protected, the legislation should not be applied in a way that would substantially interfere with the freely negotiated provisions of their collective agreements, which in this case state that employees are not required to pass a picket line.
[24] In summary, the unions submit that where the parties have freely negotiated a provision in their collective agreement that gives the employees the right not to cross a picket line, that provision should be given the same effect as any other provision allowing employees to be absent from work or to refuse to work. In the unions’ view, if the parties agree in collective bargaining that employees are not required to do certain work, exercising such a right is not a strike. They say that employers should not be permitted to walk away from a deal that they made at the bargaining table by asserting that, if the employees actually exercise their rights under the collective agreement, this amounts to an illegal strike. Furthermore, the unions state, the fact that there is still some residual vestiges of benefit in the collective agreement provision does not negate the fact that an important collectively bargained right has been removed.
[25] It is the unions’ position that these violations of the employees’ section 2(b) and 2(d) rights cannot be justified under section 1 of the Charter as being reasonable and demonstrably justified in a free and democratic society.
[26] The unions submit that the original panel erred when it improperly defined the objective of the legislation in an overly broad manner, at the outset. By identifying the legislative objective as the prohibition of all forms of mid-contract work stoppages, it captures many forms of activities not intended to be caught by the prohibition and not normally considered to constitute a strike in the overall scheme of the Code. By prohibiting all forms of work stoppages, instead of just those related to collective bargaining, the unions argue that the legislative objective thus fails to meet the “pressing and substantial concern” test, the first part of the Oakes test (see R. v. Oakes, [1986] 1 S.C.R. 103), required to warrant overriding the Charter rights.
[27] Further, the unions maintain that the original panel erred when it found that the legislative prohibition against all forms of mid-contract work stoppages satisfied the proportionality test, the second part of the Oakes, supra, test. First, they argue that there is no rational connection between prohibiting all forms of work stoppages including the expression of solidarity and the legislative objectives of protecting the scheme of free collective bargaining and bargaining related strikes. Finally, they maintain that the legislative prohibition fails the minimal impairment aspect of the test, particularly in circumstances where the parties have freely negotiated the right to refuse to cross a picket line into their collective agreements. According to the unions, a more narrow prohibition against collective bargaining related strikes only may meet the minimal impairment test.
[28] With respect to section 2(d), the unions argue that the Supreme Court in B.C. Health Services, supra, has provided only a very limited scope for any justification under section 1: interference with the collective bargaining process may be permitted on an exceptional and typically temporary basis, in situations such as those involving essential services, vital state administration, clear deadlocks and national crisis. In the unions’ submission, a definition of strike that prohibits all forms of mid-contract work stoppage is neither temporary nor exceptional, and therefore cannot meet the standard for a section 1 justification established in B.C. Health Services, supra.
B–The Employers
[29] The employers submit that the Board was correct in its interpretation of the definition of “strike” when it held that the concerted refusal by members of the GWU and ILWU to attend work due to the presence of PSAC picket lines at their work sites constituted a strike. The employers assert that, contrary to the unions’ representations, this case is very much about the right to strike, rather than the right to collective bargaining. They point out that the right to strike is a statutory creation, given only to unionized employees, to enhance their ability to negotiate with their employer. In the employers’ submission, it is open to the government to place restrictions on the statutory right to strike that it has granted. The employers also point out that there is no Charter protected right to strike (Reference Re Public Service Employee Relations Act, [1987] 1 S.C.R. 313 (Alta.), and suggest that the analogy that the unions attempt to draw with the rights of non-unionized employees has no merit, as the latter have no statutory right to strike at any time, and also do not have any Charter protected right to refuse to cross a picket line.
[30] The employers submit that the Board’s holding that the application of the definition of strike to the job action at issue does not infringe section 2(b) of the Charter was correct. They point out that the Board followed the approach to section 2(b) analysis set out in the decision of the Supreme Court of British Columbia in Hospital Employees’ Union v. Health Employers’ Assn. of British Columbia, 2007 BCSC 372; (2007), 133 CLRBR (2d) 259 [HEABC]. In their submission, the Board correctly applied the Irwin Toy, supra analysis, as refined by the Supreme Court of Canada in City of Montréal, supra, which provides for a preliminary screening process to determine whether the location or method of expression undermines any of the core values underlying the Charter guarantee of freedom of expression so as to remove it from Charter protection. In the employers’ submission, the Board did follow the appropriate analytical framework, answered the right questions and correctly concluded that, while the method of expression—the refusal to cross a picket line—was expressive activity, prohibiting this activity did not infringe the right to freedom of expression.
