Bill C-58: Canada’s New Labour Landscape, for Better and for Worse
An analysis of the Liberals’ anti-scab motion
The Liberal government’s recent introduction of bill C-58 seeks to radically transform Canadian labour law by banning “scabs” — the derogatory term for workers brought in by employers to replace currently-striking employees — at the federal level. If passed, the bill would standardise across the nation a law currently only in effect in British Columbia and Québec. The motivations for the bill are both ideological and rigidly practical; attempts had been made multiple times by Liberal governments to pass a similar effort, but were always later scuttled by the business world’s influence on party policy and MPs. Yet this action is a requirement of the terms set out in the minority Liberal government’s coalition deal with the New Democratic Party (NDP), led by Jagmeet Singh; thus, for the Liberals, its passing is necessary to keep the confidence of the house and satisfy left-wing demands. In 2016, Prime Minister Justin Trudeau and the Liberals had seen a virtually identical measure as a bridge too far, joining the Conservatives in torpedoing the measure. But political survival, and the generally shifting context of labour advocacy in a year so fraught with large strike actions, appears to have trumped temperamental centrism.
While the law would apply only to federally-regulated workplaces, this still encompasses some one million Canadians, one-third of which are currently unionised. Fines against businesses for violating the measure could reach as high as $100,000 a day. Despite the bill being welcomed by many labour groups, including the United Steelworkers, C-58’s more equivocal provisions — like its eighteen-month period before it takes effect, or its non-applicability to the government’s own public service — have spawned critiques.
The bill presents a strange problem for Conservative opposition leader Pierre Polievre. On the one hand, its advocation by Singh’s side of the Liberal-NDP coalition adds fuel to his regular harangues of an excessively left-wing, big government track by the two parties. Yet Polievre has consciously attempted to court blue-collar workers and unions in his campaigning, and overtly opposing the measure would risk that tenuous detente. His rhetoric has thus focused on vague shots at Trudeau’s record. This includes a quite creative one where the bill was not criticised, but instead blame for recent inflation, apparently single-handedly causing strikes, was laid at the Prime Minister’s feet. Polievre initially claimed he needed to study the bill more before coming out with any opinion; he has since bravely upgraded that to declaring that the Conservatives “will vote on that” in some undefined manner.
If passed, the bill would significantly strengthen Canada’s labour watchdog, the Canadian Industrial Relations Board (CIRB). By banning ‘scabs,’ employers will have much more incentive to speedily and in good-faith engage in negotiations with both the government and the aggrieved workers. Without easy continuity of service for corporations, unions can better flex their strength, and the acrimonious climate of unionised versus scab employees can be rid from disputes. However, this enlargement of the CIRB’s power would also more definitively limit unions’ autonomy in aspects of negotiations. The CIRB would compel both parties to, just fifteen days into a strike, agree to minimum service requirements. It will otherwise unilaterally impose its own definition of “minimum service.” Mark Rowlinson, a Toronto labour lawyer, noted that this provision risks introducing delays in getting strikes effectively underway. Chris Aylward of PSAC, Canada’s federal public service union — which is not covered by the bill’s current form — voiced concern that the “already overburdened” CIRB would now have even more responsibility. One wonders if this was a diplomatic framing of what is, by all accounts, a coup for the CIRB and its influence.
Labour law relies on two fundamental assumptions: that both sides respect the legitimacy of the arbitrators (the Industrial Relations Board), and that both sides have something to lose if an agreement is not reached satisfactorily and quickly. Yet the ability to hire scabs makes strikes merely a nuisance, rather than an existential threat to the employer’s ability to function, and so disrupts the equilibrium between employees and employers which allows strikes to resolve in a timely manner and on mutually-beneficial terms. Business groups are correct in their complaints that this will make strikes more harmful. That is precisely the point.
With respect to the Board, it is perpetually in a difficult position. It has to somehow account for not only diametrically opposed groups in the course of negotiations, but also take on its own independent position that will always leave one or both sides clamouring for more. It must also somehow balance its own bureaucratic desire for quiet stability with the expressly aggressive rhetoric of striking parties. The former often wins out, as it did at the British Columbia port debacle last summer. Time will tell whether the most enduring legacy of the bill is not the headline banning of replacement workers, but rather the usurpation of more authority over corporate-worker labour relations by the state. Or indeed if it will be remembered simply as an overture to prolong a supply agreement increasingly unpopular with Canadians, trying to revive the ever-dwindling enthusiasm on the political left for Mr. Trudeau.
