Chapter 4: Options to Reduce the Risk, Frequency and Duration of Work Stoppages

Addendum 4-1: Existing Provisions in the Canada Labour Code and Non-legislative measures to Reduce Work Stoppages

In order to better understand the options being considered to reduce work stoppages, it is necessary to have some knowledge of the procedures set out in the Canada Labour Code that guide collective bargaining, or other measures to assist resolving disputes to avoid work stoppages. Accordingly, as a primer on the subject matter, this Addendum presents the statutory bargaining procedures and measures that may lend themselves to reducing the risk, frequency and duration of work stoppages.

Canada Labour Code Provisions

No Work Stoppages during the Term of the Agreement

No work stoppages are allowed during the term of a collective agreement, or after the term until a list of prescribed steps in the Code has been followed. Disputes between the parties that arise out of the agreement during its term, including its interpretation, are required to be resolved by grievance arbitration.

Notice to Bargain Within the Last Four Months of the Term of the Agreement (Sections 48 & 49)

Unless the collective agreement states otherwise or bargaining is initiated under the rarely used "technological change" provisions, the first formal step towards a work stoppage is when one of the parties provides the other with notice to bargain. Except where no collective agreement yet exists, notice can only be given within the period of four months before the expiration of the agreement or at any time thereafter, unless the parties have agreed otherwise.

Duty to Bargain in Good Faith and Make Every Reasonable Effort to Settle (Section 50)

The parties are required within 20 days of the notice to commence bargaining. This must be carried out in good faith and, theoretically at least, made with every reasonable effort to enter into a collective agreement.

Notice of Dispute (Section 71)

When collective bargaining has not commenced within this time, or the parties have bargained but have been unable to reach agreement, either party may send the Minister a notice of dispute which is used to initiate the conciliation process.

It should be pointed out that in some cases parties give notice to bargain and provide the Minister with a notice of dispute at the same time. This practice is sometimes described as forming part of the "deadline" negotiating tactic. This strategy, along with the fact that parties have on occasion come to the conciliation stage with 200 to 300 issues, has given rise to submissions by a number of stakeholders that an option be considered that provides the Minister with the authority to delay entering the conciliation process until other attempts have been made to move the parties into a more serious negotiating platform.

Federal Mediation and Conciliation Service (Section 70.1)

The FMCS is mandated to advise the Minister of Labour with respect to industrial relations matters and is responsible for fostering harmonious relations between trade unions and employers by assisting them in the negotiation of collective agreements, and in the renewal and the management of the relations resulting from implementation of the agreement. By virtue of subsection 70.1 (2), the head of FMCS reports directly to the Minister with respect to responsibilities relating to the resolution of disputes.

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The Conciliation Process (Section 72 et seq.)

Pursuant to Section 72, within 15 days of receiving the notice of dispute the Minister is required to exercise one of the following options with respect to conciliation:

  1. The Minister may notify the parties that no conciliation appointment will be made, in which case, the union and employer will be in a position to engage in a work stoppage within 21 days after receiving a notification, subject to compliance with other procedural conditions described below. The 21 day "cooling off" period and other conditions apply to all of the conciliation options if not successful.
  2. The Minister may appoint a conciliation officer from the FMCS which is what normally occurs in just about every case. Unless the time is extended by the parties, the conciliation officer has 60 days within which to attempt to settle the dispute. The conciliation officer's role is that of a mediator with no special powers. If not settled, the conciliation officer will provide the Minister with a "no board" report. The Minister is required to immediately give notice of the conciliation officer's report, after which the parties may engage in a work stoppage as described earlier.
  3. A third and rarely used option is for the Minister to appoint a conciliation commissioner. The conciliation commissioner is subject to the same time limitations as a conciliation officer in reporting. The conciliation commissioner acts as a mediator, but in addition the person appointed is required to conduct a fact-finding process and may hold an inquiry summoning parties, examining records etc. The conciliation commissioner is required to provide a report to the Minister containing his or her findings and recommendations. The Minister may make the report available to the public. A conciliation commissioner fulfills the same function as what is often called a fact-finder in other jurisdictions.
  4. The final, and even less used option, is for the Minister to establish a conciliation board. By this process, parties appoint nominees who in turn appoint a third person. If either step fails, the Minister appoints the board members who sit as a kind of formal board hearing evidence etc. regarding the dispute. However, the board has only 60 days after being established to report to the Minister, which includes making findings and recommendations similar to the duties of a conciliation commissioner.

