Bill C-58: An Act to amend the Canada Labour Code and the Canada Industrial Relations Board Regulations, 2012

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 section 87.4 or Part II, III or IV. 2 Section 16 of the Act is amended by adding the following after paragraph (m.1): (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; 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 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. 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 whose services are being used contrary to subsection 94(4) 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 (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). 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 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. 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) 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 (3) Section 87.4 of the Act is amended by adding the following after subsection (6): 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. 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 other person. 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 (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). 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(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; 11 The Act is amended by adding the following after section 99: 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). 12 The Act is amended by adding the following after section 100: 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. 13 Section 111 of the Act is amended by adding the following after paragraph (f): (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; 14 The Act is amended by adding the following after section 111: 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. 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 subsection 94(3) of the Code and prohibited uses of services referred to in subsections 94(4) and (6) of the Code; and 16 Paragraph 41.1(f) of the Regulations is replaced by the following: (f) a copy of the notice of dispute, if any; 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 Twelve months after royal assent 18 This Act comes into force on the day that, in the 12th 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 12th month has no day with that number, the last day of that 12th month.