Introduction

When collective bargaining is at an impasse, there are a number of ways that employers and employees might respond to break the impasse. It is certainly common for the parties to take a break from bargaining, called a cooling off period, but there are also other more significant actions they can take. In some cases, bargaining conflicts result in one party taking some form of industrial action, and in other cases, they may engage the services of a third party to help break the deadlock. This chapter will explore all these options, beginning with strikes and lockouts.

Strikes & Lockouts

Strikes and lockouts are the most visible and significant actions taken by either unions or employers to advance their positions during collective bargaining. Under the Canada Labour Code (1985), an industrial dispute refers to a dispute arising in connection with the entering into, renewing, or revising of a collective agreement. These disputes often manifest as a strike or lockout, both of which exert pressure, typically of an economic nature, on the opposing side to encourage concessions that will break the bargaining impasse.

Although visible and often seen in the headlines, strikes and lockouts in Canada are quite rare. Approximately 95% of collective bargaining concludes without industrial disputes (Suffield & Gannon, 2015). The media, however, often report on strikes and lockouts, giving the perception that industrial disputes are more prevalent in Canada. A successful conclusion to a renegotiated collective bargaining agreement is not as newsworthy as a picket line in front of an airport.

The Canada Labour Code (1985) defines a strike as:

a cessation of work or a refusal to work or to continue to work by employees, in combination, in concert or in accordance with a common understanding, and a slowdown of work or other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output.

This could involve a total work stoppage or, in some cases, a less extreme measure such as a “work-to-rule” campaign, where employees do only the minimum required by their job descriptions. For instance, teachers might limit their duties to only direct classroom instruction, opting out of extracurricular activities or meetings.

Similarly, rotating strikes provide a strategic, localized approach, with only specific groups of workers striking in different locations or timeframes. The 2018 Canada Post (CUPW) strike is an example, where workers in various cities participated in the strike on staggered days rather than all at once (Dangerfield, 2018). These are still considered strikes under most labour legislation and, thus, unions are required to follow the same procedures before initiating these work slowdowns.

On the employer side, a lockout:

includes the closing of a place of employment, a suspension of work by an employer or a refusal by an employer to continue to employ a number of their employees, done to compel their employees, or to aid another employer to compel that other employer’s employees, to agree to terms or conditions of employment. (Canada Labour Code, 1985)

Again, the intent is to put pressure on the union and employees to concede to their proposed terms. According to Employment and Social Development Canada (2024), lockouts are less common than strikes in Canada, though the duration of lockouts appears to be longer than strikes.

Created by the author with data from Employment and Social Development Canada (2024).

Both strikes and lockouts are regulated by labour relations laws and codes. The preconditions for strikes and lockouts are discussed in the next section. However, there are some circumstances where unlawful labour disputes occur. Illegal strikes, known as wildcat strikes, bypass these legal procedures and are initiated without meeting statutory requirements. Wildcat strikes may arise suddenly as a response to a contentious employer decision. For instance, in 2020, Alberta healthcare workers staged a wildcat strike protesting a provincial proposal to contract out jobs, resulting in the union facing substantial penalties, including a loss of $1.6 million in dues (French, 2023). Such actions, while impactful, are often quickly curtailed due to their illegality and the significant penalties they carry.

Preconditions for Strikes & Lockouts

Under Canadian labour legislation, there are specific circumstances where a strike or lockout can legally occur. While the laws created in the 1940s, like PC1003, forced employers to recognize unions as the bargaining agent for employees and compelled them to negotiate collectively, they also curtailed the action unionized workers could take against their employer. For example, workers are no longer permitted to engage in recognition strikes to demonstrate their support for unionization since the law provides the certification process. Nor can they engage in large-scale general strikes like the Winnipeg General Strike to show discontent for the treatment of workers, show sympathy for other workers, or engage in political protest (Ross & Savage, 2023).

Some labour legislation narrowly defines that a strike’s purpose must be to pressure the employer to compel them to agree to certain terms and conditions during collective bargaining (Suffield & Gannon, 2015). The specific requirements are in the labour code or act that regulates that specific jurisdiction, but all legislation requires the following:

1. The current collective agreement must have expired.
2. The parties must be actively engaged in collective bargaining and must have failed to reach an agreement.
3. A certain amount of notice must be given to the other party.
4. In most jurisdictions, the parties must have engaged in conciliation and waited a specific amount of time.

In the case of a strike, the union must also have a clear strike mandate from its membership. This mandate must indicate that most employees in the bargaining unit support the strike. This is obtained through a strike vote, usually conducted through a secret ballot process. While the vote only requires 50% plus one member to vote in favour of the strike, unions typically will not move forward with a much stronger mandate. To lock out workers, the process is the same, but employers are not required to produce evidence of a vote within the organization. Below is a description of the process required under the Ontario Labour Relations Act.

