May 7th, 2024
Though not unique to any industry, labour disruptions can have unique implications in the defence and security sector as evident by the ongoing strikes on military bases in Ontario and Quebec.
Employee Strikes on Bases in Ontario, Québec
After nearly 100 days on strike, the strike was partially resolved when the Public Service Alliance of Canada (PSAC) announced that 300 civilian workers on various military bases across Ontario are heading back to work after members voted 71 per cent in favour of the deal. The settlement includes an average wage increase of 4.6 per cent per year over a three-year agreement ending in 2025. However, this labour dispute is not totally resolved as some 200 staff in Québec remain off the job after they voted 80 per cent against the deal.
Civilian workers at Canadian Forces bases in Petawawa, Kingston, Valcartier, Montreal St-Jean, and Bagotville, along with other employees whose jobs are in Ottawa, began striking on January 15, 2024, after a breakdown in their collective bargaining negotiations. These civilian workers provide support for Canada’s military members on and off base in various fields including food services, recreation and support services like financial planning and assistance with disability insurance.
This ongoing labour dispute at military bases serves as an important reminder for those in the Defence Sector who may be worried about future strike action at their own enterprises or those of the partners they work closest with.
i. Employer Rights During a Strike
Employers are provided with some rights by way of legislation. The applicable legislation will depend on whether your workplace is federally or provincially regulated and familiarity with the labour laws applicable to your operation will be important. Generally, strikes are unlawful if there is an operative collective agreement binding the employer and union, or if the strike requirements outlined in the relevant legislation have not been met.[1]
A strike does not necessarily require employees to walk off the job and form a picket line but can include more subtle actions that still cause disruptions in the workplace. These actions could involve a slowdown in work, a refusal to work overtime, a political protest, going on vacation, working “to rule,” calling in sick, or refusing to cross another union’s picket line.[2]
Issues may arise around the lawfulness of a strike in circumstances involving an employee’s refusal to cross a picket line of another enterprise. For more information on the employer’s rights when an employee refuses to cross the picket line, please read our earlier issue on Employee Strikes and Picketing of Partner Enterprises.
In an unlawful strike situation, expediency is crucial, and the relevant labour board will likely schedule a hearing for the matter as soon as possible. You should contact your labour counsel immediately and consider bringing an action before your jurisdiction’s labour relations board. Additionally, or alternatively, your organisation may want to consider submitting a grievance based on a violation of the collective agreement.
Whether a strike is deemed unlawful will be a fact-driven analysis and depend on your organisation’s specific circumstances. If the strike is unlawful, a court has the injunctive power to order the union to cease the strike, and the employer may also be able to claim damages for the unlawful strike before an arbitration board.[3]
ii. When a Legal Strike Occurs
While striking during the term of a collective agreement in any jurisdiction is typically unlawful, a narrow exception permits peaceful picketing. Generally, (1) the employer and the union must have engaged in good-faith collective bargaining, (2) the union must have held a strike vote to determine whether the majority of members are in favour of a strike, and (3) the union must have met with an appointed conciliation officer and received a no-board notice from this officer. However, these requirements may vary by jurisdiction.
Before or after the start of a strike, the employer can request that the employees vote on whether to accept the last offer the employer made to the union.[4] This is known as a “final vote offer” and there are considerable strategic implications with doing so. Whether during negotiations, or when requesting a final vote offer, defence employers must keep in mind that it is in the best interest of both the employer and their employees to avoid, or limit, any strike action.
iii. Employer and Employee Obligations During a Legal Strike
If a legal strike occurs, employees must be permitted to peacefully picket at the entrance of the workplace, and employers will have certain obligations to follow, this is known as “primary picketing”. While “secondary picketing” (picketing at another location) is generally legal in Canada, if your enterprise is concerned about the picketing location you should immediately speak with a labour lawyer.
Regardless of the picketing location, employees participating in the strike must also follow certain rules. For example, striking employees cannot threaten or act aggressively towards others, trespass on or sabotage company property as doing so could raise serious disciplinary penalties – including termination.[5]
Striking employees can also face criminal penalties for unlawful actions while on the picket line. For those following the news, they will recall that a Union executive was arrested at a strike rally on February 7, 2024, outside a Department of National Defence office and charged with mischief, intimidation by blocking or obstructing a roadway, causing a disturbance by impeding, and counselling an uncommitted indictable offence.
Defence sector employers with operations on military bases where civilian workers are striking may also be curious about the proper recourse if their own employees participate in the strike action. This situation is known as a “sympathy strike” which is generally illegal because it would amount to employees striking during the life of their own collective agreement. However, language in a collective agreement may permit otherwise.
