The law of leafleting and picketing.

Posted By: Peter Bowal and Jordan Smith

Introduction

Distributing leaflets to people and picketing are longstanding forms of employee expression, commonly to protest or draw attention to employment disputes. Primary picketing is attending at a place of business or employment with an object of persuasion, usually to dissuade others from entering or doing business at that place. Secondary picketing is doing the same at a different location or business--such as at a supplier, subsidiary, head office, retail outlet or customer location--in order to bring pressure on the employer.

Usually picketing involves the physical presence of employees, some of them near the entrance to the targeted premises. They communicate or display information relating to the labour dispute, all for the apparent purpose of attempting to persuade others not to support the employer.

All three involve freedom of expression as an essential component of labour relations enabling workers to enlist public support in their pursuit of better work conditions. In this article, we look at how the law regulates leafleting and primary and secondary picketing.

History of Picketing Law

Judges have determined whether picketing was lawful based on physical and perceptual criteria. The picketing had to be lawfully conducted and the objective had to be to persuade someone in a position to give support.

It follows that secondary picketing was illegal because it failed the second element. In Hersees v. Goldstein [1963] 2 O.R. 81 (C.A.), the labour dispute was between Deacon Brothers Sportswear and the union. Hersees was a third-party retailer that sold clothing manufactured by Deacon Brothers. The union insisted Hersees cancel its clothing orders from Deacon Brothers or it would be picketed. When Hersees refused, the union picketed it. The judge denounced this attempt to "induce breach of contract," saying:

"... the right, if there be such a right, of the respondents to engage in secondary picketing ... must give way to appellant's right to trade; the former... is exercised for the benefit of a particular class only while the latter is a right far more fundamental and of far greater importance . as one which in its exercise affects and is for the benefit of the community at large. If the law is to serve its purpose... the interests of the community at large must be held to transcend those of the individual or a particular group of individuals." As recently as 1986, the Supreme Court of...

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