On June 20, 2024, Bill C-58: An Act to amend the Canada Labour Code and the Industrial Relations Board Regulations, 20121 (hereinafter "Bill") received Royal Assent. The Bill mainly introduces new measures to prohibit employers under federal jurisdiction2 from using replacement workers during a strike or lockout.
Key points
Key points include a change in the prohibition's scope on using replacement workers, which removes the requirement to demonstrate the employer's intention to undermine the union's representational capacity. Also introduced is the prohibition on using the services of certain categories of persons to perform the duties of a lockout or bargaining unit employees. Employers who contravene these prohibitions may now be subject to a fine. Certain adjustments have also been made to improve the business continuity process in the event of a strike or lockout.
The Bill introduces significant changes to the Canada Labour Code3 (hereinafter "Canada Code") to protect the right to strike, which will likely have a major impact on power relations between labour and management in the federal sector.
This article therefore reviews the key changes the Bill will bring to the Canadian Code.
Prohibition on Replacement Workers
Bill C-58 repeals section 94(2.1) of the Canada Labour Code, which placed the onus on unions to demonstrate the employer's intention to undermine a union's representational capacity when using replacement workers. It was generally difficult for unions to demonstrate such an objective, so federal employers were able to use replacement workers more easily. Such an amendment significantly changes the ground rules and introduces robust measures to restrict the use of replacement workers.
In fact, the Bill's new provisions specify the categories of persons whose services may not be retained in the event of a strike or lockout, namely :
- Any employee who was hired after the date on which notice of collective bargaining was given or any person who occupies a managerial or confidential position involving access to confidential labour relations information and who was hired after that date4;
- Any contractor, other than a dependent contractor, or any employee of another employer5;
- Any employee who normally works in a workplace other than the one where the strike or lockout is taking place or who has been transferred to the workplace where the strike or lockout is taking place after the date on which notice to bargain collectively was given6;
- All volunteers, students, and the general public7.
For the second prohibition, the Bill specifies that if the employer was using the services of a contractor or an employee of another employer before the notice to bargain was given, the employer may continue to use such services "in the same manner, to the same extent and under the same circumstances that prevailed," before notice to bargain was given8.
Regarding the third and fourth prohibitions, it is interesting to note that they represent additional restrictions compared to those set out in the version of the Bill presented in November 2023.
Exceptions of Bill C-58
The Bill introduces certain exceptions allowing replacement workers to be used. Under circumstances where there is "imminent or serious threat to the life, health or safety of any person, threat of destruction or damage to the employer's property or premises, or threat of serious environmental damage affecting the employer's property or premises," the employer may use replacement workers, but only under two conditions9:
- Using replacement workers must be necessary to deal with the situation.
- The employer must first have given employees in bargaining unit, on strike, or during a lockout the opportunity to perform the necessary work10.
Financial Penalties
Bill C-58 establishes that the illegal use of replacement workers will be considered a summary penal offence. Accordingly, fines of up to $100,000 "for each day during which the offence is committed or continued"11 may be incurred.
Business Continuity
In the event of a strike or lockout, the Canadian Code already imposes on employers, unions, and employees the responsibility to maintain certain activities to prevent imminent and serious risks to the safety or health of the public12.
In order to strengthen the process of maintaining these activities, the Bill makes substantial changes to the Canadian Code by repealing certain provisions and introducing new requirements13.
From now on, employers and unions will have to reach an agreement at the outset of negotiations to determine which tasks are to be maintained in the event of a strike or lockout. This change is intended to encourage the parties to reach an agreement more efficiently and quickly.
Bill C-58 requires that this agreement be reached no later than fifteen (15) days following delivery of the notice to bargain collectively14. It must specify the activities that must be maintained in the event of a strike or lockout, and the manner and extent to which the parties must maintain them15. Such an agreement must be filed with the Minister of Labour and the Canada Industrial Relations Board16, as a prerequisite to giving notice of a strike or lockout17.
If the parties are unable to reach an agreement within the allotted time, either party may request that the Canada Industrial Relations Board resolve the outstanding issues, and the Board will be required to render a decision within eighty-two (82) days of receiving the request18.
Lastly, as an additional measure to ensure the smooth running of the business continuity process, the Bill introduces the possibility of appointing an external arbitrator to rule on the matter19.
Effective Date of Bill C-58
The Bill will be brought into force within twelve (12) months of the date on which it receives Royal Assent. The new measures will then apply to any strike or lockout in progress on that date.20
Conclusion
The new provisions are similar in many ways to the anti-scab rules set out in the Labour Code21 applicable in Quebec. However, it is important to note that the rules in force in Quebec are intrinsically linked to the notion of "establishment," which clearly differentiates them from the measures proposed by the Bill, which make no reference to this notion. Instead, the Bill prohibits the use of replacement workers "to perform all or part of the duties of a bargaining unit employee"22.
Finally, the new measures introduced by Bill C-58 are likely to have a significant impact on the power balance between unions and employers in the federal jurisdiction. Given the onerous penalties that employers could face, caution is advised, and it is crucial to ensure compliance with the new provisions.
Our Labour and Employment law team is ready to answer any questions you may have, so please do not hesitate to contact us.
Footnotes
1. Bill C-58: An Act to amend the Canada Labour Code and Industrial Relations Board Regulations, 2012.
2. Industries under federal jurisdiction include certain transportation services (air, aeronautical, rail, national or international transport), banks, communications companies (radio, television broadcasting, cable television, Internet services, telephone services), the postal service, and more.
3. LRC 1985, c L-2.
4. Supra note 1, art 9(2) amending section 94(4)(a) of the Canadian Code.
5. Ibid. art 9(2) amending section 94(4)(b) of the Canadian Code.
6. Ibid. art 9(2) amending section 94(4) of the Canadian Code.
7. Ibid. art 9(2) amending section 94(4) of the Canadian Code.
8. Ibid. art 9(2) amending section 94(5) of the Canadian Code.
9. Ibid. art 9(2) amending section 94(7)(a)(i to iii) of the Canadian Code.
10. Supra note 2, art 9(2) amending section 94(7)(b)(c) of the Canadian Code.
11. Supra note 2, art 12.
12. Supranote 3, section 87.4(1).
13. Supra note 2, art 6(1) amending section 87.4(2)-(5) of the Canadian Code.
14. Ibid. section 6(1) amending section 87.4(2) of the Canadian Code. The Canadian Code does not currently provide for such an obligation. Instead, either party must send the other a list of services it believes must be maintained within 15 days of the notice to bargain.
15. Ibid. art 6(1) amending section 87.4(2) of the Canadian Code.
16. Ibid. art 6(1) amending section 87.4(2) of the Canadian Code.
17. Supra note 2, art 5 amending section 87.2 of the Canadian Code.
18. Supra note 2, art 6(3) amending section 87.4(6.1) of the Canadian Code.
19. Supra note 2, art 1 amending section 12.001(1) of the Canadian Code.
20. Supra note 2, art 18.
21. RLRQ, c C-27.
22. Supranote 2, art 9(2) amending section 94 (4)(a) of the Canadian Code.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.