Replacement Workers In Canada
Introduction and Purpose
In the area of labour relations, there is much controversy and division between labour and management on the issue of a legislative ban on replacement workers (Cramton et al., 1999). The use of strike replacement workers is one of the most controversial and emotional issues facing industrial relations, and the debate on replacement worker use is marked by differing claims.
This paper provides an overview of the use of replacement workers in unionized environments. More specifically, it investigates the use of replacement workers during strikes or lockouts. It explores Canadian legislation as it pertains to federal and provincial jurisdictions. In addition, the United States (US) and Mexico jurisdictions are briefly …show more content…
reviewed. The US legislation is compared to Canadian jurisdictions, both provincially and federally. This information provides a condensed overview of North American legislation.
Varying forms of strikes exist, however this paper focuses on economic and unfair labour practice strikes. The advantages and disadvantages of replacement worker legislation are reviewed and an analysis of management and union perspectives pertaining to this issue will be addressed. This paper will also review the impact of replacement worker legislation on the employment relationship. More specifically, it will look at the balancing of interests between both parties and the effect of this legislation on bargaining power.
Background
To help facilitate a comprehensive understanding of this paper, various terms require some brief explanation. A replacement worker is defined as a person hired to take the place of an employee who is on strike or locked out (Sack and Poskanzer, 1984). In Canada, employees cannot be fired for exercising the right to strike; therefore replacement workers can only be hired on a temporary basis. Where labour matters are under provincial jurisdiction, legislative bans on permanent replacement exist in most jurisdictions. This legislation mandates that striking workers have the right to their job once the strike is over. According to Singh et. al (2005), professional strike breakers are prohibited in Ontario, Manitoba, Alberta, Quebec and British Columbia. Further, in these provinces, and in Prince Edward Island and Nova Scotia, labour statutes ensure that strikers retain their jobs at the end of the strike. Even though there may be a lack of explicit legislation on reinstatement rights in New Brunswick and Newfoundland, the practice of hiring permanent replacement workers is rare across Canada. Striking workers cannot be permanently replaced by workers who were temporarily hired during a strike (Cramton et. al, 1999).
A strike breaker is known as an individual who accepts employment during a strike. This individual crosses the picket line and works for an employer while a strike is in progress (Sack and Poskanzer, 1984).
According to Langille (2009), a strike is referred to as an employee’s refusal to work. Within the meaning of the labour relations legislation, an economic strike is undertaken for the purposes of inducing the employer to agree to the terms and conditions of employment. An unfair labour practice strike is caused by employer misconduct.
A lockout can be described as the employer’s refusal to employ. It can also be referred to as the closing of company operations for the purposes of compelling employees to agree to terms and conditions of employment (Sack and Poskanzer, 1984).
The North American Perspective
The United States
According to Budd (1996), a fundamental premise of both the Wagner Act system of US collective bargaining and its Canadian counterpart is the maintenance of a balance of power between labour and management. The US government seeks to achieve this balance through the existence and regulation of economic weapons and the strike is labour’s paramount economic weapon.
In 2004, the Fraser Institute published a report entitled “Measuring the Flexibility of Labour Relations Laws in Canada and the United States”. This publication reported that;
“Jurisdictional authority for the regulation of relations between employers and employees in Canada differs markedly from that in the United States. In Canada, regulation and enforcement of labour relations is largely decentralized and left to the control of the provinces. Each province has its own set of labour relations laws for both the private and public sectors that are independent of any other province as well as of federal law. In the United States, on the other hand, private-sector labour relations laws are centralized, regulated through federal law, and enforced under federal authority by the National Labor Relations Board” (Karabegovic et al, 2004).
Economic Strikers vs. Unfair Labour Practice Strikers
The National Labor Relations Act in the US allows replacement workers. Employees who strike for a lawful reason fall into two classes, “economic strikers” and “unfair labour practice strikers.” While both classes continue as employees (that is, they cannot be discharged), economic strikers may be permanently displaced. According to Godard (1998), in the US employers are permitted to permanently replace workers who strike for economic reasons such as improved wages, hours of work and working conditions. That being said, upon resolution of the dispute, the employer must place economic strikers who wish to return to work on a preferential hiring list and offer to reinstate them when any job for which they are qualified becomes available (Karabegovic et al, 2004).
The permanent replacement doctrine in the US labour law is not explicitly stated in the labour statutes however, the Supreme Court allowed the use of this economic weapon (Budd, 1996). This doctrine is based on the Supreme Court ruling, NLRB v. Mackay Radio and Telegraph Co. 304 U.S. 333 (1938), which has remained as the law that governs US worker’s right to strike. In the past, attempts have been made to amend this doctrine however they have failed (Pope, 2004).
This doctrine complies with the non-discrimination requirement of the law, which outlines that workers cannot be discriminated against for exercising their right to strike (Godard, 1998). From a union perspective this statement can be criticized because the replaced workers have effectively been terminated and have in fact suffered discrimination. Labour unions have expressed concern that companies use replacements as a coercive tool to curb the power of labour and to prevent potential strikes. Employers contend that the balance of power would be irrevocably altered if permanent replacements were banned. Employers need power to protect themselves against strikes and the need for uninterrupted operations (Budd, 1996).
Unfair labour practice strikers can only be temporarily replaced. A good example of an unfair labour practice is when an employer refuses to bargain in good faith or utilizes surface bargaining during negotiations. These strikers must be reinstated when they decide to end the strike and return to work.
Mexico
According to Singh & Jain (2001), the legitimacy of unions and the right to strike are guaranteed under Article 123 of the Mexican constitution entitled “Labour and Social Security”. This Mexican initiative represented one of the earliest constitutional recognitions of labour rights in world history (Zelek and De la Vega, 1992). The striker replacement issue was first addressed by the Federal Labour Law in 1931. Article 447 prohibits an employer from temporarily or permanently replacing legally striking workers. As a result, a company is required to cease operations when workers engage in a lawful strike. That being said, the union must assume legal responsibility for the safety of the facilities and is legally responsible for providing labour needed to maintain the company’s property during the strike (Singh & Jain, 2001). The majority of unions do not want this liability; henceforth this law has the potential to significantly reduce strikes. The end result could favor employers.
Canada
Canadian labour relations are polarized by the interests of two major players, employers and employees: “The holders of the financial capital necessary to operate businesses seek to maximize their assets, whereas workers seek a better sharing of profits” (Sims Report, 1995). Through the on-going development of the Canadian labour relations system legislators, labour relations boards and courts try to balance the interests of these two players. This search for a balance of power between employers and employees can be a complicated task for these authorities. This especially holds true when a work stoppage occurs. In the event of a strike or lockout, employers struggle to maintain their rights to carry on their business while employees fight to uphold their right to join a trade union and to participate in its lawful activities.
