Anti Replacement Worker Legislation
Bill 5-58, An Act to Amend the Canada Labour Code and the Canada Industrial Relations Board Regulations (“the Bill”) was recently passed through the House of Commons and is awaiting Royal Assent. It proposes changes to the Canada Labour Code (“CLC”) that will further prohibit the use of temporary replacement workers in federally-regulated workplaces during legal strikes and lock outs. Its aim is to improve labour relations, protect the right to strike, and expedite the bargaining process.
Despite the Government’s stated aims, legislation striking down the use of temporary replacement workers poses a real risk to the Canadian economy. Not all employers will concede in the face of a total-work stoppage. In industries such as transportation and communication, a lengthy strike without replacement workers has the potential to severely disrupt services that are vital to the economy and our daily lives.
The current CLC prohibits employers from using temporary replacement workers during legal strikes or lock outs for the purpose of undermining a union’s representation capacity. The Bill strengthens this prohibition, stipulating that federally-regulated employers will be prohibited from using any employee in the bargaining unit, or workers of another employer, to temporarily perform the duties of employees who are on legal strike or lock out. This includes managers or contractors, unless they were doing similar work before notice to bargain was given. The Bill provides exceptions where the use of replacement workers is necessary to secure the health and safety of any person, the employer’s property, or the environment. Breaching these provisions may lead to conviction of a summary offence and a fine of up to $100,000 per day.
Bill C-58 goes much further than Provincial legislation that prohibit the use of temporary replacement workers. For example, the British Columbia Labour Relations Code does not stop members of the bargaining unit from crossing the picket line.
Continuing to work in the face of a strike is a common way that employees can meaningfully express their disagreement with the union. The Minister of Justice has expressed that, although he supports the Bill, depriving employees of that opportunity could possibly limit their s. 2(b) Charter right to freedom of thought, belief, opinion and expression.
The Bill leverages the threat of total work stoppage to motivate softer bargaining from the employer. It gives more power to unions at the bargaining table, and limits the employee’s ability to choose to work. It is uncertain that in practice the Bill will lower strike and lock-out rates. However, it is clear that when they do occur, a lack of temporary replacement workers will magnify the strike or lock-outs’ impact on Canadian society.