Canada’s Federal Private Sector

In Canada, provincial governments have primary responsibility for labor and employment law. Outside of the federal public service, few private industries fall under the jurisdiction of the federal government. Federal legislative responsibility is largely limited to sectors which cross provincial or international borders, industries deemed to be in the “national interest,” and Crown Corporations.

Federal labor legislation thus has relatively limited reach. The Canada Labour Code governs the employment of approximately 910,000 workers in air, rail, and interprovincial road transportation; banking and telecommunications; some mining and natural resource extraction; postal services; ports and international shipping; as well as some First Nations government workplaces.

However, workers in Canada’s federal jurisdiction are somewhat uniquely situated to benefit from an anti-scab law. Compared to those whose labor is regulated provincially, firms in the federal jurisdiction enjoy some forms of market protection and are much less subject to foreign and domestic competition. The jurisdiction is also characterized by a greater proportion of large firms and higher union density than is the case across the provinces. As of 2018, 82 percent of federally regulated employees worked for firms employing a hundred or more people. Private sector union density nationwide stands at roughly 16 percent, but it is over 34 percent among workers employed by federally regulated private firms.

All these factors could make passing a federal anti-scab law more feasible. Small employer hostility to the bill would likely be negligible. And the effects of the bill could potentially impact a greater number of union members than comparable legislation might in any of the provinces where it is currently lawful to hire scabs.

The Liberals and Federal Labor Reform

At present, only British Columbia and Quebec ban scabs in their respective provincial labor relations codes. At the federal level, the Canada Labour Code currently allows employers to freely hire “replacement workers.” However, the scab hires must not be used to undermine the “representational capacity” of the union. Further, scab hires are not granted employment ahead of union members when a work stoppage ends.

Beginning in 2017, the federal government committed to making various reforms to federal labor law. They convened an “Expert Panel on Modern Labour Standards” to recommend reforms for nonunion employees, and have since reintroduced a $15 per hour federal minimum wage, limited employee misclassification, and provided long-service employees with more paid vacation time.

In December 2021, the Liberals belatedly passed a bill, with NDP and BQ support, granting federally regulated workers ten paid sick days annually. The ensuing consultation process — overlong and still ongoing — has almost certainly been arranged to give employers ample time to partially defang the legislation by influencing its regulatory implementation.

The Case for Anti-Scab Bills

As in other capitalist democracies, strike activity in Canada is at a historic low. The vast majority — some 95 percent — of collective bargaining rounds are completed “successfully” without a work stoppage. Strike levels have fallen precipitously since their high point in the early 1980s. Over the past decade, there have been roughly a hundred fifty average annual work stoppages nationwide, across all firm sizes. The story is much the same in the federal private sector where the proposed ban on scabs would apply. The last time there were more than fifteen federal work stoppages was 1987.

Interestingly, while the number of annual strikes has gone down, the average length of strikes has risen. Over the past ten years, average strike duration has increased by two and a half times. In short, unions are striking far less frequently and employers feel emboldened to wait workers out for longer.

In the context of growing inequality and inflation that is outstripping wages, low levels of strike activity don’t indicate a well-functioning collective bargaining regime, but rather union weakness. To what degree would a federal anti-scab law help reverse this trend?

Historically, hiring scabs has been one of the most provocative actions a boss can take during a strike. In many instances, a picket line that successfully halts or substantially impedes production can be the determining factor in a job action. By allowing employers to legally replace striking workers, union leverage is diminished. It is therefore reasonable to assume that a ban on scabs would incentivize employers to bargain in good faith.

Employer use of scabs can also increase the likelihood of violence on picket lines, generating tension in communities experiencing a strike or lockout and harming long-term labor relations. Moreover, employers frequently hire private security firms and obtain court injunctions to ensure scabs are able to enter struck workplaces without union interference.

However, scab bans are not beneficial to bosses and pretending otherwise is foolish. In the past, some anti-scab proponents, including unions and labor centrals, have lobbied for a scab ban by emphasizing its potential to reduce the number of days lost to labor disputes. On this question, the evidence is mixed. For example, in the two years after anti-scab laws were introduced in British Columbia and Quebec, the number of strikes increased, though average duration shrank. From labor’s perspective, this is a desirable outcome. But we shouldn’t expect that employers or Liberal governments will consider it to be supportive evidence.

That said, it is true that anti-scab bills can aid in industrial peace. Strikes and lockouts that turn into bitter, protracted standoffs — often provoked by an employer that is determined to impose drastically inferior conditions of employment or even entirely break a union – could likely be prevented by a strong anti-scab law.

Prospects and Limits

In May 2021, Unifor (formerly the Canadian Auto Workers) launched a nationwide campaign for anti-scab legislation. According to the union, when employers used scabs against Unifor members, the average work stoppage lasted 265 days; when no scabs were involved, the average length was just 42 days. Although Unifor’s experience is not necessarily representative, it is a good benchmark to look to.

There is no one-stop panacea to reverse the historic weakness of Canadian labor, but a strong federal anti-scab law would doubtlessly increase the bargaining power of affected unions. Legislation that strictly prohibits scabs, protects workers who honor picket lines, and imposes steep fines on contravening employers could go some distance is reviving the efficacy of strikes.

Admittedly, anti-scab laws are necessitated by North American labor relations systems which substantially restrict the ability of unions to strike. There is a reason why Scandinavian labor law doesn’t ban scabs: high union density, a greater willingness to strike, and a relatively more permissive legal regime make employers think twice about bringing in replacements. North American unions, on the other hand, look to the state to legislate what they themselves can’t impose in practice. Even so, a federal ban on scabs would be a significant win for Canadian unions and could set an important precedent for those provinces that still allow employers to temporarily replace striking workers.

The Liberals’ recent confidence deal with the NDP makes the party’s vague promise of anti-scab legislation a real possibility. But in order to ensure that a ban on scabs has teeth, unions will need to be prepared. We can expect the Liberals to propose an anti-scab bill that will be far weaker than past NDP versions. Organized labor and the federal NDP will have to guard against this. In the event that scabs are successfully banned in Canada’s federal private sector, it will be up to labor to capitalize on the victory.