The issue of whether or not employers should be permitted to use replacement workers during work stoppages is a prime example of this difficult task of balancing interests because it is a source of differences between federal and provincial jurisdictions (Vaillancourt, 2000).
Permanent Vs. Temporary Replacement Workers
Permanent replacement workers are prohibited in Canada through law, jurisprudence and practice. Permanent strike replacements are viewed as a fundamental violation of worker’s freedom of association and the right to strike (Clarke, 1997). In Canada, the striker replacement debate focuses on the issue of temporary replacements. In most jurisdictions replacements can include manager, non-striking employees of the employer, or the hiring of outside temporary replacement workers (Gunderson, 2008).
In relation to the strike that took place at College of the North Atlantic in Burin, NL, the Southern Gazette (2010), reported that the union learned that replacement workers were brought in to at least one work site to perform cleaning services during the strike. This is work that was ordinarily carried out by a striking worker.
Furlong stated that; "this is a reprehensible act. It goes to the very heart of collective bargaining and is an action which is seen as deplorable by anyone who believes in the primacy of the bargaining process” (Southern Gazette, 2010). This example shows that although the NL Labour Relations Act is silent on the issue of replacement workers, the use of temporary replacements is not prohibited in this province.
The longest-ever labour dispute in the century-long history of former Inco Ltd. mining operations in Canada took place in Voisey’s Bay, NL. The Independent (2011) reported that,
“The Vale-Inco dispute in Voisey’s Bay dragged on needlessly for a year and a half because Vale-Inco was allowed to fly in replacement workers to keep the mine going. In fact, the willingness of Vale-Inco’s Brazilian owners to settle with workers in Ontario, but to refuse to settle with workers in this province was in significant part because of our more isolated location and smaller numbers.”
This is another example of temporary replacement workers being utilized in NL.
The Quebec and British Columbia jurisdictions prohibit the use of temporary replacements.
For example, in Quebec only managers and supervisors may perform the work of striking unionized members (Savage and Butovsky, 2009). The federal jurisdiction and other selective provinces permit temporary replacements, but these workers must leave employment when the union members return to work after a strike. The majority of strikers do not agree with the use of replacement workers and this may create animosity in the workplace. In relation to striking workers of Ocean Choice International (OCI) who protested the use of replacements, The Herald News (2012) reported that; “Twenty three locked-out trawler workers were arrested in Bay Roberts, NL, as they tried to prevent replacement workers from boarding the Newfoundland Lynx.” This arrest was a result of strikers breaching a provincial Supreme Court injunction that was implemented to prevent a union blockade in front of the vessel. This incident created a tenuous relationship between strikers and replacement workers. Subsequently, the strikers travelled to other ports including Musgrave, Nova Scotia and successfully prevented six replacement workers from performing bargaining unit …show more content…
work.
Canada Labour Code
The Canada Labour Code applies to employees who work under federal jurisdiction, which encompasses about 10% of the Canadian workforce. They are employed in key sectors of the economy, notably air, rail and highway transport, pipelines, banks, broadcasting and telecommunications, uranium mines, marine transport and related services (http://www.hrsdc.gc.ca/eng/labour/overview.shtml).
In November, 1996 the federal government introduced Bill C-66, An Act to Amend the Canada Labour Code. This change in the Code was implemented following a report issued by the Sims Task Force. The Sims Report recommended prohibiting the use of replacement workers during a strike or lockout where such use is for the demonstrated purpose of undermining a trade union’s representational capacity rather than in pursuit of legitimate bargaining goals (Vaillancourt, 2000).
When a Board determines that an employer has violated the section of this Bill pertaining to replacement workers, it can order the employer to stop using replacements for the duration of the dispute (Vaillancourt, 2000). Employees who are displaced during a work stoppage are entitled to return to their jobs at the conclusion of the dispute. Replacement workers are not entitled to votes in any representation votes, and no application for decertification of bargaining rights are permitted during a work stoppage without consent from the Board (Cornwell, 1990).
The amendments to the Code concerning the use of replacement workers during legal strikes and lockouts illustrate the ongoing process of seeking a balance between employer and trade union interests in the labour context. Balancing the employee’s right to strike and the employer’s right to produce and make a profit can be challenging. Prior to the adoption of the amendments pertaining to the use of replacement workers, neither federal legislation nor the interpretation given to it by the Canada Labour Relations Board prohibited the use of replacements by employers (Vaillancourt, 2000).
The aim of the Sims amendment is in line with attempting to maintain a balance between employer and employee rights. That being said, the provision should be read in conjunction with the fact that the employer has a duty to bargain in good faith. According to Vaillancourt (2000), “such an analysis would result in a focus on weather an employer’s use of replacement workers is designed to undermine a trade union’s representational capacity, triggering the prohibition on the use of replacement workers under the amended Code.” Ensuring proper implementation enables employers who comply with the Code to continue to employ replacements, while protecting the role of the trade unions in labour relations. The trade unions are protected because only temporary replacements can be used and the employer must bargain in good faith.
In an early case between Canadian Airline Pilots’ Association and Eastern Provincial Airways (1983), 3 C.L.R.B.R. (N.S.) 75 (Can.) and (1984), 5, C.L.R.B.R. (N.S.) 68, the issue of bad faith bargaining and failure to make every reasonable effort to conclude a collective agreement was before the Board. The trade union would have accepted the demands regarding terms and conditions of employment but it could not accept the employer’s proposal regarding return to work. The proposal contemplated a selective recall of employees who had participated in the strike out of seniority and non-recall of some other employees. The Board agreed with the union that it could not accept the employer’s return to work proposal because if they had done so, it would have violated the duty to represent all employees in the bargaining fairly and without discrimination. In the beginning of the Board’s analysis it noted that there was no specific provision in the Code setting minimum standards for the return to work of striking or locked out employees at the end of a labour dispute. The Board also noted that there was no prohibition regarding the use of replacement workers. Subsequently, the Board decided that, after interpreting various sections of the Code, the employer’s conditional proposal constituted an unfair labour practice. In essence, the Board stated that preferring a replacement worker to a striker is an unfair labour practice. If this decision was made after the Sims amendments of 1996, the employer would be prohibited from using replacement workers because they were bargaining in bad faith and undermining the union’s representational capacity and collective bargaining process.
