Donnie D said:
No one can say with any certainty what the law is in this area becuase it hasn't been tested. They could rule that the "union" isn't a union in the truest sense. As pointed out in the TSN story, the union isn't recognized in the 2 provinces that you keep citing.
This is so gray that it would take years to litigate and by time it is resolved, Crosby will be retired. Ok, maybe not him, but about 1/3 of the current players.
We are not talking about whether or not replacement players could be used in BC and Quebec but the issue of whether or not immigration law would prevent foreign nationals who require work permits from playing in the US and Canada during a labour dispute. It does.
No need for interpretation - the statutory bar is clear and it was applied during the ECHL strike several years back. No work visas in the US will be issued. No Canadians - no Europeans allowed.
The immigration law is the same in Canada and would bar non-Canadian citizens or anyone who was not a legal permanent resident. No Europeons - no US citizens allowed.
BTW replacement players are not that grey an area - people should actually take the time to read the law before commenting.
During 1994 the Expos could not play "scab ball" and the law has not changed. Why???? The reports overlook the exception to the general requirement that a union must be certified to gain protection of a provincial labour code. The exception is known as
"voluntary recognition" and is part of the various provincial codes. It applies where a CBA has already been reached previously and the employer has recognized the bargaining agent as has occurred with the NHL.
That is the problem when you have reporters jumping to conclusions without knowing the law. Most sport reporters have trouble finding their way to the free eats table - legal analysis is beyond most of their capabilities with a few exceptions.
I have dealt with this situation on several occasions in the past during multi-employer bargaining involving national and international unions. Here is the how the BC Labour Relations Board defines "voluntary recognition" and its effect which is to grant prottections and rights as if the union was in fact certified. This comes from the BC LRB Guide to the Code used by union and management practitioners:
If a group of employees wants to be represented by a union, the Code provides the means for that union to be legally recognized as the exclusive bargaining agent for those employees. This recognition is called “certification†and carries with it certain rights and obligations. The union acquires the right to bargain with the employer on behalf of the employees it represents (the bargaining unit) and, on their behalf, to enter into a collective agreement setting out the terms and conditions of their employment. In return for that right, the union has the duty to represent all of the employees in the bargaining unit in a manner which is not arbitrary, discriminatory or in bad faith, whether or not those employees are members of the union.
Even where a union has not sought certification under the Code, an employer may agree to acknowledge the union as bargaining agent for the employees and to conclude a collective agreement with the union. This is called voluntary recognition. In such cases the union will normally have the same rights and be subject to the same obligations under the Code as a certified union. The Board, however, must be satisfied that the voluntary recognition has been approved by the employees affected.
http://www.lrb.bc.ca/codeguide/chapter1.htm
Since the players have signed contracts and operated under the 1994 CBA, it is pretty clear they have approved the CBA via voluntary recognition.
No grey area. Just lack of research and grey matter when analysing the situation.
