Part I of the Canada Labour Code (the “Code”) governs labour relations for federally-regulated employers such as interprovincial trucking, rail, aviation, broadcasting, shipping, nuclear energy and grain elevators.

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) which, if passed, will amend Part 1 of the Code to introduce “anti-scab” provisions. Currently, only the Provinces of Quebec and British Columbia have adopted similar legislation banning the use of replacement workers.

Bill C-58 aims, among other things, to restrict the use of temporary replacement workers and to encourage the maintenance of activities considered necessary during legal strikes or lockouts.

Prohibitions Relating to Replacement Workers and to Employees in a Bargaining Unit

If passed, Bill C-58 will amend section 94 of the Code, which applies to unfair practices, by providing that no employer, or person acting on behalf of an employer, shall use the services of the following persons to perform all or part of the duties of an employee who is in the bargaining unit that is on strike or locked out:

  • any employee or 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; or,
  • any employee of the bargaining unit that is on strike or locked out.

Section 94(7) of the Code will provide an exception where:

  • 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; threat of destruction of, or serious damage to, the employer’s property or premises; or, threat of serious environmental damage affecting the employer’s property or premises; and,
  • the employer is unable to deal with the situation other than by using the services of the persons enumerated above.

Significantly, an employer will only be able to rely on this exception for conservation purposes referred to in section 94(7) of the Code and not for the purpose of continuing activities in a manner contrary to the prohibitions relating to replacement workers and to employees set out by the Code.

Employers who contravene these proposed prohibitions may be found 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.

Maintenance of Activities

Section 87.4(1) of the Code currently provides that during a legal strike or lockout, the employer, the trade union and the employees in the bargaining unit must continue activities to the extent necessary to prevent an immediate and serious danger to the safety or health of the public.

If passed, Bill C-58 will amend section 87.4 of the Code in order to:

  • encourage employers and trade unions to reach an earlier agreement respecting activities to be maintained in the event of a legal strike or lockout;
  • encourage faster decision-making by the Canada Industrial Relations Board (the “Board”) when parties are unable to agree; and,
  • reduce the need for the Minister of Labour (the “Minister”) to make referrals to the Board.

Specifically, section 87.4(2) of the Code will provide that an employer and a trade union must, no later than 15 days after the day on which the notice to bargain collectively has been given, enter into an agreement that sets out:

  • the activities that they consider necessary to continue in the event of a strike or lockout; and,
  • the manner and the extent to which the employer, the trade union and the employees in the bargaining unit must continue the activities, including the approximate number of those employees that, in the opinion of the employer and the trade union, would be required for that purpose.

If an agreement is reached between the employer and the trade union, a copy of the agreement must be filed with the Minister and the Board and will have the same effect as an order of the Board. If an agreement is not reached within the 15-day period, either party may apply to the Board to have any question resolved with respect to the application of section 87.4(1). The Minister may also refer to the Board any question with respect to whether an agreement entered into by the employer and the trade union is sufficient to ensure its compliance with section 87.4(1) of the Code. The Board will be required to issue a decision within 90 days of receiving the application or referral.

If passed, Bill C-58 will come into force 18 months post-Royal Assent, which means that it could be several years until federally regulated employers will have to comply with the new law.

The amendments introduced by Bill C-58 are a marked departure from previous policies at the federal level that allowed employers unrestricted use of replacement workers. It will be interesting to see whether Bill C-58 has the desired effect of providing stability and expediting the maintenance of service agreements during federal labour disputes.