The Scab Ban Is A Huge Win, But It Must Be Enforced

Labour organizations across Canada have been celebrating lately as the new federal anti-scab law finally came into force on June 20.

From now on, employers in inter-provincial transportation, telecommunications, banking and broadcasting can no longer use replacement workers during strikes and lockouts. The law marks a significant victory for workers across the country.

To highlight the law’s impact, the Canadian Labour Congress shared stories from union members whose right to strike had previously been compromised by employers using scabs. Such narratives track strongly with those I previously heard from workers in Manitoba. The new replacement worker ban will thus strengthen bargaining leverage for workers at telecom giants such as Rogers and international logistics hubs like the ports of British Columbia.

“Today’s implementation is not just symbolic – it changes the rules of the game. For far too long, federally regulated workers have been denied the same protection that exists in some provinces. With these new provisions, employers can no longer undermine the power of collective action by recruiting scabs. It’s a critical step forward for fairness and respect on the picket line,” said United Steelworkers’ national director Marty Warren in a union press release.

Though Bill C-58 received royal assent on June 20, 2024, the government unnecessarily granted employers an additional year in which to freely use scabs. This didn’t stop the bosses and their organized representatives from decrying the law and predicting economic catastrophe. They’ll now have to adapt to the new ‘rules of game.’

“A strong economy depends on stable labour relations. These amendments to the Canada Labour Code will improve labour relations, protect workers’ right to strike, limit interruptions to collective bargaining and provide greater stability to the economy during federal labour disputes,” the government said when announcing the law’s coming into force.

Yet the Liberals only committed to an anti-scab law as part of the 2022 supply-and-confidence agreement with the New Democrats. Former prime minister Justin Trudeau and many other Liberals had long been on record opposing bans on replacement workers. With the previous government in a minority position, unions were able to capitalize on a brief political opening to push through this pro-worker reform.

While the scab ban strengthens unions’ bargaining power by limiting employers’ ability to undermine strikes, it doesn’t address the government’s own frequent interference in the bargaining process, including by ordering striking workers back to the job. The Liberals’ recurrent use of undemocratic back-to-work orders over the past year underlines the fact that the government remains no friend of organized labour.

The federal law also importantly brings fairness to workers in the three provinces that already have replacement worker bans in place: Quebec, British Columbia and Manitoba. Prior to June 20, federally regulated workers in these three provinces had no anti-scab protection, unlike their counterparts working for provincially regulated firms.

The urgent task ahead, therefore, is to pass anti-scab laws in the remaining provinces that still allow employers to use replacement workers. In Ontario, for instance, an employer at an assisted living facility continues to use scabs against striking personal care workers. Examples such as this surely abound across the country.

During consultations prior to the tabling of Bill C-58, the federal government disclosed that between 2012 and 2022, employers used scabs in 42 per cent of strikes. Niall Harney at the Canadian Centre for Policy Alternatives in Manitoba reported that scabs were used in nearly 35 per cent of strikes between 2016 and 2023 in that province. Were comparable data consistently tracked across the country, they would likely show a similar pattern.

Accompanying the federal replacement worker ban are changes to the “maintenance of activities” provisions in the Canada Labour Code. These legislative reforms set out an updated process for negotiating essential services requirements. Whereas unions and employers could voluntarily negotiate maintenance of activities rules before a strike or lockout previously, parties are now required to have an agreement in place within 15 days of a notice to begin collective bargaining.

There was some understandable concern that these new essential service requirements might create additional administrative burdens or limit workers’ ability to strike. However, similar processes were also attached to the newly enacted scab ban in Manitoba, which so far seems not to have generated such impediments. In fact, as a recent strike by Manitoba child and family service workers demonstrated, a streamlined and formalized process for setting essential staffing levels during a strike can redound to the benefit of the union.

Despite being in place for only a few days, the federal ban on scabs has already been tested. The law came into force during a lockout involving more than 2,100 Unifor members at global logistics firm DHL. After workers voted 97 per cent in favour of strike action in early June, Unifor reported that DHL Express Canada was busing in hundreds of scabs to a facility in the Hamilton, Ont., area in preparation for a work stoppage. The company then locked the union out on June 8 and continued partial operations with replacement workers.

As June 20 approached, DHL wrote to Minister of Jobs and Families Patty Hadju to request a “special exception” from the effects of the anti-scab law. As Unifor noted in its public response, DHL has “aligned itself” with an employer organization calling itself “Moving Economies,” which is actively lobbying the government to weaken union protections and labour laws in the federal logistics sector.

“They chose confrontation. Now, instead of negotiating a fair agreement at the table, DHL is running to Ottawa to ask for special treatment to get around a law designed to protect workers and safeguard the integrity of collective bargaining. Unifor will stand firm, and we expect the federal government to do the same. No exemptions. No bending the rules,” Unifor president Lana Payne said in a union press release.

When the law came into force, DHL announced that it would suspend operations and cease using scabs for the duration of the work stoppage. And yet, striking workers claimed that scabs continued to enter the company’s Hamilton-area sorting facility, which prompted the union to file a complaint with the Canada Industrial Relations Board (CIRB). Unifor charged that DHL was not only using scabs in Ontario cities Hamilton, Brampton and Scarborough, but also employing third-party contractors in the Greater Toronto Area and Vancouver to continue fulfilling local deliveries during the lockout.

Companies can be fined up to $100,000 per day for violations of the replacement worker ban and CIRB may issue decisions based on submitted evidence without holding a hearing.

However, on June 25, Unifor and DHL announced that they had reached a tentative agreement, ending the nation-wide job action. Although the union made no mention of the CIRB complaint, it is common for unions and employers to withdraw such submissions if an agreement is settled before the labour board has rendered a decision. We may thus have to wait to see how the CIRB will handle complaints filed under the new law.

As the case of DHL demonstrates, unions will need to remain on guard to ensure the law is enforced. Employers in nearly every jurisdiction in Canada have long been given free reign to deploy scabs and undermine workers’ right to strike. And with a government that routinely violates workers’ right to strike, it’s no surprise that companies like DHL think they should be entitled to do the same.

A ban on scabs is a huge win, but enforcing the law remains part of the struggle.

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