Labour and Employment Law Blog

On November 9, 2023 the Minister of Labour introduced legislation to ban the use of replacement workers by federally regulated employers during labour disputes. A replacement worker is a person who does the work of a unionized worker who is on strike or locked out.

Currently, Part I of the Canada Labour Code only prohibits employers from using replacement workers if they are using them to undermine a union’s ability to represent its members. Under this limited ban, a replacement worker is anyone who is assigned to do the work of an employee on strike or locked out, and (i) is not in the bargaining unit that is on strike or locked out, or (ii) is in the bargaining unit, but was hired after the date which notice to bargain was given.

Bill C-58 proposes additions to the Canada Labour Code to restrict replacement workers with the stated intention being to ensure the “cessation of work by all employees in the bargaining unit.” In particular, Bill C-58 prohibits the following persons from performing the duties of an employee on strike or locked out (regardless of the circumstances):

• 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 given; and
• any contractor other than a dependent contractor or any employee of another employer.

This ban does not include contractors who the employer engaged before notice to bargain was given, provided that they (i) provided similar services to bargaining unit employees before notice to bargain was given; and (ii) continue to provide those services in the same manner, to the same extent, and in the same circumstances throughout a strike or lockout.

The proposed legislation includes a narrow exception to replacement workers where replacement workers are the only option, and necessary in order to deal with 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.

Bill C-58 allows for the creation of regulations establishing monetary penalties for a violation of the replacement workers’ provisions. The Minister of Labour has been quoted as saying that the penalty would be $100,000 per day of violation.

Bill C-58 is currently at second reading in the House of Commons. As drafted, it will come into force 18 months after it receives royal assent.

Currently, the only jurisdictions with robust replacement worker bans are British Columbia and Quebec.

If you would like more information about replacement workers in your industry, or have any questions about upcoming strikes or lockouts, please contact a member of our Labour, Employment & Human Rights Group.