[31] While the employers concede that the law with respect to section 2(d) of the Charter changed subsequent to the original panel’s decision, they submit that the result of the original decision on that point remains correct. The employers argue that this case is not so much about the right to collective bargaining as it is about the right to strike, a right that is clearly not protected by the Charter. They suggest that the B.C. Health Services, supra, case has no application to this situation, as it did not change the law with respect to the right to strike.
[32] The employers say that if B.C. Health Services, supra, does apply to this case, the statutory prohibition against mid-contract strikes does not interfere with the collective bargaining process. Furthermore, they contend, if the statutory prohibition does interfere with the applicants’ right to collective bargaining, it does not constitute a substantial interference with that right.
[33] The employers submit that B.C. Health Services, supra, can only be interpreted as protecting the process of collective bargaining, and that there is no right to a particular outcome. In their submission, all that the impugned provisions of the Code do is establish limitations on what the parties can and cannot bargain and provide that the parties cannot contract out of their obligations and these statutory limitations. They point to the Supreme Court of Canada decision in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42; [2003] 2 S.C.R. 157, as authority for the proposition that employment related statutes can establish a floor beneath which an employer and union cannot contract.
[34] The employers suggest that the unions are seeking Charter protection for the content of their collective agreements simply because they are the product of collective bargaining, but point out that B.C. Health Services, supra, does not guarantee a certain substantive or economic outcome. They also contend that this is not a case of complete nullification of a provision of the collective agreement, as the provision is still enforceable as between the parties.
[35] The employers distinguish the situation in B.C. Health Services, supra, from their situation: in that case, Bill 29 did not simply “tweak” the labour code in order to rebalance it, the impugned statute was passed for the express purpose of overcoming the labour code and interfering with collectively bargained settlements. It was this extreme and egregious circumstance, the employers say, that caused the Supreme Court to intervene.
[36] In the employers’ submission, the total nullification by the B.C. government of important provisions of collectively bargained settlements was the kind of substantial interference in collective bargaining that is now prohibited. In their view, the Code does not nullify the provision of the collective agreement that permits employees to refuse to cross a picket line. The employers admit that the provision is still enforceable as between the parties–for example, it would prevent the employer from disciplining an employee who refused to cross a picket line and therefore failed to report for work. They argue that the provision still has meaning, albeit not everything that the union may have thought it had negotiated and would like to have.
[37] The employers suggest that the provisions of Bill 29 that were allowed to stand (for example, restrictions on successorship and the common employer and true employer provisions) are analogous to those at issue in this case. These, they contend, are all matters over which the legislature can grant or withhold protection, as it sees fit. They argue that limiting the ability of employees to engage in mid-term work stoppages does not interfere with collective bargaining at all, let alone in a substantial manner.
[38] Lastly, the employers submit that the original panel’s section 1 analysis was correct. They maintain that the original panel was correct when it identified the pressing and substantial objective of the legislation, as being the broader objective of providing certainty and stability through the preservation of labour peace during the term of a collective agreement. They suggest it would have been wrong to assume that the legislative objective of preventing mid-contract strikes was only to regulate job action taken by employees over the terms and conditions of their employment, as to do so discounts the broader societal interests in maintaining industrial peace and stability.
[39] The employers go on to dispute the unions’ charges that the proportionality test was not made out and maintain that the original panel’s analysis and conclusions on the rational connection and minimal impairment tests were correct and in accordance with the jurisprudence. They assert that the means adopted by Parliament to achieve this objective are clearly distinguishable from those in B.C. Health Services, supra and are proportional to the objective.
IV–Analysis and Decision
[40] The Board notes that the employers raised an issue relating to the sufficiency of the unions’ applications in these matters. They allege in particular that the ILWU has failed to raise any new substantive submissions as to how the original panel may have erred in its analysis of the issues. The BCMEA alleges that the ILWU merely reiterates all of the same arguments that it made to the original panel. The BCTEOA makes the same allegation against the GWU with reference to the latter’s section 1 justification analysis arguments. The reconsideration panel is of the view that each of the issues has been adequately canvassed through the various union and intervenor submissions, and that it is in the public interest for the Board to deal with the substantive merits of the arguments.
[41] This reconsideration application requires the Board to determine whether:
(a) the original panel committed an error of law when it determined that the refusal to cross a picket line constituted a “strike” within the meaning of section 3 of the Code;
(b) the original panel committed an error of law when it determined that the Code prohibition against mid-contract strikes, which it interpreted to include the refusal to cross a picket line, does not infringe section 2(b) of the Charter;
(c) the original panel committed an error of law when it determined that the Code prohibition against mid-contract strikes, which it interpreted to include the refusal to cross a picket line, does not infringe section 2(d) of the Charter; and,
(d) the original panel committed an error of law when it determined that, if the employees’ rights under section 2(b) and/or 2(d) of the Charter had been infringed, that such infringements were justified under section 1 of the Charter.
