Workplace Wire

The Canada Industrial Relations Board (“CIRB”) recently held that an employer’s unilateral changes to terms and conditions of employment after the end of the statutory freeze period did not constitute an unlawful lockout or a failure to bargain in good faith.

In Canadian Union of Postal Workers v. Canada Post Corporation, 2012 CIRB 627, Canada Post Corporation (“Canada Post” or the “Company”) informed the Canadian Union of Postal Workers (“CUPW”) that the Company would unilaterally alter benefits and other terms and conditions of employment in the event that CUPW delivered a 72 hour strike notice. Canada Post in fact made those alterations when CUPW proceeded to deliver a strike notice. CUPW filed a complaint with the CIRB alleging that Canada Post’s changes to terms and conditions of employment constituted an unlawful lockout, an unfair labour practice, and a violation of the duty to bargain in good faith.

The CIRB determined that Canada Post’s actions did not constitute an unlawful lockout because the Company did not intend to compel bargaining unit members to agree to terms or conditions of employment as required by the definition of “lockout” in the Canada Labour Code (“Code”). Instead, the Company’s intention was to discourage CUPW from striking so as to continue negotiations at the bargaining table without a work stoppage. 

The CIRB declined to determine whether Canada Post’s actions constituted an unfair labour practice because this issue would depend on the interpretation of a bridging clause in the parties’ collective agreement that declared the collective agreement operative until the signing of a new collective agreement or until certain conditions were met under the Code. Those issues will be determined in arbitration proceedings between the parties.

The CIRB also determined that Canada Post did not violate the duty to bargain in good faith, as there are no prior cases dealing with the issues in dispute between the parties. When experienced parties have opposing views about previously uncharted legal issues, a genuine difference in opinion does not on its own give rise to a failure to bargain in good faith. The CIRB also noted the many steps taken by the parties in an effort to reach a collective agreement.

The CIRB’s decision does not suggest that employers are free to alter terms and conditions of employment as soon as the statutory freeze lifts. In many cases, an employer would be engaging in a lockout if it were to do so, and the lockout would be unlawful unless it were preceded by a 72 hour lockout notice. However, the decision does make it clear that altering working terms and conditions after the end of the statutory freeze period is not necessarily a lockout, and may therefore be permissible in some cases. In Canada Post’s case, two facts led the CIRB to side with the Company: (1) the alterations in question were conditional on the receipt of a 72 hour strike notice; and (2) the Company’s intention in altering terms and conditions of employment was to encourage continued negotiations at the bargaining table.