Employers should take note that amendments to federal legislation addressing strikes and lockouts will come into force on June 20, 2025. Bill C-58, An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012, increases the breadth of the prohibitions on the use of replacement workers and bargaining unit employees during legal strikes and lockouts in federally regulated workplaces governed under the Canada Labour Code (the “Code”). Contravention of those prohibitions will be an offence punishable by a fine of up to $100,000 per day. Bill C-58 also makes significant changes to the existing “maintenance of activities” process.
Replacement Workers During Strikes and Lockouts
During a legal strike or lockout, an employer or a person acting on behalf of an employer will be prohibited from using the following individuals to perform all or part of the duties of a striking or locked out bargaining unit employee:
- Any employee or any person who performs management functions or who is employed in a confidential capacity in matters related to industrial relations, if they are 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;
- 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; or
- Any volunteer, student or member of the public.
There is an exception if, before the day on which notice to bargain collectively was given, an employer or person acting on behalf of an employer was using the services of a contractor (other than a dependent contractor) or employee of another employer that were the same as or substantially similar to the duties of a bargaining unit employee. In that case, those services can continue to be used throughout the strike or lockout as long as they are used in the same manner, to the same extent, and in the same circumstances as before the notice was given.
Additionally, in a strike or lockout intended to involve the cessation of work by all employees in the bargaining unit, an employer or person acting on behalf of an employer may not use the services of a bargaining unit employee except for work performed to comply with sections 87.4 (maintenance of activities, discussed in greater detail below) or 87.7 (continued services to grain vessels) of the Code. This prohibition is intended to prevent employers from allowing employees to “cross the picket line” and work.
Exception for Imminent or Serious Threat
The use of the services of replacement workers or bargaining unit employees will not contravene the provisions discussed above if such use meets the following criteria:
- The services are used solely to deal with a situation that presents or could reasonably be expected to present an imminent or serious threat:
- To the life, health or safety of any person;
- Of destruction of, or serious damage to, the employer’s property or premises; or
- Of serious environmental damage affecting the employer’s property or premises;
- The use of the services is necessary to deal with the situation because the employer is unable to do so by any other means, such as by using the services of a person other than replacement workers or bargaining unit employees; and
- In the case of the services of a replacement worker, the employer gave the employees in the bargaining unit on strike or locked out the opportunity to perform the necessary work before using the services of that replacement worker.
Complaints and Penalties
A union will be able to file a complaint with the Canada Industrial Relations Board (the “Board”) if it believes that an employer is using replacement workers or bargaining unit employees in breach of these provisions. If the Board finds a contravention, it may order the employer to stop using the services of replacement workers or bargaining unit employees for the duration of the dispute.
An employer who uses prohibited replacement workers or bargaining unit employees during a strike or lockout in violation of the legislation will be guilty of an offence and liable on summary conviction to a fine not exceeding $100,000 for each day during which the offence is committed or continued. Bill C-58 also allows the Governor in Council to make regulations establishing an administrative monetary penalties scheme to promote compliance with these provisions.
Maintenance of Activities
Bill C-58 also amends the Code’s maintenance of activities process, which ensures that essential services are continued during a legal strike or lockout for the supply of services, operation of facilities or production of goods to the extent necessary to prevent an immediate and serious danger to the safety or health of the public.
The Bill requires an employer and union, no later than 15 days after the day on which notice to bargain collectively has been given, to reach a maintenance of activities agreement that sets out:
- The supply of services, operation of facilities or production of goods that they consider necessary to continue in the event of a strike or lockout; and
- The manner and extent to which the employer, the union and the bargaining unit employees must continue that supply, operation and production, including the approximate number of those employees that, in the opinion of the employer and union, would be required for that purpose.
If the employer and union conclude that it is not necessary to continue any supply of services, operation of facilities or production of goods in the event of a strike or lockout, they must set this conclusion out in their maintenance of activities agreement.
The parties must file the maintenance of activities agreement with the Minister of Labour and the Board immediately after entering into it. If the parties do not enter into an agreement within the 15-day period, the Board must, on application made by either party, determine any question with respect to the application of the maintenance of activities requirement.
An employer or union will only be able to issue a 72-hour lockout or strike notice if:
- The employer and union have entered into a maintenance of activities agreement and filed it with the Minister of Labour and the Board; or
- Where the employer and union have not entered into an agreement, the Board has determined a maintenance of activities application made by either the employer or the union.
The Minister of Labour will maintain the ability to refer to the Board any question regarding whether the parties’ maintenance of activities agreement is sufficient to ensure compliance with the maintenance of activities requirement.
Bill C-58 requires the Board to issue a decision no later than 82 days after receipt of a maintenance of activities application or Ministerial referral. However, if the Board does not comply with that time limit, it still has jurisdiction to continue with and determine the application or referral, and a decision or order made by the Board after the time limit is not invalid for failing to meet the time limit. Additionally, the Chairperson of the Board will have the power to appoint an external adjudicator to determine any maintenance of activities matter that comes before the Board.
In Our View
As noted in our Focus Alert on the introduction of Bill C-58, the full impact with respect to the expanded prohibition against the use of replacement workers remains to be seen. Other jurisdictions (British Columbia and Quebec) have had similar bans on replacement workers for some time, and federally regulated employers can certainly learn from the experiences from those jurisdictions.
However, it is clear that Bill C-58 has the potential to significantly increase the number of labour disputes in federally regulated workplaces. For vertically integrated industries, a strike or lockout by one small bargaining unit will cause employment disruption for other employees of the employer. In short, banning replacement workers has the potential to destabilize workplaces, not improve labour relations as claimed by proponents of the ban.
If you have questions about Bill C-58, please contact Steven Williams at 613-697-6869, Céline Delorme at 613-302-2808, or Lauren Jamieson at 613-404-5058.
