Second Big Change to The Labour Relations Act: Prohibition on Replacement Workers During a Strike or Lockout
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Article2024 | 11 | 23
This is a follow-up to our article regarding new automatic certification rules for provincially regulated employers in Manitoba: They’re Here . . . . New Labour Relations Act Amendments Make Unionizing Easier
This article addresses amendments to The Labour Relations Act of Manitoba (the “Act”) for provincially regulated employers that may shift additional leverage to unions in collective bargaining, strikes and lockouts. The prohibition on replacement workers (commonly called “anti-scab” by unions) has the apparent intent of making strikes and lockouts more impactful on employers, by substantially preventing them from carrying on operations. We will refer to some exceptions below, but the starting point is that the business temporarily ceases to operate if the employees strike or are locked out.
Key Amendments
• an employer may not hire or engage individuals to perform the work of an employee who is locked out or on strike
• a prohibition on transferring employees from another workplace of the employer to do bargaining unit work during a strike or lockout
• a prohibition on using persons employed or supplied by another person to do bargaining unit work (e.g. contractors or employment agencies)
• a prohibition on using employees from the same location who are not on strike into doing bargaining unit work
• a prohibition on bargaining unit employees performing work**
**The prohibition on bargaining unit employees was an additional amendment that appeared after the committee stage, not in the initial bill. This would cover employees who might otherwise have chosen to refrain from striking, or returned to work before the end of a strike or lockout.
The use of volunteers to perform bargaining unit work is also prohibited.
Exceptions
These prohibitions do not extend to individuals who are excluded based on exceptions in the Act for persons who “performs management functions primarily” or is in a “confidential capacity in matters relating to labour relations.” So these employees may still be assigned to perform bargaining unit work during a strike or lockout. However, these exclusions have been narrowly interpreted historically, and would not likely apply to any employee who is outside of the affected bargaining unit.
There are also exceptions for bargaining unit employees who are performing work designated as essential services. Essential services now apply all unionized workplaces in in Manitoba and will be the topic of our next article. Essential services are defined as those services, which:
(a) prevent a threat to the health, safety or welfare of residents of Manitoba;
(b) maintain the administration of justice; or
(c) prevent a threat of serious environmental damage.
There is a separate exception to deal with emergencies where:
(a) the services are used solely in order to deal with a situation that presents or could
reasonably be expected to present
(i) a threat to the life, health or safety of any person,
(ii) a threat of destruction of or serious damage to the employer’s property or premises, or
(iii) a threat of serious environmental damage; and
(b) the use of the services is necessary in order to deal with the situation because the employer is unable to do so by any other means.
If a person was employed prior to the issuing of the notice to commence collective bargaining, and was performing the same or substantially similar work as bargaining unit employees, then that person could continue to perform that work during a strike or lockout, but only “to the same extent and in the same circumstances” as they did before the notice to bargain. This may cover excluded supervisors whose duties overlap with bargaining unit employees. However, it is not intended to allow expansion of their roles.
What will the future hold?
Employers who are found to be using replacement workers in contravention of the Act commit an unfair labour practice. The Labour Board already has a wide range of measures it can take to remedy an unfair labour practice, including cease and desist orders, damages, monetary awards to unions and employees (even where there is no loss shown), among others.
This would be new territory for the Labour Board, since there is no history of a ban on replacement workers in Manitoba. The Board would be interpreting the Act and looking at any comparable language or situations in other Canadian jurisdictions which have replacement worker bans or restrictions. It’s notable for interpretation purposes that the Act’s language may be considered to be a presumption to prohibit replacement worker, subject only to exceptions (rather than specific limitations on a more general right to use them).
Will this change Collective Bargaining?
That’s hard to say, but we’re somewhat skeptical. Strikes have not been a frequent feature of Manitoba labour relations in recent times. Statistics Canada data on work stoppages shows less than 5 per year in Manitoba from 2020 – 2024. Even accounting for the COVID years, that’s not a lot of stoppages. Most of the recent strikes have been provincially regulated public sector bargaining units, which had been held back by the former government’s austerity measures.
It is possible that unions could try to test the boundaries of newly granted leverage by taking hard-line positions. That remains to be seen, but it is also worth noting that the Act discourages lengthy work stoppages, such as by:
On a first collective agreement after certification, the Labour Board can impose the outstanding terms on a one year non-retroactive agreement (and an application to the Board to do this brings any strike or lockout to an end immediately pending imposition). Through prudent management of statutory “freeze” requirements and timely appointment of a conciliator, the parties could be eligible to apply for an imposed agreement before it is legal to declare a strike or lockout.
On subsequent collective agreements, either party may apply to the Labour Board for an imposed agreement after 60 days of strike or lockout, where the parties have had the assistance of a conciliator or mediator for 30 days during the stoppage. If the Board determines that the party applying for an imposed agreement was bargaining in good faith, the Board will impose a collective agreement and terminate the strike or lockout pending imposition.
Will the replacement worker prohibitions last?
Probably as long as the current NDP government is in place. As we have experienced in the past with automatic certification vs. mandatory representation votes, NDP governments make amendments to the Act viewed as union-friendly, while the Progressive Conservatives make amendments viewed as business-friendly (although the replacement worker prohibition was not enacted any previous NDP government). To some extent, this political see-saw will continue, and we anticipate that this prohibition on replacement workers may be a new piece in this see-saw.
DISCLAIMER: This article is presented for informational purposes only. The views expressed are solely the author(s)’ and should not be attributed to any other party, including Taylor McCaffrey LLP. While care is taken to ensure accuracy, before relying upon the information in this article you should seek and be guided by legal advice based on your specific circumstances. The information in this article does not constitute legal advice or solicitation and does not create a solicitor-client relationship. Any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.
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About the Author
Ken Dolinsky
Partner
204.988.0357
kmdolinsky@tmlawyers.com
kmdolinsky@tmlawyers.com
Ken articled for one of Manitoba’s leading Labour and Employment lawyers, Grant Mitchell Q.C.
About the author
Mark Alward
Associate
204.988.0381
malward@tmlawyers.com
malward@tmlawyers.com
Mark is an Associate at Taylor McCaffrey LLP, where he practices Labour and Employment law.