Motivations for Strikes & Lockouts

Strikes and lockouts are intended to put economic pressure on the other party. However, they can signify more profound challenges in the negotiation process. The motivations behind these actions may stem from a mix of negotiation inexperience, external economic factors, intra-organizational dynamics, and fundamental differences in union-management relationships. These factors can influence a party’s decision to initiate a strike or lockout, sometimes as a strategic choice and other times as a miscalculated response to complex or misunderstood issues.

One key motivator in industrial action is a lack of bargaining experience. Inexperienced negotiators may struggle to interpret the other party’s position or willingness to compromise, leading to miscalculations. For instance, new union representatives may perceive management’s initial offers as inflexible when, in reality, there is room for compromise. Such misunderstandings can cause one party to resort to a strike or lockout under the mistaken belief that industrial action is the only way to force a settlement.

McQuarrie (2015) notes that strikes resulting from these misinterpretations are often unnecessary since the parties might have resolved their disagreements without a work stoppage. This scenario aligns with the Hicks Model, which suggests that when parties believe they can gain more through a strike or lockout, they narrow the ‘zone of agreement’ and mistakenly assume there is no common ground (Katz et al., 2017). Thus, they move forward with industrial action when there is little to be gained or there is still room to negotiate. This is often referred to as engaging in a strike or lockout as a mistake.

Another factor is limited disclosure of information, where one party withholds critical data or insights that could affect the other side’s perception of what is possible. For example, if an employer fails to disclose financial constraints, unions may believe that additional concessions are achievable and press for a strike, only to discover later that their goals are unrealistic. The complexity of issues on the bargaining table can further complicate this dynamic. When negotiations involve novel or complex proposals, both parties may have difficulty understanding each other’s positions and recognizing potential areas of agreement.

External economic conditions can also influence the likelihood of strikes and lockouts. When unemployment is low, workers may feel more confident about walking off the job, especially if alternative employment is available. Similarly, inflation and rising costs can prompt workers to demand higher wages to keep pace with the cost of living, increasing the likelihood of a strike. Labour laws also play a role, particularly where the legality of replacement workers and third-party interventions differ across jurisdictions. In British Columbia, for instance, strikes and lockouts can occur without mandatory third-party intervention, which may lower the barrier for industrial action (Strikes, Lockouts, Picketing, and Replacement Workers | Labour Relations Board of British Columbia, 2023).

Historical relationships and the level of trust between the union and management also affect the probability of strikes and lockouts. A history marked by grievances and unresolved disputes can foster mistrust, increasing the likelihood of conflict during bargaining. McQuarrie (2015) suggests that many strikes reflect a fundamental lack of trust in the union-management relationship, as both parties approach workplace governance with distinct interests and philosophies. In such cases, strikes may serve as a way for employees to voice collective discontent or express a desire for greater influence over workplace conditions. This “voice” function of strikes highlights that industrial action is not always about economic gains; it can also be an outlet for tension and frustration that builds up during bargaining and day-to-day union-management relationships.

Union leadership also plays a critical role in mobilizing members. Leaders must not only channel worker dissatisfaction but also make a compelling case that a strike is a reasonable and potentially productive course of action (McQuarrie, 2015). Strikes often serve a dual purpose: they press for concessions while allowing members to unify in pursuit of common goals. In some instances, strikes or lockouts may be used as a cooling-off period, giving negotiators a break from high-stakes bargaining. In these cases, the mere threat of a strike or lockout may be enough to bring both sides back to the table with a renewed commitment to reach an agreement, demonstrating how industrial action can function as both a bargaining tool and a form of collective expression.

Bargaining Power

In union-management negotiations, bargaining power is a critical factor shaping the motivations for strikes and lockouts. Bargaining power is “the ability to obtain objectives despite the resistance of others” (Craig, 1990). However, it is not always straightforward to determine who holds the most power during a negotiation. According to McQuarrie (2015), external conditions like public opinion, legislation, and the state of the economy play a significant role in shaping bargaining power, as do socio-demographic factors (e.g., unity among negotiators) and organizational dynamics (e.g.,  internal disputes within union or management). For example, if a union perceives internal conflicts within management, it may use this knowledge to strengthen its position.

Both employers and unions have specific factors that impact their bargaining power. Employers gain power from factors like inventory size (allowing continued production during a strike), competitiveness, operational structure, and the ability to function without a full workforce. On the other hand, unions gain leverage from strong member commitment to issues, strike funds, and strategic timing of strikes (McQuarrie, 2015). While using power is primarily a distributive tactic, it can lead to mistrust and damaged relationships. Thus, integrative techniques like focusing on mutual problem-solving and using empathy to appreciate the other parties’ perspectives and needs can often lead to more amicable resolutions and fewer disputes.

