Strikes, Lockouts, Picketing and Work-to-Rule: What’s the latest law on industrial warfare?

With governments focused on eliminating deficits, labour conflict looms. While less trouble is expected in the private sector in the coming months, recent private sector labour disputes, such as the US Steel dispute in Hamilton and the Vale disputes in Ontario and Newfoundland, have been long and acrimonious. The resulting climate of labour strife raises the question, “What are the rules when unions and employers clash?” In this session, Lancaster’s experts will venture to answer this question, addressing the following:

• Illegal Strikes: What are the legal repercussions for a union if it organizes, instigates, or condones an illegal strike by its members? Can a union be found liable for economic damage to the employer resulting from the illegal strike? Can the union be sued by third parties who allege they suffered economic harm as a result of an illegal strike? What types of damages might a union have to pay in such cases? Would punitive damages be available? What is the union’s liability if union members engage in an illegal “wildcat” strike without the involvement of union officials? What actions can a union take to avoid liability for an illegal strike by its members? What are the consequences for individual workers who engage in “wildcat” strikes?
• Work-to-Rule: Can employees “work to rule” if their union is not in a legal strike position? Can unions in “essential service industries” engage in work to rule campaigns?
• Work During a Strike: Can unions fine members who work during a strike or cross picket lines? Will courts enforce such fines? What is the difference between “strikebreakers” and “replacement workers”? What restrictions do different Canadian jurisdictions place on an employer’s ability to use strikebreakers and/or replacement workers during a strike? What are the policy arguments for and against banning replacement workers during strikes?
• Illegal Conduct During Strikes: What is the union’s liability for the illegal conduct of striking bargaining unit employees (e.g. assault causing bodily harm, property damage, defamation)? In what circumstances may an employer fire striking workers? What is the legal status of striking employees?  Are they covered by the common law rules that apply to non-union employees, or by the collective bargaining regime, which covers unionized employees? Is it an unfair labour practice for an employer to refuse to arbitrate the dismissal of striking workers?
• Picketing: In what circumstances will an employer be able to obtain an injunction against picketers? How does legislative restriction of picketing vary by province (and in the federal sector)? To what extent does the Charter protect secondary picketing, that is, picketing in places that are not the striking workers’ workplace? In an effort to build support, promote their cause and dissuade people from crossing picket lines, can unions publicize the identity of people crossing picket lines?
• A Right to Strike?Following the Supreme Court’s decisions in B.C. Health Services and Fraser, are the courts likely to recognize a constitutionally-protected right to strike in Canada? What cases currently underway will require the courts to rule on the existence and nature of the right to strike? If the courts do recognize a constitutionally protected right to strike, what limits to that right are they likely to accept? Do political strikes have a greater claim to Charter protection than economic strikes? Given the increasing propensity of governments across Canada to designate services essential and/or to use back-to-work legislation, will the strike survive as a bargaining tool if the courts do not hold it to be a constitutionally protected right?
• Lockouts: In what circumstances can an employer “lockout” employees? What damages might be ordered if an employer engages in an illegal lockout? How do these damages compare to those that might be ordered if a union engages in an illegal strike? If the courts recognize a constitutionally protected right to strike, must they also recognize an employer’s right to lockout employees as being constitutionally protected?