A–The Definition of “Strike”
[42] “Strike” is defined in section 3 of the Code as follows:
“strike” includes a cessation of work or a refusal to work or to continue to work by employees, in combination, in concert or in accordance with a common understanding, and a slowdown of work or other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output.
[43] The original panel correctly set out the Board’s jurisprudence with respect to this definition at paragraphs 62 to 78 and, in the reconsideration panel’s opinion, committed no error when it concluded that a concerted refusal to cross a picket line constitutes a strike within the meaning of section 3 of the Code. With the exception of a few decisions in the early 1980’s, the Board has consistently applied the ruling of the Supreme Court of Canada in International Longshoremen’s Association v. Maritime Employers’ Association et al., [1979] 1 S.C.R. 120, which held that the definition of strike is an objective one.
[44] A few decisions made by the predecessor Canada Labour Relations Board (CLRB) in the early 1980’s (British Columbia Telephone Company (1980), 40 di 163; [1980] 3 Can LRBR 31; and 80 CLLC 16,062 (CLRB no. 253); Canadian Broadcasting Corporation (1981), 45 di 29; [1981] 2 Can LRBR 462; and 81 CLLC 16,128 (CLRB no. 322); Purolator Courier Ltd. (1981), 45 di 300 (CLRB no. 344)) considered the definition of strike and its consequences under the Code in connection with refusals to cross a picket line, and suggested that there could be exceptions to the objective definition, and that the parties could “contract out” of the Code by negotiating provisions allowing employees to refuse to cross a picket line. However, in Saskatchewan Wheat Pool (1994), 93 di 201; and 94 CLLC 16,060 (CLRB no. 1055), the CLRB clearly reaffirmed its longstanding interpretation that the definition of strike is an objective one, and ruled that parties cannot, by negotiation, change the statutory definition of “strike” or contract out of the prohibition on mid-contract work stoppages. Since that time, the CLRB and subsequently the CIRB have consistently held that even if an employee has an individual right to refuse to cross a picket line that was obtained through collective bargaining, when that right is exercised in combination, in concert or in accordance with a common understanding, it will constitute an illegal strike under the Code.
[45] In their submissions, the unions made much of the fact that when Parliament amended the Code in 1998, it did not adopt the recommendation of the In the Matter of: The Canada Labour Code, Part I–Industrial Relations: Report of the Industrial Inquiry Commission into Industrial Relations at West Coast Ports (Canada: The Commission 1995) (Commissioners: Hugh R. Jamieson and Bruce M. Greyell), which would have expressly prohibited contracting out of the Code by amending section 89(2) to state that the prohibition against mid-contract work stoppages would apply “[n]otwithstanding any provision in a collective agreement to the contrary.” The unions rely on this purported omission by Parliament to support their contention that in 1998, Parliament did not intend to prohibit the negotiation of collective agreement provisions that permit employees to collectively refuse to cross a picket line.
[46] The employers, on the other hand, point to one of the amendments that Parliament enacted in 1998 as support for the proposition that the legislator did intend to prohibit mid-contract work stoppages: section 88.1, which was added to the Code at that time provides:
88.1 Strikes and lockouts are prohibited during the term of a collective agreement except if
(a) a notice to bargain collectively has been given pursuant to a provision of this Part, other than subsection 49(1); and
(b) the requirements of subsection 89(1) have been met.
[47] The unions have not persuaded the reconsideration panel that the original panel committed an error of law when it held that the definition of strike is an objective one and that Parliament’s intent to prohibit mid-contract strikes is evidenced by the wording of section 88.1. Accordingly, it is clear that at least since January 1, 1999, any previous decisions of the Board which suggested a contrary interpretation cannot be sustained. The parties cannot bargain provisions into their collective agreement that permit or cause employees to violate the legislative prohibition against mid-contract work stoppages.
B–Section 2(b)–Freedom of Expression
[48] Does a provision of the Code that prohibits mid-contract work stoppages violate individual employees’ freedom of expression? The original panel dealt with this issue at paragraphs 79 to 101.
[49] The unions take issue with the form of Charter analysis undertaken by the original panel when it found that the legislative prohibition against mid-contract strikes does not infringe the employees’ freedom of expression.
[50] The unions rely on two cases in support of their respective arguments: Irwin Toy, supra and City of Montréal, supra. In Irwin Toy, supra, the Supreme Court of Canada set out a two-step test to determine whether there is a violation of the guarantee of freedom of expression under section 2(b) of the Charter. The two steps were explained as follows:
... When faced with an alleged violation of the guarantee of freedom of expression, the first step is to determine whether the plaintiff’s activity falls within the sphere of conduct protected by the guarantee. Activity which (1) does not convey or attempt to convey a meaning, and thus has no content of expression, or (2) which conveys a meaning but through a violent form of expression, is not within the protected sphere of conduct. If the activity falls within the protected sphere of conduct, the second step is to determine whether the purpose or effect of the government action in issue was to restrict freedom of expression. ...