The 21 Day "cooling off" (Subparagraph 89(1) (d))

As indicated, the parties may initiate a work stoppage only 21 days after the Minister has notified them of the report generated in the conciliation process.

Strike Vote (Section 87.3)

If a union wishes to go on strike, it must have the approval of its members by a secret ballot vote within 60 days of it being initiated.

72 Hour Notice (Section 87.2)

Both a union and employer, prior to engaging in a work stoppage, must give 72 hours advance warning of when a strike or lockout will occur.

Maintenance of Activities (Section 87.4 et seq.)

No work stoppages are permitted to affect employers' activities which, if curtailed by a work stoppage, would pose "an immediate and serious danger to the safety or health of the public". Either party may give notice no later than 15 days after notice to bargain collectively has been given specifying the services, employees etc. required to maintain the employer's activities with respect to the safety or health of the public. If no agreement is reached, the parties apply to the CIRB, or the Minister may refer a question regarding maintenance of activities to the Board and a hearing usually ensues, including a decision by the Board to refer the matter to an arbitrator for determination.

These proceedings may take considerable time in order to obtain a decision from the Board or arbitrator. Until they are resolved, no work stoppage is permitted (subparagraph 89(1) (e)), although a work stoppage that is already underway is not interrupted by an application regarding essential services (subsection 87.5 (3)). Options pertaining to the timing of these procedures and the necessity to renew the agreement are considered below.

Certification of Bargaining Units - Union Raids (Section 24 et seq.)

Changes in bargaining agents may be made in the last three months of the term of a collective agreement, unless the term is longer than three years, in which case changes may be made during the last three months of the third year and during the last three months of every year thereafter until the final three months of the term of the agreement.

To change bargaining unit representation or to restructure them or to vary their composition, the parties must apply to the Board. Votes may be ordered as well as other proceedings to determine the representation and composition of bargaining units. If these activities are taking place because of a merger or acquisition, other procedures can be expected before the Board. While there is no specific legislative provision preventing a work stoppage while union transition issues are being determined, in reality it is impossible to bargain collectively until all of these issues are sorted out. No work stoppage can take place until these issues are resolved.

In addition, similar to the maintenance of activities process, changes in bargaining agents occur at the same time as the parties are supposed to be negotiating a new collective agreement. The fact that these proceedings are occurring simultaneously with collective bargaining has given rise to options to change their timing to reduce the risks of work stoppages.

Vote on an Employer's Last Offer (Section 108.1)

At any time after notice to bargain collectively has been given, where the Minister considers it to be in the public interest, the Minister may direct that a vote be held on the employer's last offer. If the offer is accepted, the terms of the collective agreement are those contained in the offer. This provision originated as a means for the Minister to order a vote after a failed ratification vote, usually with the implicit consent of the parties. It has never been used since added to the Code in 1999. Some employers requested that employees be required to vote on the employer's last offer before going out on strike as a measure to reduce work stoppages, in effect amending section 87.3 requiring a vote 60 days prior to initiating a strike referred to above.

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Deferring a Work Stoppage during the Period between Parliaments (section 90)

The Governor-in-Council may order that a work stoppage, before or after it has commenced, be deferred if it occurs during the time after Parliament has been dissolved up to 21 days after being recalled. This provision provides for a sort of "cooling off" period in between sessions of Parliament. One of the options discussed refers to the Minister ordering a "cooling off" period after a work stoppage has commenced.

Work Stoppages Not Affecting Grain Handling Activities (section 87.7)

Longshoremen unions and their members are required to continue to provide the services to keep the grain moving during a strike or lockout. Grain handling is considered a form of essential economic service, as it has no impact on the safety and health of persons which would be covered under the maintenance of activities provisions. Other employer stakeholders recommended an option preventing work stoppages affecting their activities regarding the moving of all cargo in and out of ports and air controller activities. This provision has some relevance to those requests.

