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THE FEDERAL GOVERNMENT NOW HAS AN ANTI-STRIKEBREAKER LAW

National HR

At the beginning of summer 2024, the Canadian parliament passed a bill stipulating which types of replacement workers may be used during strikes or lockouts. This article discusses the main changes introduced by the bill.

OCTOBER 2, 2024

ME GILLES RANCOURT, CPHR | ME ANDRÉANNE BROSSEAU

During strikes and lockouts, one of the main problems that employers face is how tocontinue operations when unionized employees are no longer available to work. Federally regulated businesses can make use of replacement workers to do their work. A replacement worker is someone who is not part of the strike or lockout bargaining unitand whose services are required by an employer to do all or some of the work done by the employees who are on strike or locked out.

Currently, the Canada Labour Code (the Code) authorizes employers to use replacement workers (also known as “strikebreakers” or “scabs”) during strikes or lockouts with the goal of continuing their operations during these strikes or lockouts or in pursuit of other legitimate bargaining objectives. This means that employers may use the services of any other worker (i.e. an employee excluded from the bargaining unit, managers, subcontractors, etc.) to perform the work normally done by the employees who are onstrike or locked out for the duration of the labour dispute.

Yet, this will change now that the Canadian parliament passed Bill C-58[1] in June. In fact, employers will be prohibited from using certain types of replacement workers in some circumstances. This major change will limit the ability of federally regulated businesses to continue their operations during strikes or lockouts.

This article provides an overview of the main changes introduced in Bill C-58, which will take effect on June 20, 2025.

Ban on using replacement workers and the exceptions

Under this bill, employers may no longer use the services of the following workers to perform the duties of their employees who are on strike or locked out, provided the strike or lockout is legal:

• any employee who is part of the strike or lockout bargaining unit (the Unit) when all employees in that Unit are called to stop working;
• anyone who holds management functions or is employed in a confidential capacityand has access to confidential information in matters relating to industrial relations ("employed in a confidential capacity") and was hired after the date on which the notice to bargain collectively was given;
• any employee hired after the date on which the notice to bargain collectively was given;
• any employee who usually works at a workplace other than the one where the strike or lockout is taking place or who was transferred there after the date on which the notice to bargain collectively was given;
• a contractor (other than a dependent contractor) or the employee of a different employer (such as personnel from a placement agency);
• any volunteer, student or member of the public.[2]

Naturally, some exceptions will apply,[3] including the following:

• Employers may continue to have people who hold management functions or are employed in a confidential capacity do the striking employees’ work if these people were hired before or on the date of the notice to bargain collectively.
• Employers may use the services of other employees who are excluded from the Unit, provided they were hired before or on the date on which the notice to collectivelybargain was given and do not come from a different workplace than the one where the strike or lockout is occurring.
• Employers may continue to use the services of contractors or the employees of a different employer if the contractors or employees were already doing the work of the employees on strike or substantially similar work before the date on which the notice to bargain collectively was given. However, their services will need to be used in the same way, to the same extent and in the same circumstances as those that prevailed before the date on which the notice to bargain was given.
• The services of the Unit employees may be used to maintain certain operations, in accordance with sections 87.4 and 87.7 of the Code.

The law will also provide an exception for emergency work, such as work required to protect against a threat:

• to life, health or safety;
• of damage to or the serious loss of an employer's property or premises;
• of serious environmental damage to an employer’s property or premises.

However, in such a case, employers will need to first offer their striking or locked out employees the possibility of performing the emergency work before having it done by replacement workers.

The consequences of an offence against the law

An offence against the ban on using replacement workers will be considered an unfair practice. A union claiming that an employer has violated these new provisions may file a complaint with the Canadian Industrial Relations Board, which may, after an investigation, order the employer concerned to stop using replacement workers for the duration of the labour dispute.

Employers who are found guilty of illegally using replacement workers will also be liable to a maximum fine of $100,000 per day.[4]

Effective date

As mentioned, the bill will come into force on June 20, 2025 and apply to strikes and lockouts in progress at that time.[5] In other words, federally regulated employers would be wise to start preparing now for these new bans, as they will introduce major changes to collective labour relations.

Conclusions

With these amendments to the Code, federal jurisdiction now joins Quebec and British Columbia, which have their own legislation banning the use of replacement workers in labour disputes.

The future impact of these amendments on federal businesses is still difficult to discern.As you know, the federal sector specifically includes airlines, railroads, maritime transportation, telecommunications and pipelines, which are all essential sectors for the Canadian economy and where work stoppages can cause considerable financial damage.Nevertheless, not all businesses may be affected in the same way because not allbusinesses have been able to overcome the challenges of strikes or lockouts by usingreplacement workers. We will have to wait and see what kind of impacts the amendments will have. For now, we should remind you that over 90% of federal labour disputes have been settled without work stoppages.[6]

 

Source: Vigie RT, Ordre des conseillers en ressources humaines agréés du Québec, October 10, 2024

1​ An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, S.C. 2024, c. 12.

2​ Ibid., sec. 9(2).

3​ Id.

4​ Ibid., sec. 12.

5 ​Ibid., sec. 17-18.

6 ​Source: Federal mediation and conciliation service - Canada.ca (data from 2017).