On November 2023 at the House of Commons, Canada’s Labour and Seniors Minister introduced Bill C-58, An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012 (the “Bill”). The Bill’s main purpose is to limit the use of replacement workers by employers under federal jurisdiction1 during a strike or lockout. If the Bill currently under review were to be adopted, it would come into force 18 months after receiving Royal Assent and the new measures would then apply to any strike or lockout that is ongoing on that day2.
It is reasonable to expect that the suggested amendments could significantly impact the balance of powers in federal collective agreement negotiations.
The introduction of this Bill follows the exercise of the right to strike last spring of more than 100,000 federal government workers unionized with the Public Service Alliance of Canada (PSAC) where the government had given employees the option to continue working remotely instead of participating with the pressure tactics. This option, which the unions denounced, was completely legal under the current provisions of the Canadian Labor Code (r the “Canadian Code”).
Last spring, more than 100,000 federal government workers unionized with the Public Service Alliance of Canada (PSAC3 exercised their right to strike. During the strike, the government gave employees the option to continue working remotely instead of participating with the pressure tactics. This option, which the unions denounced, was completely legal under the current provisions of the Canadian Labor Code4 (the “Canadian Code”), thus ensued the introduction of the Bill. Under the current Canadian Code in the event of a strike or lock-out, federal employers can call on replacement workers more easily. We say more easily because although the Canadian Code already provides that it is prohibited to use replacement workers during a strike or lockout, this prohibition is only enforceable if the union can demonstrate that the use of replacement workers has “the purpose of undermining a trade union’s representational capacity rather than the pursuit of legitimate bargaining objectives”5. It is, however, difficult for the union to demonstrate such a purpose. The modifications suggested in the Bill significantly change the rules of the game regarding the use of replacement workers in the context of a strike or lockout.
Significant modifications with regards to replacement workers and essential services
There are many secondary and accessory changes under the Bill but we will address here the main amendments which regard (1) replacement workers and (2) essential services.
1. Replacement workers
It is suggested under the Bill to repeal section 94(2.1) of the Canadian Code, under which unions, in the event of the use of replacement workers, bear the burden of demonstrating the employer’s intent to undermine the representation capacity of a union. The new provisions are similar in some respects to the anti-scab regulations provided under the Quebec Labour Code6. More specifically, under the Bill, federal employers will be prohibited from using the services of the following persons:
- 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 given7;
- any contractor other than a dependent contractor or any employee of another employer8.
Regarding this last prohibition, the Bill specifies that if the employer uses the services of a contractor or employee before the day on which notice to bargain collectively is given, the employer can continue to use those services “so long as they do so in the same manner, to the same extent and in the same circumstances as they did before the notice was given”9.
The Bill also prohibits employers from using, during a legal strike or lockout intended to involve the cessation of work by all employees in a bargaining unit, the services of an employee in that unit10.
Moreover, when there is a threat “to the life, health or safety of any person; of destruction of, or serious damage to, the employer’s property or premises11; of serious environmental damage affecting the employer’s property or premises”, the employer may use the services of replacement workers, if such a use is “necessary in order to deal with the situation”12.
The Bill also provides for a monetary penalty to employers who fail to comply with the anti-scab provisions. It provides for a fine up to $100,000 for each day during which an offence under the Canadian Code is committed or continued13.
2. Maintenance of activities
The Canadian Code already states that during a strike or lockout, the employer, the trade union and the employees must maintain activities to prevent an immediate and serious danger to the safety or health of the public14.
The Bill aims to improve the process of maintaining these activities by requiring employers and unions to enter into an agreement at the start of negotiations to determine what activities must be maintained in the event of a strike or lockout.
In short, the Bill requires that the union and employer reach an agreement on the maintenance of activities no later than 15 days after delivery of the notice of collective bargaining15. The agreement provided for under the Bill should specify which activities will be maintained in the event of a strike or lockout, as well as the manner and extent to which the parties must maintain them. If the parties do not reach such an agreement within the specified time, either party may apply to the Canada Industrial Relations Board to resolve the outstanding issues and the latter is required to render a decision within 90 days following receipt of the request16.
