Proposed changes to the Canada Labour Code would ban replacement workers during strikes or lockouts

On November 9, 2023, 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.

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

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.

Prohibition on replacement workers

In addition to prohibiting employees within the bargaining unit from working during a strike or lockout, the Bill would ban an employer or any person acting on their behalf from using the following persons to perform 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 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 categorized 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 who contravene 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.

Maintenance of activities

The Canada Labour Code (the “Code”) recognizes 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.

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 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.

Coming into force

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

Federally regulated employers may wish to start considering the implications these new legislative requirements will have on collective bargaining and labour disputes within their sector – particularly with respect to agreements for maintenance of activities and how operations will be maintained in the event of a strike or lockout.

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.