Labour disputes in federally regulated workplaces: A bill has been tabled prohibiting the use of replacement workers

Last November 9, the federal Minister of Labour introduced a bill¹ (Bill) amending the Canada Labour Code (Code) with a view, among other things, to prohibit the use of replacement workers (also known as “strikebreakers” or “scabs”) during labour disputes. 

Here is an overview of the changes currently being proposed that might change collective labour relations in federally regulated workplaces.

What is a replacement worker?

A replacement worker is a person who was not an employee in the bargaining unit (Unit) during the strike or lockout at the beginning of the collective bargaining phase and whose services are required by the employer to perform all or part of the duties of employees who are on strike or locked out. This expression therefore also includes, among others:

• managers;
• other employees who are not part of the Unit; and
• the employer’s sub-contractors.

The use of such employees allows the employer to maintain its activities during a strike or lockout.

What are the Code’s current provisions regarding the use of replacement workers during a labour dispute?

Briefly put, the Code currently allows an employer to use replacement workers in the context of a legal strike or lockout to achieve “legitimate bargaining objectives” by exerting economic pressure on the trade union.² The Code, however, prohibits their use where the employer’s purpose is to undermine the trade union’s capacity to represent its members effectively, for example by trying to get rid of the trade union. The Code also authorizes the employer to use the services of employees in the Unit who agree to continue working during the strike.

What changes is the federal government proposing?

Under the Bill, an employer would be prohibited from using, during a legal strike or lockout, the services of the following replacement workers to perform the duties of employees who are on strike or locked out:³ 

• any employee in the Unit, where the stoppage of work applies to all of that Unit’s employees;
• any employee hired after the day on which notice to bargain collectively is given;
• any person who performs management functions or is employed in a confidential capacity in matters relating to industrial relations (“employed in a confidential capacity”) after the day on which notice to bargain collectively is given;
• any contractor other than a dependent contractor or any employee of another employer.

These prohibitions would apply regardless where these services are used, whether inside or outside the employer’s physical establishment, or through remote working. 

Are there any exceptions?

As it now stands, the Bill provides for the following exceptions:⁴ 

• Whenever necessary, such as when it is impossible to use the services of another person to do so, the employer may use the services of the replacement workers mentioned above to prevent a threat:
  • to the life, health or safety of any person; 
  • of destruction of, or serious damage to, the employer’s property or premises; 
  • of serious environmental damage affecting the employer’s property or premises.
• The employer may continue to have the duties of striking employees performed by other employees not in the Unit or by persons who perform management functions or who are employed in a confidential capacity if they were already hired before the day on which notice to bargain collectively was given. 
• The employer may continue to use the services of a contractor other than a dependent contractor or an employee of another employer if that person was already performing duties the same as or substantially similar to those of the employees on strike before the day on which notice to bargain collectively was given.⁵ 
• The services of employees in the Unit may be used for the purpose of maintaining certain activities, in accordance with sections 87.4 and 87.7 of the Code.

What are the consequences of a contravention?

The Bill provides that a breach of the prohibition relating to replacement workers would constitute an unfair labour practice. A trade union alleging that the employer has breached these new provisions may file a complaint before the Canada Industrial Relations Board (CIRB) which may, following inquiry, order the employer to stop using the services of replacement workers for the duration of the dispute.⁶

The unlawful use of replacement workers would also constitute an offence that may give rise to a fine not exceeding $100,000 for each day if the employer is found guilty.⁷

What other changes would this Bill introduce?

The Bill also provides for changes to the rules on maintaining activities during strikes or lockouts.⁸ According to these changes, the employer and trade union would have 15 days following the date of the bargaining notice within which to enter into an agreement respecting the maintenance of activities. In the absence of such an agreement, the CIRB may determine any question. No notice of strike or lockout may be given unless the parties have reached an agreement or the Board has handed down a decision.

When would these changes come into force?

The Bill would be coming into force 18 months after it receives royal assent⁹ and would apply to any strike or lockout ongoing on that day.¹⁰

Takeaway

The Bill is in its first reading to the House of Commons, and therefore has several other steps to complete before being enacted. The proposed changes would limit the possibilities for federally regulated businesses to replace striking workers by other employees or managers and would prevent them from calling on certain contractors or sub-contractors for the purpose of maintaining their activities in the event of a labour dispute. In a context where a cessation of the activities of certain federally regulated businesses were to have a material impact on the Canadian economy, these changes are significant. If the Bill were to be enacted, the federal jurisdiction would join other jurisdictions that prohibit the use of strikebreakers, notably British Columbia and Quebec.

Federally regulated businesses would therefore be well advised to prepare for the changes announced in this Bill.

We will be following the progress of this Bill and keep you informed of any further developments.