The New Federal Ban on Replacement Workers
/ Author: Andrew Regnerus
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The New Federal Ban on Replacement Workers

Strikes and lockouts are the nuclear option in industrial warfare. But the strike weapon is weakened when striking workers may be replaced

By Andrew Regnerus, Representative, Ontario Construction Coordinator

On November 9, the federal government introduced Bill C-58, which would ban the use of replacement workers during a strike. In all provinces but BC and Quebec, replacing strikers with temporary workers is legal.

Let’s review the flurry of recent news items and opinions, including our own, inspired by this bill.

A Ban on Using Replacement Workers in Struck Workplaces

The federal bill only covers interprovincial enterprises (e.g., banking, telecommunications, cross border transport, and crown corporations). Curiously, federal public service employees are not affected. The bill fulfills an election promise the Liberals made in 2021—and a recent governing coalition promise they made to the NDP.

Details regarding violations ($100,000 fines per day!), exceptions, and processes to manage strikes, lockouts, and replacement workers are covered in greater detail in an article in the National Post, “Bill would ban replacement workers in federal workplaces during strikes.” The law won’t take effect for a couple years. It will take half a year of legislative process to get to royal assent. From that point, the bill provides 18 months lead time for the Canada Industrial Relations Board (CIRB) and stakeholders to get ready.

Reactions from Business, Traditional Labour, and Academic Institutions

Business

Predictably, the business community is panning the new bill. In an article in the Financial Post, “Liberals play politics with ‘anti-scab’ legislation,” Perrin Beatty, CEO of the Canadian Chamber of Commerce, says that the bill will destroy bargaining balance and encourage labour disruptions. He maintains that unions need the threat of replacement worker labour as an incentive to negotiate.

The Canadian Federation of Independent Business (CFIB) also contends the ban will encourage strike activity. It goes further, stating that certain federally regulated workers should not be able to strike at all.

Traditional Labour

Canada’s unions are happy, or at least happier, than business is with the bill. Labour considers replacement workers to be a violation of the Charter of Rights and Freedoms right to strike. Because replacement workers undermine the effectiveness of strikes, they therefore undermine the right to strike itself.

Labour says the bill will cause employers to respect the bargaining process and that using replacement workers often leads to longer and more contentious work disruptions. It claims the gap between worker pay and corporate profits prove the need for greater bargaining strength.

Of course, labour isn’t fully satisfied. Some took the occasion to point out that the bill could have furnished greater worker protection than it does. For more on the traditional labour movement’s views on the bill, see “Canada’s unions welcome anti-scab legislation” in the Financial Post.

Academic Institutions

In a more balanced analysis, Brock University’s Dr. Larry Savage indirectly counters the CFIB suggestion that Quebec and BC (where replacement workers are not permitted) see adverse and differentiating labour relations effects. He adds thoughtful historical and political context to the debate in an article in The Brock News,  “Larry Savage discusses reactions to legislation that will prohibit the use of replacement workers.”

Strikes Are Working. Do We Need This Ban?

Unions in Canada and the US have had significant wins this year, powered by strikes or the threat of strikes. Think of the Hollywood writers, auto assemblers on both sides of the border, Vancouver port workers, and UPS drivers. Successes at the bargaining table and the picket line become contagious.

Our strong economy, low unemployment, strong consumer spending, and record corporate profits plus high inflation, COVID burnout, and threats of AI replacing jobs together set the table for high worker demands and hard bargaining. Momentum, the economy, and the strongest public approval of unions in a half century—including the support of the leader of the free world—have made workers braver about striking.

The strike is labour’s chief weapon. When union members aren’t afraid to use it, strike action increases, and pragmatic companies settle before work stoppages happen.

Given this strong position, we could suggest that unions do not need any further muscle that the bill provides. Yet justice demands it.

Unions gain legal rights to represent the workers at an enterprise. Employers must not be able to mobilize another set of workers who act contrary to the interests of the legal representatives of the striking workers. That interferes with labour union activity and is an unfair labour practice in most jurisdictions.

Bill C-58: Should We Panic?

The legislation is not as far-reaching as some think: most Canadian labour legislation is provincial. The federal code and Canada Industrial Relations Board have limited jurisdiction, covering one million workers, one third of whom are unionized. The proposed law doesn’t impact provincial labour boards.

Even where permitted, replacement workers are seldom used. Because a wholesale workforce change can be almost as volatile as a strike, replacements are mostly used to “keep the lights on and motors oiled,” not to replicate “business as usual.”

Replacement Workers: Who Do They Really Help?

In a strike, business likes to maintain operations while unions want to shutter the operation. Intuitively, we see that replacement workers weaken unions and strengthen the company’s position.

However, settlements are eventually reached, and workers return to work. Where replacements were used, workers return with hard feelings, low engagement, distrust, less commitment to productivity, and even increased industrial sabotage.

Further, the kind of win-lose transactional bargaining that end in labour disputes is becoming passe. Bargaining experts on both sides of the table know that we can bake a bigger cake instead of arguing about the size of our slice.

Interest-based bargaining is a growing trend that replaces acrimony and “dirtiness” associated with old-style industrial warfare. Mutual gains bargaining leads to fewer, and shorter, strikes.

CLAC’s Perspective

Because of its federal jurisdiction, very few CLAC members will be affected by the bill. But just recently, some CLAC members were on strike—only the fifth in its 71-year history.

CLAC Local 306 members in Manitoba who work as educational assistants (EAs) in support of the Hanover School Division withdrew their services on November 1, 2023. Certainly, these members were not riding the wave of opportunity propelled by auto worker strikes.

These members were in pursuit of economic justice and went on strike in response to unfair bargaining positions taken by the school board. In Hanover, the schools had employed replacement workers. Maddeningly, they were offered a starting wage of what 30-year tenure members are paid.

Geoff Dueck Thiessen, CLAC Winnipeg Member Centre regional director, sums up the effect of replacement worker labour in “CLAC Responds to Report of Hanover School Division Recruiting Temporary Workers during Strike.” “These dedicated employees have been on the picket line since November 1, asking their employer to recognize their value through a less precarious wage,” says Geoff. “And I think we’re seeing that value show up in the schools, as their absence is felt by students, parents, and teachers.

“When a student gets noisy in school, EAs are expected to be calm, be patient, and listen to what the student needs. When these EAs got noisy, their employer reached out to secure temporary workers at a higher wage than most EAs are currently paid. And that hurts.

“What EAs really want is for their employer to listen and reconsider their position, rather than focus energy and money on bringing in temporary workers who don’t know the schools, the students, the teachers, or the parents, never mind the community values that trustees have said they value.”

After three weeks on the picket line, and with the failure of replacement workers to meet students’ needs, the school division and CLAC representatives reached a settlement that was ratified by a large majority of EAs. They are now happily back to work with a new agreement that is a big step in the right direction.

Whether Manitoba, now governed by the labour friendly NDP, follows in BC’s footsteps and bans the use of replacement workers remains to be seen. Yet justice demands it. As CLAC members employed by Hanover School Division discovered, the use of replacement workers undermined their ability to achieve a just and fair settlement and is an affront to the dignity and value of workers.

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