As a result of the recommendations in the Sims Report, Section 94(2.1) of the Code reads as follows:
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.
For union protection, Section 94(2.1) of the Code outlines when replacement workers are not permitted. However, from the union perspective, the mere use of replacement workers undermines their representational capacity and the general union perspective is that the Board should accordingly prohibit their use because strikes and lockouts should be limited to the exercise of economic pressure tactics between parties without allowing the employer to bring third parties into the relationship (Vaillancourt, 2000).
From the employer perspective, this section of the Code is open to interpretation and should be clearer. The Code should outline that for the use of replacement workers to be improper, they must be intentionally used to undermine the union’s representative capacity and the collective bargaining process. Otherwise, unions could claim that any use of replacement workers is an unfair labour practice (Cramton et. al, 1999). That being said, improper motivations can be difficult to establish. According to Savage and Butovsky (2009), “this provision of the Code was ineffective in that it allowed employers to carry on business as usual with the help of scab labour as long as they kept up the façade of bargaining with the union.” According to Vaillancourt (2000), “The addition of the word ‘demonstrated’ to the provision before its final adoption, with respect to burden of proof, should be indicative of the high threshold a trade union must meet before the Board may prohibit the use of replacement workers”.
Efforts to introduce anti-scab law since the inception of the amendments to the Code in 1996 have been unsuccessful. Bill C-257 made it through to the third and final reading in March, 2007 but labour lost their battle (Savage and Butovsky, 2009)
Union and Employer Perspective
Union Views
The Canadian Labour Congress (CLC) holds that use of replacement workers negatively impacts the labour-management relationship (Vaillancourt, 2000). The CLC was disappointed that Bill C-66 did not end the practice that subjects trade union members to insult and unfairness, and stacks the labour relations deck in favor of management (www.clc-ctc.ca). According to a report prepared by the CLC (2008);
“If the government wants to reduce the incidence and the duration of strikes, a complete ban of replacement workers should be adopted. In our view, the evidence shows replacement workers are bad for working families, bad for business and bad for Canada. Replacement workers undermine core labour rights, encourage a few destructive managers to damage labour relations and are detrimental to the productivity of Canada’s economy. Working families who have suffered through bitter strikes and lockouts in the federal sector agree. When employers use replacement workers, productivity suffers, communities suffer and Canada’s commitment to labour rights suffers.”
This is also supported by Cornwell (1990), “the outcome of using replacement workers include: prolonged and more bitter conflicts, more strikes and lockouts, increased picket line confrontations and violence, and less meaningful collective bargaining.”
Employer Views
Employers see replacement worker prohibitions causing increased unemployment, more strikes and an imbalance of bargaining power. According to Duffy and Johnson (2009);
“Employers from the business community argue that such legislation limits the rights of the employer to continue to try to operate during a work stoppage, gives the union an unfair advantage at the bargaining table, reduces employment and investment, and is detrimental to long-run growth.”
A position paper prepared by the Newfoundland and Labrador Employer’s Council (NLEC) in 2011 demonstrates how employers view the anti-replacement worker legislative provisions. This report states that employers see approving the anti-replacement legislation as disrupting the balance between business and labour by giving an unfair advantage to unions in labour disputes. This shifting of the balance in power to unions would result in; 1. An inability of a business to maintain a revenue stream to pay the fixed costs of the business. 2. The business becoming unable to maintain its legal/contractual obligations to customers. 3. A negative impact on the general public, suppliers and contracts that rely on the business but are not party to the labour dispute. 4. A negative impact on non-unionized workers and workers from other unions at the workplace that are not on strike.
Source: NLEC, 2011
In his analysis of the employer perspective, Vaillancourt (2000) stated that;
Replacement workers are an efficient tool by which the market value of labour may be determined. A complete prohibition on the use of them would shift the balance in favor of trade unions because the parties would be forced to bargain in a ‘closed environment’, one which would not account for the economic realities of the workplace.
Employers further argue that during strikes or lockouts, there is no legal restriction on employees’ freedom to obtain employment elsewhere so employers should similarly be permitted to use replacement workers (NLEC, 2011).
Replacement Workers Vs. Replacement Worker Bans-The Law in Ontario
In 1993, Bill 40 was introduced in Ontario. This Bill prohibited the use of replacement workers. This provision contradicted employer’s views of replacement workers bans. However, the period following the implementation of Bill 40 was characterized by few work stoppages, moderate trade union demands at the bargaining table and picket line peace (CLC Report, 2006). That being said, this labour-management cooperation may have been the result of an imbalance in bargaining power. For example, although there were fewer work stoppages, the employer may have been inferior to the union and agreed with concessions in order to prevent a strike. Therefore, what appeared to be a win-win outcome could have been a power dominated relationship. Bill 40 was repealed in 1995 and today Bill 7 permits the use of temporary replacement workers in Ontario.
Overview
Regardless of the different perspectives of replacement workers one concern remains constant. The utilization of replacement workers is a legitimate practice if and only if its purpose is not to rid the workplace of union representation or undermine the role of the union. Such an act would be considered an unfair labour practice.
For an employer, replacement workers are necessary to sustain the economic viability of an enterprise in the face of harsh economic climate and unacceptable union demands. It is important in a system of collective bargaining that employers maintain this option. If the choice is removed, employers could restructure to reduce its reliance on permanent workforce and unions, for fear of vulnerability (Brunet, 1997).
Provincial Jurisdiction Issues
Although strikers in Canada have a much stronger claim to their jobs than in the US, there is no uniform standard across the country for reinstating replaced workers to their jobs.
This is perhaps the greatest difference between the two countries (Budd, 1996). In the US labour relations is the first domain of the nation. State labour laws can be overridden if they interfere with national policy, thus reinstatement laws and procedures are relatively uniform across the country. In Canada, labour legislation is the domain of the province and although provinces originally modeled their systems after the federal jurisdiction, over the years they have developed their own directions (Cornwell,
1990).
Case Analysis: Unfair Labour Practices
Case 1: United Steelworkers of America V. Nelson Quarry Company (1995) 25 CLRBR (2d)
It is important to note that this decision was made pre-Bill 7 in 1995. In this case, the Ontario Labour Relations Board found that some of the work performed by replacement workers was “work of the bargaining unit” and therefore improper. The Board claimed that by utilizing an independent broker to perform some bargaining unit work during a lockout, the employer illustrated an unfair labour practice. The Board determined that the company breached the anti-replacement worker provision of the Act. The Board outlined that the company could not use replacement workers because legislation in Ontario at that time did not allow replacement workers to substitute strikers during strikes or lockouts. A ban on replacement workers existed in this jurisdiction during the time this case was reviewed.
