Article by: Katelin Dueck + Mike Hamata
Previously printed in The Lawyer’s Daily, a LexisNexis Canada publication.
It is the start of a new year and we are ready to look ahead. In B.C., we are anticipating some significant labour decisions in 2022, which could be consequential for unionized workplaces. Join us as we fall down the rabbit hole of Charter challenges and vaccination policies.
Union membership and activities have long been subject to scrutiny on the basis that freedom of expression and freedom of association are protected by s. 2 of the Canadian Charter of Rights and Freedoms. Issues around union membership and picketing are often subject to Charter challenges.
Unlike other Canadian jurisdictions, in British Columbia, secondary site picketing (when workers picket businesses other than the struck employer) is unlawful in most circumstances. One exception is if the striking union can obtain a declaration from the Labour Relations Board that the secondary business or location has allied itself with the struck employer and the secondary business is rendering undue assistance to the employer. The trade-off for this limitation of picketing is that a struck employer may not hire replacement workers.
As B.C. labour relations patron saint Paul Weiler discusses in his marvellous book Reconcilable Differences, those finely balanced trade-offs allow striking unions in British Columbia to exert more power over the struck employer (because replacement workers are not allowed) with less disruption to the economy as a whole (because secondary picketing is usually unlawful). In this respect, British Columbia is unique, and in our completely objective opinion, is a much more evolved jurisdiction in which to practise labour law than the rest of Canada.
In 2018, Gateway Casinos and the B.C. General Employees’ Union (BCGEU, previously the B.C. Government and Service Employees Union) were embroiled in a labour dispute while negotiating a new collective agreement. In the course of the dispute, the BCGEU applied for a declaration that would allow picketing at non-struck Gateway Casinos locations, alleging that not being permitted to do so would violate workers’ Charter rights. In late 2020 Gateway Casinos, the BCGEU, and the Attorney General provided submissions to the board on the constitutionality of the restriction on secondary site picketing. The Hospital Employees’ Union (HEU) obtained intervener status and provided submissions as well, in support of the BCGEU.
We are anticipating a decision from the board, and we are hopeful to receive one this year. In our view, continued restrictions on secondary site picketing is a sensible policy choice which is necessarily paired with B.C.’s restriction on replacement workers. Finding that the Charter prohibits restrictions on secondary site picketing would upset the British Columbian balanced/targeted approach to the test of power between union and employer, which is given effect in the course of a strike or lockout. The resulting spillover of industrial conflict could be bad news for other participants in B.C. labour relations and would cause a significant change to the balance of power in industrial disputes, if restrictions on replacement workers (our union side friends might call them scabs, but that feels mean) remain.
In other news, s. 54 of the B.C. Labour Relations Code requires an employer to provide a union with 60 days’ notice when it introduces a change affecting the terms and conditions of employment. In some cases, where a change results from actions completely outside the control of the employer, the board may relieve against the notice requirement. In the early days of the pandemic, the board adjudicated a batch of cases relating to whether employers were required to give s. 54 notice in advance of implementing masking policies. More recently, the board has been inundated with applications by unions alleging that employers who implement vaccination policies which could have employment consequences for non-compliance require s. 54 notice.
In early decisions, the board has determined that in the absence of a government mandate, the employer’s response to COVID-19 is within its control, and s. 54 notice is required. In British Columbia Rapid Transit Co (Re), 2021 BCLRB 185, the board found that the employer’s vaccination policy required employees to undertake a medical procedure that the employer knew some workers would be opposed to, and to disclose medical information. The mandatory nature of the vaccination policy also created consequences for non-compliance, which were rationally connected to s. 54. As a result, the notice requirement was not waived. We understand that decision is under reconsideration, which the B.C. labour relations community will be keenly watching.
There is never a dull moment in the wonderland of B.C. labour law. Stay tuned in 2022 to see if the law regarding secondary site picketing changes and how arbitrators consider the enforceability of vaccine policies.
Mike Hamata is an employment and labour lawyer and a partner of Roper Greyell LLP in Vancouver. He practises in all areas of employment, labour and workplace human rights law and is a strong advocate for his employer and employee clients. He can be reached at firstname.lastname@example.org. Katelin Dueck is a lawyer at Roper Greyell LLP. She works all areas of workplace law, including employment, labour, workplace human rights and privacy law. She advises clients on all issues that arise in the workplace and can be reached at email@example.com.