Labour board rules binding arbitration clause can't block workers' strike rights
The BC Labour Relations Board has ruled that BC Ferry Services violated its duty to bargain in good faith by insisting on keeping a dispute resolution clause that strips workers of their right to strike.
In a decision released May 15, 2026, vice-chair Andrew Nathan found that BC Ferries committed an unfair labour practice when it pushed negotiations to an impasse over whether a binding interest arbitration provision should be carried forward into a new collective agreement with the BC Ferry and Marine Workers' Union.
The dispute centred on Article 35.02, a long-standing provision in the parties' collective agreement that requires the two sides to submit unresolved bargaining disputes to a three-person panel for final and binding arbitration — effectively replacing the union's right to strike and the employer's right to lockout during contract negotiations.
The article traces its origins to 2003, when the provincial government appointed mediator Vincent Ready following a five-day ferry strike and a legislated cooling-off period.
The resulting dispute resolution structure was subsequently modified by the parties in 2011 and voluntarily carried forward through several successive contracts.
Union wanted out
When the most recent collective agreement expired on Oct. 31, 2025, the union signalled it was done with the clause. As early as May 2025 — before formal bargaining began — a union representative stated: "We believe this clause dies with the [collective agreement]. We are not going to sign another [collective agreement] with a similar clause in it."
The union's formal bargaining proposal, exchanged in July 2025, called for Article 35.02 to be "deleted in its entirety." BC Ferries, which submitted no proposal of its own regarding the article, insisted the clause should remain.
The parties bargained on at least 27 days through the second half of 2025 and into early 2026, including with the assistance of a board-appointed mediator, but could not reach agreement.
On Jan. 30, 2026, BC Ferries declared impasse and invoked the arbitration process the union was seeking to eliminate.
Arbitration clause in spotlight
The central legal question was whether BC Ferries was permitted to push the continuation of the arbitration clause to impasse — in effect, forcing the union into a process it no longer agreed to accept.
Vice-chair Nathan found that it could not. Under established board policy, some bargaining proposals can be discussed and even agreed to, but cannot be forced on the other party by declaring an impasse. Proposals that remove a party's statutory right to strike or lockout fall into that category.
Nathan rejected BC Ferries' argument that it had not actually advanced a proposal at all, finding instead that by opposing the union's deletion proposal, the employer had effectively put forward its own position — namely, that the clause should stay.
"I agree with the union that is a dispute between two opposing positions about the language that should be included in the renewed collective agreement," Nathan wrote.
He also rejected the employer's argument that the union had already surrendered its strike rights by agreeing to the clause in previous rounds of bargaining. While those commitments were enforceable during the terms they were agreed to, Nathan found the union had not agreed to give up its strike rights "indefinitely into the future."
As a remedy, the board ordered BC Ferries and the union to re-engage in collective bargaining. The decision clarifies that the parties remain free to discuss Article 35.02 at the bargaining table — it simply cannot be used as a take-it-or-leave-it demand.
