CanWest fails in attempt to invalidate
struck-work clauses in union agreements
Victoria-Vancouver
Island Newspaper Guild | CWA
Canada Local 30223
Struck-work clauses in two newspaper
contracts in British Columbia have been upheld despite
owner CanWest Global's exhaustive legal manoeuvres
to have them declared invalid.
The company's challenges followed
the issuance of a 'hot edict' on Sept. 5, 2005, by
the B.C. Federation of Labour, which urged unions to
apply pressure on Telus Mobility to end its lengthy
and acrimonius dispute with the Telecommunications
Workers Union (TWU).
As a result of the edict, the Victoria-Vancouver Island
Newspaper Guild (VVING) and the Communications Energy
and Paperworkers (CEP) union, which respectively represent
workers at the Victoria Times-Colonist and at the Vancouver
Sun and Province, refused to handle or run Telus advertising.
CanWest responded by filing a grievance; the remedy
it was seeking was for the unions to cease and desist,
as well as a claim for damages. The company also made
application to the B.C. Labour Relations Board (LRB)
for an order that the unions cease and desist what
it characterized as an illegal strike. It was also
seeking damages for lost revenue from the unions.
The Labour Relations Board (LRB) held that struck-work
clauses generally were not illegal under the B.C. Labour
Code. However, the LRB ordered the parties to proceed
to arbitration to get an interpretation of the specific
struck-work clauses and, in the interim, the unions
were to cease and desist; an order with which the unions
complied.
CanWest then filed an application to the LRB for reconsideration
of the decision. The LRB dismissed the reconsideration
application.
The arbitration was held in abeyance as the company
applied to the B.C. Supreme Court for judicial review
of the LRB decisions. The Supreme Court heard the application
for judicial review June 28-29, 2007. On Jan. 31, 2008,
the Supreme Court issued reasons for judgment that
upheld the LRB decisions which found that struck-work
clauses were not illegal under the B.C. Labour Code.
The Honorable Madam Justice Balance, in making her
decision, stated:
“As part of this line
of argument, the petitioner (company) points to the
fact that the collective agreement provisions at
issue were negotiated before Bill 19 expanded the
purposes to include minimizing the effects of labour
disputes on third parties. It says that it is therefore
not surprising, given the dynamic nature of the Code,
that over time these hot declaration clauses have
come to offend the ... purpose. The obvious flaw
with this contention is the fact that, in this case,
the hot declaration clauses have repeatedly been renewed
in successive bouts of collective bargaining, including
in the most recent round, long after this purpose was
explicitly incorporated into the Code."
This article has been adapted from a version that
first appeared on the VVING
website.