Bill C-364

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	1st Session, 36th Parliament, 46-47 Elizabeth II, 1997-98
	The House of Commons of Canada
	BILL C-364
	An Act to amend the Canada Labour Code and the Public Service Staff Relations Act (scabs and essential services)
	Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. L-2; R.S., cc. 9, 27 (1st Supp.), c. 32 (2nd Supp.), cc. 24, 43 (3rd Supp.), c. 26 (4th Supp.); 1989, c. 3; 1990, cc. 8, 44; 1991, c. 39; 1992, c. 1; 1993, cc. 28, 38, 42; 1994, cc. 10, 41; 1996, cc. 10, 11, 12, 18, 31, 32; 1997, ch. 9	CANADA LABOUR CODE
	*1. Section 89 of the Canada Labour Code* is amended by adding the following after subsection (1):**
No strike or lockout until certain requirements met	(1.1) No trade union to which an order made under subsection 90.2(1) relates shall declare or authorize a strike unless, not later than seven days before that time, an agreement in writing referred to in subsection 90.3(1) has been forwarded to the Minister or a list in writing referred to in subsection 90.4(1) has been forwarded to the Minister and to the corporation concerned.
	2. The Act is amended by adding the following after section 90:
	PROHIBITIONS AND MAINTENANCE OF ESSENTIAL SERVICES
Prohibitions	90.1 For the duration of a strike or lockout declared in accordance with this Part, an employer is prohibited from
	(a) using the services of a person to discharge the duties of an employee who is a member of the bargaining unit on strike or locked out where such a person was hired between the day on which a notice to bargain collectively had been given pursuant to paragraph 89(1)(a) and the end of the strike or lockout;
	(b) using, in the establishment where the strike or lockout has been declared, the services of a person not employed by the employer to discharge the duties of an employee who is a member of the bargaining unit on strike or locked out;
	(c) using, in the establishment where the strike or lockout has been declared, the services of an employee who is a member of the bargaining unit on strike or locked out, unless
	(i) an agreement has been reached for that purpose between the parties pursuant to section 90.3, and only to the extent that the agreement so provides,
	(ii) a list has been forwarded to the employer and to the Board pursuant to section 90.4, and only to the extent that the list so provides, or
	(iii) an order has been made pursuant to subsection 90.8(1);
	(d) using, in an establishment other than the establishment where the strike or lockout has been declared, the services of an employee who is a member of the bargaining unit on strike or locked out;
	(e) using, in the establishment where the strike or lockout has been declared, the services of an employee who is usually employed in another establishment of the employer; and
	(f) using, in the establishment where a strike or lockout has been declared, the services of an employee usually employed in the establishment to discharge the duties of an employee who is a member of the bargaining unit on strike or locked out.
Maintenance of essential services	90.2 (1) Where the Governor in Council is of the opinion that a strike against a Crown corporation might endanger the public health or public safety, the Governor in Council may, on the recommendation of the Minister, by order, require the employer and the trade union to maintain essential services in the event of a strike.
Coming into force and expiration	(2) The order shall come into force on the day it is made or on such later date as is stated therein and shall cease to have effect upon the filing of a collective agreement entered into by the parties or of another document in lieu thereof.
Publication and notice	(3) The order shall be published in the Canada Gazette and the Minister shall inform the parties thereof.
Agreement	90.3 (1) The parties to which an order made under subsection 90.2(1) relates shall negotiate to determine the essential services to be maintained in the event of a strike and shall forward to the Board in writing any agreement entered into by them with respect thereto.
Assistance by third party	(2) The Board, on its own initiative or at the request of either party, may designate a person to assist the parties in reaching an agreement.
List	90.4 (1) Where no agreement is reached pursuant to subsection 90.3(1), the trade union shall forward to the Crown corporation and to the Board in writing a list of the essential services to be maintained in the event of a strike.
Nullity of list	(2) Any list providing, in the event of a strike, for a number of employees greater than the number ordinarily required in the bargaining unit is null and void.
Changes prohibited	(3) No changes may be made to the list by the trade union except with the written consent of the Board.
List followed by agreement	(4) If the parties forward an agreement to the Board after the filing of a list, the agreement shall prevail.