Picketing & Replacement Workers

Picketing is a visible aspect of a strike or lockout where workers from the bargaining unit, along with their supporters, form a picket line outside the employer’s premises while carrying signs or distributing leaflets. This action aims to draw public attention to the labour dispute, deter people from entering the premises, and generate public support for their cause.

While the right to strike is protected under the Canadian Charter of Rights and Freedoms, picketing itself is not directly covered, meaning it can be subject to reasonable restrictions. Provincial labour relations acts and codes typically protect picketing, but picketers are required to avoid making libelous statements and respect any limitations on secondary picketing, which involves picketing at sites not directly involved in the labour dispute. Additionally, interference with shared premises is generally restricted, ensuring that picketing does not unduly disrupt other businesses or organizations that may occupy the same space.

Picketing is also an essential activity for union members who cannot work. When workers are on strike or locked out by their employer, they are not earning an income. The union provides striking workers with strike pay, but it is often much less than they would earn in the workplace. Unions generally contribute some of the dues they collect each month to a strike fund, which may be managed locally or by a parent union. The union’s constitution and bylaws will dictate how much strike pay is paid to workers each week. For example, according to the Unifor Strike and Defense Fund Policy, workers on strike will receive $300 per week (Summary of Unifor Strike Assistance Rules, 2022). In many union constitutions, there is a requirement that to receive strike pay, workers must contribute a certain amount of time to the picket line.

Replacement workers, also known as “scabs,” are individuals hired or assigned to perform the work of striking or locked-out employees. The use of replacement workers is one of the most contentious issues in Canadian labour law, as it can undermine the impact of a strike by allowing the employer to maintain operations. Proponents argue that an employer should have the right to continue its business, especially if a prolonged shutdown could result in lasting harm (McQuarrie, 2015). Workers are not prohibited from earning income from outside sources during a strike or lockout, so those in favour of replacement workers argue that it is only fair that employers should also be able to stay afloat. However, critics argue that allowing replacement workers shifts the balance of power in favour of employers, as it diminishes the economic impact of a strike and removes any incentive for employers to negotiate. Additionally, the presence of replacement workers can lead to heightened tensions and potential violence on picket lines, as striking workers may confront them when they enter or exit the workplace.

Canadian jurisdictions differ in their regulations regarding replacement workers. British Columbia and Quebec have restrictions preventing employers from using replacement workers during a strike or lockout, and in 2024, Manitoba’s NDP government also proposed new legislation but is facing push-back from the opposition party (Lambert, 2024). Recently, Bill C-58 introduced changes to federal law that, starting June 20, 2025, will prohibit employers in federally regulated sectors from using replacement workers, except in cases where public health and safety are at risk (Wilson, 2024). The bill also mandates that employers and unions establish essential work requirements early in the bargaining process to ensure public safety during a strike or lockout. If the parties fail to agree, the Canada Industrial Relations Board (CIRB) will determine the necessary activities that fall under the essential service designation. This change in the federal sector could potentially shift leverage toward unions by making it harder for employers to circumvent the economic impact of a strike (Wilson, 2024).

Third-Party Interventions Into Disputes

Strikes, lockouts, and work slowdowns are not the only options employees and employers have to resolve their collective bargaining disputes. In Canada, three third-party interventions are available to help the parties break their deadlock and conclude collective bargaining. In all jurisdictions, the parties can engage the services of a conciliator or mediator or refer their dispute to arbitration to have the arbitrator determine the outcome.

Conciliation is generally the initial step to address negotiation deadlocks in most Canadian jurisdictions. During conciliation, a neutral conciliator assesses the positions of each party and submits a report to the Minister of Labour, often a prerequisite before a strike or lockout. Although conciliation serves to clarify key issues without directly influencing the negotiation process, it rarely leads to dispute resolution. Studies indicate that conciliation does not substantially reduce either the occurrence or duration of strikes, as parties may not yet be prepared to make the necessary compromises at this stage. That said, conciliation can move the parties past mistaken perceptions of the other party by bringing all the issues and constraints to the surface. Recommendations contained within the conciliator’s report are not binding on the parties.

Mediation offers a more hands-on approach than conciliation, involving active participation from a mediator who attends bargaining sessions and meets with the parties, both separately and together (McQuarrie, 2015). One of the benefits of mediation is that they actively engage in bargaining and can directly assist the parties in developing possible solutions. The mediator often provides recommendations on a settlement to the parties. Since they have been actively involved in bargaining, these recommendations are often taken more seriously by the parties (McQuarrie, 2015).

