On November 9, 2023, the Federal Government introduced Bill C-58, entitled An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012 (“Bill C-58”) in the House of Commons, Canada’s lower level of Federal Parliament.  If passed, Bill C-58 would impose a broad prohibition on the use of replacement workers during strikes and lockouts and make significant changes to the existing “maintenance of activities” process.

Key Measures Proposed in Bill C-58

Replacement Worker Ban

Bill C-58 proposes a broad prohibition on the use of replacement workers during strikes and lockouts with very limited exceptions. 

The prohibition would apply to any employees, including non-union, management, or labour relations employees, as well as any independent contractor or agency workers if they were hired or engaged after notice to bargain was given.  Contractors or agency workers who had performed bargaining unit work before notice to bargain was given, may only continue to perform that work during a strike or lockout as long as they do so in the same manner, to the same extent, and in the same circumstances as they did before notice to bargain was given.  Finally, bargaining unit members who wish to work during a strike or lockout are prohibited from doing so (collectively, “Replacement Workers”).

The prohibitions above do not apply when the following three conditions are met:

an employer must deal with a situation involving an imminent or serious (a) threat to life, health, or safety of any person, (b) threat of destruction of, or serious damage to, the employer’s property or premises, or (c) threat of serious environmental damage affecting the employer’s property or premises;

an employer uses prohibited Replacement Workers only if it is unable to address the situation through other means or through workers that are not subject to the ban; and

an employer uses the prohibited Replacement Workers for “conservation purposes” and not to continue the normal supply of services, operation of facilities, or production of goods. 

Bill C-58 includes an expedited timeframe for complaints to the Canada Industrial Relations Board (the “Board”) relating to the use of Replacement Workers as well as a criminal penalty for the use of Replacement Workers.  Bill C-58 also allows the Governor in Council to make regulations establishing an administrative monetary penalty scheme for violations of the various proposed provisions. 

Maintenance of Activities Process

Bill C-58 proposes amendments to the maintenance of activities process.  Specifically, a union and employer would be required to enter into a maintenance of activities agreement within 15 days of notice to bargain, even if the agreement states that no services, operations, or production must be continued in a strike or lockout. 

The agreement must set out (a) the services, operations, or production that the parties consider necessary to continue in a strike or lockout and (b) the manner and extent to which the parties, including employees in the bargaining unit, must continue to perform these activities, as well as the number of employees required to fulfil that purpose.

If the parties fail to reach an agreement, the Board must determine all maintenance of activities issues either on application of either party or by referral from the Minister of Labour.

A strike or lockout notice can only be given if the parties have entered into a maintenance of activities agreement or the Board has determined a maintenance of activities application or referral.

Conclusion

As of late November 2023, Bill C-58 is at second reading in the House of Commons.  If passed, which is likely, Bill C-58 will come into force 18 months after it receives Royal Assent.

Authors: Christopher D. Pigott, Brian Burkett, Tala Khoury