November 10, 2023 | Circular No. 11601

Dear Member,

As part of the federal government’s “supply and confidence” agreement with the NDP, Labour Minister Seamus O’Regan yesterday introduced new legislation (Bill C-58) in Parliament regarding the use of  temporary replacement workers during a strike or lockout in federally-regulated industries (see press release HERE).

Although the bill contains a series of amendments to section 94 of the Canada Labour Code that explicitly prohibit the use of replacement workers during a work stoppage, it also appears to contain a number of important exceptions, as per below:

Use of Management

  • Clause 9(4)(a) of the bill provides that during a strike or lock-out, work performed by individuals who are not members of the bargaining unit, including managers, will continue to be permitted, provided such individuals were hired before notice to bargain was given.  This would appear to leave the door open to the continued use of managers to maintain a limited level of service during a work stoppage (e.g. the use of managers to run locomotives during a rail strike), which is an important consideration from a supply chain perspective.

Use of Contractors

  • Similarly, clause 9(5) of the bill provides that work performed by contractors and employees of another employer will also continue to be permitted,  provided the employer was using the services of those individuals before the notice to bargain was given, and so long as the work is done in the same manner, to the same extent and in the same circumstances as before the notice was given.

Maintenance of Activities

  • Bill C-58 also contains a number of amendments to the “maintenance of activities” provisions in section 87.4 of the Canada Labour Code, which are designed to encourage employers and unions to reach earlier agreements on the work that the bargaining must continue performing during a work stoppage, in order to prevent “an immediate and serious danger to the safety or health of the public”.  More specifically, clause 6(2) of the bill would require the parties to reach an agreement on maintenance of activities no later than 15 days after the notice to bargain has been given.  Moreover, if the parties fail to reach such an agreement within 15 days, either party may apply to the CIRB to resolve this issue, with the latter having 90 days within which to issue a decision

Please note that the above is a preliminary analysis of the bill only, and we will revert with more detailed information as this becomes available, and as the bill makes its way through Parliament.


Karen Kancens
Vice President