NDP introduces federal anti-scab bill

Provinces could face pressure to follow suit
By Sabrina Nanji
|labour-reporter.com|Last Updated: 03/03/2016

A bill proposed by the NDP could make it illegal for federal employers to hire replacement workers during a strike or lockout, and could put pressure on the provinces to implement like rules.

Should it pass, Bill C-234 — introduced late last month in Parliament by the NDP’s deputy labour critic MP Karine Trudel, who drew the second slot on the private member’s bill list — will amend the Canada Labour Code to prohibit federal employers from bringing in so-called scabs to replace employees during a dispute.

Bill C-234 would mirror similar provisions in Quebec and British Columbia, but apply only to federal employers, such as those in the telecommunications and banking industries. Of the more than 800,000 workers employed in federally regulated industries, about 40 per cent are unionized and would be affected, the NDP said.

According to MP Sheri Benson, the NDP’s labour critic, the bill would correct an unfair labour practice that undermines a worker’s right to bargain collectively. She called the bill “another leg on the stool” and a means to level the playing field.

“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,” Benson said.

“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,” she said.

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

According to Doug Nesbitt, a PhD candidate in history at Queen’s University, former union local leader and founding editor of left-leaning website Rankandfile.ca., labour relations will comparatively mellow in instances of dispute.

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

It would therefore put more pressure on both sides to come to an agreement if business operations were halted — whereas hiring scabs raises tensions on the picket lines and ups the possibility of violence.

“If unions are forced to picket hard to prevent scabs going in, then the strikes are going to get more violent,” 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.”

Though anti-scab legislation has been unsuccessfully raised at the federal level over the past 14 years, Benson said the timing has never been better after the Liberal government won a majority in October. The Liberal agenda has so far been labour-friendly, and the government has made a point of repairing some of the damage done to public service labour relations — namely repealing Bills C-377 and C-525, to much union fanfare.

Passed by the previous Conservative government, Bill C-377 would have forced unions to publicly disclose spending upwards of $5,000 as well as executive salaries, whereas Bill C-525 changed certification rules in federal workplaces, essentially making unionization more difficult. The Liberals are repealing both.

Benson said she’s hopeful the anti-scab bill 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 leveling 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 briefly.

As it stands, replacement workers cannot be hired for the demonstrable purpose of undermining the union in the case of a dispute, but rather for the purpose of operating the business. Essentially, the employer must signal its willingness to continue bargaining in good faith to be able to legally hire replacement workers during a dispute.

Quebec precedent

However, in Quebec, less violent, shorter strikes appear to be a myth, according to Ronald McRobie, a lawyer at Fasken Martineau’s Montreal office who has spent the majority of his practice on the province’s anti-scab legislation since the 1970s.

“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. “I think it’s obvious, yes there’s less violence, but there’s less violence everywhere, compared to the rest of the country.”

McRobie said it’s also not true Quebec has shorter strikes than elsewhere in Canada because of its anti-scab laws, which have been amended over the past few years to now include only managerial staff as acceptable personnel who can work during a dispute.

That’s because the law affects different industries differently, he said. For example an airline or railway would have trouble training thousands of replacement workers to perform such specific duties required to do the job. And because Quebec’s service industry lends itself well to a mobile labour force, some employers are moving the work out-of-province, he added.

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

Pressure on provinces?

Anti-scab legislation has long been supported by unions, including the Canadian Union of Public Employees, which lauded Bill C-234.

Among the possible outcomes, the one certainty is that the NDP’s anti-scab bill opens the way for unions to put pressure on provincial governments and employers, as well as educate their membership on such laws, according to Nesbitt.

Because most are covered under provincial labour laws, anti-scab legislation would weigh much more heavily on the population if the remaining provinces follow Quebec, British Columbia and Ottawa, should it pass there.

“It is only affecting federally regulated workplaces, so the impact will be to place pressure on the provinces,” Nesbitt said. “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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