Labour Relations - Illegal strikes and lockouts

Table of Contents

    What is a strike or lockout?

    A strike is a stoppage or slowdown of work by a group of employees. Strikes are sometimes used by unions to pressure employers into agreeing to terms and conditions of employment and sign a collective bargaining agreement. A strike may involve activities such as picketing. 

    A lockout is the closing of a place of business or a suspension of work by an employer. Lockouts may be used by the employer to pressure the union into agreeing to terms and conditions of employment and sign a collective bargaining agreement. 

    When can strikes and lockouts occur?

    Strikes and lockouts are legal once a collective agreement has expired and the union and the employer have met the requirements in the Canada Labour Code to hold a legal strike or lockout.

    What are the requirements for a legal strike or lockout?

    Before a strike or lockout can be called:

    • The union or the employer must tell the other party that they want to start collective bargaining. They do this by giving a Notice to Bargain.  
    • The union or the employer must let the federal Minister of Labour know that the parties have tried to enter into a collective agreement but failed. They do this by sending the Minister a Notice of Dispute. The Minister may decide to assign a conciliator to help the parties with their negotiations.
    • If the Minister of Labour does NOT assign a conciliator to help the parties, 21 calendar days must pass since the Notice of Dispute was sent to the Minister of Labour.
    • If the Minister of Labour DOES assign a conciliator to help the parties, 21 calendar days must pass after the end of the mandate of the conciliator.  (Conciliators’ mandates are normally 60 days long but they can be extended if the parties agree). 
    • The Board must determine any application or referral by the Minister of Labour on the activities of the employer that need to be continued during a strike or lockout to protect the health and safety of the public.  
    • The union must receive a strike mandate from its members. Strike mandates are received by holding strike votes and receiving the support of the majority of employees. Strike votes are valid for 60 days. If a strike does not occur within the 60-day period, a new strike vote is required. 
    • The union (if it intends to go on strike) or the employer (if it intends to lock out employees) must give the other party and the Minister of Labour 72 hours’ notice of its intention to strike or lockout.  

    For more information on the requirements, please see section 89 of the Canada Labour Code

    Who can go on strike?

    Only the employees who are in the bargaining unit for which strike notice has been given can participate in a strike.

    What if the employer or the union does not meet all of the requirements to strike or lock out?

    If the employer suspects that the requirements for a legal strike have not been met for a group of employees, it can ask the Board to declare the strike illegal.

    If the Board finds that the strike is illegal, it can order the union to stop the strike and the employees to return to work.

    If the union suspects that the requirements for a legal lockout have not been met, it can ask the Board to declare the lockout illegal.  

    If the Board finds that the lockout is illegal, it can order the employer to stop the lockout and let the employees return to work.

    Can the Board control picketing?

    No. The Board cannot control picketing or picketers.  

    Where an employer feels that picketing is inappropriate, it can apply to the superior court of the province where the picketing is occurring for an injunction to stop or limit the picketing.  

    What do I do if I suspect an illegal strike or lock out is taking place or is about to take place? 

    You will need to file an application for a declaration of illegal strike or lockout with the Board.

    However, the first thing you should do is contact the Board to let it know about the possible illegal strike or lockout. You can do this by calling the Board at its 1-800 number. The Board’s contact information can be found here.

    Often, employers and unions have had previous contact with the Board and will call the Regional Director and Registrar or an Industrial Relations Officer directly at one of the Board’s regional offices.   

    Advance notice allows the Board to intervene early and possibly settle the dispute quickly before the situation develops. It also allows the Board to be ready should an application be filed and an urgent hearing be necessary.

    Do I have to wait until there is a strike or lock out before filing my application?

    No, you do not have to wait until a strike or lockout is taking place to file an application.  

    If there is good reason to believe that an illegal strike or lockout is likely to occur, an application for a declaration of illegal strike or lockout can be filed.  

    As stated in the section above, the earlier that you can give notice to the Board of a possible application, the better. You can do this by contacting the Regional Director and Registrar or an Industrial Relations Officer in one of the Board’s regional offices directly or by calling the Board at its 1-800 number, which can be found here.

    What information do I need to file my application?

    There is no form for an application for a declaration of illegal strike or lockout.

