Charter of Rights and FreedomsCollective BargainingComparative Work LawFreedom of AssociationHuman RightsStrikes and LockoutsSupreme Court of CanadaUnions and Collective BargainingUnited States
What Might a Right to Strike for Non-Union Workers in Canada Look Like?
written by David Doorey December 16, 2022
By David Doorey, York University
Workers at some 100 Starbucks stores in the United States today began a 3-day strike. This follows upon other mass strikes across the U.S. in recent years by low-wage non-union workers hoping to improve their work lives. These strikes would be illegal in Canada exposing the workers to possible termination. For those who have followed me for a while, you will know this is a topic of great interest to me. We have reached a point in the development of Canadian labour law when we need to address the elephant in the room:
How can Canada recognize a constitutional right to strike in its Charter of Rights and Freedoms while at the same time persist with a legal model that permits the 85 percent of Canadians working in the private sector who are non-union to be fired for striking?
First, some background. I have discussed much of this before so I will be brief. At the end of the post, I suggest for the sake of discussion some possible legal reforms to create a 'right to strike' for non-union workers in Canada.
The U.S. Right to Strike
When Canada imported the U.S. 'Wagner model' of collective bargaining law in the 1940s, it tweaked some features to address Canadian concerns. One crucial tweak related to how strikes would be regulated. In the U.S., the National Labor Relations Actprotected a right of employees to "engage in concerted activity for mutual aid and protection" (Section 7, NLRA). This protection was broad in scope, and it was later confirmed by the U.S. Supreme Court that it protected a right of both unionized and non-union employees to strike over working conditions. Section 13 of the NLRAalso explicitly protects a "right to strike". Therefore, when a group of Starbucks employees who are not in a certified majority union walk off the job in protest over working conditions, they are protected by Section 7.
However, what it means to be protected in this regard needs some clarification.
What does it mean to have "a right to strike"?
One answer would be that you have a right to strike if you are not legally prohibited by force of law from walking off the job with your coworkers to protect working conditions. Slaves did not have a right to strike. Or it might mean that strikers are not committing a criminal offence, so that a 'right to strike' means you will not be imprisoned if you strike. Until the early 20th century in fact strikes were often treated as unlawful conspiracies and criminal offences.
However, if you ask people on the street what it means to have 'a right to strike' you would probably be told that it means you can't be fired if you go on strike. If the employer can just fire you the moment you join co-workers on a picket line, then it would be ridiculous to call that a right to strike. To speak of a right to strike in any meaningful way today means looking at how law guarantees the jobs of strikers. In the U.S., the law is quite complicated in this area.
It divides strikes into 'economic' strikes and 'unfair labor practice' strikes. Economic strikes are over working conditions, the stuff of collective bargaining. If workers in the U.S. go on strike to pressure the employer in collective bargaining, then that is an economic strike. In 1938, in a case called Mackay Radio, the USSC ruled that employers can 'permanently replace' economic strikers. What that means in practice is that the employer can hire replacement ('scab') workers to replace the strikers and when the strike ends keep the scabs over the strikers. The logic here is that the strikers aren't being fired for striking, because they retain a right a first right of recall if their old job becomes vacant later.
An 'unfair labor practice'strike occurs when workers walk off the job in response to what they perceive to be actions by the employer that amount to a violation of the National Labor Relations Act. Workers engaged in an unfair labor practice strike cannot be permanently replaced. That's why Starbucks Workers United has characterized this weekend's strike as a response to Starbucks unfair labor practices:
The union says this is a strike it to protest unfair labor practices, including closing stores which have voted to join the union, such as the first store in the company's Seattle hometown to vote for a union, and what the union says is the company's refusal to bargain for an initial union contract.
To summarize, the Starbucks workers who are striking this weekend may or may not be union members, but under U.S. law it doesn't matter. U.S. labor law protects employees' right to strike regardless, although whether the employees can lose their jobs for striking depends on whether the strike is characterized as an 'economic' or an 'unfair labor practice' strike.
Meanwhile in Canada….
When Canada imported the Wagner model in 1944, it did not include in the labour legislation either an expressed 'right to strike' or a 'right to engage in concerted activities.' The Canadian right to strike is much narrower. Firstly, our laws only protect a right to engage in 'trade union activities' not the broader 'concerted activities'. As I have explained for many years, this means that Canadian labor law does not protect a 'right to associate' per se. That is why workers can be fired in Canada for raising collective concerns about working conditions if they do so organically without a union, or even for discussing their wages with one another. Collective activity, including striking, is only protected in Canada if done through a "trade union".
