On November 9, 2023, the federal government introduced Bill C-58, An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012 (“Bill C-58”), to amend the Canada Labour Code (“CLC”) and the Canada Industrial Relations Board Regulations, 2012. If passed, Bill C-58 would, inter alia, impose broad prohibitions on the use of replacement workers during legal strikes and lockouts in federally regulated workplaces governed under the CLC; make the contravention by employers of those prohibitions an offence punishable by a fine of up to $100,000 per day; and make significant changes to the existing “maintenance of activities” process.
Prohibition of Replacement Workers
If Bill C-58 is passed, during a legal strike or lockout, employers (or persons acting on their behalf) would be prohibited from using any of the following individuals to perform all or part of the duties of a bargaining unit employee who is on strike or locked out if they were hired after the day on which notice to bargain collectively was given:
- Any employee;
- Any person who performs management functions; and
- Any person who is employed in a confidential capacity in matters related to industrial relations.
Furthermore, any contractor (other than a dependent contractor), and any employee of another employer (e.g. an agency worker) would also be prohibited from performing all or part of the duties of a bargaining unit employee who is on strike or locked out. However, if before the day on which notice to bargain collectively was given, employers (or persons acting on their behalf) were using the services of a contractor or an employee of another employer, and those services were the same as or substantially similar to the duties of a bargaining unit employee, employers (or persons acting on their behalf) may continue to use those services throughout a strike or lockout 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.
Therefore, notwithstanding the broad prohibition above, federally regulated employers would continue to be able to use their existing workforce (i.e., those hired prior to the notice to bargain and who are not in the bargaining unit) to perform duties performed by bargaining unit employees during a strike or lockout.
If Bill C-58 is passed, employers would also be prohibited from using any bargaining unit employee on strike or lockout – even if they wanted to work (i.e., no “crossing picking lines”) – with the exception of work performed for the purpose of compliance with the maintenance of activities (section 87.4 or section 87.7 of the CLC), including the exception below with respect to threat, destruction or damage.
Bill C-58 would allow employers (or persons acting on their behalf) to use prohibited replacement workers, or contractors (as noted above), or bargaining unit employees where the services are used solely in order 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 these services would have to be necessary in order to deal with the situation because the employer (or person acting on behalf of the employer) is unable to do so by any other means.
If Bill C-58 is passed, an employer who uses prohibited replacement workers, or contractors (as noted above), or bargaining unit employees during a strike or lockout in violation of the legislation would 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 would also allow the Governor in Council to make regulations establishing an administrative monetary penalties scheme for the purpose of promoting compliance with the ban on replacement workers.
Maintenance of Activities
Bill C-58 would amend the CLC’s maintenance of activities process, which ensures 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. In particular, Bill C-58 would require 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 out this conclusion in their agreement.
Immediately after entering into the agreement, the agreement must be filed with the Minister of Labour and the Canada Industrial Relations Board (“CIRB”). If the employer and union do not enter into an agreement within the 15-day period, the CIRB must, on application made by either party, determine which activities (if any) must be maintained. The Minister of Labour may also refer to the CIRB any question with respect to whether an agreement entered into by an employer and union is sufficient to ensure that subsection 87.4(1) (maintenance of activities) is complied with. The CIRB would need to issue its decision in a maintenance of activities application or Ministerial referral no later than 90 days after receiving the application or referral. The CIRB would also have the power to appoint an external adjudicator to determine any matter that comes before the CIRB under section 87.4 (maintenance of activities).
Furthermore, a union or employer would only be able to issue a 72-hour strike or lockout notice if:
- the union and employer have entered into a maintenance of activities agreement and filed it with the Minister of Labour and the CIRB; or
- the union and employer have not entered into a maintenance of activities agreement, the CIRB has determined a maintenance of activities application made by either of them.
Coming into Force
If passed, Bill C-58 would come into force 18 months after it receives royal assent.
In Our View
It remains to be seen when Bill C-58 will receive royal assent, and whether any substantive changes will be made to Bill C-58 as it undergoes the stages of the legislative process.
The full impact with respect to the prohibition against the use of replacement workers remains to be seen, however, other jurisdictions (British Columbia and Quebec) have had 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 once Bill C-58 is passed, and once it comes into force, it 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.
We will continue to monitor Bill C-58 and keep our Focus Alert readers updated on future developments.
If you have questions about the changes proposed by Bill C-58, please contact Steven P. Williams at 613-697-6869, Céline Delorme at 613-302-2808, Lauren Jamieson at 613-404-5058 or Sarah Lapointe at 613-276-4288.