Legislation introduced to ban scabs during federal workplace strikes, lockouts

OTTAWA — Replacement workers would be banned during strikes and lockouts at federally regulated workplaces under new government legislation introduced Thursday in the House of Commons.

The bill, introduced by Labour Minister Seamus O'Regan, would fine companies $100,000 a day for every violation.

It would apply to federally regulated industries, including banking, telecommunications, ports and airports, along with most Crown corporations. It would affect about a million employees.

But it would not apply to the federal public service, where employees are covered by different sections of the Canada Labour Code, officials said. The legislation does not apply to provincially or territorially regulated employees either.

Only about 34 per cent of the workers covered by the bill are unionized.

The legislation includes exceptions for situations in which replacing workers would be necessary to prevent threats to health and safety, or would help to avoid serious property or environmental damage.

It also includes language about requiring both sides in a bargaining process to work toward a deal about what work they consider necessary to continue in the event of a strike or lockout. Such a deal would need to come within 15 days after notice is given for collective bargaining.

If a deal isn't reached in 15 days, the Canadian Industrial Relations Board would handle the issue within 90 days. And without such a plan, it won't be possible for unions to issue 72-hour strike or lockout notices.

Union leaders cheered the bill Thursday as a welcome first step, while some in the business community felt differently, warning that the legislation could negatively affect their operations.

If the legislation passes, it won't have an immediate effect on either party. It would come into force 18 months after it receives Royal Assent, to give those involved time to change their strategies, and to ensure the Canadian Industrial Relations Board is prepared.

O'Regan said union leaders have argued for decades that replacement workers undermine the collective bargaining process.

"Today is about keeping parties focused on the (bargaining) table," he said.

Collective bargaining can be hard, tense and messy, he added. "And it works."

The bill fulfils a promise the Liberals made in the 2021 election to ban the use of replacement workers if an employer locks its employees out.

It goes a step further to extend the ban to include strikes, a major component of the Liberals' supply-and-confidence deal with the NDP.

Labour unions say 85 per cent of workplace stoppages are due to strikes, not lockouts.

NDP Leader Jagmeet Singh said Thursday that without his party and decades of pressure from unions, the bill would never have seen the light of day.

"After decades of battle, after decades of fighting, we are finally going to see a government bill that we forced to make happen, that's going to ban scab workers in our country," Singh said.

"This is about giving power to workers, taking away power from greedy CEOs and making sure workers can fight to get a fair share of the profits that they create with their own labour."

Despite their agreement, there was apparent tension between the Liberals and NDP on Thursday as they held separate press conferences to discuss the bill, each with different union leaders at their side.

O'Regan said he hopes all parties in the House of Commons can come together to support the bill as they did last year to pass legislation ensuring 10 days of paid sick leave for workers in federally regulated industries.

In 2015, the Supreme Court of Canada affirmed that freedom of association under the Charter of Rights and Freedoms protects the right to strike.

Using replacement workers can undermine that right, labour leaders have said.

The current Criminal Code only prohibits employers from using replacement workers if they're being used to undermine a union's ability to perform its duties. The new legislation intends to broaden that definition.

British Columbia and Quebec are the only provinces that have similar rules in place during strikes or lockouts.

In those provinces, more strikes have been happening, the Canadian Federation of Independent Business said in a statement on Thursday. It suggested that federally regulated workplaces in the transportation industry should be subject to binding arbitration.

The Canadian Chamber of Commerce, which represents about 200,000 businesses, said the proposed legislation will destroy the balance between employers and unions.

"By eliminating the ability of federally regulated employers to use replacement workers to continue their operations in the case of a work stoppage, the government will put its thumb firmly on the scales in favour of one of the parties, removing an incentive to negotiate and encouraging more labour disruptions," the organization said in a release.

"The government says it believes in collective bargaining, but its anti-replacement worker bill goes in exactly the opposite direction by removing the incentive for labour unions to take a seat at the negotiating table."

Similarly, Federally Regulated Employers – Transportation and Communications, an employers association made up of federally regulated firms, said a ban on replacement workers will create an "enormous imbalance" at the table and incentivize strike action.

"Ideology is trumping good government policy," the organization said in a press release.

Unions maintain that is not the case.

Lana Payne, national president of Unifor, said the bill will improve labour relations and push employers to truly respect the collective bargaining process. She added that the use of replacement workers can lengthen strikes, and "poisons the workplace."

The Public Service Alliance of Canada, which represents workers in the federal public sector, called the legislation a welcome first step forward even though its members won't see the benefits of the bill if passed.

"We’ll be working to improve many of the gaps in the Federal Public Sector Labour Relations Act in the months ahead, including language around the use of replacement workers and how the government negotiates contracts with its workers," said Chris Aylward, national president of the Public Service Alliance of Canada.

Other unions, like United Steelworkers, also want the legislation to go further.

National director Marty Warren said the bill is "not perfect, but it’s a big step in the right direction."

He said it should be amended to "scrap unnecessary delays in implementing it and close big Liberal loopholes that would still permit many types of scab labour."

This report by The Canadian Press was first published Nov. 9, 2023.

Note to readers: This is a corrected story. A previous version erroneously reported that proposed legislation to ban the use of replacement workers in federally regulated industries would also apply to the public service.