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

His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

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 section 87.‍4 or Part II, III or IV.

• (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;

Order and decision final

22 (1) Subject to this Part and to any regulations made under paragraph 111.‍01(1)‍(g), every order or decision made by the Board under this Part is final and is not to 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.

Persons not in a unit

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

Conditions precedent

(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).

Agreement

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

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

• (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.

For greater certainty

(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).

Filing with Minister and Board

(3) Immediately after entering into the agreement, the employer and the trade union must file a copy of it with the Minister 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) If the employer and the trade union do not enter into an agreement within the period referred to in subsection (2), the Board must, on application made by either of them, 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 employer and the trade union is sufficient to ensure that subsection (1) is complied with.

Board order

(6) If, in determining an application made under subsection (4) or referral made under 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

Time limit

(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 82 days after the day on which it received the application or referral.

Late order or decision not invalid

(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.

For greater certainty

(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).

Filing of agreement before decision

(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.

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 other person.

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

Prohibition relating to replacement workers

(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;

• (c) any employee whose normal workplace is a workplace other than that at which the strike or lockout is taking place or who was transferred to the workplace at which the strike or lockout is taking place after the day on which notice to bargain collectively is given;

• (d) any volunteer, student or member of the public.

Clarification — continuing services

(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.

Prohibition relating to employees in bargaining unit

(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.

Exception — threat, destruction or damage

(7) An employer or person acting on behalf of an employer who uses the services of any person referred to in paragraphs (4)‍(a) to (d) 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;

• (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 who is not referred to in paragraphs (4)‍(a) to (d) or in subsection (6); and

• (c) in the case of the services of a person referred to in paragraphs (4)‍(a) to (d), the employer or person acting on behalf of an employer gave the employees in the bargaining unit on strike or locked out the opportunity to perform the necessary work before using the services of that person.

For greater certainty

(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).

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

• (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;

Time limit

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.

Copy of decision and order

(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).

Prohibited use of services during strike or lockout

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.

• (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;

Administrative monetary penalties

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.

Violation or offence

(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.

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

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