Assessment	90.5 On receiving an agreement or a list, the Board shall assess whether or not the essential services provided for therein are sufficient.
Prohibition	90.6 Unless an agreement has been reached by the parties, no Crown corporation shall change the conditions of employment of the employees who provide essential services.
Prohibition	90.7 No Crown corporation to which an order made under subsection 90.2(1) relates shall declare or cause a lockout.
Suspension of right to strike	90.8 (1) The Governor in Council, on the recommendation of the Minister, may, by order, suspend the right to strike against a Crown corporation if the Governor in Council is of the opinion that the essential services provided for or actually rendered where a strike is apprehended or in progress are insufficient and that the public health or public safety is endangered.
Coming into force	(2) The order shall come into force on the day it is made or on such later date as is stated therein.
Publication and notice	(3) The order shall be published in the Canada Gazette and the Minister shall inform the parties thereof.
Duration	(4) The order shall cease to have effect where it is shown to the satisfaction of the Minister that essential services will be maintained in the event of a strike against the Crown corporation.
Definition	90.9 For the purposes of sections 90.2 to 90.8, ``Crown corporation'' means a corporation referred to in section 5.
	3. Section 100 of the Act is replaced by the following:
Lockout contrary to this Part	100. (1) Every employer who declares or causes a lockout contrary to any provision of this Part other than section 90.7 is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars for each day that the lockout continues.
Lockout contrary to this Part	(2) Every person who, on behalf of an employer, declares or causes a lockout contrary to any provision of this Part other than section 90.7 is guilty of an offence and liable on summary conviction to a fine not exceeding ten thousand dollars.
Strike contrary to this Part	(3) Every trade union that declares or authorizes a strike contrary to any provision of this Part other than section 90.8 is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars for each day that the strike continues.
Strike contrary to this Part	(4) Every officer or representative of a trade union who declares or authorizes a strike contrary to any provision of this Part other than section 90.8 is guilty of an offence and liable on summary conviction to a fine not exceeding ten thousand dollars.
Lockout and use of scabs	(5) Any person who contravenes section 90.1 or 90.7 is guilty of an offence punishable on summary conviction and liable, for each day or part of a day during which the offence is committed or continued, to a fine
	(a) of not less than twenty thousand dollars or more than one hundred thousand dollars, where the person is an employer; or
	(b) of not less than ten thousand dollars or more than fifty thousand dollars, where the person was acting in the capacity of an officer or representative of the employer when the offence was committed.
Strike	(6) Any person who contravenes an order made under subsection 90.8(1) is guilty of an offence punishable on summary conviction and liable, for each day or part of a day during which the offence is committed or continued, to a fine
	(a) of not less than twenty thousand dollars or more than one hundred thousand dollars, where the person is an employee organization;
	(b) of not less than ten thousand dollars or more than fifty thousand dollars, where the person was acting in the capacity of an officer or representative of an employee organization when the offence was committed; or
	(c) of not less than five hundred dollars or more than one thousand dollars, in any other case.
R.S., c. P-35; R.S., c. 19 (2nd Supp.), cc. 18, 20, 28 (3rd Supp.), cc. 1, 7, 28, 41, 47 (4th Supp.); 1989, c. 3; 1990, cc. 3, 13; 1991, cc. 6, 16, 38; 1992, cc. 1, 37, 54; 1993, cc. 1, 3, 28, 34, 42; 1994, c. 26; 1995, cc. 1, 18, 29; 1996, cc. 9, 10, 11, 18; 1997, cc. 6, 9	PUBLIC SERVICE STAFF RELATIONS ACT
	*4. The definition ``designated position'' in section 2 of the Public Service Staff Relations Act* is repealed.**
	5. Section 52.1 of the Act is repealed.
	6. Sections 78 to 78.5 of the Act are repealed.
	7. (1) Subsection 102(1) of the Act is replaced by the following:
Participation by employee in strike	102. (1) No employee shall participate in a strike
	(a) who is not included in a bargaining unit for which a bargaining agent has been certified by the Board; or
	(b) who is included in a bargaining unit for which the process for resolution of a dispute is by the referral thereof to arbitration.