(page 931; emphasis added)
[51] In City of Montréal, supra, a case involving a challenge to a municipal by-law that prohibited noise produced by sound equipment of a club, which sound could be heard in a public street, the Supreme Court of Canada dealt with the application of section 2(b) to government-owned property. The Court applied the following three-step “analytic approach” to determine whether there was a violation of the freedom of expression under section 2(b) of the Charter in that case:
56. Does the City’s prohibition on amplified noise that can be heard from the outside infringe s. 2(b) of the Canadian Charter? Following the analytic approach of previous cases, the answer to this question depends on the answers to three other questions. First, did the noise have expressive content, thereby bringing it within s. 2(b) protection? Second, if so, does the method or location of this expression remove that protection? Third, if the expression is protected by s. 2(b), does the By-law infringe that protection, either in purpose or effect? See Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.
[52] The GWU submits that the Board departed from the analysis set out in Irwin Toy, supra and City of Montréal, supra and applied reasoning fundamentally inconsistent with proper Charter analysis. The intervenors submitted that the Board misapplied the second step of the Irwin Toy, supra test and, as a result, reached an incorrect finding that the purpose or effect of the legislative prohibition against mid-contract strikes does not infringe the employees’ right of expression.
[53] The original panel correctly set out the Irwin Toy, supra test at paragraph 79. The reconsideration panel is of the view that the City of Montréal, supra decision did not change the main elements of the analysis set out in Irwin Toy, supra. In City of Montréal, supra the Court merely refined the Irwin Toy, supra analysis by providing an additional step or “pre-screening” question for the section 2(b) analysis in cases where the method or location of the expression itself could take it outside the sphere of protected activity. The Court stated that the first two questions set out in the City of Montréal, supra case relate to whether the expression at issue in this case falls within the protected sphere of section 2(b), which is the first step of the Irwin Toy, supra analysis:
57. The first two questions relate to whether the expression at issue in this case falls within the protected sphere of s. 2(b). They are premised on the distinction made in Irwin Toy between content (which is always protected) and “form” (which may not be protected). While this distinction may sometimes be blurred (see, e.g., Irwin Toy, p. 968; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at p. 748), it is useful in cases such as this, where method and location are central to determining whether the prohibited expression is protected by the guarantee of free expression.
(emphasis added)
This statement indicates that the Court did not intend to depart from the Irwin Toy, supra test, but rather, clarified the first step of the Irwin Toy, supra, test in cases where method and location are central to determining whether the prohibited expression is protected.
[54] Numerous decisions of the Supreme Court of Canada have affirmed that freedom of expression is a fundamental Canadian value, and a crucial component of a free and democratic society. The courts have identified that expression has both content and form and that the content of expression can be conveyed through a variety of different forms of expression. However, as the cases discussed above illustrate, the Court has also recognized that freedom of expression is not absolute and not every form of expression is protected by the Charter. For example, expression that is violent in nature has been held not to be protected (Irwin Toy, supra).
[55] In this particular case, the Board is of the opinion that the original panel correctly addressed the first step of the Irwin Toy, supra, analysis and examined the “content” and “form” of activity under that first step to determine whether the refusal to cross a picket line was expressive activity falling within the sphere of section 2(b) of the Charter. The original panel addressed this issue at paragraphs 82 to 87, and found that the form of activity in question, which is the refusal to cross a picket line, also carries with it an element of expression and thus falls within the sphere of expressive activity protected by section 2(b) of the Charter. The reconsideration panel agrees with the original panel’s analysis and conclusions on that issue.
[56] Given that the application of section 2(b) to government-owned property was not an issue in this case, nor was there any violence involved, the Board is of the view that the original panel properly applied the first step of the Irwin Toy, supra, analysis and did not have to explicitly address the questions of method and location, as developed in City of Montréal, supra.
[57] The central issue on reconsideration, however, concerns the original panel’s application of the second step of the Irwin Toy, supra, analysis when it looked at the purpose or effect of the prohibition against mid-contract work stoppages to determine whether there was infringement. The GWU argues that the original panel relied upon reasoning that does not properly form part of an initial determination of whether the right to freedom of expression has been infringed, and instead embarked upon a section 1 justification analysis. The intervenors argue the original panel correctly applied the test but came to the wrong conclusion. The reconsideration panel is of the opinion that the original panel did in fact properly apply the second step of the Irwin Toy, supra test and did not embark upon a section 1 analysis at that stage. Furthermore, the reconsideration panel agrees with the original panel that the purpose or the effect of the definition of strike is not to control expression, nor is it meant to prevent workers from expressing their support and solidarity towards other workers (paragraph 92).
