October 12, 2004 You will find here general information which you may find useful, given certain concerns that you have expressed.
The advice that we are providing is not exhaustive. We encourage you to contact a CAPE Labour Relations Officer should you need to.
Our advice is to respect the rights of striking employees in the context of their work obligations. While reading what follows, keep in mind the following practices: (1) any disagreement you may have with your managers’ decisions arising from the strike must be brought to his or her attention, (2) you must obey your managers' directions, (3) you must contact a CAPE Labour Relations Officer to discuss possible recourse, including filing a grievance.
Situation 1:
My manager has asked me to telework during the strike:
Unless you are willing, or already have a telework arrangement, the employer cannot force you to telework, especially if you do not own the necessary equipment (computer, internet connection etc.). Your manager can, however, take the steps necessary in order to make another position at another worksite available to you.
Situation 2:
My manager wants to change my hours of work in order to avoid the morning picket lines.
Your Collective Agreement defines the hours of work which the employer may impose in order for you to perform your duties. You should read Article 12 of the TR Collective Agreement or Article 28 of the EC Collective Agreement. In both agreements, the employer’s right to determine the hours of work is limited only by the normal hours of work established in the two Collective Agreements (8 a.m. to 6 p.m. for the TR Group, 6 a.m. to 6 p.m. for the EC Group) and by the obligation to consult in the case of an emergency which would require a departure from the normal hours of work. In short, the manager can modify the hours of work. Consult with your Labour Relations Officer if you believe that any such change does not respect the conditions outlined in your Collective Agreement.
Situation 3:
My manager expects me to find a way to get to my work station, regardless of the picket line.
Not being in a legal strike position, you must report to work. The employer, however, must designate a means of access (a gathering point) during a strike, and must ensure the safety of employees who are asked to cross the picket line. If you have reason to believe that your health or your safety are threatened when crossing the picket line, contact your manager to advise them, and wait for their instructions.
Trying to gain access by means not designated by the employer could endanger your personal safety unnecessarily, in addition to eroding the work environment once your colleagues are back at work. Do not hesitate to reread the previous communiqué from CAPE in this regard:
Strike Protocol
Situation 4:
My manager has asked me to perform duties which are not within my work description.
You work description identifies what can be expected of you. If they ask you to perform the work of an employee on strike, and which is not part of your work description, advise your manager of this and remind them of your right to file a grievance. If they maintain their position and the requested work does not threaten your health and safety, we advise you to obey the manager in order to avoid placing you in a situation of insubordination – but to let your union representative know about the situation.
Situation 5:
My manager has asked me not to leave during the lunch hour in order to avoid the picket lines on the way back in.
The employer has the authority to organize your hours of work. However, those hours that are not hours of work belong to you. You can, therefore, leave your place of work for any reasonable cause. Your manager will be responsible for ensuring your safety upon your return.
Obviously, you must take into consideration special circumstances. Whether in a strike situation or not, you have the responsibility to be available for work during the established hours. Call your manager in order to assure them that you will return to work on time. And above all, never force your way through a picket line.
Situation 6:
My manager has systematically refused to consider all requests for annual leave for the anticipated strike period.
You must remind the manager that your Collective Agreement is in effect during a strike by another bargaining unit. In the particular matter of annual leave, your collective agreement states that the employer must make every reasonable effort to grant you your annual leave for the length of time and days that you would like.
Situation 7:
My manager has advised us that we must, during the strike, provide a medical certificate in support of sick leave.
Your Collective Agreement is in effect during a strike by another bargaining unit. In the case of sick leave, the Collective Agreement gives the manager the right to decide how the employee will fulfill their obligation to establish that their absences can be explained by an illness or injury. As such, they may request a medical certificate, or not. However, the contract must be interpreted in the context of past practices and the particularities of the situation. The past practice of the employer has been to require a medical certificate only of those members of the bargaining unit which is on strike. CAPE hopes that any variance from this practice will be reasonable. Call you Labour Relations Officer to discuss your particular situation.
Situation 8:
I am a manager. I do not feel that I can ensure the safety of my employees following undisciplined incidents on the picket line in front of our offices. What are my obligations?
The employer must ensure the safety of all employees, both managers and employees that are not part of management. According to the Treasury Board Policy regarding Strikes:
“Departments are responsible for ensuring that government employees, property and facilities are properly safeguarded while at the same time maintaining the maximum level of service that is possible according to their own strike plans.
Staff Relations Divisions of departments, during the strike itself and in the pre-strike and post-strike periods, are responsible for advising and assisting management in carrying out this task, and for maintaining liaison between departmental management and the Staff Relations Division of the Treasury Board Secretariat. They are responsible for maintaining effective relations with the employees and the union representatives. They are also responsible for providing the Treasury Board Secretariat with timely and accurate reports.”
Get information from your Human Resources services. Your department has prepared an action plan for various eventualities during a strike. But remember that the safety standards at work apply as much during the period of a strike as at any other time. You have the right to refuse to work if you have reasonable cause to believe that the work constitutes a danger.
As a preventative measure, we strongly advise you to take note of all unusual circumstances, or circumstances which can impact upon your work or your productivity (for example: office closures, delays or cancellations in the distribution of texts, computer problems, absence of copyists, etc.)
The Treasury Board Policy regarding strikes can be found at the following address:
Apart from three paragraphs, the policy addresses the relations between managers and employees of bargaining units that are on strike. You must be attentive, and bring CAPE's attention to any misinterpretation of the policy which results from the application of the policy to members of CAPE. The three paragraphs which are the exceptions are as follows: (1) paragraph 2.4 in the section regarding a lawful strike, which describes managers’ responsibilities regarding communications, (2) paragraph 2.8 of the same section which describes the obligations to accommodate employees with disabilities, and (3) Appendix C which gives an example of a Standard Notice to Employees Concerning Picketing
Never forget that the efforts of the members of a bargaining unit regarding a fair settlement at the bargaining table are in the best interests of all. Whether these efforts are at arbitration or on a picket line, they bring improvements to their Collective Agreement which may eventually be negotiated at other tables.