Most of us are well aware that at about 4 a.m. this morning, the Ontario Labour Relations Board (OLRB) ruled that the Elementary Teachers Federation of Ontario’s planned, so called, political day of protest would constitute an illegal strike.
Like most labour relations legislation, Ontario’s Labour Relations Act, 1995 (the “Act”) prohibits strikes during the term of collective agreements. The Act defines “strike” as including “a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow-down or other concerted activity on the part of employees designed to restrict or limit output.”
This is not the first time public sector workers have planned a concerted, mid-contract walk-off to engage in a “political protest”. Indeed, the same thing happened in 2002 when B.C.’s Provincial Government enacted legislation to impose a contract on the British Columbia Teachers’ Federation and carved out and prohibited bargaining on certain provisions in the Hospital Employees’ Union agreement. Ultimately, the Supreme Court of Canada ruled that the legislation unjustifiably infringed the hospital employees’ freedom of association. In a related decision, the B.C. Supreme Court found similarly that most of the imposed legislation unjustifiably violated the B.C. teachers’ Charter rights.
Shortly after the B.C. government enacted the offending legislation (but well before any litigation concluded), the unions launched political days of protest. Despite arguments that those protests were aimed at achieving political and not labour-relations ends (a bit of a leap of faith), B.C.’s Labour Relations Board ruled the strikes were unlawful mid-contract work stoppages. This was ultimately upheld by the B.C. Court of Appeal and the Supreme Court of Canada refused to grant the unions’ applications for leave to appeal.
Although the definition of “strike” in B.C.’s legislation differs from that in Ontario’s, the principle is the same. If teachers’ unions are unhappy with the legislation imposed by the Provincial Government, they can back political rivals’ campaigns, encourage their members to vote differently, work to rule, and they may even initiate challenges to the legislation in the courts. However, they may not express their frustration or seek labour-relations gains by engaging in mid-term work stoppages. Work now. Grieve later.