[58] The original panel’s second step of the Irwin Toy, supra analysis is found at paragraph 88 of the original decision. With respect to the purpose test, the Court stated in Irwin Toy, supra that where the government activity at issue aims to control only the physical consequences of certain activity, regardless of whether that conduct attempts to convey a meaning, its purpose does not infringe the freedom of expression guarantee. The reconsideration panel agrees with the original panel’s description of the purpose of the prohibition against mid-contract work stoppages at paragraph 91, which states:
[91] In the opinion of the Board, it cannot be said that the purpose of the legislation or even the specific prohibition against mid-contract strikes was to restrict expression, in either content or form. The purpose of the statutory prohibition is not to limit or restrict picketing or restrict workers’ ability to express their support and solidarity by forcing them to cross picket lines. Rather, the definition of strike, read in conjunction with the prohibition in section 88.1 of the Code, is part of the comprehensive legislative scheme designed to introduce a measure of certainty into the labour relations environment, by regulating the right to lawfully engage in strike activity.
(British Columbia Terminal Elevator Operators’ Association, supra)
[59] The original panel also concluded that the effect of the prohibition against mid-contract strikes was not to deprive workers of the right to convey their message or affect their ability to convey the content of the message they wished to convey. Therefore, it did not impair their freedom of expression.
[60] In doing so, the original panel rejected the notion that the right to freedom of expression was an unfettered right to demonstrate their support in any manner or forum chosen. The reconsideration panel is of the view that this did not amount to the original panel embarking upon a section 1 justification analysis at this stage. The original panel simply took into consideration the principles set out in Irwin Toy, supra when it determined the purpose or effect of the prohibition of mid-contract work stoppages and considered the principle noted above, that certain restrictions may be placed upon the physical consequences of certain activity without infringing the freedom of expression guarantee.
[61] The original panel made reference to the B.C. Supreme Court decision in HEABC, supra, which also dealt with a withdrawal of services situation. In that case, the withdrawal of services was for the purpose of attending political protest rallies, but the Court dealt with the matter from the perspective of a mid-contract work stoppage and found that the restriction on mid-contract work stoppages in the B.C. legislation did not infringe the rights protected under section 2(b) of the Charter. It concluded that the absolute prohibition against mid-contract work stoppages was “a mere regulation of the physical consequences of that form of expressive activity and did not adversely impact upon the content or ability to engage in political expression” (paragraph 163). It noted that the effect of the prohibition against mid-contract work stoppages is that the employees are free to attend political protest rallies, provided that the expression did not involve a mid-contract withdrawal of services during working hours.
[62] The same is true in the present circumstances. The original panel concluded and the reconsideration panel agrees, that the restriction on mid-contract work stoppages is content-neutral and the effect of the restriction does not deprive workers of the right to express their message of support and solidarity for other workers engaged in a legal strike against their employer, or otherwise control or restrict the content of their message. It merely regulates the physical consequences of strike activity without adversely impacting on the content of the message or the workers’ ability to otherwise demonstrate worker solidarity.
[63] The reconsideration panel is therefore of the opinion that the original panel did not err when it held that neither the purpose nor the effect of the prohibition against mid-contract work stoppages, which restricts the union members’ right to refuse to cross a picket line, infringes on their freedom of expression, and that this conclusion was reached based on the well-established principles set out in Irwin Toy, supra.
[64] However, even if that conclusion is incorrect, the reconsideration panel is also of the view that any legislative restriction on employees’ freedom of expression can be justified under section 1, for the reasons given by the original panel in paragraphs 114 to 142. This issue will be addressed later in these reasons.
C–Section 2(d)–Freedom of Association
[65] The original panel recognized that the picket line clause was achieved through collective bargaining, but applied the jurisprudence as it then stood, and held that the right to collective bargaining was not constitutionally protected. It is common ground that the decision in B.C. Health Services, supra changed the interpretation of section 2(d) from that which had been articulated in the “trilogy” (Reference Re Public Service Employee Relations Act, supra; PSAC v. Canada, [1987] 1 S.C.R. 424; and RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460). Previously, it was understood that the section 2(d) guarantee of freedom of association did not include protection for the objects of that association, and consequently that collective bargaining per se was not protected by the Charter. B.C. Health Services, supra stands for the proposition that section 2(d) of the Charter protects the capacity of union members to engage in collective bargaining on fundamental workplace issues, and that this associational activity is to be protected from substantial interference by the state.
[66] The unions do not argue that section 2(d) includes a free standing, constitutionally protected right to strike. Rather, they say that the Board’s decisions and interim orders of September 24, 2004 and October 4,which interpreted the term “strike” to include a refusal to cross a picket line, invalidate a significant collective agreement provision—the negotiated right to refuse to cross a picket line—without consultation. In their submission, this amounts to a substantial interference with collective bargaining, in violation of their section 2(d) rights, and that this violation cannot be justified under section 1 of the Charter.
