Replace-me-not: Bill C-58 proposes ban on replacement workers in federal strikes and lockouts

By Brian Johnston, K.C. and Richard Jordan

On November 9, 2023, Minister of Labour, Seamus O’Regan, introduced Bill C-58 in the House of Commons to amend the Canada Labour Code to prohibit the use of replacement workers during strikes and lockouts in federally-regulated workplaces. The Bill also proposes important amendments to the maintenance of activities process regarding essential services to be maintained in the event of a legal strike or lockout.

This update summarizes Bill C-58’s significant changes affecting over one million federally regulated private sector employees; of which 34% are unionized. Bill C-58 is part of a commitment by the Liberal government to the New Democratic Party under their “confidence and supply” agreement.

The changes do not apply to provincially-regulated workplaces.

Ban on replacement workers

Bill C-58 will ban federal employers from using replacement workers during strikes and lockouts.  Replacement workers are persons hired by an employer in order to “replace” the work that would be performed by members of the bargaining unit who are on strike or where an employer has “locked out” the bargaining unit members.

Unions argue that the use of replacement workers by employers weakens the employees’ right to strike and creates an imbalance of power in favour of the employer in collective bargaining.  Employers refute this and point to the experience in British Columbia and Quebec, which already ban replacement workers, and where research has found that prohibitions on replacement workers lead to longer and more frequent strikes.

Bill C-58 will prohibit employers:

• from using employees and managers hired after notice to bargain is given to perform the duties of striking or locked out workers.
• from using any contractors or any employee of another employer, regardless of when they were hired, to perform the duties of striking or locked out workers.

Any breach of these provisions would be an unfair labour practice; the union could complain to the Canada Industrial Relations Board (“Board”).  The Board would investigate and could order the employer to cease and desist, and fine the employer up to $100,000 per day.

Bill C-58 creates limited exceptions to the replacement worker ban, including using a replacement worker to deal with a situation that presents an imminent or serious threat:

• to the life, health or safety of any person;
• of destruction of, or serious damage to, the employer’s property or premises; or,
• of serious environmental damage affecting the employer’s property or premises.

Amendments to the maintenance of activities process

The maintenance of activities process under the Code (also known as the “essential services” provisions) determines the services that the employer and bargaining unit members must maintain in the event of a strike or lockout in order to prevent an immediate and serious danger to the safety or health of the public.  No strike or lockout can occur until a maintenance of activities agreement is in place.

The proposed amendments to Bill C-58 require the parties to enter into a maintenance of activities agreement no later than 15 days after notice to bargain has been given.  If the parties fail to reach an agreement during that time, they would be required to apply to the Board to determine any question regarding maintenance of activities.

The Minister’s role is limited to referring to the Board any question with respect to whether a maintenance of activities agreement entered into by the employer and union is sufficient to prevent an immediate and serious danger to the safety or health of the public.

The Board must determine all applications and Ministerial referrals regarding maintenance of activities within 90 days. This will create a lot more work for the Board.

When will these changes take effect?

If Bill C-58 is passed, these changes are scheduled to come into force 18 months after Bill C-58 receives royal assent.  Stewart McKelvey will continue to follow the progress of this legislation through Parliament.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Labour & Employment Group.

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