'It's pretty unusual for these to actually go to a hearing,' says lawyer
A Vancouver hotel lost a recent ruling before the B.C. Labour Board when it found the employer used six replacement workers illegally.
The Sheraton Vancouver Airport Hotel has been undergoing a strike since June 14 in a fight over wages.
But after it hired the new employees, the union complained.
“The hotel’s illegal use of replacement workers to do the jobs of our striking members showcases the lack of respect management has for its long-term workforce and what they contribute to this hotel,” said Zailda Chan, president of the local union.
While this case is not uncommon, according to a Vancouver employment lawyer, it illustrates the ongoing battles between unions and employers in B.C.
“There is a constant struggle between employers who are on strike and unions: the employers are trying to continue to do the work and the unions are trying to prevent the work from being done. Employers typically are going to take an aggressive view of what they’re permitted to do, and unions are going to take a aggressive view as to what they’re not permitted to do,” says Robert Sider, partner at Lawson Lundell in Vancouver.
“It’s not an unusual complaint by unions that employers who don’t completely shut down are using these employees. What they’re trying to do is to make it as difficult as possible for the employer to actually keep operating. The fewer people available, the better for them.”
However, what is not common is the case actually ending up before the Board, he says.
“What normally happens is the union makes a complaint, the parties get together, and they meet with a mediation officer, and they resolve who can work and who can’t. It’s pretty unusual for these to actually go to a hearing.”
A hearing was scheduled for the parties on June 30, but it was cancelled.
How can employers ensure business as usual?
For Sider, who works for employers during bargaining, there is a way around this.
“Smart employers plan these things out way in advance because there’s restrictions about who you can and can’t use, so make sure that you are having non-unionized employees put in place sufficiently in advance that when there is a strike or lockout, those employees are available to them to perform the work.”
The deadline to do so is before the bargaining process begins, he says.
“If the collective agreement says that they can give notice to bargain anytime 120 days in advance, which is sort of standard, you’ve got to have everybody in place for months in advance of the expiry of the collective agreement. You’ve got to think, ‘If I take a strike a year, or six months, or eight months after the contract expires, who do I have in place that can work a year before that?’ And you’ve got to make sure they continue to have that connection.”
The type of worker matters when it comes to finding replacements for striking employees, according to Sider.
“If you are in an industry where you need expertise or skilled people, the idea that you are going to be able to have people there who are not in the union who are skilled enough to run the plant, that’s pretty difficult. So there are certain industries where the whole replacement-worker provision thing doesn’t really matter a lot because you couldn’t operate anyway even if you had replacement workers.”
B.C. recently did some updating to its labour laws when it comes to language used.
But in the case of the Sheraton Vancouver, the employer was able to find new employees.
“Where replacement workers are, I would say, more usable, are in things like hotels, where you’re dealing with more low-skilled people so it’s very much easier to learn how to clean a room, those sorts of things,” says Sider.
Section 68 of labour code
The rules around this are found in section 68 of the labour code, says Sider and it proscribes precisely what constitutes a legally acceptable substitution.
Besides being brought on board as an employee long before bargaining begins, the replacement must be paid, not a volunteer.
“When they say hired and engaged, you not only have to be hired but you also have to actually have engaged in work,” he says.
That new worker also has to “ordinarily work” at the affected location, which means where the strike is actually happening.
“Let’s take a retail operation: McDonald’s restaurant in Vancouver is on strike. You can’t bring people in from Burnaby or from Chilliwack to that location, they have to have been at that location,” says Sider.
As well, an employer can’t transfer an employee to the other location after bargaining has begun, he says.
Similar rules apply to other non-bargaining unit employees at the same job site, according to Sider.
“If you’ve got someone who comes in and mows the lawn, you’re not prohibited from having those people come in but they can only do the work that they were already doing. They can’t do additional work.”
