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On February 25, 2016, NDP MP Karine Trudel (Deputy Critic for Labour) introduced a bill in Parliament that would ban the use of replacement workers during a strike or lockout in federally regulated workplaces. Bill C-234, An Act to amend the Canada Labour Code (replacement workers), would amend the Canada Labour Code, which covers federally regulated workers, to prohibit management from hiring outside, non-unionized workers (also known as “scabs”) to perform bargaining unit work during a strike or lockout. Under the proposed legislation, any offending employer would be penalized by a fine of up to $10,000 for each day that it used the replacement workers. In introducing the bill, MP Trudel urged parliamentarians to pass the legislation in order to “send a strong message to workers across the country about the right to collectively negotiate working conditions as equals”.

Currently, the Canada Labour Code allows for the hire of replacement workers during a strike or lockout, provided it is not for the purpose of “undermining a trade union’s representational capacity rather than the pursuit of legitimate bargaining objectives”. Essentially, what this has come to mean is that an employer will be fine to hire “scab” labour, provided it simultaneously expresses an intention to continue bargaining during the strike or lockout. Even if the assurances appear to ring hollow. So far, only British Columbia and Quebec have legislation banning the hire of replacement workers during a labour dispute.

Labour organizations, including the Canadian Labour Congress, support anti-scab legislation as a way to equalize the power imbalance between employers and workers. The right to strike is also constitutionally protected, and has been recognized by the Supreme Court of Canada as “an essential part of a meaningful collective bargaining process in our system of labour relations” (in Saskatchewan Federation of Labour v. Saskatchewan). It is not merely derivative of collective bargaining, it is an indispensable component of that right. The right to engage in work action between collective agreements is important for democracy, and enables workers to participate meaningfully in the pursuit of their collective workplace goals. Management’s ability to hire scab workers is a direct attack on this right.

The hiring of replacement workers may also have negative consequences for labour relations. There is no doubt that the sight of scab hires crossing a picket line can inflame striking union members. This often leads to an escalation of the dispute, and can impede an agreement on contract terms (especially since the motivation of management is somewhat reduced by the continuation of its operations). Anti-scab legislation, however, helps promote smoother labour relations by reducing such ancillary labour disputes.

While there have been numerous earlier attempts to pass anti-scab legislation in the House of Commons, there may be hope for progress with a newly elected government that campaigned on a promise to “restore fair and balanced labour laws”. Bill C-234 has a long road ahead as it proceeds to second reading, and it is still to be seen whether the new government will support the rights of workers. For those who support democracy and equal bargaining power in the workplace, now would be a good time to start calling your Member of Parliament.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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