Case 2: Saskatchewan Joint Board, Retail, Wholesale and Department Store Union (RWDSU) V. Pepsi-Cola and Canada Beverages (West) Limited (1997) 43 CLRBR (2d)
The remedy for labour disputes depends on the jurisdiction in which the case arises. During the timeframe of this case, the Labour Relations Act in Saskatchewan allowed employers to use replacement workers during strikes and lockouts. In this case, the Saskatchewan Labour Relations Board upon reviewing the union’s accusation that the employer engaged in unfair labour practices during a lockout, determined that the Act did not prohibit employers from hiring replacement workers during a lockout. As a result, the Board dismissed the application.
How do Case 1 and Case 2 Compare?
In the United Steelworkers v. Nelson Quarry Company case, an anti-scab legislation was adopted. The Ontario legislature in 1995 dealt exclusively with a ban on replacement workers in strike situations.
In the RWDSU v. Pepsi-Cola case, the legislature allowed employers to use replacement workers. However, the striking employees had the right to return to their jobs once the strike was over. The Board referred to Section 46(4) of the Act: 46.(4) Striking or locked out employees are entitled to displace any persons who are hired to perform the work of striking or locked out employees during a strike or lockout.
Case Analysis: Bargaining Unit Work Limitations
Case 3: Westmin Resources Limited V. CAW (1993) 20 CLRBR (2d)
This case concluded that work contracted out during a lockout was not “work of an employee in the bargaining unit”. The union argued that the employer must cease and desist the contracting out of work, however the employer claimed similar work had been previously contracted out. The interpretation of s. 68(1)(e) of the Act was the issue of this case. The application involved the consideration of the Code’s new replacement worker provision. Section 68(1)(e) stated:
68.(1) During a lockout or strike authorized by the Code an employer shall not use the services of a person, whether paid or not to perform:
(e) the work of an employee in the bargaining unit that is on strike or locked out...
The test applied by the Board was whether the work in the normal course, would have been performed by the contractor or by bargaining unit employees. The Board concluded:
...the work performed by the contractor was not “the work of an employee in the bargaining unit.” The term “bargaining unit work” is broader than “the work of an employee in the bargaining unit”. Section 68(1) does not refer to “bargaining unit work”. It refers to “work of an employee in the bargaining unit”. In order to fall within the ambit of s. 68(1)(e), the work performed by the person must be the work which would have been performed by an employee in the bargaining unit before the lockout or strike.
Case 4: Nanaimo Times Ltd. V. Graphic Communications International Union (1994) 23 CLRBR (2d)
In this case the union argued that anti-replacement worker provisions were solely designed to preserve integrity and viability of the bargaining unit. The employer continued to provide service during a lockout and claimed bargaining unit work was not being performed by the replacement workers. The British Columbia Labour Relations Board found that a majority of the work performed was non-bargaining unit work. The Board applied the above test to determine whether the work performed by the replacements would have been performed by an employee in the unit before the labour dispute.
The union submitted that s. 68(1)(e) should be interpreted broadly so as to capture all the generic work performed by employees in the bargaining unit. The employer asserted that the purpose of s. 68 was to protect the work of the bargaining unit; it was not intended to allow “empire building” during work stoppages. Furthermore, the employer argued that s. 68 did not constitute a complete prohibition on the use of replacement workers during a lockout. Instead, s. 68 simply prohibited the use of replacement workers to perform the actual work which would have been performed by an employee in the bargaining unit before the lockout. The Chair of the Board in this case concluded:
First, we cannot agree that the intention of the Legislature in enacting Section 68 was a blanket provision against replacement workers in general. Section 68 does not prohibit all persons from the presumption that the work of replacement workers in general is unlawful. Rather it simply enumerates specific instances where the use of suck workers is contrary to the Code. In Weston Bakeries Limited, BDLRB No. B182/93, the Board concluded that an employer is permitted to continue to run its operations, albeit on a reduced basis, as long as those performing the work does not contravene Section 68.
How do Case 3 and Case 4 Compare?
In both cases, the Boards found that the work being performed by the replacement workers was not collective bargaining unit work. The test confirmed that the work being performed by them was not the work of an employee in the bargaining unit. Henceforth, the employer did not illustrate unfair labour practices and the use of replacement workers was allowed.
Conclusion
In the area of labour law, the purpose of legislation has been to provide unions and management with a neutral framework in which to resolve disputes (Vaillancourt, 2000). In this search for a neutral balance, one of the most sensitive issues remains whether the legislation should permit or prohibit the use of replacement workers during a strike or lockout. Trade unions see replacement workers as a means of diminishing the power of the strike weapon while employers view them as a necessity to keep their business afloat during a work stoppage.
In most Canadian jurisdictions employers are permitted to use temporary replacement workers providing they do not commit unfair labour practices. To illustrate this once more, in Westroc Industries Ltd. V. United Cement, Lime and Gypsum Workers International Union, (1981) 2 Can. LRBR. 315, Chair of the Ontario Labour Relations Board, Adams stated that “if the employer’s motive is directed at avoiding a collective agreement or the punishment of his employees for having exercised rights under the Act, the hiring of replacement workers should be struck down”. If an employer is accused of an unfair labour practice, they must prove that the replacement workers were hired for legitimate and substantial business reasons.
While employers assert legitimate business need, it is the decision of the provincial Boards to determine whether an unfair labour practice has occurred. The Boards review the Labour Relations Act that is applicable to the jurisdiction in which it has power in order to help determine the remedy for the case. One purpose of the Act is to “create an equitable balance between employers and employees in the utilization of economic pressures”. In the end, Boards determine the outcome of each incident on a case-by-case basis.
Replacement workers in Canada have a much more tenuous claim to their jobs than in the US. On the other hand, there is a no uniform standard across the country for reinstating strikers to their jobs (Budd, 1996). This is the greatest difference between the US and Canada. Canada is similar to the US in that it is concerned with maintaining the balance of economic forces that its legislation has established (Cramton et. al, 1999). Without an equivalent to the MacKay doctrine, Canada does not seem as adamant in protecting the employer’s right to use and subsequently retain replacement workers. In Canada, although there is no guarantee that the union will win the strike, the individual employees will not lose their jobs to replacement workers. Therefore employees are not discriminated against for exercising their right to strike (Cornwell, 1990). In most Canadian jurisdictions, the system in which replacements are characterized as temporary allows the employer to carry on business during a strike. In turn, restricting replacements to temporaries only, coupled with clear reinstatement rights protects the unionized workers.
