last couple of years: first with optimism in January, 2015, and then with disappointment this past June. On the heels of news in late November that the federal government was "advised against a ban on replacement workers" earlier this year, we write now with relief that the current government is not, apparently, ready to make things even more difficult for federally-regulated employers.
The release of that information may help explain the easy defeat in September of a Private Member's Bill from NDP MP Karine Trudel. While Private Members' Bills often fail as a matter of course, there was more than the usual level of interest from the federal employer community, given the sympathies toward the labour movement displayed by the Liberal government thus far in its term.
As it stands now, the Canada Labour Code places the following conditions on the use of replacement workers during a strike:
Prohibition relating to replacement workers
(2.1) No employer or person acting on behalf of an employer shall use, for the demonstrated purpose of undermining a trade union's representational capacity rather than the pursuit of legitimate bargaining objectives, the services of a person who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given and was hired or assigned after that date to perform all or part of the duties of an employee in the bargaining unit on strike or locked out.
This is, admittedly, a low bar and effectively employers are not really restricted from using replacement workers. However, a ban on replacement workers would allow the union in any federally-regulated workplace to bring a complete halt to operations as opposed to simply the "disruption" that a normal strike brings. Further – and with less "employer bias" – given that statistics indicate strikes in Canadian jurisdictions where replacement workers are prohibited last significantly longer than where they are not prohibited, a ban on replacement workers would not be sound labour relations policy.
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