Additional Information on Strike
Strike and Lock-out: FAQ
Content last reviewed: November 2011
What is a strike?
What is a lock-out?
When are the parties in a legal position to strike or lock-out?
Must there be a strike vote before a strike can take place?
Can the employer request a vote of employees on the employer's final
offer?
Do all employees covered by the Labour Relations Act, 1995 have the
right to strike?
What is a strike?
A strike is a collective action by employees to stop or curtail work.
Section 1 (1) of the Labour Relations Act, 1995 defines a strike as a
cessation of work, a refusal to work or to continue to work by employees
in combination or in concert or in accordance with a common
understanding, or a slow-down or other concerted activity on the part of
employees designed to restrict or limit output.
Return to top
What is a lock-out?
A lock-out occurs when an employer closes a workplace, suspends work
or refuses to continue employing a number of employees during a labour
dispute.
Section 1 (1) of the Labour Relations Act, 1995 defines a lock-out as the
closing of a place of employment, a suspension of work or a refusal by
an employer to continue to employ a number of employees, with a view
to compel or induce the employees, or to aid another employer to
compel or induce that employer's employees, to refrain from exercising
any rights or privileges under this Act or to agree to provisions or
changes in provisions respecting terms or conditions of employment or
the rights, privileges or duties of the employer, an employers'
organization, the trade union, or the employees.
Return to top
When are the parties in a legal position to strike or lock-out?
There are several preconditions to get into a legal position to strike or
lock-out:
If an employer and union are party to a collective agreement, the
agreement must have expired.
In the case of a strike, a strike vote must have been held (see below for
exceptions).
A Conciliation Officer must have been appointed and a "no-board"
issued (see below for details)
It's legal to strike or lock-out beginning on the 17th day after the minister
mails the "no board" notice. For example, if the notice was mailed on
August 1st, the parties can legally strike or lock out on August 18th.
There can be some confusion about this because the act states that the
period is 14 days after the release of a notice. The notice is not deemed
to have been released, however, until the second day after it was
mailed. This extends the period to 16 days, and since they must be
'clear' days, it means that a strike cannot legally start until the beginning
of the 17th day. (See Sections 79(2)(b) and 122(2)(a) of the Labour
Relations Act, 1995). In addition to the above, parties covered by the
Crown Employees Collective Bargaining Act (CECBA). must have
negotiated an essential services agreement before a strike can be
lawfully initiated.
Return to top
Must there be a strike vote before a strike can take place?
Employees cannot lawfully strike unless a strike vote by secret ballot is
taken within 30 days of the collective agreement expiring or at any time
after the agreement expires, and more than 50 per cent vote in favour of
the strike. With a first collective agreement, the vote must be conducted
after the appointment of a conciliation officer. A strike vote must be by
secret ballot and all people eligible to vote must have ample opportunity
to do so. All employees in a bargaining unit, whether or not they are
trade union members, are entitled to participate in such a vote. (See
Section 79 of the Labour Relations Act, 1995).
There are some exceptions to the mandatory strike vote; namely,
employees in the construction industry and those performing
maintenance work who are represented by a trade union pertaining to
construction.
Return to top
Can the employer request a vote of employees on the employer's last
offer?
Any time before or after the commencement of a strike or lock-out, the
employer may request that the Ontario Minister of Labour direct a vote of
the employees in the affected bargaining unit to accept or reject the
employer's last offer on all matters remaining in dispute. Upon receiving
this request, the minister is obligated to direct such a vote (except in the
construction industry where the minister's authority to direct a vote is
discretionary). Neither the request to the minister nor the holding of the
vote affect the time periods set out in the act. (See Section 42 of the
Labour Relations Act, 1995).
In situations where strikes and lockouts are prohibited, an employer is
not entitled to request a vote under Section 42 of the Labour Relations
Act, 1995.
Return to top
Do all employees covered by the Labour Relations Act, 1995 have the
right to strike?
No. Employees of hospitals and nursing homes and the Toronto Transit
Commission do not have the right to strike. Instead, unresolved
bargaining issues are settled by binding arbitration. They are covered by
the Hospital Labour Disputes Arbitration Act (HLDAA) and the TTC
Labour Disputes Resolution Act, 2011, respectively.
The Labour Relations Act, 1995 also gives the union and the employer
the right to agree voluntarily that the matters about which they are
negotiating be referred to an arbitrator or board of arbitration, who will
decide, after hearing arguments from both sides, the terms of the
collective agreement (See Section 40 of the Labour Relations Act,
1995). Once the parties have agreed in writing to submit their remaining
issues to an arbitrator, they no longer have the right to engage in a strike
or lock-out.
Fire fighters and police have their own legislation, and are not subject to
the Labour Relations Act, 1995. The Fire Protection and Prevention Act,
1997 (FPPA) and the Police Services Act (PSA) both place an outright
ban on strikes and lock-outs. The Ministry of Labour administers the
collective bargaining sections of the FPPA, while the Ministry of
Community Safety and Correctional Services is responsible for collective
bargaining under the PSA.
A strike is a work stoppage caused by employees’ refusal to work,
typically to protest an employer decision (to close a plant, freeze wages,
cut benefits, impose unpopular work rules, or refuse to improve working
conditions, for example). The right to strike is protected by the National
Labor Relations Act (NLRA), but not all strikes are legal. Whether a
strike is lawful depends on the purpose of the strike, whether the
collective bargaining agreement includes a “no-strike” clause, and the
conduct of the strikers.
This article provides some basic information about legal and illegal
strikes. For all of our articles on unions and labor, see our Labor Unions
page.
Lawful Purposes
A strike is legal – and therefore protected by the NLRA – if the
employees are striking for economic reasons or to protest an unfair labor
practice by the employer. In the first scenario, strikers are trying to get
some economic concession from the employer, like higher wages,
increased benefits, or better working conditions. In the second, workers
strike because the employer has engaged in some practice that violates
the NLRA, like refusing to bargain with the union or discriminating
against union members. (See Unfair Labor Practices for more
information.)
No-Strike Clauses
Even strikes with a legal purpose are not protected by the NLRA If the
union’s contract with the employer (the collective bargaining agreement)
includes a no-strike clause. With a few limited exceptions (for example, if
employees are refusing to work because of unusually dangerous
working conditions), a strike that violates a no-strike provision is illegal.
Strike Misconduct
A strike can also become unlawful if strikers engage in serious
misconduct, such as violence or threats, physically preventing other from
entering or leaving the workplace, or sit-down strikes, in which
employees refuse to leave the workplace and refuse to work. These
strikes are not protected by the NLRA.
Employer Responses
Although the NLRA protects the right to strike, employers don’t have to
shut down for the duration of the walkout. Employers are legally allowed
to hire replacement workers during the strike. Once the strike ends, the
employer’s obligation to bring back striking workers depends on the
reasons for the strike:
Employees who strike to protect an unfair labor practice cannot be fired
or permanently replaced. When the strike is over, these employees must
be reinstated to their jobs, even if means replacement workers have to
be let go.
Employees who strike for economic reasons have lesser reinstatement
rights. Although they cannot be fired, they can be replaced. If the
employer has hired permanent replacements, economic strikers aren’t
entitled to immediate reinstatement. Instead, they are entitled to be
called back for job openings as they occur.
