Last week many newspapers reported on a new development in the protests that have been focussing the world's attention upon Egypt. As the New York Times headline put it, "Protest in Egypt Takes New Turn as Workers Go on Strike". Reporters described how workers in myriad work places had decided to join the protest movement by going on strike. Workers at the Suez Canal, in textile factories, in government departments downed tools, sat in, picketed and otherwise brought normal productive activity to a halt. They did so for the purpose of making common cause with others seeking fundamental political change in their country.
I think most Canadians stand in admiration of the goals of the Egyptian people and in awe of their courage in pursuing them. But Canadians might also be interested in a nasty little truth about Canadian law. What would have happened if these strikes had taken here in Toronto? The answer is - according to the Supreme Court of Canada, every Provincial Court of Appeal to decide the issue, and the Ontario Labour Relations Board - that this sort of strike activity in pursuit of political goals is simply illegal. In fact the Supreme Court of Canada just last week refused to hear an appeal from British Columbia which offered an opportunity to correct this rule in our law. The result is anyone participating in events such as we admire in Egypt would be violating Canadian law. They could be legally ordered back to work by the labour relations board or a court, and subjected to real penalties if they disobeyed, whether they were members of a union or not.
There is something very wrong with this legal picture. The idea that the Ontario Labour Relations Act (or the equivalent legislation in all other parts of Canada), which is the alleged source of the illegality of such strikes, has any bearing at all on our rights of political protest, is not only improbable it is, most Canadians would say, contrary to some very basic legal ideas. This is what the events in Egypt bring home to us. The idea that Canadian law prohibits here, what is going on there, should give us at least pause and perhaps reason to become a little concerned.
The truth is, our labour laws, properly interpreted, have and should have nothing to say about this issue. How did we, then, get into such a legal mess in which fundamental political rights are negated by a labour relations statute? We got there by way of a legal mistake. The precise nature of this mistake is mostly of interest to those who will, someday, have to correct it. But the error lies in the idea that every collective work stoppage is a strike. Hence the collective stoppages in Egypt are strikes and illegal. But it should be obvious to a reasonably intelligent person that every time a group of people stops working does not mean we have a strike on our hands. So, if four workers skip work to go to the Blue Jays' home opener, the one thing they are not involved in is a strike. A moment's reflection reveals that the reason you stop work counts. Some reasons for stopping work are of concern to our labour law and are properly considered illegal strikes. For example, workers cannot walk off the job to force their employer to recognize a trade union as their bargaining agent - they have to have an election and win a majority to do that. So a work stoppage for that purpose is an illegal strike. So too a collective stoppage to enforce a collective agreement rather than go to arbitration, something else our laws prohibit.
But if your purpose in leaving work has nothing to do with what our labour laws are concerned to prohibit (and our labour relations statutes are not involved with employer attendance policies if you are thinking about the Blue Jays example) then our labour laws have, properly understood, nothing to say. Our labour laws are irrelevant to - with good reason - our fundamental rights to political protest. Political strikes are not strikes within the meaning of our labour laws. Someday our law in Canada will get this straight. One very small and very collateral benefit of the efforts of the Egyptian peoples may be to hasten that day's coming.
