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Bill C-58

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First Session, Forty-fourth Parliament,

70-71 Elizabeth II – 1-2 Charles III, 2021-2022-2023

HOUSE OF COMMONS OF CANADA

BILL C-58
An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012
FIRST READING, November 9, 2023

MINISTER OF LABOUR AND SENIORS
91165


SUMMARY

This enactment amends the Canada Labour Code to, among other things,

(a) amend the scope of the prohibition relating to replacement workers by removing the requirement of demonstrating a purpose of undermining a trade union’s representational capacity, by adding persons whose services must not be used during legal strikes and lockouts and by providing certain exceptions;

(b) prohibit employers from using, during a legal strike or lockout intended to involve the cessation of work by all employees in a bargaining unit, the services of an employee in that unit, subject to certain exceptions;

(c) make the contravention by employers of either of those prohibitions an offence punishable by a fine of up to $100,000 per day;

(d) authorize the Governor in Council to make regulations establishing an administrative monetary penalties scheme for the purpose of promoting compliance with those prohibitions; and

(e) amend the maintenance of activities process in order to, among other things, encourage employers and trade unions to reach an earlier agreement respecting activities to be maintained in the event of a legal strike or lockout, encourage faster decision making by the Canada Industrial Relations Board when parties are unable to agree and reduce the need for the Minister of Labour to make referrals to the Board.

Available on the House of Commons website at the following address:
www.ourcommons.ca


1st Session, 44th Parliament,

70-71 Elizabeth II – 1-2 Charles III, 2021-2022-2023

HOUSE OF COMMONS OF CANADA

BILL C-58

An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012

His 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

Canada Labour Code

2017, c. 20, s. 322(2)

1 Subsection 12.‍001(1) of the Canada Labour Code is replaced by the following:

Appointment of external adjudicator

12.‍001 (1) The Chairperson may, if the Chairperson considers it advisable, appoint an external adjudicator to determine any matter that comes before the Board under Insertion start section 87.‍4 or Insertion end Part II, III or IV.

2 Section 16 of the Act is amended by adding the following after paragraph (m.‍1):

  • Start of inserted block

    (m.‍2) to make any order and give any direction that the Board considers appropriate for the purpose of expediting proceedings or preventing an abuse of process;

    End of inserted block

2017, c. 20, s. 333

3 Subsection 22(1) of the Act is replaced by the following:

Order and decision final

22 (1) Subject to this Part Insertion start and to any regulations made under paragraph 111.‍01(1)‍(g) Insertion end , every order or decision made by the Board under this Part is final and Insertion start is not to Insertion end be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.‍1(4)‍(a), (b) or (e) of that Act.

1998, c. 26, s. 13

4 Subsection 29(1.‍1) of the Act is replaced by the following:

Persons not in a unit

(1.‍1) Any person Insertion start whose services are being used contrary to subsection 94(4) Insertion end is not an employee in the unit.

5 Section 87.‍2 of the Act is amended by adding the following after subsection (3):

Conditions precedent

Start of inserted block
(4) The notices referred to in subsections (1) to (3) may be given only in the following circumstances:

  • (a) if the trade union and the employer have entered into an agreement referred to in subsection 87.‍4(2), a copy of it has been filed with the Minister and the Board in accordance with subsection 87.‍4(3); or

  • (b) if the trade union and the employer have not entered into an agreement referred to in subsection 87.‍4(2), the Board has determined an application made by either of them under subsection 87.‍4(4).

    End of inserted block

1998, c. 26, s. 37

6 (1) Subsections 87.‍4(2) to (5) of the Act are replaced by the following:

Agreement

(2) An employer Insertion start and Insertion end a trade union Insertion start must Insertion end , no later than Insertion start 15 Insertion end days after the day on which notice to bargain collectively has been given, Insertion start enter into an agreement with respect to compliance with subsection (1) that sets out Insertion end

  • Insertion start (a) Insertion end  the supply of services, operation of facilities or production of goods Insertion start that they consider necessary to continue Insertion end in the event of a strike or a lockout; and

  • Start of inserted block

    (b) the manner and extent to which the employer, the trade union and the employees in the bargaining unit must continue that supply, operation and production, including the approximate number of those employees that, in the opinion of the employer and the trade union, would be required for that purpose.

