Picket traces are sometimes essentially the most seen function of a labour dispute. And with the latest uptick in strike motion throughout the nation — from port employees in British Columbia to grocery chain workers in Toronto — Canadians have been extra possible than typical to come across one.
Picket traces are supposed to disrupt enterprise as typical, rally help and talk a message — all in an effort to extend stress on employers to achieve a negotiated settlement.
While picketing is a authorized expressive exercise, how the precise to picket squares with property rights and civil rights shouldn’t be easy.
The frequent view is that whereas picketers could carry indicators, they could not — or at the very least, mustn’t — stop others from crossing picket traces. The actuality is extra sophisticated.
Legal context
Picketing is sort of completely regulated by courts. Historically, courts didn’t look kindly upon picketing and police forces had been solely too desperate to implement injunctions (court docket orders) or have interaction in different efforts to dismantle picket traces.
Today, courts are much less eager to make use of the blunt instrument of an injunction to restrict picketing. Intervening too rapidly in a labour dispute is now seen as unfairly serving to one facet, specifically employers. This shift in strategy was closely influenced by the connection the Supreme Court of Canada has drawn between picketing and freedom of expression.
According to the Supreme Court, picketing “at all times includes expressive motion,” which is protected underneath the assure of freedom of expression within the Charter of Rights and Freedoms. As such, the court docket dominated that picketing could solely be restricted to stop “wrongful acts.”
Courts will take into account prison acts like violence and harm to property as causes to restrict picketing. But wrongful actions additionally embody issues like trespassing and nuisance (interfering with others’ lawful proper to enter and exit).
Since the primary perform of a picket line is to discourage others from crossing, delaying others so as to present the union a chance to convey its message is essential.
So, how do courts discover the precise stability between the expressive rights of picketers and the property and civil rights of others — all whereas guaranteeing the overall security of everybody concerned? Some inconvenience to employers and the general public is an important a part of the equation.
A hanging TVO worker arms out flyers on the picket line outdoors of TVO places of work in August 2023.
THE CANADIAN PRESS/Spencer Colby
Striking a stability
Because the outcomes of judicial interventions are unsure, employers and unions can profit from negotiating non-binding picketing protocols upfront of any dispute.
Where they exist, protocols govern how picket traces will function. For instance, an employer could permit picketers to return onto non-public property to keep away from creating harmful visitors or public security situations. Or the events could agree that folks trying to cross a picket line might be delayed a given period of time, thereby permitting the union to speak its message.
In truth, a refusal to even focus on a protocol upfront may go towards the refusing get together if a request for an injunction is later filed.
While the function of native police in labour disputes varies, it’s now frequent for them to formally take a impartial stance and play not more than a mediating function with regard to public security. While police are anticipated to maintain the peace, they aren’t usually approved to intervene on behalf of both get together engaged within the dispute.
When injunctions are issued, police do intervene to uphold court docket orders. But employees are typically nonetheless permitted to delay visitors, usually with the proviso that anybody who doesn’t wish to hear the union’s message could proceed at will.
Additionally, in issuing an injunction a decide could set additional guidelines, for instance, on the variety of picketers or the place they’re permitted to picket.
The similar balancing ideas apply to secondary picketing (picketing towards a 3rd get together to extend stress on the struck employer).
For instance, an injunction not too long ago granted towards Unifor, the union representing hanging Metro grocery employees within the Toronto space, restricted picketing employees from blockading the corporate’s distribution centres.
Yet the order nonetheless permitted picketers some leeway to proceed stopping autos for a prescribed period of time. The employees not too long ago ratified a brand new collective settlement after their month-long strike.
Emotions can run excessive
Strikes could also be inconvenient for the general public. For hanging employees, they are often extremely emotional affairs. If a strike drags on or turns into notably heated, negotiated protocols and even injunctions could also be ignored out of frustration, anger or a way of urgency.
Besides the authorized questions at play, union members additionally stress ethical arguments for respecting picket traces. A refusal to take action can really feel like a betrayal, particularly when these crossing the road are from inside union ranks.
That’s as a result of crossing a picket line virtually inevitably weakens the union’s bargaining place, and, sarcastically, could assist to delay the dispute by assuaging stress on the employer to return to a negotiated settlement.
“Naming and shaming” alternative employees — often called scabs — additionally enjoys some constitutional safety.
In brief, the politics of picket traces might be complicated, particularly for members of the general public encountering them for the primary time.
No one desires a strike or lockout; they’re worrying and filled with uncertainty. While labour stoppages are sometimes used as a final resort to beat a bargaining deadlock, they’ll turn out to be lightning rods for unions, employers and members of the general public.
Recognizing, nevertheless, that competing rights are at play is essential to understanding how the regulation goals to uphold civil and property rights with out jeopardizing employees’ freedom of expression.
Alison Braley-Rattai receives funding from the Social Sciences and Humanities Research Council.
Larry Savage receives funding from the Social Sciences and Humanities Research Council.