In the area of labour relations, there is much controversy and division between labour and management on the issue of a legislative ban on replacement workers (Cramton et al., 1999). The use of strike replacement workers is one of the most controversial and emotional issues facing industrial relations, and the debate on replacement worker use is marked by differing claims.
This paper provides an overview of the use of replacement workers in unionized environments. More specifically, it investigates the use of replacement workers during strikes or lockouts. It explores Canadian legislation as it pertains to federal and provincial jurisdictions. In addition, the United States (US) and Mexico jurisdictions are briefly …show more content…
reviewed. The US legislation is compared to Canadian jurisdictions, both provincially and federally. This information provides a condensed overview of North American legislation.
Varying forms of strikes exist, however this paper focuses on economic and unfair labour practice strikes. The advantages and disadvantages of replacement worker legislation are reviewed and an analysis of management and union perspectives pertaining to this issue will be addressed. This paper will also review the impact of replacement worker legislation on the employment relationship. More specifically, it will look at the balancing of interests between both parties and the effect of this legislation on bargaining power.
Background
To help facilitate a comprehensive understanding of this paper, various terms require some brief explanation. A replacement worker is defined as a person hired to take the place of an employee who is on strike or locked out (Sack and Poskanzer, 1984). In Canada, employees cannot be fired for exercising the right to strike; therefore replacement workers can only be hired on a temporary basis. Where labour matters are under provincial jurisdiction, legislative bans on permanent replacement exist in most jurisdictions. This legislation mandates that striking workers have the right to their job once the strike is over. According to Singh et. al (2005), professional strike breakers are prohibited in Ontario, Manitoba, Alberta, Quebec and British Columbia. Further, in these provinces, and in Prince Edward Island and Nova Scotia, labour statutes ensure that strikers retain their jobs at the end of the strike. Even though there may be a lack of explicit legislation on reinstatement rights in New Brunswick and Newfoundland, the practice of hiring permanent replacement workers is rare across Canada. Striking workers cannot be permanently replaced by workers who were temporarily hired during a strike (Cramton et. al, 1999).
A strike breaker is known as an individual who accepts employment during a strike. This individual crosses the picket line and works for an employer while a strike is in progress (Sack and Poskanzer, 1984).
According to Langille (2009), a strike is referred to as an employee’s refusal to work. Within the meaning of the labour relations legislation, an economic strike is undertaken for the purposes of inducing the employer to agree to the terms and conditions of employment. An unfair labour practice strike is caused by employer misconduct.
A lockout can be described as the employer’s refusal to employ. It can also be referred to as the closing of company operations for the purposes of compelling employees to agree to terms and conditions of employment (Sack and Poskanzer, 1984).
The North American Perspective
The United States
According to Budd (1996), a fundamental premise of both the Wagner Act system of US collective bargaining and its Canadian counterpart is the maintenance of a balance of power between labour and management. The US government seeks to achieve this balance through the existence and regulation of economic weapons and the strike is labour’s paramount economic weapon.
In 2004, the Fraser Institute published a report entitled “Measuring the Flexibility of Labour Relations Laws in Canada and the United States”. This publication reported that;
“Jurisdictional authority for the regulation of relations between employers and employees in Canada differs markedly from that in the United States. In Canada, regulation and enforcement of labour relations is largely decentralized and left to the control of the provinces. Each province has its own set of labour relations laws for both the private and public sectors that are independent of any other province as well as of federal law. In the United States, on the other hand, private-sector labour relations laws are centralized, regulated through federal law, and enforced under federal authority by the National Labor Relations Board” (Karabegovic et al, 2004).
Economic Strikers vs. Unfair Labour Practice Strikers
The National Labor Relations Act in the US allows replacement workers. Employees who strike for a lawful reason fall into two classes, “economic strikers” and “unfair labour practice strikers.” While both classes continue as employees (that is, they cannot be discharged), economic strikers may be permanently displaced. According to Godard (1998), in the US employers are permitted to permanently replace workers who strike for economic reasons such as improved wages, hours of work and working conditions. That being said, upon resolution of the dispute, the employer must place economic strikers who wish to return to work on a preferential hiring list and offer to reinstate them when any job for which they are qualified becomes available (Karabegovic et al, 2004).
The permanent replacement doctrine in the US labour law is not explicitly stated in the labour statutes however, the Supreme Court allowed the use of this economic weapon (Budd, 1996). This doctrine is based on the Supreme Court ruling, NLRB v. Mackay Radio and Telegraph Co. 304 U.S. 333 (1938), which has remained as the law that governs US worker’s right to strike. In the past, attempts have been made to amend this doctrine however they have failed (Pope, 2004).
This doctrine complies with the non-discrimination requirement of the law, which outlines that workers cannot be discriminated against for exercising their right to strike (Godard, 1998). From a union perspective this statement can be criticized because the replaced workers have effectively been terminated and have in fact suffered discrimination. Labour unions have expressed concern that companies use replacements as a coercive tool to curb the power of labour and to prevent potential strikes. Employers contend that the balance of power would be irrevocably altered if permanent replacements were banned. Employers need power to protect themselves against strikes and the need for uninterrupted operations (Budd, 1996).
Unfair labour practice strikers can only be temporarily replaced. A good example of an unfair labour practice is when an employer refuses to bargain in good faith or utilizes surface bargaining during negotiations. These strikers must be reinstated when they decide to end the strike and return to work.
Mexico
According to Singh & Jain (2001), the legitimacy of unions and the right to strike are guaranteed under Article 123 of the Mexican constitution entitled “Labour and Social Security”. This Mexican initiative represented one of the earliest constitutional recognitions of labour rights in world history (Zelek and De la Vega, 1992). The striker replacement issue was first addressed by the Federal Labour Law in 1931. Article 447 prohibits an employer from temporarily or permanently replacing legally striking workers. As a result, a company is required to cease operations when workers engage in a lawful strike. That being said, the union must assume legal responsibility for the safety of the facilities and is legally responsible for providing labour needed to maintain the company’s property during the strike (Singh & Jain, 2001). The majority of unions do not want this liability; henceforth this law has the potential to significantly reduce strikes. The end result could favor employers.
Canada
Canadian labour relations are polarized by the interests of two major players, employers and employees: “The holders of the financial capital necessary to operate businesses seek to maximize their assets, whereas workers seek a better sharing of profits” (Sims Report, 1995). Through the on-going development of the Canadian labour relations system legislators, labour relations boards and courts try to balance the interests of these two players. This search for a balance of power between employers and employees can be a complicated task for these authorities. This especially holds true when a work stoppage occurs. In the event of a strike or lockout, employers struggle to maintain their rights to carry on their business while employees fight to uphold their right to join a trade union and to participate in its lawful activities.