[67] The employers state that this case is very much about the right to strike and that the B.C. Health Services, supra decision, which recognizes a very limited protection under section 2(d) of the Charter for the process of collective bargaining, expressly states that the decision does not deal with the right to strike and does not overrule the previous jurisprudence that there is no Charter protected right to strike. The employers submit that B.C. Health Services, supra has no application to the facts of this case, and even if it does apply, there has been no interference with the collective bargaining process and certainly no substantial interference with union members’ right to collective bargaining.
[68] There are often many different ways in which an issue can be characterized and this case is a clear example of that reality. The unions have attempted to persuade the Board that the issue here is all about collective bargaining, which has now been granted certain constitutional protection. However, the reconsideration panel is of the view that the issue is more properly characterized as relating to the constitutional validity of the statutory prohibition against mid-contract strikes, and whether that prohibition infringes the Charter rights of employees subject to the Code. The decisions of the Board that are under review confirmed that a concerted refusal to cross a picket line is a strike within the meaning of the Code, and therefore captured by the statutory mid-contract strike prohibition. In the B.C. Health Services, supra decision, the Supreme Court declared unconstitutional portions of a statute enacted to deliberately nullify important provisions of a collective agreement that had been freely negotiated, in order to reduce health care costs. Despite the unions’ best efforts to characterize the current matter as a case affecting collective bargaining, the reconsideration panel is of the opinion that, at its heart, the applicants’ objections to the Board’s orders are really based on a claim to an unrestricted contractual right to strike.
[69] All parties agree, as does this panel, that the B.C. Health Services, supra decision does not grant constitutional protection to the right to strike and does not overrule the previous jurisprudence on that issue. Consequently, it is the reconsideration panel’s view that the B.C. Health Services, supra decision has no direct application to the facts of the case before us and does not impact the analysis and conclusions of the original panel on the Charter issue.
[70] However, if this conclusion is wrong, and B.C. Health Services, supra does apply to the circumstances of the instant case, then the reconsideration panel is of the view that the original panel’s conclusion that the union members’ section 2(d) rights were not violated remains valid, because there has been no substantial interference with their right to collective bargaining.
[71] The circumstances in the case before the Board are considerably different from the facts in B.C. Health Services, supra. In that case, the government of B.C. enacted legislation, the Health and Social Services Delivery Improvement Act (Bill 29 or the Act), aimed at reducing the costs of health care services in the province. The Act deliberately invalidated specific provisions of existing collective agreements in the health care sector and prohibited collective bargaining on a number of specific issues. The scope of the issues affected by the Act was far-reaching, particularly with respect to important subjects such as contracting out, job security, lay off and bumping rights and transfer and multi-work site assignment rights. It was clear that both the intent and the effect of the Act was to nullify important freely bargained terms of the unions’ collective agreements.
[72] In ruling that the Act violated section 2(d) of the Charter, the Supreme Court of Canada held that the “state must not substantially interfere with the ability of a union to exert meaningful influence over working conditions through the process of good faith collective bargaining.” The Court indicated that “substantial interference” will be found if the intent or effect of the state action is to seriously undercut or undermine the activity of workers joining together to pursue the common goal of negotiating workplace conditions and terms of employment with their employer. Examples of such substantial interference provided by the Court include overt “union breaking,” denying employees access to labour laws, bad faith and unilateral nullification of negotiated terms without any process of meaningful discussion and consultation. In B.C. Health Services, supra the Court found that some, but not all, of the provisions of the Act were unconstitutional because they infringed on the right to collective bargaining. Specifically, the nullification of the contracting out, layoff and bumping rights provisions of the existing collective agreements constituted a substantial interference because those provisions dealt with matters central to collective bargaining. The Court held that the government’s actions with respect to these issues constituted a virtual denial of the right to a process of good faith bargaining and consultation. However, the Court also held that the Act’s impact on transfer and reassignment of employees, including removing these issues from future bargaining, did not amount to substantial interference, because the modifications were relatively minor and significant protections remained in place.
[73] The unions also argue that their collectively bargained right not to cross a picket line was removed “without consultation.” The impugned state action in question, if any, would have to refer back to the legislative amendments to the Code which were enacted in 1998 and which came into force on January 1, 1999. The 1999 amendments were the result of a legislative reform initiative designed to update the Code and make it more effective and relevant to the modern labour relations environment. Unlike Bill 29, which was at issue in B.C. Health Services, supra, and which was legislation directed at specific provisions of collective agreements in a particular sector, the 1999 Code amendments were aimed at updating the entire scheme of labour management relations in the federal jurisdiction. Although the statutory definition of “strike” was not amended, one of the many amendments enacted at that time was the addition of section 88.1, which expressly prohibits mid-contract work stoppages. It is important to note that, unlike the B.C. Health Services, supra situation, the 1999 Code amendments were the product of an extensive consultation process, which included a thorough review of the Code by an independent Task Force that made numerous recommendations for change.
