Canadian Labour Law: Federal Government Proposes Ban on Replacement Workers
In early November 2023, Canada’s federal government in Ottawa introduced Bill C-58, An Act to amend the Canada Labour Code and the Canadian Industrial Relations Board Regulations. This legislation, which has received widespread media attention in the Canadian business press, proposes, among other changes, to introduce prohibitions into the Canada Labour Code which would prevent the use of replacement workers in federally-regulated workplaces during a labour dispute. If passed, Bill C-58 would mean that practice of using replacement workers would be banned in the federal sector.
This move, which is seen by many as an effort to shore up political support among left-leaning voters, is one which the current Liberal government claims is reasonable and proper. The relevant government press release claims that the “use of replacement workers can distract from negotiations, it can prolong disputes, and it can damage labour relations for years to come.” These supposed justifications for re-writing long-established rules under the Canada Labour Code have, with limited exceptions, not been generally accepted by Canadian provincial legislatiure.
If passed, Bill C-58 would provide that:
Employers could not, during a labour dispute, have bargaining unit work by an employee, manager or excluded personnel who are hired after the day notice to bargain is given. It is notable that the bargaining cycle in the federal sector in Canada can be quite long, often extending for six months or more, so this rule could effectively prohibit bona fide efforts to use management to provide base line service for a temporary period which labour negotiations are ongoing;
Contractors and employees of another employer would be subject to a similar prohibition as in point (1) above. Any such contractors or “other employees” would be limited to performing the same work which they had performed before the notice to bargain is provided. This rule would potentially invite disputes with respect to permitted work, since many employers will use contractors or contract agency workers on a flexible basis, with requirements varying based on seasonal requirements and business needs. This set of rules could therefore result in litigated disputes about what many employers might considers to be “ordinary course” contracting and agency work; and
Bargaining unit employees would be prevented from working during a labour dispute unless the work related to so-called “maintenance of activities” or a threat to life, health and safety. This provision seems ripe for a potential constitutional challenge, since it goes well beyond respecting the right of employees to collectively bargain, and gives unions a level of authority to decide, through their approach in bargaining, that an individual can be forced to not work. The framework under Bill C-58 also likely invites contested situations, more frequently than is currently the case, with respect to what activities are essential / required during a labour dispute.
Any alleged breaches of the above provisions will be dealt with via complaints which unions can file with the Canada Industrial Relations Board. There are associated offence provisions which include fines of up to $100,000 per day for employer violations.
Takeaways for Employers
A number of commentators have properly criticized these proposed changes, which are not likely to encourage compromise at negotiations. This set of rules may result in unions have undue power in negotiations, since the “big hammer” of a strike has potentially become far more powerful. It remains to be seen whether this will actually result in more favourable outcomes for workers, some of whom may have been supportive of working during the labour dispute in order to earn a living. Given the widespread criticisms of this legislation, it remains to be seen whether it will in fact be adopted.