Union fines when a worker crosses the picket line

Question: Can a union fine employees for crossing the picket line during a strike? What is the employer’s responsibility in this situation?

Answer: Whether or not a union has the right to fine an employee who crosses the picket line during a strike depends on the jurisdiction.

So far, Saskatchewan is the only jurisdiction in Canada with legislation that explicitly allows a trade union to impose a fine on a trade union member who crosses the picket line during a lawful strike. The Trade Union Act (TUA) specifically allows unions to fine members who work for the employer during a legal strike.

The TUA stipulates if a trade union has a proper enabling provision in its constitution prior to the commencement of a lawful strike, it has the statutory right to fine a member who crosses a picket line during a lawful strike a sum of not more than the net earnings the employee earned during that strike. According to the legislation, a fine imposed on a trade union member is a “debt due and owing to the trade union” and is thus enforceable by civil action. Therefore, the trade union has a right to enforce a fine against a union member by suing the member and collecting the fine as a debt.

Unlike Saskatchewan, Ontario, as well as other provincial jurisdictions, has refused to enforce fines on trade union members who cross the picket line during a strike. Most recently, in Birch v. Union of Taxation Employees, Local 70030, the Ontario Court of Appeal upheld the Ontario Superior Court of Justice which held that the imposition of fines imposed under the union constitution are unenforceable by Ontario courts on the basis the provision in the union constitution which imposes a fine for crossing a picket line is unconscionable. The Ontario Court of Appeal refused to act as the enforcement arm of the trade union and impose the fine. Accordingly, in Ontario and in every other provincial jurisdiction in Canada other than Saskatchewan, a trade union cannot sue a union member who crosses a picket line during a strike. Therefore, it would seem that unions in Ontario and in other provincial jurisdictions in Canada must adopt other strategies to encourage union members to join picket lines.

Employer’s responsibility

In Saskatchewan, as a result of a decision by the Saskatchewan Court of Queen’s Bench in S.G.E.U. v. Saskatchewan and upheld by the Saskatchewan Court of Appeal, it seems the TUA does not oblige an employer to deduct fines at source from a trade union member’s wages. Rather, the collection of fines is the responsibility of the union itself. However, where a union has obtained a judgment, it can be enforced using the customary civil procedures, including garnishment of wages.