Conclusion
Finally, the provisions of the Bill regarding replacement workers does not seem to be connected to the notion of “establishment”. It differs significantly with the anti-scab regulations provided under the Quebec Labour Code, closely connected to the notion of “establishment”. The Bill suggests prohibiting the use of replacement workers “to perform all or part of the duties of an employee who is in the bargaining unit17” with no mention of the establishment where the work is performed.
In Quebec, there is an ongoing controversy regarding the use of replacement workers that are teleworking since they are performing work outside of the physical establishment of the employer. The Superior Court18, following the Court of Appeal’s teachings19, recently reversed a decision of the Administrative Labour Tribunal by ruling that an employer is not prohibited from using the services of employees working remotely during a strike or lockout. The Superior Court reached this conclusion by favoring a restrictive interpretation of the notion of establishment in section 109.1 of the Labour Code where it only concerns the location where it is possible to lock doors and where the activities are usually performed by the employees to whom the bargaining unit applies20.
It is still unknown if the conclusions of this decision will be maintained by the Court of Appeal21. The fact that the notion of establishment is not included in the Bill might indicate that the legislator aims to prohibit federally regulated workplaces from calling upon the services of employees who are teleworking during a labour dispute.
If the Bill is enacted in its current form, it will undoubtedly have an impact on the balance of power between federally regulated trade unions and employer organizations. Cain Lamarre professionals will closely monitor the development of this Bill during the parliamentary work and we will keep you informed if the modifications proposed by the Bill are adopted and implemented.
Our labour and employment law team is available for any questions – do not hesitate to contact us.
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[1] Federally regulated industries include transportation services (air, aeronautical, railway, interprovincial or international transportation), banks, communications companies (radio broadcasting, television broadcasting, cable television, Internet services, telephone services), postal service, etc.
[2] Bill C-58: An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012, sec. 18.
[3] Maude Ouellet, Grève des fonctionnaires : un tiers des membres de l’AFPC ont exprimé leur vote (April 21,2023), Radio-Canada, online: (French Only) : https://ici.radio-canada.ca/nouvelle/1973371/greve-fonctionnaire-jour-3-arc-afpc-conseil-tresor.
[4] RSC 1985, c L-2.
[5] Ibid, sec. 94 (2.1).
[6] CQLR c C-27.
[7] Supra note 2, sec. 9(2) modifying section 94 (4) a) of the Canadian Code.
[8] Ibid, sec. 9(2) modifying section 94 (4) b) of the Canadian Code.
[9] Ibid, sec. 9(2) modifying section 94 (5) b) of the Canadian Code.
[10] Ibid, sec. 9(2) modifying section 94 (6) b) of the Canadian Code.
[11] Ibid, sec. 9(2) modifying section 94 (7) a) i) to iii) of the Canadian Code.
[12] Ibid, sec. 9(2) modifying section 94 (7) b) of the Canadian Code.
[13] Supra note 2, sec. 12 adding a new section 100.1.
[14] Supra note 4, sec. 87.4(1).
[15] Supra note 3, sec. 6(1) modifying section 87.4(2) of the Canadian Code. There is currently no such obligation under the Canadian Code. Instead, one or the other party must send the other a list of services that it believes must be maintained within 15 days of the notice of negotiation. It is then that the parties begin the negotiation of such a list.
[16] Ibid, sec. 6(3) modifying section 87.4(6.1) of the Canadian Code.
[17] Supra, note 7.
[18] Groupe CRH Canada inc. v. Tribunal administratif du travail, 2023 QCCS 1259.
[19] Syndicat canadien de la fonction publique, section locale 1450 v. Journal de Québec, 2011 QCCA 1638, application for leave to appeal to the Supreme Court dismissed.
[20] Ibid ; Syndicat des professionnelles et professionnels du gouvernement du Québec v. Attorney General (Quebec), 2018 QCCA 2161 ; Les avocats et notaires de l’État québécois v. Attorney General (Quebec), 2018 QCCA 224.
[21] Application for leave to appeal granted: Unifor, section locale 177 v. Groupe CRH Canada inc., 2023 QCCA 972.
