DriveTest Q&A Regarding Returning to Work During the Strike – December 1, 2009
Q: Can employees cross the picket line and return to work before the strike is over?
A: Yes. Under Section 80 of the Labour Relations Act, employers have an obligation to allow striking employees to return to work if they so desire. This was not the case prior to our partial resumption of services using the management staff because we had shut-down our operations.
Regardless of our obligation under the Labour Relations Act, we welcome all employees who want to return to work. This strike has gone on far too long and we have a growing desire to stop the harm this strike is causing the public. We also know this is hurting many of our employees and we want to put an end to that as well. We welcome back any employees who want to help us achieve this. By the same token, we fully respect the right of employees who would prefer to continue striking.
If you are interested in returning to work before the strike ends, please send a note to the confidential email address employee.questions@drivetest.ca. We will respond with further information. We will continue opening more DriveTest Centres across the province. Therefore, please indicate what other Centres, other than your home Centre, you would be willing to work at if that is an option for you. If you have any restrictions on your return to work (e.g. you have another job that you have to give notice for), please indicate that as well.
If you do not have access to email, please fax your information to 613-482-4546 or mail it to 5000 Yonge St, Suite 1402, Toronto, ON M2N 7E9.
Q: The USW has said that they will take back all of the strike pay that was paid to any employee who crosses the picket line. Can they do that?
A: No. Although the USW constitution says that they can fine people for crossing the picket line, the Ontario Court of Appeal determined that these fines were not enforceable in Ontario. This decision was upheld by the Supreme Court of Canada. Practically speaking, the union would have no way of doing this anyway since the company is the one that makes all payroll deductions for the union, and we would not make unallowable deductions.
Despite the fact that the USW is well aware of this decision by the courts, we suspect that the USW will tell you they can and will do this. So you should find the right answer yourself. You will find a lot of information on this court decision by Googling “Birch Luberti Union”. Below is an excerpt from one of the summaries of this case:
4/2/2009 - Ontario Court of Appeal refuses to enforce union fines against members for crossing picket line
Jeffrey Birch and April Luberti were employees of the Canada Revenue Agency and members of the Union of Taxation Employees, a component of the Public Service Alliance of Canada (referred to collectively as the "Union"). In the fall of 2004, Mr. Birch and Ms. Luberti crossed a picket line to attend work for three days during a legal strike which lasted a total of seven days. The union brought disciplinary proceedings against Mr. Birch and Ms. Luberti for violating its constitution by working during a legal strike.
The Ontario Court of Appeal confirmed that Ontario courts will not enforce unconscionable penalty clauses in union constitutions which levy fines against union members for crossing picket lines during legal strikes.
Q: What will happen if I cross and my fellow employees harass me or my family?
A: To do this would be a very serious offence under the criminal code that can result in imprisonment for up to 10 years. Two sections of the criminal code cover this sort of behaviour. One is called “Criminal Harassment” under Section 264, and the other is called “Intimidation” under Section 423. Excerpts of these criminal code sections are included below:
264 - Criminal Harrassment (10 Years Imprisonment)
(1) No person shall….in conduct referred to in subsection (2) that causes that other person reasonably… to fear for their safety or the safety of anyone known to them.
(2) The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or any member of their family.
(3) Every person who contravenes this section is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
423 - Intimidation (5 Year Imprisonment)
(1) Every one is guilty of an indictable offence who….for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do….
(a) uses violence or threats of violence to that person or his or her spouse or common-law partner or children, or injures his or her property;
(b) intimidates or attempts to intimidate that person or a relative of that person by threats that… violence or other injury will be done to or punishment inflicted on him or her or a relative of his or hers, or that the property of any of them will be damaged;
(c) persistently follows that person;….
(e) with one or more other persons, follows that person, in a disorderly manner, on a highway;
(f) besets or watches the place where that person resides, works, carries on business or happens to be; or
(g) blocks or obstructs a highway.
Q: What happens when I am alienated and find my workplace unbearable to work in and nothing can be done to fix it?
A: After an agreement to end the strike is reached, and before employees return to work, the company and the union will lay-out a “return to work protocol” that deals with some issues related to the orderly resumption of business. One term that is commonly included in a return to work protocol is a prohibition on any employee intimidating or coercing a person because of their participation in, or failure to participate in, the strike. It would be our intention to seek inclusion of such a clause in any return to work protocol. This is something that would be good for both the company and the employees.
It is also worth noting that a lack of agreement on a return to work protocol cannot be the reason for continuing a strike. The Labour Board has found that this constitutes “bad faith bargaining”, which is illegal.
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