Introduction

The Government of Canada has stated that it is committed to fair, free and balanced collective bargaining. In this vein, the Government has committed to introducing legislation at the end of 2023 that would prohibit federally regulated workplaces from using replacement workers during a lockout or strike. In addition, the Government seeks to make revisions to the maintenance of activities process as set out in the Canada Labour Code (“Code”), as stakeholders have identified issues with the current process. 

On October 19, 2022, the Canadian Minister of Labour, Seamus O’Regan Jr., launched a public consultation^[1] for stakeholders and interested Canadians regarding these proposed changes to the legislation. This consultation serves as an opportunity for those invested in these issues to raise their concerns and  have their considerations be accounted for in the deliberation and drafting of future legislation. Feedback from interested parties is due by December 16, 2022.

The stated purpose of the prohibition on replacement workers is to ensure the right to strike in federally regulated sectors, and, in effect, improve and limit interruptions during the negotiation process. The Government has also stated that it aims to improve the maintenance of activities process, but that it will not seek to expand the services that need to be maintained during a lockout or strike. Instead, it will focus on protecting the rights and services already permitted.

Background

Who is a Replacement Worker?

In Canada, employers cannot permanently replace unionized workers when they strike or are locked out. Employees have the right to go back to their jobs when the strike or lockout ends. Hence, a replacement worker is someone who performs unionized workers’ tasks while they are on strike or locked out. The proposed legislation seeks to address temporary replacement workers who are employed by an employer to fill in for the unionized employees.

Current Legal Context

Part I (Industrial Relations) of the Code, which applies to federally regulated unionized workers, sets the rules for unionization, collective bargaining and labour disputes in federally regulated sectors.

Currently, Part I 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 is not:

• in the bargaining unit on strike or lock out; or
• in the bargaining unit, but was hired after the union and employer started bargaining.

Any person or organisation can complain to the Canadian Industrial Relations Board (CIRB) if they think that an employer is illegally using replacement workers. If the CIRB agrees, it can order the employer to stop using replacement workers for the rest of the strike or lockout and make any other necessary orders.

Where there is a strike or lockout, Part I of the Code also requires that federally regulated employers and unions maintain certain activities, i.e. continue any activities necessary to protect the public from immediate and serious danger, including the provision of essential services. The Code sets out how to decide which activities need to be continued. As part of this consultation process, the Government is soliciting feedback from relevant stakeholders in order to improve this maintenance of activities process.

Who would be impacted?

The prohibition on replacement workers and changes to the maintenance of activities process would affect the sectors of the economy that are regulated by the federal government and covered by Part I of the Code. It would not affect employers and employees in Canada working in sectors that provincial governments regulate. About 22,000 employers and approximately 985,000 employees are covered by Part I of the Code.

Specifically, Part I of the Code applies to:

1. The federally regulated private sector, which includes key industries such as:
   1. banks, including authorised foreign banks;
   2. telecommunications, radio and television broadcasting;
   3. air, rail, and maritime transportation; and
   4. most Crown corporations (for example, the Canada Post Corporation).
2. All private sector businesses and municipal governments in the Northwest Territories, Nunavut and Yukon.

Overview of consultation

Purpose

The purpose of the consultation is to gather views from Canadians and relevant stakeholders on 1) replacement workers and 2) the maintenance of activities process in federally regulated industries. The feedback will inform the government’s policy on both issues.

The government issued two discussion papers on these issues, which provide context on replacement workers in federally regulated sectors andsets out the current rules on the maintenance of activities under the Code. In addition, these discussion papers include:

1. discussion questions for stakeholder feedback;
2. an invitation to interested stakeholders to express their views on the discussion questions to the Labour Program; and
3. support for virtual roundtable discussions with some stakeholders in November and December 2022.^[2]

Key Questions

As part of the consultation process, the Government is looking for input on the following:

1. Key policy design considerations;
2. Personal experiences with replacement workers and  upkeep of activities process;
3. Potential impacts of changes to stakeholders and their operations; and
4. Any suggestions for what needs to change.

Conclusion

The Supreme Court of Canada affirmed in 2015 that the right to strike is protected under the Canadian Charter of Rights and Freedoms as an integral component of collective bargaining.^[3] With this consultation process and proposed legislation, the Government has signalled that it intends to make legislative changes to enhance the collective bargaining process in the federal context. Undoubtedly, both developments will significantly impact employers and their relationship with trade unions and workers in the context of labour relations. 

Fasken Martineau DuMoulin LLP

Brian Burkett

Brenda Chang

Saqib Mahmood