The issue of whether or not employers should be permitted to use replacement workers during work stoppages is a prime example of this difficult task of balancing interests because it is a source of differences between federal and provincial jurisdictions (Vaillancourt, 2000).
Permanent Vs. Temporary Replacement Workers
Permanent replacement workers are prohibited in Canada through law, jurisprudence and practice. Permanent strike replacements are viewed as a fundamental violation of worker’s freedom of association and the right to strike (Clarke, 1997). In Canada, the striker replacement debate focuses on the issue of temporary replacements. In most jurisdictions replacements can include manager, non-striking employees of the employer, or the hiring of outside temporary replacement workers (Gunderson, 2008).
In relation to the strike that took place at College of the North Atlantic in Burin, NL, the Southern Gazette (2010), reported that the union learned that replacement workers were brought in to at least one work site to perform cleaning services during the strike. This is work that was ordinarily carried out by a striking worker.
Furlong stated that; "this is a reprehensible act. It goes to the very heart of collective bargaining and is an action which is seen as deplorable by anyone who believes in the primacy of the bargaining process” (Southern Gazette, 2010). This example shows that although the NL Labour Relations Act is silent on the issue of replacement workers, the use of temporary replacements is not prohibited in this province.
The longest-ever labour dispute in the century-long history of former Inco Ltd. mining operations in Canada took place in Voisey’s Bay, NL. The Independent (2011) reported that,
“The Vale-Inco dispute in Voisey’s Bay dragged on needlessly for a year and a half because Vale-Inco was allowed to fly in replacement workers to keep the mine going. In fact, the willingness of Vale-Inco’s Brazilian owners to settle with workers in Ontario, but to refuse to settle with workers in this province was in significant part because of our more isolated location and smaller numbers.”
This is another example of temporary replacement workers being utilized in NL.
The Quebec and British Columbia jurisdictions prohibit the use of temporary replacements.
For example, in Quebec only managers and supervisors may perform the work of striking unionized members (Savage and Butovsky, 2009). The federal jurisdiction and other selective provinces permit temporary replacements, but these workers must leave employment when the union members return to work after a strike. The majority of strikers do not agree with the use of replacement workers and this may create animosity in the workplace. In relation to striking workers of Ocean Choice International (OCI) who protested the use of replacements, The Herald News (2012) reported that; “Twenty three locked-out trawler workers were arrested in Bay Roberts, NL, as they tried to prevent replacement workers from boarding the Newfoundland Lynx.” This arrest was a result of strikers breaching a provincial Supreme Court injunction that was implemented to prevent a union blockade in front of the vessel. This incident created a tenuous relationship between strikers and replacement workers. Subsequently, the strikers travelled to other ports including Musgrave, Nova Scotia and successfully prevented six replacement workers from performing bargaining unit …show more content…
work.
Canada Labour Code
The Canada Labour Code applies to employees who work under federal jurisdiction, which encompasses about 10% of the Canadian workforce. They are employed in key sectors of the economy, notably air, rail and highway transport, pipelines, banks, broadcasting and telecommunications, uranium mines, marine transport and related services (http://www.hrsdc.gc.ca/eng/labour/overview.shtml).
In November, 1996 the federal government introduced Bill C-66, An Act to Amend the Canada Labour Code. This change in the Code was implemented following a report issued by the Sims Task Force. The Sims Report recommended prohibiting the use of replacement workers during a strike or lockout where such use is for the demonstrated purpose of undermining a trade union’s representational capacity rather than in pursuit of legitimate bargaining goals (Vaillancourt, 2000).
When a Board determines that an employer has violated the section of this Bill pertaining to replacement workers, it can order the employer to stop using replacements for the duration of the dispute (Vaillancourt, 2000). Employees who are displaced during a work stoppage are entitled to return to their jobs at the conclusion of the dispute. Replacement workers are not entitled to votes in any representation votes, and no application for decertification of bargaining rights are permitted during a work stoppage without consent from the Board (Cornwell, 1990).
The amendments to the Code concerning the use of replacement workers during legal strikes and lockouts illustrate the ongoing process of seeking a balance between employer and trade union interests in the labour context. Balancing the employee’s right to strike and the employer’s right to produce and make a profit can be challenging. Prior to the adoption of the amendments pertaining to the use of replacement workers, neither federal legislation nor the interpretation given to it by the Canada Labour Relations Board prohibited the use of replacements by employers (Vaillancourt, 2000).
The aim of the Sims amendment is in line with attempting to maintain a balance between employer and employee rights. That being said, the provision should be read in conjunction with the fact that the employer has a duty to bargain in good faith. According to Vaillancourt (2000), “such an analysis would result in a focus on weather an employer’s use of replacement workers is designed to undermine a trade union’s representational capacity, triggering the prohibition on the use of replacement workers under the amended Code.” Ensuring proper implementation enables employers who comply with the Code to continue to employ replacements, while protecting the role of the trade unions in labour relations. The trade unions are protected because only temporary replacements can be used and the employer must bargain in good faith.
In an early case between Canadian Airline Pilots’ Association and Eastern Provincial Airways (1983), 3 C.L.R.B.R. (N.S.) 75 (Can.) and (1984), 5, C.L.R.B.R. (N.S.) 68, the issue of bad faith bargaining and failure to make every reasonable effort to conclude a collective agreement was before the Board. The trade union would have accepted the demands regarding terms and conditions of employment but it could not accept the employer’s proposal regarding return to work. The proposal contemplated a selective recall of employees who had participated in the strike out of seniority and non-recall of some other employees. The Board agreed with the union that it could not accept the employer’s return to work proposal because if they had done so, it would have violated the duty to represent all employees in the bargaining fairly and without discrimination. In the beginning of the Board’s analysis it noted that there was no specific provision in the Code setting minimum standards for the return to work of striking or locked out employees at the end of a labour dispute. The Board also noted that there was no prohibition regarding the use of replacement workers. Subsequently, the Board decided that, after interpreting various sections of the Code, the employer’s conditional proposal constituted an unfair labour practice. In essence, the Board stated that preferring a replacement worker to a striker is an unfair labour practice. If this decision was made after the Sims amendments of 1996, the employer would be prohibited from using replacement workers because they were bargaining in bad faith and undermining the union’s representational capacity and collective bargaining process.
As a result of the recommendations in the Sims Report, Section 94(2.1) of the Code reads as follows:
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.
