Union fines against scabs ruled unconstitutional

The Public Service Alliance of Canada cannot force its members to pay hefty fines for choosing to work and get paid while their colleagues are on strike, the Ontario Superior Court of Justice has ruled.

The ruling, which responds to the first attempt by any Ontario union to take its members to court to collect fines, raises serious questions for organized labour trying to prevent members from crossing picket lines.


According to the decision released by Justice Robert Smith late Wednesday in the case of Jeffrey Birch and April Luberti versus the Union of Taxation Employees Local 70030, fines imposed by unions are not enforceable by the courts in Ontario.

The PSAC ruling now sets a precedent and will act as a hurdle to future legal action by any union that tries to collect fines from members, said John Craig, a labour law expert with the Heenan Blaikie, the Toronto law firm that represented Birch and Luberti.

"I think many trade unions have these kinds of provisions in their constitutions and they were hoping that they would be able to resort to the courts to give it teeth," said Craig. "They were looking to the courts to be their enforcer. As Justice Smith said, 'The courts are not going to do that.' They will not step in and enforce these penalties."

The decision may put to rest a three-year battle between the Public Service Alliance of Canada and more than 200 of its members.

Following a October 2004 public service strike, PSAC fined hundreds of members who went to work and received pay instead of walking the picket lines. The fines amounted to one day's gross pay for each day the employee didn't show up to picket. Birch and Luberti were fined $476.75 each.

Members were also given one-year union suspensions for each day they didn't turn out to protest. The suspensions prevent members from running for an executive position or voting on union issues.

The union had argued the fines reflected damages suffered by the union as a result of having members walk across picket lines instead of striking.

In his ruling, Smith called the fines "extremely onerous" and "very unfair."

He said there was no way for PSAC to accurately determine damages suffered by the union as a result of having a member cross the picket line.

Smith also cited the Canada Labour Code, which protects a person's right to work, and questioned the need for the financial penalties.


He suggested the union could raise strike pay to entice more members to walk the picket lines and do a better job of educating workers about the harm caused by those who choose to work during a strike.

Each PSAC member walking the picket line earned $50 a day in strike pay.

Ed Cashman, PSAC's regional executive vice-president for the National Capital Region, disagreed that strike pay should be increased.

He said the union has contingency funds for people who find themselves in financial trouble during a strike.

Wayne Samuelson, president of the Ontario Federation of Labour, said Wednesday's decision could have wide-ranging effects for unions across the province.

"Ultimately if a decision like this stands in the courts ... I guess unions will be forced to deal with the fact that if they have the fines in there they can't enforce them," he said. "They will have to look at other options. I'm not sure what they would be. We would have to live by the law."

Samuelson added that people don't often choose to break ranks with fellow union members and cross picket lines.

The PSAC strike in 2004 affected about 125,000 union members, yet only a very small fraction ignored established picket lines and went to work.

The PSAC's fines were introduced after a major strike in 1991. Some workers called for the union constitution to be amended to allow the practice because of their frustration with others who wanted to go back to work instead of picketing.

News that the fines are essentially non-enforceable comes at a time when one of PSAC's member unions, the Union of Taxation Employees (UTE), is in the middle of trying to negotiate a new contract. UTE's contract expires on Oct. 31.


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