    End of inserted block

For greater certainty

Start of inserted block
(2.‍1) For greater certainty, if the employer and the trade union conclude that it is not necessary to continue any supply of services, operation of facilities or production of goods in order to comply with subsection (1), they must set out this conclusion in the agreement referred to in subsection (2).
End of inserted block

Filing with Minister and Board

(3)  Insertion start Immediately after entering into Insertion end the agreement, the Insertion start employer and the trade union must Insertion end file a copy of Insertion start it Insertion end with Insertion start the Minister Insertion end and the Board. When the agreement is filed, it has the same effect as an order of the Board.

If no agreement entered into

(4)  Insertion start If Insertion end the employer and the trade union do not enter into an agreement Insertion start within the period Insertion end referred to in subsection (2), the Board Insertion start must Insertion end , on application made by either Insertion start of them Insertion end , determine any question with respect to the application of subsection (1).

Referral

(5) The Minister may refer to the Board any question with respect to whether an agreement entered into by the Insertion start employer and the trade union Insertion end is sufficient to ensure that subsection (1) is complied with.

1998, c. 26, s. 37

(2) The portion of subsection 87.‍4(6) of the Act before paragraph (a) is replaced by the following:

Board order

(6)  Insertion start If, in determining an Insertion end application Insertion start made under Insertion end subsection (4) or referral Insertion start made under Insertion end subsection (5), the Board is of the opinion that a strike or lockout could pose an immediate and serious danger to the safety or health of the public, the Board, may, by order

(3) Section 87.‍4 of the Act is amended by adding the following after subsection (6):

Time limit

Start of inserted block
(6.‍1) Despite subsection 14.‍2(2), the Board must determine an application made under subsection (4) or a referral made under subsection (5), make any order under subsection (6) and send a copy of its decision and any order to the parties no later than 90 days after the day on which it received the application or referral.
End of inserted block

Late order or decision not invalid

Start of inserted block
(6.‍2) The failure of the Board to comply with the time limit does not affect the jurisdiction of the Board to continue with and determine the application or referral and any order or decision made by the Board after the time limit is not for that reason invalid.
End of inserted block

For greater certainty

Start of inserted block
(6.‍3) For greater certainty, the Board may exercise any of its powers under this Part, including any powers respecting its processes and procedures, for the purpose of ensuring, to the extent possible, that it complies with the time limit referred to in subsection (6.‍1).
End of inserted block

Filing of agreement before decision

Start of inserted block
(6.‍4) An employer and trade union may enter into an agreement referred to in subsection (2) and file it in accordance with subsection (3) at any time before the Board has determined an application made under subsection (4). If they do so, at the time of filing of the agreement, the Board ceases to be seized of the application.
End of inserted block

1998, c. 26, s. 37

7 Section 87.‍6 of the Act is replaced by the following:

Reinstatement of employees after strike or lockout

87.‍6 At the end of a strike or lockout not prohibited by this Part, the employer must reinstate employees in the bargaining unit who were on strike or locked out, in preference to any person Insertion start whose services were used contrary to subsection 94(4) Insertion end .

1998, c. 26, s. 39

8 Paragraph 89(1)‍(e) of the Act is replaced by the following:

  • (e) the Board has determined any referral made pursuant to subsection 87.‍4(5); and

1998, c. 26, s. 42(2)

9 (1) Subsection 94(2.‍1) of the Act is repealed.

(2) Section 94 of the Act is amended by adding the following after subsection (3):

Prohibition relating to replacement workers

Start of inserted block
(4) Subject to subsection (7), during a strike or lockout not prohibited by this Part, no employer or person acting on behalf of an employer shall use the services of any of the following persons to perform all or part of the duties of an employee who is in the bargaining unit on strike or locked out:

  • (a) any employee or any person who performs management functions or who is employed in a confidential capacity in matters related to industrial relations, if that employee or person is hired after the day on which notice to bargain collectively is given;

  • (b) any contractor other than a dependent contractor or any employee of another employer.

