Manitoba bans use of replacement workers during strike

Manitoba’s Labour Relations Act (LRA) and Employment Standards Code (ESC) recently underwent significant amendments.

Recently, the provincial government’s Bill 37, The Budget Implementation and Tax Statutes Amendment Act, 2024 and Bill 9, The Employment Standards Code Amendment Act, received Royal Assent and came into force Nov. 8.

Under the changes, employers are now prohibited from using replacement workers during a lockout or legal strike, explain Rhonda Levy, Adrian Jakibchuk and David McIsaac, who are knowledge management counsel, partner and associate, respectively, at Littler.

This ban applies to workers hired after notice to commence collective bargaining is issued, employees transferred from other workplaces post-notice, and individuals supplied by external contractors.

There are some exceptions to this prohibition. According to the legislation:

• Managers or confidential labour relations personnel already employed before the notice date may continue their duties.
• Replacement workers may address emergencies involving threats to life, health, safety, or serious property or environmental damage if no alternative means are available.

In June, Canada’s anti-scab legislation received royal assent. Bill C-58, An Act to amend the Canada Labour Code and the Industrial Relations Board Regulations, 2012 will improve labour relations, protect workers' right to strike, limit interruptions to collective bargaining and provide greater stability to our economy during federal labour disputes, according to the federal government.

Recently, the British Columbia Labour Relations Board (LRB) has found that Radisson Blu Vancouver Airport Hotel illegally used replacement workers during a strike by a union last year.

Union members’ vote

The amendments also introduce a streamlined process for union certification based on employee support thresholds, says Littler.

• Automatic certification: If more than 50%per cent of employees in a bargaining unit support unionization, the Manitoba Labour Board must automatically certify the union without a vote.
• Secret ballot requirement: For support levels between 40 per cent and 50 per cent, a secret ballot vote is required.
• Dismissal of applications: Applications are dismissed if less than 40 per cent of employees support the union.

The legislation also mandates that essential services must continue during lockouts or strikes, says Littler. This ensures the uninterrupted provision of services critical to public health, safety, justice, and environmental protection.

Key obligations for employers and unions include:

• Essential services agreements: Parties must draft agreements at least 90 days before a collective agreement expires, specifying the operations or services to continue during labour disruptions. These agreements must be filed with the Labour Board.
• Failure to agree: If no agreement is reached, the Labour Board may intervene to designate essential services and impose measures to ensure their continuation.

Employers or unions can request a review if the imposed measures interfere substantially with collective bargaining.

How many leaves do employees have?

Meanwhile, amendments to the ESC extend the maximum leave period for serious illness or injury from 17 weeks to 27 weeks, says Littler. This extension applies immediately to employees currently on leave or those who have notified their employers of their intention to take such leave.

“Employers in Manitoba are encouraged to immediately review and amend their workplace policies and procedures to ensure they are executing their new obligations under the LRA, if applicable, and under the ESC,” say the Littler experts.

Recently, Newfoundland and Labrador’s government announced proposed changes to its Labour Standards Act that would significantly strengthen job-protected leave for employees facing serious health issues, injuries, or those who serve in the military.