Experts disagree on merits, legalities of rules around replacement workers

Months after the Manitoba government made legislative changes to ban the use of replacement workers during a labour strike in the province, experts still cannot agree on the merits and demerits of the law.
Kevin Rebeck, president of the Manitoba Federation of Labour, said the legislation is critical to shortening strikes and promoting effective collective bargaining.
By preventing unnecessary delays during strikes, the law creates a level playing field between workers and employers, he told the Winnipeg Free Press.
“Having people able to cross the picket line only stretches a strike longer and that’s not good at all,” said Rebeck in the report.
“We don’t want strikes to go on longer than they need be. Having a law which doesn’t allow for replacement workers, that’s what we all want.”
In November 2024, Manitoba’s Labour Relations Act (LRA) and Employment Standards Code (ESC) underwent significant amendments, with the provincial government’s Bill 37, The Budget Implementation and Tax Statutes Amendment Act, 2024 and Bill 9, The Employment Standards Code Amendment Act, receiving royal assent and coming into force Nov. 8.
Under the changes, employers are prohibited from using replacement workers during a lockout or legal strike, explain Rhonda Levy, Adrian Jakibchuk and David McIsaac, who are knowledge management counsel, partner and associate, respectively, at Littler.
This ban applies to workers hired after notice to commence collective bargaining is issued, employees transferred from other workplaces post-notice, and individuals supplied by external contractors.
Previously, the British Columbia Labour Relations Board (LRB) found that Radisson Blu Vancouver Airport Hotel illegally used replacement workers during a strike by a union last year.
Is anti-scab legislation unconstitutional?
However, Manitoba’s anti-scab labour law goes a step further by banning employees from working during a strike, and this makes it unconstitutional, said Brandon Trask, an assistant professor at the University of Manitoba’s faculty of law, in the Winnipeg Free Press report.
“(This law) in practice removes the right of any worker to choose whether to join a strike or cross a picket line.”
Trask said that he favours the part of the legislation that prevents employers from hiring replacement workers during a strike. However, it is another matter for the government to take away the right of employees to decide to cross the picket line.
Trask also noted that there was no consultation on this specific part of the legislation.
“From my perspective, the government did not do its due diligence in relation to this addition, failing to properly consider all implications and constitutional issues.
He believes it doesn’t comply with the Charter of Rights and Freedoms.
Meanwhile, Loren Remillard, president and CEO of the Winnipeg Chamber of Commerce, does not believe that preventing employers from hiring replacement workers during strikes gives an advantage to unions and replaces legislation that had been balanced.
“Manitoba has had one of the lowest levels of days lost due to work stoppages across the country,” said Remillard in the Winnipeg Free Press report. “That’s why there is no evidence to support a ban on replacement workers… this offers a solution for a problem which doesn’t exist.”
Essential services agreements
Meanwhile, lawyer Melissa Beaumont and articling student Kali Faingold, of law firm Thompson Dorfman Sweatman, noted the Manitoba’s law also states that unionized workplaces providing essential services must negotiate Essential Services Agreements (ESAs) and cannot strike or hold a lockout without an ESA filed with the Manitoba Labour Board.
These agreements must detail:
- the specific services or operations to continue during a strike or lockout
- the number and roles of employees required to maintain these services
- how employees capable of performing essential services will be assigned during a strike or lockout
- procedures for responding to emergencies or foreseeable changes in essential services needs.
If the parties cannot agree, either side may apply to the Board for intervention to determine essential services or finalize the ESA.
“The passage of Bill 37 brings significant changes to Manitoba’s LRA, reshaping the landscape of union certification, replacement workers and essential services. These changes present both challenges and opportunities,” they said.
“Employers and unions must navigate additional responsibilities, comply with the new requirements and prepare for potential disputes over implementation. All parties will need to adapt quickly, with the Manitoba Labour Board set to play a central role in resolving disputes and ensuring compliance.”
In June 2024, Canada’s anti-scab legislation also received royal assent.
Bill C-58, An Act to amend the Canada Labour Code and the Industrial Relations Board Regulations, 2012, improves labour relations, protects workers' right to strike, limits interruptions to collective bargaining and provides greater stability to our economy during federal labour disputes, according to the federal government.
The legislation applies to employers and workers in federally regulated sectors covered by Part I of the Code, such as interprovincial and international air, rail, road and marine transportation, banks, telecommunications and postal and courier services.