    End of inserted block

Clarification — continuing services

Start of inserted block
(5) If, before the day on which notice to bargain collectively was given, an employer or person acting on behalf of an employer was using the services of a person referred to in paragraph (4)‍(b) and those services were the same as or substantially similar to the duties of an employee in the bargaining unit, they may continue to use those services throughout a strike or lockout not prohibited by this Part involving that unit so long as they do so in the same manner, to the same extent and in the same circumstances as they did before the notice was given.
End of inserted block

Prohibition relating to employees in bargaining unit

Start of inserted block
(6) Subject to subsection (7), during a strike or lockout not prohibited by this Part that, with the exception of work performed for the purpose of compliance with section 87.‍4 or 87.‍7, is intended to involve the cessation of work by all employees in the bargaining unit, no employer or person acting on behalf of an employer shall use the services of any employee in that unit for a purpose other than compliance with those sections.
End of inserted block

Exception — threat, destruction or damage

Start of inserted block
(7) An employer or person acting on behalf of an employer who uses the services of a person referred to in paragraph (4)‍(a) or (b) or of an employee referred to in subsection (6) does not contravene subsection (4) or (6) if

  • (a) the services are used solely in order to deal with a situation that presents or could reasonably be expected to present an imminent or serious

    • (i) threat to the life, health or safety of any person,

    • (ii) threat of destruction of, or serious damage to, the employer’s property or premises, or

    • (iii) threat of serious environmental damage affecting the employer’s property or premises; and

  • (b) the use of the services is necessary in order to deal with the situation because the employer or person acting on behalf of an employer is unable to do so by any other means, such as by using the services of a person that is not referred to in paragraph (4)‍(a) or (b) or in subsection (6).

    End of inserted block

For greater certainty

Start of inserted block
(8) For greater certainty, an employer or person acting on behalf of an employer may rely on subsection (7) only for the conservation purposes referred to in paragraph (7)‍(a) and not for the purpose of continuing the supply of services, operation of facilities or production of goods in a manner contrary to subsection (4) or (6).
End of inserted block

1998, c. 26, s. 45(2)

10 Paragraph 99(1)‍(b.‍3) of the Act is replaced by the following:

  • (b.‍3) in respect of a failure to comply with subsection 94( Insertion start 4 Insertion end ), by order, require the employer to stop using, for the duration of the dispute, the services of any Insertion start of the persons referred to in paragraphs 94(4)‍(a) and (b) Insertion end to perform all or part of the duties of Insertion start an employee who is Insertion end in the bargaining unit on strike or locked out;

  • Start of inserted block

    (b.‍4) in respect of a failure to comply with subsection 94(6), by order, require the employer to stop using, for the duration of the dispute, the services of any employee referred to in that subsection;

    End of inserted block

11 The Act is amended by adding the following after section 99:

Time limit

Start of inserted block
99.‍01 (1) Despite subsection 14.‍2(2), if a complaint is made under section 97 in respect of an alleged failure by an employer or a person acting on behalf of an employer to comply with subsection 94(4) or (6), the Board must exercise its powers and perform its duties and functions under section 98 and, if applicable, under section 99, within the time limit prescribed by the regulations or, if no time limit is prescribed, as soon as feasible.
End of inserted block

Copy of decision and order

Start of inserted block
(2) The Board must send a copy of its decision and any order to the parties and to the Minister within the time limit referred to in subsection (1).
End of inserted block

12 The Act is amended by adding the following after section 100:

Prohibited use of services during strike or lockout

Start of inserted block
100.‍1 Every employer who contravenes subsection 94(4) or (6) is guilty of an offence and liable on summary conviction to a fine not exceeding $100,000 for each day during which the offence is committed or continued.
End of inserted block

