Question Period Note: REPLACEMENT WORKERS

How does Part I of the Canada Labour Code discourage employers from using replacement workers during strikes?

• This Government supports a balanced approach to industrial relations for employers, unions and employees in the federal jurisdiction. That includes strong protections for workers’ right to strike.

• The Canada Labour Code provides a number of protections for striking workers, including prohibiting employers from using replacement workers when doing so would undermine the union’s ability to represent those on strike.

• In the event that an employer does hire replacement workers, a union can make a complaint to the Canadian Industrial Relations Board to ensure that workers’ rights are protected.

• Part I of the Canada Labour Code does not prohibit employers from using replacement workers to continue operations during strikes.

• However, subsection 94(2.1) of the Code prohibits the use of replacement workers where their presence in the workplace is intended to undermine a union’s representational capacity. This provision in the Code was introduced in 1999 and was seen as a middle ground between the desire of unions for a complete ban and the position of employers that no restrictions should exist.

• Only two provinces, Quebec and British-Columbia, have legislation that restricts the right of employers to hire replacement workers during work stoppages. While Ontario enacted similar provisions in 1993, they were repealed in 1995.

• Studies have not conclusively determined the impact of replacement worker legislation on work stoppages. The 2008 Annis Report on Work Stoppages said that it is not clear what role replacement workers play in work stoppage incidence and duration, as competing theories and empirical data are inconclusive. A 2011 Labour Program study found that when a strict ban on replacement workers is in effect, such as found in Quebec and British-Colombia, work stoppage incidents increase in the service sector but decrease in the non-service sector.

• Since 1979-1980, over 90% of collective bargaining disputes that were referred to the Labour Program were settled without a work stoppage. In 2017, 94% of all disputes that federal mediators were involved in were settled without a strike or lockout.

• Numerous Private Members’ Bills (PMB) have been proposed to strengthen the prohibition against using replacement workers in the Code since 1999, including PMB C-258, which was introduced on December 3, 2020 by New Democratic Party Member of Parliament Scott Duvall. All previous PMBs were defeated in the House of Commons.

• There isn’t any evidence of an issue with the use of replacement workers during work stoppages within the federally regulated private sector.

• Labour Program analysis indicates that when there is a strike or lockout in the federal private sector, employers rarely hire external replacement workers. More often, management, supervisors and other non-bargaining personnel are reassigned to take the place of striking workers.

• According to Labour Program data, between 1999 and 2018, the Federal Mediation and Conciliation Service provided support to employers, unions and employees in approximately 3,427 labour disputes reported to the Minister of Labour. Since 1999, only 38 complaints (or an average of 1.9 per year) alleging improper use of replacement workers have been filed with the Canada Industrial Relations Board: 7 were rejected and the 31 remaining complaints were either settled by the parties or withdrawn.