An agreement between a union and association has expired. Though it had been renewed for many years an impasse has been reached and lockouts have happened. The union has taken the association to court for negotiating in bad faith. They claim they want an opt out clause which allegedly would give them the choice as to when the agreement applies to them.

Would such a contract be enforceable if one party gets to decide when it applies to them?

Both sides claim the other is spreading disinformation which is destabilizing the industry and will cause work to go to other jurisdictions/countries.

When do courts hear a case and issue orders? Is it only when a law is alleged to have been broken? Is it technically breaking a law to negotiate in bad faith? If a company is doing something to cause wide spread economic damage would a court order them to stop?

1 Answer 1


Short Answer

Must a law be broken for a court to hear the case?

Generally speaking a union or management group involved in a labor dispute has to allege that the other side did something that entitled them to some sort of relief under the applicable labor laws and any surviving provisions of the collective bargaining agreement of the parties.

But an adjudicator can only extremely rarely impose the economic terms of a new collective bargaining agreement, and then generally only after the parties have been ordered to participate in mediation and failure to produce a collective bargaining agreement. The far more common resolution of a failure to reach a new collective bargaining agreement is to allow a strike or lockout to continue until an agreement is reached. But, in rare circumstances, typically when a strike is not permitted for public policy reasons, a third-party arbitrator can sometimes impose economic terms for a new collective bargaining agreement when efforts to negotiation new terms fail.

This said, different subjects of labor disputes, and different kinds of employment (in industry or occupational type) are often handled differently from each other. Canada has at least twenty-one different labor boards or tribunals to handle different kinds of labor disputes, each with its own separate authorizing statute.

Long Answer

There Is More Than One Set Of Labor Laws In Canada

Labor law is a somewhat tricky thing that doesn't always follow general principles of contract law. There is considerable statutory guidance in this area that is not present in ordinary contract law, and it isn't entirely one size fits all.

In particular, the labor laws that apply to public sector unions are different from those that apply to private sector unions, and there are some industries and occupations that are regulated differently than others in the union-management relations area.

For example, the actions that janitors at a private medical facility may legally take in a labor dispute are different from the actions that doctor-employees at a private medical facility may take, which are different again from the actions that military personnel in a government owned and run military hospital may take.

Special rules and forums are also often implicated if the employer is in the midst of a bankruptcy.

The main details regarding these categories of laws are discussed under the last heading of this answer. The exact extent of a labor board or tribunals' authority depends upon the nature of the dispute, whether the dispute is public sector or private sector, and if the dispute is in the private sector, whether it involves one of the 10% of so of private sector unionized employers that are governed by special federal laws that apply to critical or pervasively multi-province or international industries.

There Are Several Main Kinds Of Union-Management Disagreements

When a collective bargaining agreement is or was in place between a recognized union and an employer unit as defined under the applicable labor laws (which are not always defined in the same way in every union, with factories, for example, usually organized on a work place basis, but the movie industry, in contrast, usually organized on an industrywide basis), there are several of kinds of disputes that can arise.

Disputes Over Future Contract Terms

One kind of dispute is a dispute over what the economic terms of a future collective bargaining agreement. Usually, in the context of private sector employees that aren't subject to any special rules, the decision making authority will not impose particular economic terms on either side, although it might order the union and management to mediate their dispute with a labor law mediator selected in a method provided by the old collective bargaining agreement or by law.

If a mediation order has been entered, there could conceivably be a violation of that mediation order arising from failing to negotiate in good faith, but failing to negotiate in good faith usually involves failing to listen to what the mediator and/or the other side has to say for a reasonable amount of time, or failing to present any opening offer in the negotiation that the other side could accept if it wanted to, or presenting an offer so absurd (e.g. a $1000 dollar an hour minimum wage of entry level janitors in 2022) that it amounts to not making an offer at all. But generally speaking, unless some special circumstances (e.g. public employees or critical essential employees of some kind defined by statute) are involved a court won't impose economic terms on either party and won't consider a mere failure to compromise meaningfully from an initial stance after hearing out the other side to constitute bad faith negotiation.

The law applicable to collective bargaining in Canada (as of April 2008) is reviewed here.

Unfair Labor Practice Disputes

The other kind of dispute between a union and the management group that it is dealing with, is that one side or the other has engaged in something that is defined by law as an unfair labor practice.

For example, in Canada (although the same conduct would usually be ignored by authorities in China or France) if union members kidnap the labor negotiators for the management team and detail them in a windowless room without access to the outside world, that would probably constitute an unfair labor practice by the union, while a management action to hire goons to intimate the union members, or informants to spy in the inner discussions of the union negotiators would probably constitute an unfair labor practice on the management side.

Obviously, I've presented some very extreme examples, and the interplay of what does or does not constitute an unfair labor practice in light of the relevant statutes and case law is arcane to the point of being byzantine in practice, with lots of legal guidance and lots of room for lawyers for both sides to disagree over how to apply the law to the facts. Also, some of these disputes may be defined as criminal conduct to be handled by criminal prosecutors, rather than in the labor law context, or may be handled in parallel in both forums.

The authority deciding the matter can consider allegations of unfair labor practices and impose sanctions or issue court orders accordingly, if there are.

Disputes Over Contract Implementation

There is also a third kind of dispute, over how a collective bargaining agreement that is in place should be implied in practice to incidents involving particular workers or to particular employer policies.

For example, there might be a dispute over whether a particular employee was properly fired for good cause, or over whether a proposed fringe benefits plan is consistent with the collective bargaining agreements terms.

