NDP introduces federal anti-scab bill

Proposed legislation could put pressure on provinces to follow suit
By Sabrina Nanji
|Canadian HR Reporter|Last Updated: 03/18/2016

A bill proposed by the NDP could make it illegal for federal employers to hire replacement workers in case of a strike or a lockout, and put pressure on the provinces to implement similar laws.

Should it pass, the anti-scab legislation — introduced late last month in Parliament by the NDP’s deputy labour critic MP Karine Trudel — will make it illegal for federal public service employers to bring in so-called scabs to replace striking or locked out workers. 

The bill would amend the Canada Labour Code, mirror similar provisions in Quebec and British Columbia and apply to federal employers, such as those in the telecommunications, transportation and banking industries. Of the almost 900,000 workers employed under the federal public service, about 40 per cent are unionized and would be affected. 

The bill would correct an unfair labour practice that undermines a worker’s right to bargain collectively, according to MP Sheri Benson, the NDP’s labour critic. 

“When you go on strike, you are making a big decision. You’re voting on it and you’re foregoing pay and benefits. It’s a big decision and not one people make lightly. So you want to be able to have an impact to bring the employer back to the table, so you can negotiate,” said Benson.

“In some ways, it creates a more balanced power dynamic between employers and employees and I think it will get both sides back to the table quicker.”

Though anti-scab legislation has been unsuccessfully introduced at the federal level over the past 14 years, the timing has never been better after the Liberal government won a majority in October, said Benson. The government has shown a strong commitment to repealing Bills C-377 and C-525. Passed by the previous Conservative government, Bill C-377 would have forced unions to publicly disclose spending upwards of $5,000 and executive salaries, while Bill C-525 changed certification rules in federal workplaces, essentially making unionization more difficult. 

Benson said she’s hopeful the legislation will receive royal assent. 

“It’s been clear the government is wanting to create a new era of labour relations that’s open and fair and they’ve been talking about levelling the playing field,” she said. “We’re getting a better climate, a better environment for good negotiations on both sides.”

The Canada Labour Code already addresses replacement workers, though only vaguely. According to federal labour laws, replacement workers cannot be hired for the demonstrable purpose of undermining a union in the case of a dispute, but rather for the pursuit of operating a business. In other words, the employer must signal its willingness to continue bargaining in good faith to be able to legally hire replacement workers. 

Proponents tout benefits

Proponents of anti-scab legislation have said it shortens the length of strikes and reduces the risk of violence on picket lines. 

Labour relations will mellow comparatively in cases of disputes, according to Doug Nesbitt, a PhD candidate in history at Queen’s University in Kingston, Ont., and former union local leader. 

“Lockouts are particularly nasty — and it is exactly what it means, locking out your employees — then forcing the union to capitulate to your demands,” he said. “And if the employer decides to bring in replacement workers, there’s really no leverage that the union has.”

So it would put more pressure on both sides to come to an agreement if business operations were halted, whereas hiring replacement workers raises tensions on the picket lines and ups the possibility of violence, said Nesbitt. 

“If unions are forced to picket hard to prevent scabs going in, then the strikes are going to get more violent. Picket line violence, because of scabbing, in some cases the company will file an injunction in the courts, which are incredibly lopsided in the injunctions,” he said. 

“If the company can bring in people to do the job of the people who go on strike, there’s very little the unions can do short of mounting large-scale campaigns.” 

Quebec precedent

However, in Quebec, the idea of less violent, shorter strikes appears to be a myth, said Ronald McRobie, a lawyer at Fasken Martineau’s Montreal office. 

“In Quebec, a lot of myths have sprung up about this law being positive about reducing the length or violence of labour disputes, but it’s not really true,” he said. 

“Yes, there’s less violence, but there’s less violence everywhere, compared to the rest of the country.” 

It’s also not true Quebec has shorter strikes because of the anti-scab laws, which have been significantly amended over the past few years, said McRobie. The legislation in Quebec now includes only managerial staff as acceptable replacement workers.

The laws affect industries differently, said McRobie. For example, an airline or railway would have trouble training thousands of replacement workers to perform specific duties of the job. And Quebec’s service industry lends itself well to a mobile 

labour force, so some employers are moving the work out-of-province, he said. 

“The bargaining power of union and employer will vary.” 

Provinces could follow

The NDP’s anti-scab bill opens the way for provincial unions to put pressure on governments and employers, as well as educate their membership on such laws, according to Nesbitt. 

The impact of anti-scab legislation would be much larger should the remaining provinces follow Quebec, British Columbia and — should it pass — the federal jurisdiction, because most people are employed and operate under provincial labour laws, he said. 

“It is only affecting federally regulated workplaces so the impact will be placing pressure on the provinces,” said Nesbitt. “I think it opens up possibilities for organized labour at the provincial level to put pressure on governments. That’s the only certain effect.” 

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