	(2) Section 102 of the Act is amended by adding the following after subsection (2):
Participation by employee in strike	(2.1) No employee organization to which an order made under subsection 106.2(1) relates shall declare or authorize a strike unless, not later than seven days before that time, an agreement in writing referred to in subsection 106.3(1) has been forwarded to the Minister or a list in writing referred to in subsection 106.4(1) has been forwarded to the Minister and to the employer concerned.
	8. The Act is amended by adding the following after section 106:
Prohibitions	106.1 For the duration of a strike declared in accordance with this Part, the employer is prohibited from
	(a) using the services of a person to discharge the duties of an employee who is a member of the bargaining unit on strike where such a person was hired between the day on which a notice to bargain collectively had been given pursuant to subsection 50(1) and the end of the strike;
	(b) using, in the establishment where the strike has been declared, the services of a person not employed by the employer to discharge the duties of an employee who is a member of the bargaining unit on strike;
	(c) using, in the establishment where the strike has been declared, the services of an employee who is a member of the bargaining unit on strike, unless
	(i) an agreement has been reached for that purpose between the parties pursuant to section 106.3, and only to the extent that the agreement so provides,
	(ii) a list has been forwarded to the corporation and to the Minister pursuant to section 106.4, and only to the extent that the list so provides, or
	(iii) an order has been made pursuant to subsection 106.7(1);
	(d) using, in an establishment other than the establishment where the strike has been declared, the services of an employee who is a member of the bargaining unit on strike;
	(e) using, in the establishment where the strike has been declared, the services of an employee usually employed in another establishment of the employer;
	(f) using, in the establishment where a strike has been declared, the services of an employee usually employed in the establishment to discharge the duties of an employee who is a member of the bargaining unit on strike.
Maintenance of essential services	106.2 (1) Where the Governor in Council is of the opinion that a strike might endanger the public health or public safety, the Governor in Council may, on the recommendation of the Minister, by order, require the employer and the trade union to maintain essential services in the event of a strike.
Coming into force and expiration	(2) The order shall come into force on the day it is made or on such later date as is stated therein and shall cease to have effect upon the filing of a collective agreement entered into by the parties or of another document in lieu thereof.
Publication and notice	(3) The order shall be published in the Canada Gazette and the Minister shall inform the parties thereof.
Agreement	106.3 (1) The parties to which an order made under subsection 106.2(1) relates shall negotiate to determine the essential services to be maintained in the event of a strike and shall forward to the Minister in writing any agreement entered into by them with respect thereto.
Assistance by third party	(2) The Minister, on his own initiative or at the request of either party, may designate a person to assist the parties in reaching an agreement.
List	106.4 (1) Where no agreement is reached pursuant to subsection 106.3(1), the trade union shall forward to the employer and to the Minister in writing a list of the essential services to be maintained in the event of a strike.
Nullity of list	(2) Any list providing, in the event of a strike, for a number of employees greater than the number ordinarily required in the bargaining unit is null and void.
Changes prohibited	(3) No changes may be made to the list by the trade union except with the written consent of the Minister.
List followed by agreement	(4) If the parties forward an agreement to the Minister after the filing of a list, the agreement shall prevail.
Assessment	106.5 On receiving an agreement or a list, the Minister shall assess whether or not the essential services provided for therein are sufficient.
Prohibition	106.6 Unless an agreement has been reached by the parties, no employer shall change the conditions of employment of the employees who provide essential services.
Suspension of right to strike	106.7 (1) The Governor in Council, on the recommendation of the Minister, may, by order, suspend the right to strike if the Governor in Council is of the opinion that the essential services provided for or actually rendered where a strike is apprehended or in progress are insufficient and that the public health or public safety is endangered.
Coming into force	(2) The order shall come into force on the day it is made or on such later date as is stated therein.
Publication and notice	(3) The order shall be published in the Canada Gazette and the Minister shall inform the parties thereof.
Duration	(4) The order shall cease to have effect where it is shown to the satisfaction of the Minister that essential services will be maintained in the event of a strike.
Strike	106.8 Any person who contravenes an order made under section 106.2 or 106.7 is guilty of an offence punishable on summary conviction and liable, for each day or part of a day during which the offence is committed or continued, to a fine

Bill C-364

BILL C-364

PROHIBITIONS AND MAINTENANCE OF ESSENTIAL SERVICES