    Applicants should write a letter to the Board with the following information:

    • The names and contact information (address, email address, and telephone number) of the union and the employer who are involved, as well as the names and contact information of their representatives.
    • The section of the Canada Labour Code under which the application is being made (section 91 if the application is for a declaration of illegal strike, and section 92 if the application is for a declaration of illegal lockout).
    • A description of the employer’s business. For the Board to have jurisdiction, the employer must be a federally regulated industry.  
    • Full details of the context, facts, relevant dates, and grounds for the application.  
    • A description of the affected bargaining units.  
    • The number of affected employees.
    • The address of the employer’s place of business where the strike or lockout will occur or is occurring.  
    • The details of any union’s certification order. 
    • An explanation as to why there is or is about to be a work stoppage and why the applicant thinks that it is illegal.
    • Information about the parties’ bargaining history, including any attempts at settling a collective agreement.
    • What the applicant is seeking.
    • A copy of supporting documents, such as:  
      • the collective agreement, current or expired; 
      • if possible, a copy of the last certification order; and
      • any documents, letters, notices, emails or copies of website pages that will assist the Board to understand the situation and how it has evolved.

    What happens after the application has been filed?

    The Board treats applications for a declaration of illegal strike or lockout on a priority basis.

    A Regional Director and Registrar or an Industrial Relations Officer will be assigned immediately to help the parties and the Board with gathering all the necessary information. They will also assist the parties to informally resolve the work stoppage and avoid formal proceedings. 

    Depending on the urgency of the situation, the Board will either:

    • ask the parties to make written submissions;  
    • conduct formal mediation; or
    • schedule a Case Management Conference or a hearing with the parties.

    The hearing or Case Management Conference may be expedited and can even happen on the same day that the Board receives the application.

    Where will the hearing be held? 

    Most hearings proceed by videoconference. The hearing is usually held virtually or in the community where the work stoppage is taking place. 

    For more information on the Board’s hearing process, click here

    When will I get the decision? 

    In an illegal strike or lockout situation, the Board’s decision may be issued verbally within hours of the hearing, with reasons to follow later.  

    If a written order is required, it is usually issued within hours or days of the hearing, depending on the urgency. 

    The Board will notify the parties in writing of its decision when it is available.

    What can the Board order if the application is successful? 

    If the Board finds that the strike is illegal, it can: 

    • order the union to revoke the strike authorization and notify the employees; 
    • order the employees to stop participating in the strike and to return to their duties; and
    • order the union to give notice of the Board’s order to its members. 

    If the Board finds that the lockout is illegal, it can order the employer to: 

    • discontinue the lockout; 
    • allow the employees to return to work; 
    • give notice of the Board’s order to employees; and 
    • pay the employees the wages that they lost during the illegal lockout. 

    What happens if a party does not comply with the Board order?

    When a party does not comply with an order, the other party may ask the Board to file the order in the Federal Court. Once registered by the court, it can be enforced as a court order. The order will have the same effect as a judgment of the Federal Court. A party may ask the Board to file the order in the superior court of the province where the strike or lockout took place instead of the Federal Court.

    Illegal strikes and lockouts are also offences under the Canada Labour Code. Failure to comply with the Code and the Board’s orders can result in significant fines if the Board agrees that these offences should be prosecuted.

    What can I do if I do not agree with the decision?

    There are two possibilities:   

    • You can file an Application for Reconsideration with the Board; or 
    • You can file an Application for Judicial Review with the Federal Court of Appeal.   

    In both cases, there is a strict 30 calendar day deadline to file your application from the date of the decision.   

    Follow these links for more information on Applications for Reconsideration and Applications for Judicial Review.  

    What if I want to suspend the Board’s order while a reconsideration application or judicial review application is filed and heard?

    An application for a stay of the order must be filed.  

    If an application for reconsideration was filed, the stay application must be filed with the Board.

    If an application for judicial review was filed, the stay application must be filed with the Federal Court of Appeal. 

    In both cases, the party will need to file an application, in writing, addressing each of the following issues: 

    • whether a serious issue is raised, as opposed to a futile, frivolous, or vexatious issue;  
    • a description of the irreparable harm that would occur if the order is not suspended, such as making a situation irreversible; 
    • how the parties would benefit more from a stay and how the continuance of the Board’s order would create more harm; and 
    • how a suspension of the Board’s order would help to fulfill the objectives of promoting constructive labour relations.