Mediators can be requested by either party or appointed by the Minister of Labour. In most jurisdictions, mediation services can also be accessed through the Labour Relations Board. In cases where negotiations are particularly challenging, certain provinces allow for appointing a special mediator with extended powers and protections. While mediators can propose non-binding settlement terms to guide the parties toward a resolution, these recommendations are not obligatory, and the mediator can withdraw if it becomes evident that a strike or lockout is likely. This approach is beneficial for more complex bargaining situations, although there is no guarantee that the mediator’s efforts will prevent industrial action. Some other benefits of mediation are that the process remains confidential, it can help maintain positive working relationships, and, like conciliation, any recommendations made by the mediator are non-binding on the parties.

Interest arbitration involves an arbitrator making binding decisions on the terms of the collective agreement. It is the most comprehensive third-party intervention, but it is also invasive and can be costly. This intervention can be requested by either party or mandated, especially in industries where strikes would cause significant disruption. If the government passes back-to-work legislation and forces the end of a strike or lockout, the parties are usually forced into interest arbitration to resolve their collective bargaining dispute.

During interest arbitration, a formal hearing is held, which allows both the union and management to present oral and documented evidence to support their rationale of the bargaining proposals they would like accepted. The arbitrators or arbitration panel will call witnesses and ask questions to clarify each party’s position to enable them to make an informed decision. A commonly used approach in arbitration is final-offer selection, where the arbitrator chooses the contract terms they feel suit the union and management best (McQuarrie, 2015). They do not have to choose any of the proposals either side presented.

Within final-offer arbitration, there are two main types:

1. Total-package
2. Item-by-item

In total-package final-offer arbitration, each party submits a complete package of proposals, and the arbitrator selects one package in its entirety. This format encourages each side to present realistic proposals but creates a “win-lose” situation, with one party’s full proposal accepted and the other rejected (McQuarrie, 2015).

In contrast, item-by-item final-offer arbitration allows the arbitrator to pick individual items from each proposal, potentially leading to a more balanced agreement. This method minimizes the risk of either party’s proposal being entirely disregarded. Still, it may result in a compromise that lacks the integration each side desires, leaving both parties somewhat unsatisfied (McQuarrie, 2015).

Arbitration is advantageous in that it ensures a definitive resolution without a strike or lockout, but it can also lead to dissatisfaction among the parties, as the arbitrator’s decision is binding and removes some degree of control from both sides. These third-party interventions — conciliation, mediation, and arbitration — play essential roles in Canadian labour relations by providing structured means of resolving disputes and preventing prolonged work stoppages. Each approach has its strengths and limitations, offering various paths toward agreement while considering each negotiation’s distinct needs and dynamics.

Under federal jurisdiction, employers and unions are also able to access the Federal Mediation and Concilitation Services to help resolve their collective bargaining disputes. The excerpt below describes the services provided. What is particularly interesting is the the federal government will provide training to the parties and aid in developing their relationship with each other if requested.

References

Canada Labour Code, R.S.C. c. L-2 (1985). https://laws-lois.justice.gc.ca/eng/acts/l-2/page-1.html#h-339510

Craig, A. W. J. (1990). The system of industrial relations in Canada (3rd ed.). Prentice-Hall Canada Inc.

Dangerfield, K. (2018, October 23). Canada Post’s rotating strikes: Everything you need to know about it. Global News. https://globalnews.ca/news/4580638/canada-post-rotating-strike-what-to-know/

Employment and Social Development Canada (2022). Federal mediation and conciliation service. Government of Canada. https://www.canada.ca/en/employment-social-development/services/labour-relations/reports/2017-federal-mediation-conciliation.html#serv

Employment and Social Development Canada (2024). Work stoppages by sector and year. Government of Canada. https://www.canada.ca/en/employment-social-development/services/collective-bargaining-data/work-stoppages/work-stoppages-year-sector.html

French, J. (2023, July 18). Alberta union to forfeit $1.6M in dues for 2020 health-care wildcat strike. CBC News. https://www.cbc.ca/news/canada/edmonton/alberta-union-to-forfeit-1-6m-in-dues-for-2020-health-care-wildcat-strike-1.6909394

Katz, H. C., Kochan, T. A., & Colvin, A. J. S. (2017). An introduction to U.S. collective bargaining and labour relations (5th ed.) Cornell University Press

Lambert, S. (2024, March 19). Manitoba NDP’s bill to ban replacement workers among those stalled by PCs. CBC News. https://www.cbc.ca/news/canada/manitoba/manitoba-ndp-bills-stalled-workers-1.7147960

McQuarrie, F. (2015). Industrial relations in Canada (4th ed.). John Wiley & Sons.

Ministry of Labour, Immigration, Training and Skills Development. (2024). Collective bargaining. Government of Ontario. https://www.ontario.ca/page/collective-bargaining

Ross, S., & Savage, L. (2023). Building a better world (4th ed.). Fernwood Publishing.

Suffield, L., & Gannon, G. L. (2015). Labour relations (4th ed.). Pearson Canada.