Strikebreakers working remotely: Which employees may companies under federal and provincial jurisdictions use?

Over 100,000 federal public servants who belong to the Public Service Alliance of Canada (PSAC) exercised their right to strike in April. The federal government responded to this pressure tactic by offering its employees the option of continuing to do their jobs by teleworking.

Although the approach taken by the federal government was denounced by the unions, it was perfectly consistent with the current provisions of the Canada Labour Code. At present, companies governed by the Canada Labour Code have very broad latitude when it comes to using replacement workers. As well, although provincially regulated businesses do not have the same flexibility, they may now use teleworking in certain circumstances in the event of a strike or lockout.

The Situation at the Provincial Level

Quebec and British Columbia are currently the only two provinces whose labour law includes rules prohibiting the use of strikebreakers.

In Quebec, more specifically, the Labour Code^[1] places strict limits on the ability to replace striking or locked out workers. Employers may not use a subcontractor, a manager hired after negotiation begins, a non-unionized employee, or, obviously, a unionized employee to work in their establishment during a strike. 

During the pandemic, due to the widespread adoption of teleworking, the Administrative Labour Tribunal twice^[2] considered the interpretation of “establishment” and thus an employer’s ability to use its teleworking employees during a strike or lockout. In both cases, the employer in question had non-unionized employees work from their homes, and this practice was uniformly rejected by the Tribunal.

In fact, according to the Administrative Labour Tribunal, under Quebec law, the establishment in which an employer must not use replacement workers is to be understood as what it called a deployed establishment and to include places where the employer can virtually lock the doors.

However, on April 21, 2023, the Superior Court reversed and rejected this interpretation.^[3] Reiterating the principles laid down by the Court of Appeal,^[4] Justice Cullen held that the establishment in which an employer cannot use its non-unionized employees corresponds to the precise place where it can theoretically lock the doors and where the striking employees in the bargaining unit ordinarily perform their duties.

As a result, under the law as it now stands, an employer under provincial jurisdiction can use the services of its non-unionized teleworking employees during a strike or lockout.

The Situation at the Federal Level

Currently, the only practice prohibited by the Canada Labour Code is the use of replacement workers “for the demonstrated purpose of undermining a trade union’s representational capacity rather than the pursuit of legitimate bargaining objectives.”^[5] The limited case law governing this prohibition suggests that the CLC recognizes an employer’s right to put economic pressure on a union in order to achieve its bargaining objectives.^[6]

In practice, in order to ask a court to order a federally regulated employer to stop using replacement workers, a union must prove anti-union animus, a clear act of bad faith on the part of the employer. This is no small task and obviously requires extensive evidence, which is only available in exceptional situations.

In this instance, the federal government could allow its striking employees to work from home without worrying about its decision being overturned by a court.

That said, it is important to note that further to an agreement between the Liberal Party of Canada and the New Democratic Party,^[7] Employment and Social Development Canada has committed to introducing a bill governing the use of replacement workers during a strike or lockout by the end of 2023.^[8] Consultations on the subject were held and completed in January 2023, but as of the date this is written, no bill has been introduced.

If anti-strikebreaker provisions are indeed adopted by Parliament, it will be interesting to see whether they are interpreted in a manner consistent with the provisions that apply in Québec law.

Takeaway

In purely legal terms, assuming no evidence of anti-union animus, the federal government allowing its employees to work remotely during the recent labour dispute was not a problem. While this situation may change with the adoption of a future bill, to which the federal government has committed, a company under federal jurisdiction may allow its unionized and non-unionized employees to do their jobs remotely during a strike or lockout.

For businesses under Quebec’s jurisdiction, following the recent Superior Court decision, non-unionized employees will be able to telework during a strike or lockout without violating the Labour Code.