Replacement worker ban 'meaningful step forward,' disturbs balance in negotiation process: lawyers

The proposed federal labour law changes that include a ban on replacement workers during work stoppages “represent a meaningful step forward for the federal labour relations jurisdiction,” says one lawyer. Another says the prohibition throws a formerly balanced negotiation process off kilter.

On Nov. 9, federal Liberal labour minister Seamus O’Regan introduced Bill C-58, which would ban the use of replacement workers, also known as “scabs,” during a strike or lockout in a federally regulated workplace. The bill includes an exception for situations where there is a threat to health, safety, or “serious property and environmental damage” that the employer’s existing workforce cannot manage.

There has been a partial restriction on replacement worker use since 1999. The ban applied to the use of replacement workers when the purpose of using the workers was to undermine the union’s representational capacity.  

The prohibition applies to work stoppages 18 months following the bill’s Royal Assent.

“This legislation is long overdue,” says Mark Rowlinson, a union-side labour lawyer and partner at Goldblatt Partners in Toronto. “It meets a need to prevent labour disputes in the federal sector from becoming too long and too acrimonious.”

British Columbia and Quebec have had similar bans in place for decades, and Ontario did briefly in the 1990s, he says.

“To me, it's now taking a situation which was balanced and making it unbalanced,” says Hugh Dyer, a labour and employment lawyer who represents private and public-sector employers.

Currently, while it is difficult to operate a workplace with a picket line and without the employees who normally perform the work, it is possible, says Dyer, a partner in Toronto at Miller Thomson LLP. Likewise, though it is difficult for a worker to find alternative employment, that is also possible, he says.

“This takes away the possibility of the employer operating during a strike. It can't produce anything. It can't provide services. Whatever its primary business operation is, it can't do that.

“The employees who are on strike or are locked out can go and find other jobs.”

Rowlinson says he has several concerns about the new legislation. It does not appear to prevent employers from using “managerial or confidential” employees to step in for striking or locked-out workers if those replacements were hired before the notice of bargain was issued. It does not appear to prohibit the employer from using employees from other locations to cover for striking or locked-out workers if they were hired before the notice of bargain was issued.

There is also an exemption on the replacement worker ban where replacement workers are required “to prevent to prevent imminent or serious threat to life health safety, destruction of properties or environmental damage,” he says.

“I don't object to the exemption,” says Rowlinson. “What I object to is it gives the employer too much discretion to just either hire replacement workers, managers, or contractors to do this work.

“In our view, the employer and the union ought to come up with an agreement to resolve those issues, and the employees who are on strike ought to be given at least a first right of refusal to do such conservation work, if necessary, during a strike.”

Dyer says Bill C-58 is a step back for labour relations and the entire economy. It will give unions, especially the larger and more aggressive ones, more power, which will lead to more disputes and make it more difficult for management to resist their demands, he says.

While there will be some benefit to workers and unions, it may also lead – especially in the private sector – to employers taking operations out of Canada because it becomes too expensive, says Dyer.

Bill C-58 also alters the maintenance of activities process, requiring employers and unions to agree early in the bargaining process on what work must continue during a strike or lockout. The parties have 15 days to decide, and if they cannot, the Canada Industrial Relations Board (CIRB) will do so within 90 days.

“It's much more mandatory than it used to be,” says Rowlinson. While he does not reject the need for an essential services provision, Rowlinson fears it may lead to delay. Disputes over the essential services agreement must be resolved at the Canada Labour Relations Board, and the timelines in the draft legislation are too long, which could delay resolution of the collective bargaining dispute and delay a potential strike or lockout, he says.

“We’re banning the use of replacement workers because we believe in collective bargaining,” said O’Regan. “Our economy depends on employers and workers negotiating an agreement at the table. That’s where we get stability for our economy, that’s where strong labour relations are forged, and that’s where the best deals are made.”