Federal Government Introduces Legislation to Prohibit Replacement Workers

On November 9, 2023, the federal government introduced amendments to the Canada Labour Code (the “Code”), the statute that applies to federally-regulated workplaces, such as interprovincial and international air, rail, road and marine transportation companies, banks, telecommunications companies, etc. The amendments:

1. Place limitations on employers using persons to replace bargaining unit members who are on strike or who have been locked out; and
2. Require employers and unions to reach an agreement on essential services during a strike or lockout.

The amendments are found in Bill C-58 An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations.  The Liberal government had agreed to introduce such amendments as part of its power sharing agreement with the NDP.

As drafted, Bill C-58 amends the ability of an employer to use replacement workers, and specifically:

• An employer will be prohibited from using employees hired after notice to bargain has been given to perform bargaining unit work. This means managers and other excluded employees will be permitted to perform bargaining unit work during a strike or lockout provided they were hired prior to the notice to bargain being given.
• Independent contractors will be prohibited from performing bargaining unit work during a strike or lockout unless the contractor was providing services before notice to bargain was given and so long as the contractor continues to perform the same services they performed before notice to bargain was given.
• In addition, an employer will be allowed to use replacement workers to prevent the 1) threat to the life, health or safety of any person; 2) threat of destruction of, or serious damage to, the employer’s property or premises; or 3) threat of serious environmental damage affecting the employer’s property or premises.
• A violation of the replacement worker prohibitions would be an unfair labour practice under the Code. A union’s recourse to enforce the new provisions is to file a complaint with the Canada Industrial Relations Board (CIRB).
• The CIRB will have jurisdiction to investigate replacement worker complaints and order an employer to cease using replacement workers. Violating the prohibition would also be made an offence with fines of up to $100,000 per day.

Many employers were hoping that the federal government’s legislation prohibiting replacement workers would also include a prohibition on secondary picketing (i.e. picketing at locations not controlled by the employer), as is found in some provincial labour laws. However, at this time, the legislation does not contain such a restriction.

Bill C-58 also provides a number of amendments related to the maintenance of essential activities during a strike or lockout.

Currently, the Code provides that an employer and union “may” enter into an agreement regarding the maintenance of essential activities.  As drafted, Bill C-58 requires that an employer and union “must” enter into an agreement regarding the maintenance of essential activities within 15 days after notice to bargain is given.  If the employer and union do not enter into an agreement, either party may apply to the CIRB, which then must determine the outstanding issues.

We will continue to monitor Bill C-58 as it progresses and its potential implications for employers going forward.

If you have any questions about how Bill C-58 may impact your workplace, please contact your Harris lawyer or a member of our Federal group, Ilan Burkes or Vincent Johnston.