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Protests Move North of Border? Canadian Employers Respond to National General Strike

On February 17, 2017, activists opposing the new administration are planning a national general strike, including protests and work stoppages. In light of the growing support for the strike, U.S employers face questions concerning workers who skip work, given the National Labor Relations Act’s (NLRA) protections. For example, Section 7 of the NLRA gives employees the right to engage in concerted activities for the purpose of their “mutual aid or protection,” while Section 8 makes it unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.

The situation in Canada is somewhat simpler.

This is because Canadian employees do not enjoy a broad protection for “concerted activities.” Rather, in Canada, employee activity only gains protection where it is related to an effort to join or persuade others to join a trade union.

Accordingly, engaging in a national general strike to protest the policies of a political office-holder are very unlikely to qualify for protection. An employee who abandons his or her employment for the purpose of engaging in such a strike could be disciplined upon the exercise of a valid workplace rule (i.e., a rule against unauthorized absences).

Ironically, the case for permissible discipline may be even stronger in a unionized setting where collective agreements, as a matter of law, prohibit strikes or lockouts during the life of the agreement. A group of employees who engage in such job-action could be subject to discipline, and if their representative trade union supported or encouraged the work stoppage, the employer may be able to obtain damages from the trade union for any losses the employer suffered as a result of the violation of the agreement.  

Note: This article comments on Canadian labour law only. Employers with U.S. operations have different obligations under the National Labor Relations Act, covered in our recent article, “Wait . . . Can They Do This? Employers’ Responses to a National General Strike.”

© 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

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About this Author

Stephen Shore, Ogletree Deakins, Toronto, applications for certification lawyer, collective bargaining attorney
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Stephen Shore is a skilled advocate whose practice is focused on the representation of management in many areas of employment and labour law with particular emphasis on applications for certification, collective bargaining, grievance arbitration, Ontario Labour Relations Board proceedings, human rights, wrongful and constructive dismissal litigation and employment and labour issues in corporate restructuring and transactions.

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