Canada’s proposed “Anti-Scab” legislation stirs controversy

Port of Montreal could be in the crosshairs of the new legislation.

The Canadian government has introduced legislation which proposes to ban the use of replacement workers during a strike or lockout in federally regulated sectors including ports, railway transportation, banking, and telecommunications. The long-anticipated initiative late last week drew rapid approval from labour union circles but sharp criticism from industry groups ranging from small business to manufacturers and grain exporters.

In the past few years, unionized docker strikes at the British Colombia ports of Vancouver and Prince Rupert (summer 2023) and Montreal (2020 and 2021) disrupted billions of dollars of trade and wreaked havoc on supply chains. Today, 80 longshore workers have been locked out by employers at the Port of Quebec since September of last year. Perrin Beatty, President of the Canadian Chamber of Commerce, has pointed out that, though rarely used, replacement workers permit organizations in sectors like trucking, rail, ports, telecom, and air to preserve critical services. The Canadian Federation of Independent Business (CFIB) has labelled Bill C-58 as "terrible news for small businesses."

"If passed, this bill could prolong the duration of strikes and increase their frequency," commented Jasmin Guenette, CFIB's vice-president.

"There's a reason why similar bills were always voted down in the past, Guenette affirmed. “They put too much power in the hands of large unions, and they are a threat to the economy. It looks like this bill is introduced for political reasons and not because it's necessary.”

But Lana Payne, the national president of Unifor, Canada's largest private sector union, has countered that rather than destabilizing labour relations Bill C-58 could shorten job actions. Union officials see present rules according employers an “unfair” advantage by being able to hire replacement workers.

A special pact between two political parties

The anti-scab legislation is a key feature of the Supply and Confidence Agreement struck in 2022 between the minority Liberal Party and the New Democratic Party. The Liberals had committed to limiting the use of replacement workers in their 2021 election platform. But the last time such a bill went to vote in 2016, both the Conservatives and Liberals voted against it. And in the past two decades, about a dozen similar proposals were rejected by large margins in the federal parliament in Ottawa.

Bill C-58 would ban employers from using replacement workers to do the work of unionized employees who are on strike or locked out. An exception would apply in situations where there are threats to health and safety, or threats of serious property and environmental damage that could not be managed by the employer's existing workforce.

If a union believes the employer is using replacement workers in capacities beyond this exception, their recourse would be to file a complaint with the Canada Industrial Relations Board (CIRB), who will then investigate the issue. Once law, non-compliance by federal employers could be punishable by a fine of up to $100,000 per day.

To strengthen the maintenance of activities process, Bill C-58 would require employers and unions to come to an agreement early in the bargaining process to determine what work needs to continue during a strike or lockout, if any. The parties would have 15 days to do this. If they cannot come to an agreement, the CIRB would decide what activities need to be maintained within 90 days.

What many observers see as a distinctly cumbersome feature of the proposed legislation is the clause that it will only come into force 18 months after it receives Royal Assent (final cabinet approval upon passage in parliament). This is to purportedly give the agencies involved sufficient time to adopt to the new regulations.

Eyes turning on Port of Montreal

Meanwhile, negotiations in progress with more than 1,100 dockers at the Port of Montreal could spark the next waterfront labour flash point in Canada’s marine industry sector.

In September, the Maritime Employers Association (MEA) began talks with Local 375 of the Canadian Public Employees (CUPE) for a new, four-year collective agreement. The negotiations had barely started before the union asked the federal government to appoint a mediator – an early sign of conflicting demands.

According to reports that have filtered out, high up on the wish list of the docker union is a 20% hike in wages over four years as well as permanent job security after three years. Among other matters, the MEA is reportedly seeking adjustments on the number of workers benefiting from guaranteed security and greater operational flexibility.

The negotiations are taking place amidst declining traffic trends at Canada’s second biggest port. To end September, cumulative container throughput was down 13.5% from a year earlier at 1,137,638 TEUs while total cargo had dropped by 3.4% at 25.8 MT.