Bill C-386: An Act to amend the Canada Labour Code (replacement workers)

C-386 Second Session, Fortieth Parliament, 57-58 Elizabeth II, 2009 HOUSE OF COMMONS OF CANADA BILL C-386 An Act to amend the Canada Labour Code (replacement workers) first reading, May 14, 2009 Mr. Laframboise 402293 SUMMARY The purpose of this enactment is to prohibit employers under the Canada Labour Code from hiring replacement workers to perform the duties of employees who are on strike or locked out. It extends the obligation to maintain essential services. The enactment also provides for the imposition of a fine for an offence. Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca .vis1 {position: absolute;display:block;} .vis2 {position: static;} 2nd Session, 40th Parliament, 57-58 Elizabeth II, 2009 house of commons of canada BILL C-386 An Act to amend the Canada Labour Code (replacement workers) R.S., c. L-2 Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1. (1) Subsection 87.4(1) of the Canada Labour Code is replaced by the following: Maintenance of activities 87.4 (1) During a strike or lockout not prohibited by this Part, the employer, the trade union and the employees in the bargaining unit must continue the supply of essential services, operation of facilities or production of goods to the extent necessary to prevent an immediate and serious danger to the safety or health of the public. (2) The portion of subsection 87.4(6) of the Act before paragraph (b) is replaced by the following: Board order (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, (a) designate the supply of those essential services, the operation of those facilities and the production of those goods that it considers necessary to continue in order to prevent an immediate and serious danger to the safety or health of the public; (3) Subsection 87.4(7) of the Act is replaced by the following: Review of order (7) On application by the employer or the trade union, or on referral by the Minister, during a strike or lockout not prohibited by this Part, the Board may, where in the Board's opinion the circumstances warrant, review and confirm, amend or cancel an agreement entered into, or a determination or order made, under this section and make any orders that it considers appropriate in the circumstances. Decision (7.1) The Board shall render its decision with respect to an application or a referral made pursuant to subsection (7) within 48 hours after receiving it. 2. 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 other person, unless the employer has good and sufficient cause, the proof of which lies on the employer, not to reinstate those employees. 3. Subsection 94(2.1) of the Act is replaced by the following: Prohibitions relating to replacement workers (2.1) Subject to section 87.4, for the duration of a strike or lockout declared in accordance with this Part, no employer or person acting on behalf of an employer shall (a) use the services of a person to perform the duties of an employee who is a member of the bargaining unit on strike or locked out, if that person was hired during the period commencing on the day on which notice to bargain collectively was given under paragraph 89(1)(a) and ending on the last day of the strike or lockout; (b) use, in the establishment where the strike or lockout has been declared, the services of a person employed by another employer, or the services of a contractor, to perform the duties of an employee who is a member of the bargaining unit on strike or locked out; (c) use, 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; (d) use, in another establishment of the employer, the services of an employee who is a member of the bargaining unit on strike or locked out; (e) use, in the establishment where the strike or lockout has been declared, the services of an employee employed in another establishment of the employer; (f) use, in an establishment where the strike or a lock-out has been declared, the services of a person other than an employee he employs in another establishment, except where the employees of the latter establishment are members of the bargaining unit on strike or locked out; and (g) use, in an establishment where a strike or lock-out has been declared, the services of an employee he employs in the establishment to discharge the duties of an employee who is a member of the bargaining unit on strike or locked out. Exception (2.2) Despite subsection (2.1), an employer may use the services of the following persons during a strike or lock-out: (a) a person employed as a manager, superintendent or foreman or as a representative of the employer in employer-employee relations; or (b) a person serving as a director or officer of a corporation, unless the person has been designated to serve in that capacity for the person’s employer by the employees or by a certified association. Protection of property and continued supply of essential services (2.3) The application of subsection (2.1) does not have the effect of (a) preventing the employer from taking any necessary measures to avoid the destruction of the employer's property or serious damage to that property; or (b) exempting the employer, the trade union and the employees in the bargaining unit from continuing to supply essential services, operate facilities or produce goods to the extent necessary to prevent an immediate and serious danger to the safety or health of the public. Investigation (2.4) The Minister may, on application, designate an investigator to ascertain whether the requirements of subsections (2.1), (2.2) and (2.3) are being met. Persons designated (2.5) The investigator may visit the work places at any reasonable time and be accompanied by a person designated by the certified trade union, a person designated by the employer, and any other person whose presence the investigator considers necessary for the purposes of the investigation. Identification (2.6) The investigator shall, on request, produce identification and a certificate of designation signed by the Minister. Report of investigation (2.7) The investigator shall, immediately after completing the investigation, make a report to the Minister and send a copy of the report to the parties. Powers (2.8) The investigator has, for the purposes of the investigation, all the powers of a commissioner appointed under the Inquiries Act, except the power to impose a sentence of imprisonment. 4. 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(2.1), by order, require the employer to stop using, for the duration of the dispute, the services of any person mentioned in any of paragraphs 94(2.1)(a) to (g) to perform all or part of the duties of employees in the bargaining unit on strike or locked out; 5. Section 100 of the Act is amended by adding the following after subsection (4): Hiring of replacement workers (5) Every person who contravenes or fails to comply with subsection 94(2.1) is guilty of an offence and liable, on summary conviction, for each day or part of a day that the offence continues, to a fine not exceeding (a) in the case of a corporation, a trade union or an association, fifty thousand dollars; or (b) in the case of any other person, one thousand dollars. Published under authority of the Speaker of the House of CommonsAvailable from:Publishing and Depository ServicesPublic Works and Government Services Canada