Fairness on the Line: Supplement

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It’s Time for a Real Federal Ban on Scabs

Unifor’s recently launched anti-scab campaign was met with widespread enthusiasm across Canada. Our campaign resonated because workers from all walks of life understand that their right to unionize and collectively bargain is undermined if employers are simply able to hire scabs to replace them. Apart from B.C. and Quebec, no Canadian jurisdiction has meaningful anti-scab legislation in place, and even the two existing provincial examples contain significant loopholes that effectively allow scabs to be used. This is something that has to change.

A few responses to our campaign have suggested that we overlooked the existence of anti-scab language at the federal level within Part I of the Canada Labour Code. Yet, despite being titled “prohibition relating to replacement workers,” the language in question offers the barest of restrictions on the use of scabs, which essentially implies no prohibition on the use of scabs at all.

The purpose of this supplementary piece to our research paper on anti-scab legislation, Fairness on the line: The case for anti-scab legislation in Canada, is to provide an assessment of the existing language at the federal level and explore why it fails to offer any meaningful restrictions on the deployment of scabs in the federally regulated private sector.

Unpacking the Labour Code’s Inadequate Approach to Replacement Workers

Section 94 (2.1) of Part I of the Canada Labour Code states the following:

No employer or person acting on behalf of an employer shall use, for the demonstrated purpose of undermining a trade union’s representational capacity rather than the pursuit of legitimate bargaining objectives, the services of a person who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given and was hired or assigned after that date to perform all or part of the duties of an employee in the bargaining unit on strike or locked out.”

Even a cursory reading reveals that this passage in the Canada Labour Code does not prohibit the deployment of scabs. In fact, it places the impossible task upon a union of proving that the employer is using scabs to undermine the union’s representational capacity. In other words, as long as the employer is deemed to be pursuing “legitimate bargaining objectives” – i.e. they express their intention to continue bargaining during a strike or lockout, whether or not they are actively at the table, they can deploy scabs when and where they wish. The language in Section 94 (2.1) reflects the principle that an employer has a legal right to use scabs during a lawful work stoppage to put economic pressure on the union to achieve its bargaining objectives. (For example, see TELUS Communications Inc. 2004 CIRB 271).

Co op members in snow suites with unifor vests holding a locked out sign.
This is certainly not the ban on the use of scabs that Unifor and other trade unions have called for. In fact, it would strain credulity to refer to the provision above as even a restriction on the use if scabs since employers can merely offer assurances that they are interested in resolving the labour dispute while actively undermining the bargaining process through the deployment of scabs. In effect, employers in federally regulated sectors are able to use scabs as long as they make hollow gestures to indicate that they believe in the bargaining process.

The fundamental problem with Part I of the Code’s approach to the use of scabs is that it mistakenly suggests replacement workers are only a problem when they are used by employers to undermine a union’s representational capacity. This is patently false and ignores the primary reason for resorting to the use of scabs, which is a strategy that erodes the legitimacy of the bargaining process itself: scabs are deployed to undermine a union’s bargaining power.

In other words, there is a contradiction at the heart of the Canada Labour Code’s provision on replacement workers. The passage in question allows employers to use scabs as long as they pursue legitimate bargaining objectives, but the very deployment of scabs delegitimizes the bargaining process and allows the employer to circumvent it entirely.

Unpacking the Labour Code’s Inadequate Approach to Replacement Workers

Why does this contradiction exist? At its core, the Code’s provision on replacement workers misconstrues the logic of union representation and fails to grasp the importance, and economic sting that comes with the right to withdraw labour as part of the collective bargaining process.

The very purpose of unions is to provide workers with a collective means of defending their rights and negotiating better working conditions through union representation and collective bargaining. Embedded in these rights is the acknowledgement that in the absence of unions, there is an inherent power imbalance between employer and employee that employers are often able to exploit to their material benefit.

However, these rights are not enough to level the playing field. On their own, union representation and collective bargaining cannot force an employer to the bargaining table or to bargain in good faith. Without the right to strike – i.e. the right to collectively withdraw our labour – workers have no real leverage over employers who refuse to bargain fairly or who do not respect the bargaining process.

The Supreme Court of Canada concurred and deemed the right to the strike to be constitutionally protected in 2015, stating the following:

“The right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations. The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. Where good faith negotiations break down, the ability to engage in the collective withdrawal of services is a necessary component of the process through which workers can continue to participate meaningfully in the pursuit of their collective workplace goals.”

The use of scabs is a direct attack on the right to strike. By hiring replacement workers, an employer can simply nullify any

Jerry Dias walks out scabs in 2018
impact that our withdrawal of labour might have on their operations. Allowing employers to use scabs effectively negates the right to strike and ensures that employers are able to bargain whenever and however they choose. The use of scabs therefore serves to uphold the power imbalance in favour of the boss who can then circumvent the labour relations process and bypass collective bargaining entirely. Many examples of this can be found in our research: Fairness on the line: The case for anti-scab legislation in Canada.

There is an even greater power imbalance at play when employers deploy scabs during lockouts. A lockout should be considered a drastic last measure, when an employer has exhausted all other options to reach a fair and reasonable settlement. However, if employers are free to lockout their unionized workers and deploy scabs without legal repercussions, they can minimize their own financial risks and circumvent the normal bargaining process.

Ultimately, Section 94 (2.1) of the Canada Labour Code fails to recognize that the primary logic behind the deployment of scabs is to negate the collective bargaining power of unions by circumventing our right to strike, thereby preserving the inherent power imbalance that exists in favour of employers. There can be no legitimate pursuit of bargaining objectives by an employer so long as they believe the withdrawal of our labour is a mere inconvenience that they can get around by hiring scabs.

A True Federal Prohibition on the Use of Scabs

workers locked out 22 months as employer uses scabs
In the place of Section 94 (2.1), Unifor has called for a true prohibition on hiring replacement workers that would ban the use of scabs in all its forms. As our paper illustrated, there are both Canadian and international examples of legislation that restrict or prohibit certain forms of scabbing. However, even the recent private members’ bill, Bill C-234, An Act to amend the Canada Labour Code (replacement workers), does not go far enough. While it follows the strongest existing approach to scab prohibition by modelling its language after Quebec’s anti-scab provisions, it leaves a significant loophole by permitting the use of managers as scabs. As we noted, some of the longest labour disputes in Quebec’s history have occurred in recent years, with employers having been able to draw out labour disputes by hiring scabs.

What we are calling for is no less than a full ban on the use of scabs. As long as there is an ongoing labour dispute, employers must be prohibited from hiring or deploying any employee or manager to perform the tasks and duties of a bargaining unit member, whether that employee or manager is inside or outside of the bargaining unit or has been contracted by another company.

Unless such a ban is in place, our constitutionally protected right to strike will continue to be undermined and deep inequalities in favour of employers will continue to prevail at bargaining tables across Canada.

Watch workers “who have had their pay cheques stolen by scabs, speak out about the urgent need for anti-scab in this new video.