Strike and Lock-out: FAQ

• Content last reviewed: November 2011

• What is a strike?
• What is a lock-out?
• When are the parties in a legal position to strike or lock-out?
• Must there be a strike vote before a strike can take place?
• Can the employer request a vote of employees on the employer's final offer?
• Do all employees covered by the Labour Relations Act, 1995 have the right to strike?

What is a strike?

A strike is a collective action by employees to stop or curtail work. Section 1 (1) of the Labour Relations Act, 1995 defines a strike as a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow-down or other concerted activity on the part of employees designed to restrict or limit output.

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What is a lock-out?

A lock-out occurs when an employer closes a workplace, suspends work or refuses to continue employing a number of employees during a labour dispute.

Section 1 (1) of the Labour Relations Act, 1995 defines a lock-out as the closing of a place of employment, a suspension of work or a refusal by an employer to continue to employ a number of employees, with a view to compel or induce the employees, or to aid another employer to compel or induce that employer's employees, to refrain from exercising any rights or privileges under this Act or to agree to provisions or changes in provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, an employers' organization, the trade union, or the employees.

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When are the parties in a legal position to strike or lock-out?

There are several preconditions to get into a legal position to strike or lock-out:

• If an employer and union are party to a collective agreement, the agreement must have expired.
• In the case of a strike, a strike vote must have been held (see below for exceptions).
• A Conciliation Officer must have been appointed and a "no-board" issued (see below for details)

It's legal to strike or lock-out beginning on the 17^th day after the minister mails the "no board" notice. For example, if the notice was mailed on August 1^st, the parties can legally strike or lock out on August 18^th. There can be some confusion about this because the act states that the period is 14 days after the release of a notice. The notice is not deemed to have been released, however, until the second day after it was mailed. This extends the period to 16 days, and since they must be 'clear' days, it means that a strike cannot legally start until the beginning of the 17^th day. (See Sections 79(2)(b) and 122(2)(a) of the Labour Relations Act, 1995). In addition to the above, parties covered by the Crown Employees Collective Bargaining Act (CECBA). must have negotiated an essential services agreement before a strike can be lawfully initiated.

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Must there be a strike vote before a strike can take place?

Employees cannot lawfully strike unless a strike vote by secret ballot is taken within 30 days of the collective agreement expiring or at any time after the agreement expires, and more than 50 per cent vote in favour of the strike. With a first collective agreement, the vote must be conducted after the appointment of a conciliation officer. A strike vote must be by secret ballot and all people eligible to vote must have ample opportunity to do so. All employees in a bargaining unit, whether or not they are trade union members, are entitled to participate in such a vote. (See Section 79 of the Labour Relations Act, 1995).

There are some exceptions to the mandatory strike vote; namely, employees in the construction industry and those performing maintenance work who are represented by a trade union pertaining to construction.

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Can the employer request a vote of employees on the employer's last offer?

Any time before or after the commencement of a strike or lock-out, the employer may request that the Ontario Minister of Labour direct a vote of the employees in the affected bargaining unit to accept or reject the employer's last offer on all matters remaining in dispute. Upon receiving this request, the minister is obligated to direct such a vote (except in the construction industry where the minister's authority to direct a vote is discretionary). Neither the request to the minister nor the holding of the vote affect the time periods set out in the act. (See Section 42 of the Labour Relations Act, 1995).

In situations where strikes and lockouts are prohibited, an employer is not entitled to request a vote under Section 42 of the Labour Relations Act, 1995.

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Do all employees covered by the Labour Relations Act, 1995 have the right to strike?

No. Employees of hospitals and nursing homes and the Toronto Transit Commission do not have the right to strike. Instead, unresolved bargaining issues are settled by binding arbitration. They are covered by the Hospital Labour Disputes Arbitration Act (HLDAA) and the TTC Labour Disputes Resolution Act, 2011, respectively.

The Labour Relations Act, 1995 also gives the union and the employer the right to agree voluntarily that the matters about which they are negotiating be referred to an arbitrator or board of arbitration, who will decide, after hearing arguments from both sides, the terms of the collective agreement (See Section 40 of the Labour Relations Act, 1995). Once the parties have agreed in writing to submit their remaining issues to an arbitrator, they no longer have the right to engage in a strike or lock-out.

Fire fighters and police have their own legislation, and are not subject to the Labour Relations Act, 1995. The Fire Protection and Prevention Act, 1997 (FPPA) and the Police Services Act (PSA) both place an outright ban on strikes and lock-outs. The Ministry of Labour administers the collective bargaining sections of the FPPA, while the Ministry of Community Safety and Correctional Services is responsible for collective bargaining under the PSA.

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