Secondly, a strike is only lawful in Canada if done by workers who are in a majority union that has been certified or voluntarily recognized by the employer. Non-union workers in Canada (at least in the private sector) never have a protected right to strike. In addition, even unionized workers only have a protected right to strike during a very narrow window of time at the tail end of collective bargaining after a variety of legal prerequisites have been satisfied. On the other hand, if ununionized Canadian workers strike after satisfying all the legal perquisites, they have a protected right to return to their jobs at the end of the strike. We do not distinguish between 'economic' and 'unfair labor practice' strikes in Canada and employers cannot 'permanently replace' lawful strikers.
A Right of Non-Union Workers to Strike in Canada?
To return to the Starbucks discussion, if Canadian Starbucks employees joined the mass strike occurring in the U.S. this weekend, they would be acting in violation of their employment contracts. These workers would have no legal protections.
The policy question is whether that situation should change. In Canada, about 85% of private sector workers are non-union and therefore have no legally protected right to strike, ever. This situation seems incongruous given that the Supreme Court of Canada recently concluded that a right to strike is a necessary component of meaningful collective bargaining and is therefore protected by 'freedom of association' in the Charter. The fact that the vast majority of Canadians can be fired for striking makes a mockery of the Supreme Court's finding that a right to strike is fundamental to protect meaningful collective bargaining.
What could be done about this? I have thought about this question quite a bit over the years. To walk through the options in detail would require another post. In this paper in the U of T Law Journal I discuss how I envision a U.S. style 'right to concerted activities' coming to Canada in the near future (see pages 200-203).
My belief is that Canadian labour law should begin by recognizing a free-standing "right to associate and act collectively" with regards to working conditions. We can call it a right to engage in concerted activities like in the U.S., but a right to associate works just fine. This new protected right would protect employees from reprisals who come together to discuss amongst themselves or raise concerns about working conditions with their employer. This right should cover all employees and dependent contractors.
Then, on the specific issue of protecting the right to strike of non-unionized workers, a number of options could be considered. Here I will list a few. Do you think any of these ideas make sense? What risks exist of adopting any of them? Is there one option that makes most sense to you? It's time for a discussion.
Status Quo: Do nothing, provide no legal protections for non-union workers who strike to pressure their employer to improve working conditions.
Legislate a free-standing "right to strike" for all workers: This law would replace the existing Wagner model of a limited right to strike for unionized workers with a broader right for all workers (union and non-union) to strike to pressure their employer to address working conditions with a guaranteed right to return to work following the strike. This model would effectively undue the historical compromises in Canadian labour law surrounding the right to strike and move towards the British idea of creating 'statutory immunity' for striking workers from the consequences of strikes provided the workers satisfy certain preconditions (like an attempt to negotiate first and provision of strike notice).
Legislate a supplemental right to strike for non-union workers in response to unlawful employer behaviour: This proposal calls for adoption of something like the U.S. 'unfair labor practice' strike. If workers have an honest and reasonable belief that the employer has violated a labour-related statute (say labour relations, employment standards, and occupational health and safety, for example), workers can give notice of a strike and then strike with a right to return to their jobs after the strike is concluded. This model effectively harnesses the threat of strike to improve enforcement of protective statutes.
Legislate a new right of non-union workers to engage in economic strikes: The existing strike laws would continue to apply for unionized workplaces. However, a new supplemental right to strike would be introduced for non-union workers. These workers would be entitled to strike to pressure the employer to improve working conditions following a notice period. Under this model, employees of non-union Starbucks stores could combine and organize a mass strike similar to that occurring in the US. The big question that would need to be addressed is the scope of the strike protections. Two options come to mind:
A. Economic strikers have the same full job guarantee as presently exists for unionized workers engaged in a lawful strike. They get their jobs back when the strike ends or if they ask to return to work.
B. We adopt a U.S. style lesser right to strike for non-union economic strikers. These workers can be 'permanently replaced', meaning that the employer can hire a replacement worker and keep them on after the strike, but must offer any vacancies that come up later to the strikers first.
There are other options too. Can you think of any?
Should Canadian law-makers be thinking about some form of right to strike for non-union workers?
David Doorey
Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is Academic Director of Osgoode Hall Law School's executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School's Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).
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