For union protection, Section 94(2.1) of the Code outlines when replacement workers are not permitted. However, from the union perspective, the mere use of replacement workers undermines their representational capacity and the general union perspective is that the Board should accordingly prohibit their use because strikes and lockouts should be limited to the exercise of economic pressure tactics between parties without allowing the employer to bring third parties into the relationship (Vaillancourt, 2000).
From the employer perspective, this section of the Code is open to interpretation and should be clearer. The Code should outline that for the use of replacement workers to be improper, they must be intentionally used to undermine the union’s representative capacity and the collective bargaining process. Otherwise, unions could claim that any use of replacement workers is an unfair labour practice (Cramton et. al, 1999). That being said, improper motivations can be difficult to establish. According to Savage and Butovsky (2009), “this provision of the Code was ineffective in that it allowed employers to carry on business as usual with the help of scab labour as long as they kept up the façade of bargaining with the union.” According to Vaillancourt (2000), “The addition of the word ‘demonstrated’ to the provision before its final adoption, with respect to burden of proof, should be indicative of the high threshold a trade union must meet before the Board may prohibit the use of replacement workers”.
Efforts to introduce anti-scab law since the inception of the amendments to the Code in 1996 have been unsuccessful. Bill C-257 made it through to the third and final reading in March, 2007 but labour lost their battle (Savage and Butovsky, 2009)
Union and Employer Perspective
Union Views
The Canadian Labour Congress (CLC) holds that use of replacement workers negatively impacts the labour-management relationship (Vaillancourt, 2000). The CLC was disappointed that Bill C-66 did not end the practice that subjects trade union members to insult and unfairness, and stacks the labour relations deck in favor of management (www.clc-ctc.ca). According to a report prepared by the CLC (2008);
“If the government wants to reduce the incidence and the duration of strikes, a complete ban of replacement workers should be adopted. In our view, the evidence shows replacement workers are bad for working families, bad for business and bad for Canada. Replacement workers undermine core labour rights, encourage a few destructive managers to damage labour relations and are detrimental to the productivity of Canada’s economy. Working families who have suffered through bitter strikes and lockouts in the federal sector agree. When employers use replacement workers, productivity suffers, communities suffer and Canada’s commitment to labour rights suffers.”
This is also supported by Cornwell (1990), “the outcome of using replacement workers include: prolonged and more bitter conflicts, more strikes and lockouts, increased picket line confrontations and violence, and less meaningful collective bargaining.”
Employer Views
Employers see replacement worker prohibitions causing increased unemployment, more strikes and an imbalance of bargaining power. According to Duffy and Johnson (2009);
“Employers from the business community argue that such legislation limits the rights of the employer to continue to try to operate during a work stoppage, gives the union an unfair advantage at the bargaining table, reduces employment and investment, and is detrimental to long-run growth.”
A position paper prepared by the Newfoundland and Labrador Employer’s Council (NLEC) in 2011 demonstrates how employers view the anti-replacement worker legislative provisions. This report states that employers see approving the anti-replacement legislation as disrupting the balance between business and labour by giving an unfair advantage to unions in labour disputes. This shifting of the balance in power to unions would result in; 1. An inability of a business to maintain a revenue stream to pay the fixed costs of the business. 2. The business becoming unable to maintain its legal/contractual obligations to customers. 3. A negative impact on the general public, suppliers and contracts that rely on the business but are not party to the labour dispute. 4. A negative impact on non-unionized workers and workers from other unions at the workplace that are not on strike.
Source: NLEC, 2011
In his analysis of the employer perspective, Vaillancourt (2000) stated that;
Replacement workers are an efficient tool by which the market value of labour may be determined. A complete prohibition on the use of them would shift the balance in favor of trade unions because the parties would be forced to bargain in a ‘closed environment’, one which would not account for the economic realities of the workplace.
Employers further argue that during strikes or lockouts, there is no legal restriction on employees’ freedom to obtain employment elsewhere so employers should similarly be permitted to use replacement workers (NLEC, 2011).
Replacement Workers Vs. Replacement Worker Bans-The Law in Ontario
In 1993, Bill 40 was introduced in Ontario. This Bill prohibited the use of replacement workers. This provision contradicted employer’s views of replacement workers bans. However, the period following the implementation of Bill 40 was characterized by few work stoppages, moderate trade union demands at the bargaining table and picket line peace (CLC Report, 2006). That being said, this labour-management cooperation may have been the result of an imbalance in bargaining power. For example, although there were fewer work stoppages, the employer may have been inferior to the union and agreed with concessions in order to prevent a strike. Therefore, what appeared to be a win-win outcome could have been a power dominated relationship. Bill 40 was repealed in 1995 and today Bill 7 permits the use of temporary replacement workers in Ontario.
Overview
Regardless of the different perspectives of replacement workers one concern remains constant. The utilization of replacement workers is a legitimate practice if and only if its purpose is not to rid the workplace of union representation or undermine the role of the union. Such an act would be considered an unfair labour practice.
For an employer, replacement workers are necessary to sustain the economic viability of an enterprise in the face of harsh economic climate and unacceptable union demands. It is important in a system of collective bargaining that employers maintain this option. If the choice is removed, employers could restructure to reduce its reliance on permanent workforce and unions, for fear of vulnerability (Brunet, 1997).
Provincial Jurisdiction Issues
Although strikers in Canada have a much stronger claim to their jobs than in the US, there is no uniform standard across the country for reinstating replaced workers to their jobs.
This is perhaps the greatest difference between the two countries (Budd, 1996). In the US labour relations is the first domain of the nation. State labour laws can be overridden if they interfere with national policy, thus reinstatement laws and procedures are relatively uniform across the country. In Canada, labour legislation is the domain of the province and although provinces originally modeled their systems after the federal jurisdiction, over the years they have developed their own directions (Cornwell,
1990).
Case Analysis: Unfair Labour Practices
Case 1: United Steelworkers of America V. Nelson Quarry Company (1995) 25 CLRBR (2d)
It is important to note that this decision was made pre-Bill 7 in 1995. In this case, the Ontario Labour Relations Board found that some of the work performed by replacement workers was “work of the bargaining unit” and therefore improper. The Board claimed that by utilizing an independent broker to perform some bargaining unit work during a lockout, the employer illustrated an unfair labour practice. The Board determined that the company breached the anti-replacement worker provision of the Act. The Board outlined that the company could not use replacement workers because legislation in Ontario at that time did not allow replacement workers to substitute strikers during strikes or lockouts. A ban on replacement workers existed in this jurisdiction during the time this case was reviewed.