First Collective Agreements (section 80)

The Minister and the Board, in a two step process, may prevent a work stoppage from occurring or continuing by ordering the first agreement to be settled by way of interest arbitration. Many unions sought an option which would see the exercise of the discretion of the Minister and the Board being directed towards allowing more interest arbitrations as a means to prevent work stoppages involving newly certified unions.

Mediation Services (Section 105)

The Minister may appoint a mediator at any time, both before and after a work stoppage commences. Section 105(2) provides for a mediator, at the request of the Minister or the parties, to make recommendations for settlement of the dispute. The Minister has requested the mediator to make recommendations on one or two occasions, while the parties have requested recommendations on several occasions, most often in Quebec .

The appointment of a mediator can be made before conciliation, but it usually occurs after conciliation and before a strike deadline. Mediators are normally the FMCS officer who was the conciliation officer in the same dispute, or a high profile private sector mediator in exceptional cases. There is no limit to the number of mediators that can be appointed in one dispute and often a second mediator is appointed to assist the mediator who conducted the conciliation process.

The preventive mediation work of the FMCS, which includes grievance mediation and numerous workshops to build relationships, provide instruction on bargaining, operation of joint councils etc., are conducted pursuant to section 105. All mediation and conciliation services are provided to the parties without charge.

Labour-Management Partnerships Program (LMPP)

The LMPP is a contribution program that serves unions and management, enabling them to undertake a wide range of joint projects aimed at improving labour relations. At present, the budget is limited to $1.6 million per year.

Funding from this program has been used to conduct a number of successful workshops and projects and can be used to fund labour relations training programs in conjunction with the preventive mediation program.

Ministerial Inquiries and Commissions (Sections 106 and 108)

Inquiries regarding any matters that may affect industrial relations may be made pursuant to section 106. This section has been used to make inquiries concerning the Code (the Sims Report and this study on work stoppages). It was used to inquire into the trucking industry at the Port of Montreal . The Minister may, in addition, appoint an Industrial Inquiry Commission pursuant to section 108 on issues arising out of section 106 or otherwise. Where settlement is not achieved during the inquiry, the Commission is required to report and make recommendations to the Minister. It has the full powers of a person appointed as a Commissioner under Part I of the Inquiries Act. An Industrial Inquiry Commission was established to help resolve the Royal Oak Mine dispute.

Minister's Prerogative to Maintain Industrial Peace and Settle Disputes (Section 107)

The Minister may do such things as seem likely to maintain or secure industrial peace and to promote conditions favourable to the settlement of disputes. To this end, the Minister may refer questions to the CIRB or direct the CIRB to do such things as the Minister deems necessary. As it is worded, the provision would appear to bestow wide discretionary powers upon the Minister with respect to almost anything concerning industrial relations and work stoppages.

This provision apparently has been used twice - once to order the CIRB to determine whether a collective agreement existed between a union and an employer (the matter was resolved before the Board determined the issue), and the second time, to order the Board to hold a vote of the union membership of the CAW on a business reorganization plan at Canadian Airlines International (union held vote voluntarily).

An option to reduce the duration of a work stoppage has been raised that would entail the Minister ordering the parties to defer an ongoing work stoppage - a mid-work stoppage "cooling off" period for a period of, say, 30 days, in order to allow them to reconsider their positions, or as a prelude to legislation permanently ordering the parties back to work. One issue is whether the Minister already possesses the power to do this using section 107, or whether specific legislation would be necessary. Legal officers at HRSDC are of the view that specific legislation would be necessary for a ministerial ordered "cooling off" period.

Voluntary Ministerial Interventions

From time to time, depending upon the circumstances, whether an imminent work stoppage or one already commenced , the Minister may wish to meet with the parties to encourage them to resume settlement talks using mediators etc., or to warn them about the possibility of return-to-work legislation if the matter is not resolved. These interventions are usually made with the advice of the FMCS.

Such interventions are important in the process of reducing work stoppages. Several stakeholders said that a request from the Minister to defer a work stoppage and to go back to the bargaining table one last time, sometimes with the involvement of a high profile outside mediator, is treated very seriously by the stakeholders, almost like an order, and that it often results in a settlement. Options to strengthen the Minister's effectiveness in these interventions would reduce the likelihood and duration of work stoppages.

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Date Modified:
2012-01-19