[Canada] Proposed labour law changes to ban replacement workers during strikes

Bill C-58: An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012 (the “Bill”) was introduced at the House of Commons on November 9. MLT Aikins summarises its contents and the implications for employers.

The Bill, If passed, would prohibit federally regulated employers from using replacement workers during lawful strikes and lockouts. In addition, it would amend the process respecting activities which are to be maintained during a strike or lockout. The Bill would only apply to federally regulated employers.

According to MLT Aikins, the Bill outlines that the purpose of these changes is to encourage employers and unions to reach earlier agreements respecting activities to be maintained during a strike or lockout.

As well as prohibiting employees within the bargaining unit from working during a strike or lockout, the Bill would also ban an employer or any person acting on their behalf from using the following persons to perform the duties of bargaining unit employees:

• Any employee or any person who performs management functions or who is employed in a confidential capacity in matters related to industrial relations, if that employee or person is hired after the day on which notice to bargain collectively is given
• Any contractor other than a dependent contractor or any employee of another employer

Exceptions will reportedly be made where these persons were performing the same or similar duties to those employees in the bargaining unit before the day the notice to bargain was given.

These persons or bargaining unit employees may also be used where they are needed to deal with an imminent or serious threat. Imminent and serious threats are categorised to include the threat to the life, health or safety of any person; the threat of destruction of, or serious damage to, the employer’s property or premises; or the threat of serious environmental damage affecting the employer’s property or premises.

Employers contravening these provisions will be guilty of an offence and liable on summary conviction to a fine of up to $100,000 for each day the offence is committed. The Bill also provides the Governor in Council with the power to make regulations to establish monetary penalties for violations of these provisions.

The Canada Labour Code (the “Code”) reportedly recognises that there are circumstances in which an employer will be required to continue the supply of services, operations of facilities or production of goods during a strike or lockout to prevent an immediate or serious danger to the public.

MLT Aikins says the Bill would amend the Code to require an employer and trade union to enter into an agreement - no later than 15 days after the notice to bargain has been given - which sets out the activities that are necessary to continue in case of a strike or a lockout and how such activities would be carried out. 

If no agreement is reached, either party may reportedly apply to the Canada Industrial Relations Board (the “Board”) for a determination on maintenance of activities issues. The Board must render its decision within 90 days of receiving the application. The employer and trade union can enter into an agreement at any time before the Board decision is made.

The Bill is currently at the second reading in the House of Commons. If enacted as currently drafted, it would come into force 18 months after the date it receives royal assent.

MLT Aikins suggests that federally regulated employers should start considering the implications these new legislative requirements will have on collective bargaining and labour disputes within their sector. Especially with respect to agreements for the maintenance of activities and how operations will be maintained in the event of a strike or lockout.

Source: MLT Aikins 

Bill C-58: An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012 (the “Bill”) was introduced at the House of Commons on November 9. MLT Aikins summarises its contents and the implications for employers.

The Bill, If passed, would prohibit federally regulated employers from using replacement workers during lawful strikes and lockouts. In addition, it would amend the process respecting activities which are to be maintained during a strike or lockout. The Bill would only apply to federally regulated employers.

According to MLT Aikins, the Bill outlines that the purpose of these changes is to encourage employers and unions to reach earlier agreements respecting activities to be maintained during a strike or lockout.

As well as prohibiting employees within the bargaining unit from working during a strike or lockout, the Bill would also ban an employer or any person acting on their behalf from using the following persons to perform the duties of bargaining unit employees:

• Any employee or any person who performs management functions or who is employed in a confidential capacity in matters related to industrial relations, if that employee or person is hired after the day on which notice to bargain collectively is given
• Any contractor other than a dependent contractor or any employee of another employer

Exceptions will reportedly be made where these persons were performing the same or similar duties to those employees in the bargaining unit before the day the notice to bargain was given.

These persons or bargaining unit employees may also be used where they are needed to deal with an imminent or serious threat. Imminent and serious threats are categorised to include the threat to the life, health or safety of any person; the threat of destruction of, or serious damage to, the employer’s property or premises; or the threat of serious environmental damage affecting the employer’s property or premises.

Employers contravening these provisions will be guilty of an offence and liable on summary conviction to a fine of up to $100,000 for each day the offence is committed. The Bill also provides the Governor in Council with the power to make regulations to establish monetary penalties for violations of these provisions.

The Canada Labour Code (the “Code”) reportedly recognises that there are circumstances in which an employer will be required to continue the supply of services, operations of facilities or production of goods during a strike or lockout to prevent an immediate or serious danger to the public.

MLT Aikins says the Bill would amend the Code to require an employer and trade union to enter into an agreement - no later than 15 days after the notice to bargain has been given - which sets out the activities that are necessary to continue in case of a strike or a lockout and how such activities would be carried out. 

If no agreement is reached, either party may reportedly apply to the Canada Industrial Relations Board (the “Board”) for a determination on maintenance of activities issues. The Board must render its decision within 90 days of receiving the application. The employer and trade union can enter into an agreement at any time before the Board decision is made.

The Bill is currently at the second reading in the House of Commons. If enacted as currently drafted, it would come into force 18 months after the date it receives royal assent.

MLT Aikins suggests that federally regulated employers should start considering the implications these new legislative requirements will have on collective bargaining and labour disputes within their sector. Especially with respect to agreements for the maintenance of activities and how operations will be maintained in the event of a strike or lockout.

Source: MLT Aikins