Canadian law students are reporting for JURIST on national and international developments in and affecting Canada. Mélanie Cantin is JURIST’s Chief Correspondent for Canada and a 3L at the University of Ottawa Faculty of Law.
Bill C-58, An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012, is currently before the Canadian Parliament.
Introduced for first reading on November 9, the bill is being sponsored by the Minister of Labour and Seniors, Seamus O’Reagan, and seeks a few amendments to the Canada Labour Code. Most notably, the bill would enact a ban on the use of replacement workers (colloquially known as “scabs”) during a strike or lockout and would force unions and employers to come to the table early on in the bargaining process to determine the activities that would continue should a strike or lockout move forward. In a coincidental turn of events, the bill was introduced on the exact same day as the official end of the historic strike by the Screen Actors Guild-American Federation of Television and Radio Artists (“SAG-AFTRA”) in the United States.
The parts of the Canada Labour Code that are being amended apply to federally regulated private sectors, which include banking, radio and television broadcasting, interprovincial railways, and various other sectors. This necessarily excludes the federal public service as well as Parliament itself. The rights of those workers are set out in a different part of the Canada Labour Code. Approximately 910,000 workers in Canada are “federally regulated” while the rest of private sector workers fall under provincial regulation.
Presently, the Canada Labour Code only has a partial ban on the use of replacement workers “for the demonstrated purpose of undermining a trade union’s representational capacity rather than the pursuit of legitimate bargaining objectives” (section 94(2.1) of the Canada Labour Code). This section of the Canada Labour Code along with other reforms that received royal assent back on June 18, 1998 under Liberal Prime Minister Jean Chrétien, was hailed by some as a significant victory for unions in Canada. Before then, federal legislation regarding the use of scabs did not exist at all.
For critics, however, this protection has always been far too narrow. Indeed, section 94(2.1) only covers the use of replacement workers for the specified purpose of “busting” unions. This makes it difficult for unions, on whom the burden of proof lies in these cases, to establish the purpose for which the employer is using scabs. Under the current regime, employers can therefore, in effect, use replacement workers without violating the Code so long as they display some belief in the bargaining process that could dispel an allegation that they are attempting to undermine a union’s representational capacity.
On the other side of the debate, members of various Canadian business organizations have decried the actions of the federal government. A joint letter from February 2023 spearheaded by the Canadian Chamber of Commerce, a business-focused non-profit organization, has been recirculating in response to the official introduction of Bill C-58 in Parliament. The letter criticizes the bill, claiming it will hurt the Canadian economy. 80+ Canadian business organizations have signed it.
Although proper anti-scab legislation has existed in the provinces of British Columbia and Québec for several years, this has not yet been replicated at the federal level or elsewhere in Canada. The enactment of such legislation has been a longstanding goal for many Canadian politicians from various parties (most notably New Democrats, Bloquistes, and on occasion, Liberals) but has yet to succeed.
The difference, this time, may very well be the existence of the so-called “supply and confidence” agreement between the governing Liberals and the New Democratic Party (NDP) that has been in place since March 2022. This agreement essentially provides that the NDP will support the Liberal government on budgetary matters, “notably on budgetary policy, budget implementation bills, estimates and supply” and on confidence matters―in effect, this latter element means that a no-confidence motion against the government cannot succeed, as the remaining sitting members (Conservatives, Greens, Bloquistes, and Independents) do not have the requisite numbers to prevail without the NDP’s support.
In exchange for this significant advantage, the Liberals will prioritize and support certain policy goals advanced by the NDP, including introducing legislation banning the use of scabs during strikes and lockouts by the end of 2023. Although the government waited until the House of Commons only had 20 more sitting days this year to introduce legislation, it is nonetheless encouraging to see such a bill introduced with real prospects of eventual enactment.