Questions may also arise regarding disciplining and dismissing employees during a strike or for engaging in a sympathy strike. Although an employer may discipline, and indeed discharge, an employee who participates in an unlawful strike, merely engaging in such activity will not itself justify terminating the employment relationship.[6] During a strike, employees cannot be discharged or face discipline without just cause. Legislation also strictly prohibits any strike-related misconduct or retaining a service to break the strike.[7]
iv. Effects of an Interruption on a Defence Employer’s Business Due to an Employee Strike
A strike can have a significant impact on an employer’s ability to provide deliverables to a client or a partner organization. A similar issue may arise where a partner organization cannot deliver due to a strike outside your organization’s premises. Should you find yourself in such a position, there are a few things that can be done to mitigate losses.
Defence sector employers may stipulate in their contracts with partner organizations or clients the circumstances in which any or all obligations are to be terminated. Parties to the contract may include force majeure provisions in their contracts to define a list of events or circumstances, such as the instance of a strike, where the occurrence of which either relieves one party, or both parties, of all or part of their obligations under the contract or permits a party to delay the performance of its obligations.[8]
If there is no provision in a contract which has the effect of discharging each parties’ obligations due to a strike or any other unforeseen circumstances, then there may be a frustration of the contract. The fundamental requirement for frustration is that unforeseen events must bring about such a significant change in the parties’ obligations that to compel performance, despite these new unforeseen circumstances, would be to order the parties to do something radically different from what was agreed upon at the execution of the contract. This may occur where the strike makes parties’ contractual obligations physically or legally impossible to perform. The standard position at common law is that a frustrated contract is fully discharged and both parties are no longer obligated to perform any obligations, however, this may vary by jurisdiction.[9] If you believe that a contract between a client or partner organization has been frustrated because of a strike, you should immediately contact your legal counsel who can help advise on the next steps.
In the instance of an unlawful strike, it is possible to recover some of the damages from the union. However, this only occurs in extraordinary circumstances, when the strike is accompanied by acts of grave misconduct that are committed with impunity.[10] In these situations, the basic contractual principle of attempting to return the innocent party to the same position will apply. The Employer will want to argue the union should be held liable for losses attributable to the unlawful strike for which the union was responsible.[11] When established, arbitrators have included awards covering continuing overhead expenses and interest, as well as compensation for lost profits.[12]
Important Takeaways
The disruption that a strike can cause on a business and on employees is significant and should not be understated as evident by the ongoing military base worker strike.
The best way to avoid a picket line at your workplace is to develop a robust negotiation strategy for collective bargaining sessions. The best strategy will depend on the organisation’s specific situation, including assessing the demands of each party, the compensation and benefit standards in the industry, and the relationship with the union. With that being said, strikes do happen and knowing your organisation’s rights and responsibilities during a strike, including knowing when the strike might be illegal, can help mitigate some of the damage.
If your organisation needs help negotiating a new collective agreement or is concerned about an impending strike, please contact Emond Harnden LLP’s Defence & Security Team using the details below. We are dedicated exclusively to assisting employers with labour and employment law.
Kyle Shimon 343-996-4932 and Patrick Twagirayezu 343-999-6485
[1] See for example: Labour Relations Act, 1995, S.O. 1995, c. 1, Sched A, s. 79(1).
[2] Lafarge Canada Inc v Teamsters, Local 141. (2001), 75 C.L.R.B.R. (2d) 137 (Ont LRB).
[3] See for example: Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s. 103(1).
[4] See for example: Labour Relations Act, 1995, SO 1995, c 1, Sched A, s 42.
[5] Fleming Door Products, Ltd. v Hazell, 2008 CanLII 38961 (ON SC) at para 18.
[6] Telus Communications Inc. v. T.W.U., 2006 CarswellNat 3621, [2006] L.V.I. 3683-1, [2006] C.L.A.D. No. 417, 155 L.A.C. (4th) 122, 87 C.L.A.S. 318
[7] See for example: Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s. 80.1.
[8] Tenneco Canada Inc v British Columbia Hydro & Power Authority, 1999 BCCA 415.
[9] See for example: Frustrated Contracts Act, RSO 1990, c F.34
[10] Canada Post Corp. and CUPW (CPC-10-002), 2014 CarswellNat 351, 118 C.L.A.S. 33, 242 L.A.C. (4th) 379
[11] Dartmouth (City) v. N.S.U.P.E., Unit 1, 1991 CarswellNS 803, 21 L.A.C. (4th) 21, 23 C.L.A.S. 33
[12]Supra Limojet
