Did not ordinarily work at struck locations
British Columbia’s Labour Relations Code forbids the use of replacement workers during strikes and lockouts. The employer cannot even bring in a manager “who ordinarily works at another of the employer’s places of operations.”
But what if the managers work at several of their employer’s locations, including the struck location?
That conundrum recently landed in the province’s Supreme Court. In the midst of attempting to negotiate a first collective agreement, ten of the 22 offices of the B.C. Automobile Association went on strike.
The association brought managers in to run the ten offices. It claimed that, although the managers usually worked at head office, they also occasionally worked in the struck offices, even if only once a month.
Two separate panels of the B.C. Labour Relations Board agreed with the association that this did not breach the Code. The first panel decided that the managers ordinarily spent a significant period of their work time at the struck offices.
The “reconsideration panel” agreed, noting that the first panel’s approach “precludes a person who, for example, works 50 percent of the time at each of two locations of an employer from being able to do replacement work at either location in the case of a strike or lockout. “
Both panels took wrong approach
“The result reflects the pre-strike/lockout makeup of the workplace, by allowing as replacement workers only those persons with an established work attachment to the struck or locked out place of operation.
“This approach...allows the board to implement a sensible labour relations approach consistent with the purposes of the whole of” the relevant section in the Code.
But the court has said that both panels took the wrong approach to the section.
It has required them to look at what the three regional sales managers did, if anything, at other places of operations of the BCAA. “Instead, both decisions look at the struck places of operations,” the court has ruled.
“This amounts to the substitution of an entirely different test than that formulated by the legislature in [the Code section].
“The first is not necessarily the obverse of the second. To say a person works at a struck location is not an alternative way of saying he or she does not work at another location.
“Furthermore, the Board’s formulation seems to me inconsistent with the underlying thrust of [the section], which is oriented to the exclusion of replacement workers.”
The evidence was clearly, the court has found, that the managers did not ordinarily work at the struck locations where they performed replacement duties.
The court is particularly critical of the panels for saying that their decisions in the employer’s favour manifested “labour relations judgment” and were a “sensible labour relations approach.”
“The board cannot clothe itself with immunity from judicial review merely by using self-congratulatory forms of words like a kind of magical incantation,” the court says, “no more [sic] than I could ward off the Court of Appeal by saying that this judgment is a correct exercise of the court’s power of judicial review.”
For more information:
• O.P.E.I.U., Loc. 378 v. British Columbia (Labour Relations Board), 2000 BCSC 939, Vancouver registry no. AS991490, June 16/00.
But what if the managers work at several of their employer’s locations, including the struck location?
That conundrum recently landed in the province’s Supreme Court. In the midst of attempting to negotiate a first collective agreement, ten of the 22 offices of the B.C. Automobile Association went on strike.
The association brought managers in to run the ten offices. It claimed that, although the managers usually worked at head office, they also occasionally worked in the struck offices, even if only once a month.
Two separate panels of the B.C. Labour Relations Board agreed with the association that this did not breach the Code. The first panel decided that the managers ordinarily spent a significant period of their work time at the struck offices.
The “reconsideration panel” agreed, noting that the first panel’s approach “precludes a person who, for example, works 50 percent of the time at each of two locations of an employer from being able to do replacement work at either location in the case of a strike or lockout. “
Both panels took wrong approach
“The result reflects the pre-strike/lockout makeup of the workplace, by allowing as replacement workers only those persons with an established work attachment to the struck or locked out place of operation.
“This approach...allows the board to implement a sensible labour relations approach consistent with the purposes of the whole of” the relevant section in the Code.
But the court has said that both panels took the wrong approach to the section.
It has required them to look at what the three regional sales managers did, if anything, at other places of operations of the BCAA. “Instead, both decisions look at the struck places of operations,” the court has ruled.
“This amounts to the substitution of an entirely different test than that formulated by the legislature in [the Code section].
“The first is not necessarily the obverse of the second. To say a person works at a struck location is not an alternative way of saying he or she does not work at another location.
“Furthermore, the Board’s formulation seems to me inconsistent with the underlying thrust of [the section], which is oriented to the exclusion of replacement workers.”
The evidence was clearly, the court has found, that the managers did not ordinarily work at the struck locations where they performed replacement duties.
The court is particularly critical of the panels for saying that their decisions in the employer’s favour manifested “labour relations judgment” and were a “sensible labour relations approach.”
“The board cannot clothe itself with immunity from judicial review merely by using self-congratulatory forms of words like a kind of magical incantation,” the court says, “no more [sic] than I could ward off the Court of Appeal by saying that this judgment is a correct exercise of the court’s power of judicial review.”
For more information:
• O.P.E.I.U., Loc. 378 v. British Columbia (Labour Relations Board), 2000 BCSC 939, Vancouver registry no. AS991490, June 16/00.
