Federally regulated employers beware – ban on replacement workers during strikes and lockouts to come into effect

This article was prepared with the assistance of summer student Brad Heskin.

Coming into Force

Federally regulated employers should be aware of the following amendments to the Canada Labour Code that will come into force on June 20, 2025. These amendments were made under An Act to Amend the Canada Labour Code and the Industrial Relations Board Regulations (“Bill C-58”).

Prohibition on replacement workers during strikes and lockouts

Once Bill C-58 is in force, federally regulated employers, or individuals acting on their behalf, are prohibited from replacing employees in the bargaining unit with the following persons during a strike or lockout:

• Managerial/Confidential 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;
• Contractors: Any contractor, other than a dependent contractor, or any employee of another employer (unless that person was performing the same or substantially similar services prior to the date that notice to bargain collectively was given, so long as they perform the services in the same manner, to the same extent, and in the same circumstances as they did before notice was given);
• Transferred Employees: Any employee whose normal workplace is a workplace other than that at which the strike or lockout is taking place or who was transferred to the workplace at which the strike or lockout is taking place after the day on which notice to bargain collectively is given; and
• Volunteers: Any volunteer, student or member of the public.

However, there are two exceptions to this prohibition:

1. Where any of the persons described above were performing the same or similar duties to those employees in the bargaining unit before the day the notice to bargain was given; or
2. Where there is an imminent threat regarding either a person, the employer’s property, or environmental damage that could affect the employer’s property, and the employer cannot deal with the threat by other means than replacement workers. However, workers on strike or lockout must be given the opportunity to perform the necessary work before replacement workers are brought in.

This prohibition takes effect immediately on June 20, 2025, meaning all federally regulated employers must stop using replacement workers by that date, subject to the above exceptions.

Penalty for prohibited use of services during a strike

An employer who breaches this prohibition on replacement workers will be deemed guilty of an offence and liable on summary conviction to a fine not exceeding $100,000 for each day the offence is committed or continued.

Process regarding the maintenance of activities

Under the new amendments, employers and unions will be required to enter into an agreement regarding what activities will be maintained during a strike or lockout no later than 15 days after the notice to bargain collectively has been given. This agreement must be filed with the Canada Industrial Relations Board (the “Board”), and has the same weight as an order of the Board. If the employer and the union do not enter into an agreement, either party may apply to the Board to make a decision regarding the maintenance of activities. The Board must communicate its decision within 82 days of receiving the application.

This requirement only applies if the notice to bargain collectively is given on or after June 20, 2025.

Conclusion

Federally regulated employers should begin preparing for the implications of these legislative amendments to the Canada Labour Code coming into force on June 20, 2025. Failing to comply with the new amendments may result in significant penalties.

Questions? Please contact a member of our labour and employment team to discuss how these legislative amendments may impact your workplace and labour relations strategies.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation. 

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