Case 2: Saskatchewan Joint Board, Retail, Wholesale and Department Store Union (RWDSU) V. Pepsi-Cola and Canada Beverages (West) Limited (1997) 43 CLRBR (2d)
The remedy for labour disputes depends on the jurisdiction in which the case arises. During the timeframe of this case, the Labour Relations Act in Saskatchewan allowed employers to use replacement workers during strikes and lockouts. In this case, the Saskatchewan Labour Relations Board upon reviewing the union’s accusation that the employer engaged in unfair labour practices during a lockout, determined that the Act did not prohibit employers from hiring replacement workers during a lockout. As a result, the Board dismissed the application.
How do Case 1 and Case 2 Compare?
In the United Steelworkers v. Nelson Quarry Company case, an anti-scab legislation was adopted. The Ontario legislature in 1995 dealt exclusively with a ban on replacement workers in strike situations.
In the RWDSU v. Pepsi-Cola case, the legislature allowed employers to use replacement workers. However, the striking employees had the right to return to their jobs once the strike was over. The Board referred to Section 46(4) of the Act: 46.(4) Striking or locked out employees are entitled to displace any persons who are hired to perform the work of striking or locked out employees during a strike or lockout.
Case Analysis: Bargaining Unit Work Limitations
Case 3: Westmin Resources Limited V. CAW (1993) 20 CLRBR (2d)
This case concluded that work contracted out during a lockout was not “work of an employee in the bargaining unit”. The union argued that the employer must cease and desist the contracting out of work, however the employer claimed similar work had been previously contracted out. The interpretation of s. 68(1)(e) of the Act was the issue of this case. The application involved the consideration of the Code’s new replacement worker provision. Section 68(1)(e) stated:
68.(1) During a lockout or strike authorized by the Code an employer shall not use the services of a person, whether paid or not to perform:
(e) the work of an employee in the bargaining unit that is on strike or locked out...
The test applied by the Board was whether the work in the normal course, would have been performed by the contractor or by bargaining unit employees. The Board concluded:
...the work performed by the contractor was not “the work of an employee in the bargaining unit.” The term “bargaining unit work” is broader than “the work of an employee in the bargaining unit”. Section 68(1) does not refer to “bargaining unit work”. It refers to “work of an employee in the bargaining unit”. In order to fall within the ambit of s. 68(1)(e), the work performed by the person must be the work which would have been performed by an employee in the bargaining unit before the lockout or strike.
Case 4: Nanaimo Times Ltd. V. Graphic Communications International Union (1994) 23 CLRBR (2d)
In this case the union argued that anti-replacement worker provisions were solely designed to preserve integrity and viability of the bargaining unit. The employer continued to provide service during a lockout and claimed bargaining unit work was not being performed by the replacement workers. The British Columbia Labour Relations Board found that a majority of the work performed was non-bargaining unit work. The Board applied the above test to determine whether the work performed by the replacements would have been performed by an employee in the unit before the labour dispute.
The union submitted that s. 68(1)(e) should be interpreted broadly so as to capture all the generic work performed by employees in the bargaining unit. The employer asserted that the purpose of s. 68 was to protect the work of the bargaining unit; it was not intended to allow “empire building” during work stoppages. Furthermore, the employer argued that s. 68 did not constitute a complete prohibition on the use of replacement workers during a lockout. Instead, s. 68 simply prohibited the use of replacement workers to perform the actual work which would have been performed by an employee in the bargaining unit before the lockout. The Chair of the Board in this case concluded:
First, we cannot agree that the intention of the Legislature in enacting Section 68 was a blanket provision against replacement workers in general. Section 68 does not prohibit all persons from the presumption that the work of replacement workers in general is unlawful. Rather it simply enumerates specific instances where the use of suck workers is contrary to the Code. In Weston Bakeries Limited, BDLRB No. B182/93, the Board concluded that an employer is permitted to continue to run its operations, albeit on a reduced basis, as long as those performing the work does not contravene Section 68.
How do Case 3 and Case 4 Compare?
In both cases, the Boards found that the work being performed by the replacement workers was not collective bargaining unit work. The test confirmed that the work being performed by them was not the work of an employee in the bargaining unit. Henceforth, the employer did not illustrate unfair labour practices and the use of replacement workers was allowed.
Conclusion
In the area of labour law, the purpose of legislation has been to provide unions and management with a neutral framework in which to resolve disputes (Vaillancourt, 2000). In this search for a neutral balance, one of the most sensitive issues remains whether the legislation should permit or prohibit the use of replacement workers during a strike or lockout. Trade unions see replacement workers as a means of diminishing the power of the strike weapon while employers view them as a necessity to keep their business afloat during a work stoppage.
In most Canadian jurisdictions employers are permitted to use temporary replacement workers providing they do not commit unfair labour practices. To illustrate this once more, in Westroc Industries Ltd. V. United Cement, Lime and Gypsum Workers International Union, (1981) 2 Can. LRBR. 315, Chair of the Ontario Labour Relations Board, Adams stated that “if the employer’s motive is directed at avoiding a collective agreement or the punishment of his employees for having exercised rights under the Act, the hiring of replacement workers should be struck down”. If an employer is accused of an unfair labour practice, they must prove that the replacement workers were hired for legitimate and substantial business reasons.
While employers assert legitimate business need, it is the decision of the provincial Boards to determine whether an unfair labour practice has occurred. The Boards review the Labour Relations Act that is applicable to the jurisdiction in which it has power in order to help determine the remedy for the case. One purpose of the Act is to “create an equitable balance between employers and employees in the utilization of economic pressures”. In the end, Boards determine the outcome of each incident on a case-by-case basis.
Replacement workers in Canada have a much more tenuous claim to their jobs than in the US. On the other hand, there is a no uniform standard across the country for reinstating strikers to their jobs (Budd, 1996). This is the greatest difference between the US and Canada. Canada is similar to the US in that it is concerned with maintaining the balance of economic forces that its legislation has established (Cramton et. al, 1999). Without an equivalent to the MacKay doctrine, Canada does not seem as adamant in protecting the employer’s right to use and subsequently retain replacement workers. In Canada, although there is no guarantee that the union will win the strike, the individual employees will not lose their jobs to replacement workers. Therefore employees are not discriminated against for exercising their right to strike (Cornwell, 1990). In most Canadian jurisdictions, the system in which replacements are characterized as temporary allows the employer to carry on business during a strike. In turn, restricting replacements to temporaries only, coupled with clear reinstatement rights protects the unionized workers.