Canada: Federal Bill Proposes Prohibition on Use of Temporary Replacement Workers During Strike or Lockout

On November 9, 2023, Bill C-58, An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012 (Bill C-58), was introduced by the federal government for First Reading. Bill C-58 proposes, among other things, to amend the Canada Labour Code (CLC) to introduce prohibitions on the use of temporary replacement workers in federally regulated workplaces during a strike or lockout, and to amend the maintenance of essential activities provisions.

Details are set out below.

Prohibitions on the use of temporary replacement workers during a strike or lockout

In a News Release dated November 9, 2023, the federal government, in support of Bill C-58, stated, “The use of replacement workers can distract from negotiations, it can prolong disputes, and it can damage labour relations for years to come.”

Accordingly, Bill C-58 proposes to amend the prohibitions that relate to replacement workers during a strike or lockout by:

  • Prohibiting an employer from having bargaining unit work performed by any employee, manager or confidential employee who was hired after the day notice to bargain was given.  Notably, this prohibition would not apply to any employee, manager or confidential employee who was hired before the day notice to bargain was given.
  • Prohibiting contractors and employees of another employer from performing bargaining unit work during a strike or lockout, subject to the following exceptions:
    •  If the employer was using the services of a contractor or another employer’s employee before notice to bargain was given, they would be permitted to continue performing those services during the strike or lockout “so long as they do so in the same manner, to the same extent and in the same circumstances as they did before the notice was given”; and
    •  The prohibition against the use of contractors would not apply to “dependent contractors.”  
  • Prohibiting bargaining unit employees from working during any strike or lockout that involves “the cessation of work by all employees in the bargaining unit,” unless:
    •  They are required to do so for purposes of maintenance of activities, or
    •  It is necessary due to a serious threat to the employer’s business or the life, health or safety of any person.

Unions that believe an employer is using replacement workers beyond the exceptions would be able to file a complaint with the Canada Industrial Relations Board (CIRB), which would investigate.

Furthermore, if an employer contravenes the prohibition on temporary replacement workers, they would be guilty of an offence and could face a fine of up to $100,000 for each day the offence is committed or continued. 

Maintenance of essential activities

Bill C-58 would make amendments to the CLC’s maintenance of essential activities provisions.  The purpose of these amendments would be to strengthen the maintenance of activities process by, among other things:

  • encouraging employers and trade unions to reach an earlier agreement regarding activities to be maintained during a legal strike or lockout,
  • encouraging faster decision making by the CIRB when parties cannot agree, and
  • reducing the need for the Minister of Labour to make referrals to the CIRB.

Specifically, Bill C-58 would amend the CLC to require an employer and union to reach an agreement on maintenance of activities no later than 15 days after the notice to bargain has been given.  If such an agreement were not reached within this timeframe, either party would be able to apply to the CIRB to have outstanding issues resolved, and the CIRB would be required to issue a decision within 90 days of receiving the application.

We will continue to monitor this bill through the legislative process and report on any significant developments.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.