Canada: Federal Government Introduces Legislation To Ban Replacement Workers During Strikes/Lock-Outs

On November 9, 2023, the federal governed introduced into the House of Commons, Bill C-58: An Act to Amend the Canada Labour Code ("Code") and the Industrial Relations Board Regulations, 2012. If Bill C-58 is passed, it will only apply to federally regulated workplaces. It is expected that the following amendments will be made to the Code:

Prohibition of Replacement Workers and Exception.

• If there is a strike or lockout, the following individuals will not be allowed to perform struck bargaining unit work:
• • any employee (including non-union employees);
  • any person who performs management functions;
  • anyone employed in a confidential capacity related to labour relations; and,
  • any contractor except for a dependent contractor or any employee of another employer.

• An important caveat to the replacement worker ban is included in the draft legislation. If an Employer had engaged a contractor to provide services similar to those of the bargaining unit work before notice to bargain is given they may continue to use those services for the duration of the strike or lockout provided the services are performed under the same circumstances and to the same extent as before the notice was given.
• The draft legislation also allows for the use of replacement workers for struck bargaining unit work in a situation where that does, or could reasonably be expected to present an imminent threat including:
  • threat of serious environmental damage to an employer's property or premises;
  • threat to the life, health or safety of any person; or,
  • threat of destruction or serious damage to the employer's property or premises.

Maintenance of Activities Agreement

• Bill C-58 established a requirement for both the union and the employer to enter into an agreement prior to a strike or lockout. This agreement must set out the following:
  • the supply of services;
  • operation of facilities; and,
  • production of goods that must continue to prevent danger and protect the safety of the public.
• The employer and union must have an agreement signed and submitted to the Minister of Labour and Canadian Industrial Relations Board ("CIRB"), no later than 15 days after the day on which the notice to collectively bargain has been given. If no agreement has been reached, the employer and union must apply to the CIRB to resolve all agreement related issues within 90 days.
• A maintenance of activities agreement must be in place before providing a 72-hour notice of strike/lockout.

Penalty for Federally Regulated Employers

• If an employer uses a replacement worker, a contractor, or allows employees from the bargaining unit to cross picket lines, they will be liable on a summary conviction offence with fines up to $100,000 for each day.

Takeaway for Federally Regulated Employers

If Bill C-58 is passed, there will serious implications for federally regulated employers. The drastic changes within the Code and its impact on preparing and dealing with strikes/lockouts are an additional responsibility for employers.