13 Section 111 of the Act is amended by adding the following after paragraph (f):

  • Start of inserted block

    (g) prescribing a time limit for the purposes of subsection 99.‍01(1), as well as rules respecting the Board’s jurisdiction, and the validity of a decision or order made by it, after the time limit;

    End of inserted block

14 The Act is amended by adding the following after section 111:

Administrative monetary penalties

Start of inserted block
111.‍01 (1) The Governor in Council may make regulations establishing an administrative monetary penalties scheme for the purpose of promoting compliance with subsections 94(4) and (6), including regulations

  • (a) designating as a violation the contravention of subsection 94(4) or (6);

  • (b) respecting the administrative monetary penalties that may be imposed for a violation, including in relation to

    • (i) the amount, or range of amounts, of the administrative monetary penalties that may be imposed on employers or classes of employers,

    • (ii) the factors to be taken into account in imposing an administrative monetary penalty,

    • (iii) the payment of administrative monetary penalties that have been imposed, and

    • (iv) the recovery, as a debt, of unpaid administrative monetary penalties;

  • (c) respecting the persons or classes of persons who are considered a party to the violation and the amount, or range of amounts, of the administrative monetary penalties for which they are liable;

  • (d) respecting what constitutes sufficient proof that a violation was committed;

  • (e) respecting the powers, duties and functions of the Board and of any person or class of persons who may exercise powers or perform duties or functions with respect to the scheme, including the designation of such persons or classes of persons by the Board;

  • (f) respecting the proceedings in respect of a violation, including in relation to

    • (i) commencing the proceedings,

    • (ii) the defences that may be available in respect of a violation, and

    • (iii) the circumstances in which the proceedings may be brought to an end; and

  • (g) respecting reviews or appeals of any orders or decisions in the proceedings.

    End of inserted block

Violation or offence

Start of inserted block
(2) If an act or omission may be proceeded with as a violation or as an offence, proceeding with it in one manner precludes proceeding with it in the other.
End of inserted block

SOR/2001-520; SOR/2012-305, s. 1

Consequential Amendments to the Canada Industrial Relations Board Regulations, 2012

15 Paragraph 14(f) of the Canada Industrial Relations Board Regulations, 2012 is replaced by the following:

  • (f) unfair labour practice complaints respecting dismissals for union activities referred to in Insertion start subsection Insertion end 94(3) of the Code and Insertion start prohibited uses of services referred to in subsections 94(4) and (6) of the Code Insertion end ; and

16 Paragraph 41.‍1(f) of the Regulations is replaced by the following:

  • (f) a copy of the notice of dispute, Insertion start if any Insertion end ;

Transitional Provisions

Words and expressions

17 (1) Unless the context otherwise requires, words and expressions used in this section have the same meaning as in the Canada Labour Code.

Maintenance of activities

(2) Subsections 12.‍001(1), 87.‍2(4) and 87.‍4(2) to (5), the portion of subsection 87.‍4(6) before paragraph (a), subsections 87.‍4(6.‍1) to (6.‍4) and paragraph 89(1)‍(e) of the Canada Labour Code, as enacted by sections 1, 5, 6 and 8, respectively, apply in respect of any collective bargaining if the notice to bargain collectively is given on or after the day on which this section comes into force.

Prohibitions — uses of services during strikes and lockouts

(3) Subsections 22(1) and 29(1.‍1), section 87.‍6, subsections 94(4) to (8), paragraphs 99(1)‍(b.‍3) and (b.‍4), sections 99.‍01 and 100.‍1, paragraph 111(g) and section 111.‍01 of the Canada Labour Code, as enacted by sections 3, 4 and 7, subsection 9(2) and sections 10 to 14, respectively, apply as of the day on which this section comes into force in respect of any strike or lockout that is ongoing on that day.

Coming into Force

Eighteen months after royal assent

18 This Act comes into force on the day that, in the 18th month after the month in which it receives royal assent, has the same calendar number as the day on which it receives royal assent or, if that 18th month has no day with that number, the last day of that 18th month.