[74] Does the combined effect of sections 3 and 88.1 constitute a substantial interference with the employees right to collective bargaining? The unions argue that it does. In their view, the application of the Code has the effect of nullifying a collective agreement provision that they negotiated some 20 years ago. In other words, they believe that they have lost the value of their bargain. The employers point out, however, that the provision of the collective agreement still has meaning, as individual employees cannot be disciplined by the employer for refusing to cross a picket line and the employees are protected from claims by their employers for damages caused by their unlawful activities.
[75] In B.C. Health Services, supra the express purpose and effect of Bill 29 was to remove collectively bargained protections that were crucial to the job security of union members. In the instant case, there was clearly no such drastic action taken or ever intended. The amendment does not appear to have been directed at nullifying any specific provision in the unions’ collective agreements, as was the apparent intent behind the 1995 Jamieson-Greyell recommendation referred to by the unions. Rather, the new section 88.1 incidentally had the effect of partially nullifying a provision in the parties’ collective agreement. However, the legislative amendment did not declare the provision to be void or invalid for all purposes. Furthermore, in B.C. Health Services, supra, the Supreme Court specifically noted that the constitutional protection extends to workers’ access to the process of collective bargaining and does not guarantee a particular outcome or product of that bargaining.
[76] The statutory amendments also were not enacted to undercut or undermine the activity of workers joining together to pursue the common goal of negotiating workplace conditions and terms of employment with their employer. Rather, they were aimed at balancing the overall rights of the parties subject to the Code and, among other things, to ensure labour peace during the term of a collective agreement. It should be noted that the prohibition applies equally to labour and management (strikes and lockouts are both prohibited during the term of a collective agreement, unless certain specified circumstances exist). A provision limiting the ability of employees to engage in work stoppages during the term of a collective agreement does not impair their ability to negotiate critical workplace issues such as seniority, job security and wages and benefits, or prohibit them from negotiating these topics in the future, as was the case in B.C. Health Services, supra.
[77] In the view of the reconsideration panel, the Code prohibitions were not intended to and do not have the effect of undercutting or undermining the ability of the union members to join together to pursue their common goal of negotiating workplace conditions and terms of employment with their own employer. The Code simply prevents work stoppages of any kind, including refusals to cross another union’s picket line, from occurring during the term of a collective agreement, in the interest of industrial certainty and stability. While the Board recognizes that the concept of union solidarity is critically important to trade unionists, this important tenet of the union movement should not be interpreted in such a manner as to trump the broader public interest in labour peace that is reflected in the Code.
[78] The Board does not find that the two cases cited by the applicants have any application to the facts in this case. They are distinguishable on their particular facts and are not directly relevant to the circumstances of this case.
[79] The facts in Durham, supra, were very different from those before this Board. In that case, the B.C. Health Services, supra principle was found not to be directly on point and was used only as an interpretive guide. There, the arbitrator found that, absent a clear directive in the statute that deployment issues were beyond the scope of bargaining, the statute should be interpreted so as to allow these issues to be bargained. Here, there is a clear directive in the statute that mid-contract strikes are prohibited.
[80] In Confédération des syndicats nationaux c. Québec (Procureur général), supra, the facts were more analogous to those in B.C. Health Services, supra since the provincial government legislation was directed specifically at changing the collective bargaining regime and the existing bargaining unit structure in order to reduce costs in the health and social services sector. The Court found that drastic measures and radical changes were imposed more or less unilaterally, despite the opposition of the unions and health care professionals. Further, the changes directly impacted the collective bargaining process by significantly changing the bargaining unit structure and requiring that certain issues be bargained locally rather than centrally. Drastic changes of this nature were not implemented by the 1999 Code amendments, nor was the legislation designed to detrimentally affect existing collective bargaining relationships. In the case before this Board, the effect of the legislative amendment on collectively bargained picket line clauses was merely incidental, since it was directed at labour peace generally and mid-contract strikes specifically.
[81] The decisions cited by the unions therefore do not persuade the Board that the original panel erred when it found that the Code prohibitions do not infringe the employees’ Charter right to freedom of association.
[82] Accordingly, the reconsideration panel affirms the finding of the original panel that the Code provisions do not infringe the applicants’ freedom of association as protected by section 2(d) of the Charter. In particular, the Board finds that the definition of “strike” contained in section 3 of the Code, insofar as it may partially nullify the effect of the provision in the unions’ respective collective agreements that permit employees to collectively refuse to cross a picket line, does not violate section 2(d) of the Charter.