These are frequently hired by an agreed panel of arbitrators that handles all of the disputes that arise over the term of a collective bargaining agreement. But this kind of dispute is really beyond the scope of the question.

Disputes Between Union Members And Unions Over Union Operations

Another kind of dispute sometimes handled in a labor law forum in accordance with union-management laws is a dispute that arises between one or more union members and their own union (e.g. a disputed election of union officers). See, e.g. here (reviewing the substantive law that applies, while largely glossing over the procedural side of these disputes). But this also appears to be beyond the scope of the question.

Who Is Authorized To Resolve Or Address Particular Disputes?

I have avoided using the term "court" in lieu of the "authority deciding the question" because I am not familiar enough with the procedural side of Canadian labor law to know who this authority is, and that is something that is likely to vary based upon the kind of employer involved, the nature of the dispute, and the stage of the process that the dispute adjudication process for the dispute has reached.

At least in the first instance, these kinds of disputes are almost never handled by ordinary courts that handle non-union related civil or criminal matters, unless an unfair labor practices dispute simultaneously constitutes a criminal offense that is prosecuted like any other crime.

There are at least twenty-one labor boards or tribunals in Canada. One for the federal public sector, one or more for national private sector essential industries at the federal level, one for all private and public sector workers in Quebec, and a respective public sector and private sector body in each of the other nine provinces.

These boards or tribunals handle labor disputes in the first instance and possibly an initial review of a delegated hearing officer's decision, but at some point their decisions are appealable by some process to one or more provincial courts in the case of the at least nineteen provincial level labor boards or tribunals, and ultimately to the Canadian Supreme Court, and to one of more federal courts (and at a minimum ultimately to the Canadian Supreme Court) in the case of the two ore more federal labor boards or tribunals.

It is also conceivable in at least some cases that the union and management could agree, either post-dispute, or in some cases even pre-dispute under the previous expired collective bargaining agreement, to have matters that they set forth as the subject-matter subject to this treatment, resolved by a panel of private arbitrators rather than the usual labor labor tribunals or boards.

The particular forum that applies to a particular kind of labor law dispute in Canada doesn't really change, however, the basic sketchy outline of the substantive Canadian labor law described above that applies to whomever is the adjudicator between the union and management in a particular labor dispute.

The article on collective bargain cited above states:

In Canada collective bargaining is shaped by a tight statutory structure used to regulate almost every aspect of of the union-manangement relationship. Such legislation closely regulates the formation of the collective bargaining relationship, governs the conduct and timing of the bargaining process, places restrictions on economic conflict, and may, in some cases, mandate certain terms of the collective agreement. The legislation confers broad administrative powers on labour relations boards or tribunals, which play a major role in the application of the legislation (Carter 1995). Labour tribunals regulate both management and union activity and may restrain some forms of employer interference with union organizing and bargaining activity as well as the untimely use of economic sanctions by trade unions.

Unlike the United States, the labour relations jurisdiction of the Canadian federal government is much more extensive than that of the state governments. Legislative authority in Canada is divided among eleven different jurisdictions, ten provincial and one federal. As a result of various court interpretations of the Canadian Consitution, the jurisdiction of the federal government has been restricted to undertakings falling within its specific legislative authority and to conduct falling within its criminal law power.

Due to the constitutional division of legislative authority, most private sector employees in Canada fall under the jurisdiction of the labour laws of the province in which they work. Approximately 90% of private sector workers are provincially regulated.In addition to workers employed in manufacturing, mining (excluding uranium), forest products industries, construction, service industries, and local transportation, employees of provincial and local government are covered by provincial jurisdiction.

Although the federal government’s labour relations jurisdiction covers a relatively small percentage of private sector employees, these include workers in a number of important areas of the economy including: interprovincial or international air, rail shipping and trucking operations; broadcasting, banks, uranium mines, and grain elevator operations.

All federal public sector employees fall within federal jurisdiction but are covered by a different collective bargaining statute than federal private sector employees.

The article then continues to explain that:

In 1967, the Public Services Staff Relations Act (PSSRA) was passed, creating a new and distinctive collective bargaining structure for employees of the federal government and providing for arbitration or the conciliation/strike route as its final dispute resolution mechanism. The PSSRA granted collective bargaining rights to workers in federal departments, a number of federal agencies for which the Treasury Board is the designated employer, and a number of government agencies or separate employers who administer their own labour relations programs.

Since the passage of this legislation, all provincial governments have given their public servants the right to collectively bargain, including the right to strike in some jurisdictions and arbitration in others. In Quebec, all workers, private, public and parapublic, come under the Quebec Labour Code. In Manitoba and Prince Edward Island, public servants are granted the right to collective bargaining through their respective civil service statutes. The remaining seven provinces have special public-sector labour relations statutes, which grant the right to collective bargaining. Since the middle of the 1970s, the public sector has become the most highly unionized segment of the Canadian economy.

Collective bargaining has been extended to cover not only workers in the public sector employed by federal, provincial and municipal governments, but workers in the parapublic sector not directly employed by governments, but rather by organizations extensively supported by government funding—this includes teachers, health-care workers, police officers and firefighters. The evolution of the collective bargaining process, which now includes public sector workers in health care, education, government services, has affected not only the way public services are provided but has also contributed to higher levels of taxation and forced the re-definition of the meaning of public services.

For example, in Quebec, publicly funded religious schools operated on something akin to U.S. voucher systems are subject to its labor laws which are more or less similar between private sector and public sector unions and are dealt with by a single tribunal with any distinctions between the two treating unions at these schools as public sector, rather than private sector unions.

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