Published under authority of the Speaker of the House of Commons


EXPLANATORY NOTES

Canada Labour Code
Clause 1: Existing text of subsection 12.‍001(1):

12.‍001 (1) The Chairperson may, if the Chairperson considers it advisable, appoint an external adjudicator to determine any matter that comes before the Board under Part II, III or IV.

Clause 2: Relevant portion of section 16:

16 The Board has, in relation to any proceeding before it, power

Clause 3: Existing text of subsection 22(1):

22 (1) Subject to this Part, every order or decision made by the Board under this Part is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.‍1(4)‍(a), (b) or (e) of that Act.

Clause 4: Existing text of subsection 29(1.‍1):

(1.‍1) Any 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, is not an employee in the unit.

Clause 5: New.
Clause 6: (1) Existing text of subsections 87.‍4(2) to (5):

(2) An employer or a trade union may, no later than fifteen days after notice to bargain collectively has been given, give notice to the other party specifying the supply of services, operation of facilities or production of goods that, in its opinion, must be continued in the event of a strike or a lockout in order to comply with subsection (1) and the approximate number of employees in the bargaining unit that, in its opinion, would be required for that purpose.

(3) Where, after the notice referred to in subsection (2) has been given, the trade union and the employer enter into an agreement with respect to compliance with subsection (1), either party may file a copy of the agreement with the Board. When the agreement is filed, it has the same effect as an order of the Board.

(4) Where, after the notice referred to in subsection (2) has been given, the trade union and the employer do not enter into an agreement, the Board shall, on application made by either party no later than fifteen days after notice of dispute has been given, determine any question with respect to the application of subsection (1).

(5) At any time after notice of dispute has been given, the Minister may refer to the Board any question with respect to the application of subsection (1) or any question with respect to whether an agreement entered into by the parties is sufficient to ensure that subsection (1) is complied with.

(2) Relevant portion of subsection 87.‍4(6):

(6) Where the Board, on application pursuant to subsection (4) or referral pursuant to subsection (5), is of the opinion that a strike or lockout could pose an immediate and serious danger to the safety or health of the public, the Board, after providing the parties an opportunity to agree, may, by order,

(3) New.
Clause 7: Existing text of section 87.‍6:

87.‍6 At the end of a strike or lockout not prohibited by this Part, the employer must reinstate employees in the bargaining unit who were on strike or locked out, in preference to any 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 unit on strike or locked out.

Clause 8: Relevant portion of subsection 89(1):

89 (1) No employer shall declare or cause a lockout and no trade union shall declare or authorize a strike unless

  • .‍.‍.  

  • (e) the Board has determined any application made pursuant to subsection 87.‍4(4) or any referral made pursuant to subsection 87.‍4(5); and

Clause 9: (1) Existing text of subsection 94(2.‍1):

(2.‍1) 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.

(2) New.
Clause 10: Relevant portion of subsection 99(1):

99 (1) Where, under section 98, the Board determines that a party to a complaint has contravened or failed to comply with subsection 24(4) or 34(6), section 37, 47.‍3, 50 or 69, subsection 87.‍5(1) or (2), section 87.‍6, subsection 87.‍7(2) or section 94, 95 or 96, the Board may, by order, require the party to comply with or cease contravening that subsection or section and may

  • .‍.‍.  

  • (b.‍3) in respect of a failure to comply with subsection 94(2.‍1), by order, require the employer to stop using, for the duration of the dispute, the services of any 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 employees in the bargaining unit on strike or locked out;

Clause 11: New.
Clause 12: New.
Clause 13: Relevant portion of section 111:

111 The Governor in Council may make regulations

Clause 14: New.
Canada Industrial Relations Board Regulations, 2012
Clause 15: Relevant portion of section 14:

14 An expedited process applies to the following matters:

  • .‍.‍. 

  • (f) unfair labour practice complaints respecting the use of replacement workers and dismissals for union activities referred to in subsections 94(2.‍1) and (3) of the Code; and

Clause 16: Relevant portion of section 41.‍1:

41.‍1 An application made under section 87.‍4 of the Code must include :

  • .‍.‍.  

  • f) a copy of the notice of dispute;


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