[83] However, even if the effect of the Code is to infringe on the applicants’ section 2(d) rights, this infringement can be justified under section 1 of the Charter.
D–Section 1: Justification
[84] The original panel applied the Oakes, supra test for a section 1 justification at paragraphs 114 to 142 of its decision. The unions have not convinced the reconsideration panel that the original panel made any error of law in its section 1 analysis. Although the Board recognizes the importance to the union movement of the concept of union solidarity, the statutory prohibition that prevents union members from collectively refusing to cross a picket line does not impair their ability to support the members of a different bargaining unit in other ways (for example, financial contributions or assisting on the picket line during their own non-work hours). Furthermore, the Code prohibition does not prohibit the content of the message being conveyed (support for fellow trade unionists) but merely restricts one means of expressing that support (the refusal to cross someone else’s picket line and the resultant refusal to perform the duties of their own employment).
[85] The unions take issue with the manner in which the original panel defined and identified the legislative objective to be assessed under the justification analysis. They maintain that the original panel improperly stated the legislative objective too broadly and the true objective was a more narrow one of regulating work stoppages related to collective bargaining. The reconsideration panel disagrees and believes the original panel correctly identified the broader objective of preserving industrial peace and stability by regulating all forms of mid-contract work stoppages, as this properly takes into account the public interest aspect and the objectives of the Code, as set out in the Preamble.
[86] Having found that the original panel appropriately identified the broader objective of preserving industrial peace and stability during the term of a collective agreement as the pressing and substantial objective, it is this panel’s view that the prohibition against all forms of mid-contract work stoppages is rationally connected to that objective, as the original panel held.
[87] The unions argue that the prohibition against all forms of mid-contract strikes is overly broad and fails to respect the parties’ contractual agreements. They contend that certain exceptions can easily be carved out when parties have specifically negotiated the right to honour picket lines, without jeopardizing the statutory objectives. Therefore, they argue, the prohibition as it stands now fails to meet the minimal impairment test.
[88] The original panel dealt directly with the unions’ argument at paragraphs 133–136 of its decision. It stated that, in its view, to create any exception, even for picket line clauses, would create too much uncertainty and would prejudice the overall objective of industrial certainty and stability. It endorsed the “bright line” argument, advocating the need for clear and unequivocal rules so that parties would know their rights and responsibilities and the consequences of their actions. This panel finds no error in the original panel’s logic or conclusion on this issue.
[89] The unions argue that with respect to justification for infringement of rights under section 2(d) of the Charter, the Supreme Court of Canada has set out a specific and much more narrow or limited scope for justification under section 1 in B.C. Health Services, supra. They point to the statements made in paragraph 108 of that decision, to suggest that interference with the collective bargaining process is permitted only on an exceptional and temporary basis, in situations such as essential services, vital state administration, clear deadlocks and national crisis. The unions submit that the statutory prohibition against all forms of mid-contract work stoppages are neither exceptional nor temporary and cannot be justified under section 1.
[90] The reconsideration panel is not persuaded that an entirely new standard for justification of interference with rights under section 2(d) of the Charter has been created by the Supreme Court in B.C. Health Services, supra. While it is true that such comments were made at paragraph 108 of the B.C. Health Services, supra decision, these statements appear to have been made by way of example only. When the Court actually undertook the section 1 justification analysis, at paragraphs 137–161, no mention was made of those specific limitations. The Court relied on and applied the traditional Oakes, supra test analysis and confirmed the notion that the legislator need not show that it chose the least drastic measure, but only that the measure chosen falls within a range of reasonable alternatives. It then went on to find that the government in that case had failed to present any evidence as to why the particular solution was chosen and why there was no consultation with the unions as to the range of options open to it. For those reasons, the Court found that the requirement of minimal impairment had not been met.
[91] Labour legislation, particularly in the federal jurisdiction which governs key economic infrastructure industries, is all about finding a balance between the respective rights and obligations of the parties. It is also about balancing the rights of unions and employers with the public interest in promoting harmonious labour management relations and preserving industrial peace. In the reconsideration panel’s view, the means chosen by Parliament to meet the pressing and substantial objective of labour peace—restricting mid-contract work stoppages—only minimally impairs the applicants’ freedom of expression and does not impair their right to collective bargaining. Like the original panel, the reconsideration panel cannot envision a less intrusive but equally effective means of preserving industrial peace during the term of a collective agreement.
V–Conclusion
[92] For the reasons given above, the reconsideration panel concludes that the original panel made no error of law or policy and accordingly the Board declines to rescind, amend, alter or vary the decision and interim orders made by it on September 24, 2004 and October 4, 2004 or its decision of June 8, 2007. This is a unanimous decision of the Board.