21 February 2008

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.

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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.