It’s Time For Anti-Scab Legislation In Every Jurisdiction

The bosses are out in force.

Ever since the federal government passed legislation to ban replacement workers in federally regulated workplaces in November, and the Manitoba NDP government announced its intention to do the same a month later, employers and their organizations have been working overtime to maintain the right to undermine strikes.

For the uninitiated, bans on replacement workers — or “anti-scab legislation,” in union parlance — prevent employers from hiring “scabs” to do the work of union members who are on strike or locked out, which is an action that undermines workers’ strike power and further tips the balance of power in favour of bosses.

Quebec and British Columbia have had replacement worker bans in their labour relations laws for decades, strengthening unions’ ability to effectively strike and guarding against the picket line tension and violence that often accompany employers’ use of scabs.

Of course, employers were always going to object to more Canadian jurisdictions implementing a pro-worker reform like anti-scab legislation. Indeed, they’ve vehemently opposed replacement worker bans whenever and wherever they’ve been considered. This time around, however, the misinformation and obfuscation on display is truly astonishing.

A couple of weeks ago, a telling exchange took place in the Toronto Star opinion page. Responding to the growing employer offensive against anti-scab legislation, Teamsters Canada national president François Laporte took particular aim at the Canadian Federation of Independent Business (CFIB), a worthy target.

The CFIB consistently opposes any and all measures meant to improve the lives of working people, but when it comes to anti-scab laws, the self-described small employer association has been particularly unhinged.

According to Jasmin Guénette and Christina Santini, vice-president of national affairs and director of national affairs for the CFIB, respectively, federal anti-scab legislation was “an early Christmas gift that Canadian small businesses could have lived without.” As they outline in their article, the CFIB opposes the alleged economic disruption that a ban on replacement workers will cause and strongly objects to what it characterizes as the federal government choosing to acquiesce to ‘big labour.’

Guénette and Santini don’t stop at their political objections, however. Instead, they proceed with a number of claims that are plainly false.

Bafflingly, the two authors contend that a replacement worker ban is “likely [to] encourage more frequent and longer strikes.” This isn’t the first time the CFIB and other employer groups have claimed publicly that anti-scab legislation will lead to more and longer strikes, despite there being no strong evidence for this assertion.

What the available evidence shows instead is that it’s conceptually very difficult to determine the impact of anti-scab legislation.

Labour negotiations and strikes take place in constantly changing political-economic contexts. Any number of things can influence the direction of strike activity — the health of the labour market, economic growth cycles, the unions or employers involved, the government in power, etc. Consequently, the research that has been done on the impact of anti-scab laws shows mixed results. For example, some studies have found that anti-scab legislation increased the frequency of strikes but also decreased their length, effectively leaving person-days lost to strikes unchanged. Other, older studies are less conclusive, and likely much less relevant today.

On the other hand, there is recent evidence from several provinces that employers’ use of scabs is prolonging strikes. This is common sense. When employers can avoid the consequences of a strike by replacing union members with scabs, they have less incentive to bargain and reach a settlement. As Laporte from the Teamsters nicely summarized, “Bad-faith employers use scabs to avoid having to negotiate fairly, tilting the balance of power even further toward themselves.”

The CFIB authors further claim that anti-scab legislation in Quebec and B.C. generates more and longer strikes. Quebec indeed has more strikes on average than other provinces, but it is dishonest and ignorant to argue anti-scab legislation is the reason. In short, Quebec has a labour movement relatively stronger and more militant than those found in other provinces. In B.C., meanwhile, strikes are no more frequent than in other provinces. In provinces outside of Quebec, B.C. and Ontario, the number of strikes in any given year is so small that it’s effectively impossible to draw any meaningful comparative conclusions.

Additionally, Guénette and Santini claim that the federal replacement worker ban emerged from a hasty process that did not allow sufficient time for consultation and “consensus” building. The anti-scab bill is a sop to the federal NDP and “large labour unions,” according to the CFIB spokespersons, and not the result of “a need expressed by a wide group of stakeholders.”

I participated in the federal anti-scab consultations and this is simply untrue. The process provided employers and their organizations plenty of time to voice their opposition and submit research supporting their claims. In fact, four separate roundtable sessions were held with employer and labour representatives (as well as one with Indigenous stakeholders). Employers and their associations made 41 written submissions outlining their objections to anti-scab legislation (labour organizations made 28 submissions in support). The federal government then released a thorough report summarizing these consultations in September 2023, ahead of Bill C-58 being tabled.

Furthermore, the claim that no “wide group of stakeholders” supported a ban on replacement workers is difficult to square with reality. Support for anti-scab legislation is virtually universal among unions, understandably. Guénette and Santini seem to suggest such legislation is supported only by “large unions.” But why on earth would a ‘small’ union (whatever that means exactly) be in favour of continuing to allow employers to replace striking workers? If anything, large unions are better able to counter the negative effects of scabs owing to their greater resources and organizational capacity. Small unions generally benefit more from greater legislative protection.

The CFIB claims the mantle of representing small employers, the ‘mom and pop shops’ ostensibly anchoring local economies across Canada. Why then does the CFIB feel the need to register such vocal and public displeasure with anti-scab legislation unlikely to directly affect the small businesses who are supposedly its primary members?

In the CFIB’s telling, strikes by federally regulated union members at large employers — particularly at strategic workplaces such as international ports — hold small businesses hostage by disrupting vital supply chains.

Canada’s national small business representative doesn’t just want to stop the implementation of anti-scab legislation, however. No, the CFIB wants federally regulated workers to lose their right to strike entirely. As Laporte from the Teamsters put it in the Toronto Star, “To avoid being inconvenienced by strikes, they [the CFIB] recommended declaring the entire federal sector an essential service.”

They aren’t the only group to float this idea. As I reported when the federal government’s supply chain task force released its final report and recommendations in 2022, employers were then advocating for limits on federal workers’ rights to strike and bargain in order to improve the “efficiency” of the supply chain.

As Laporte correctly points out, strikes are a vital part of Canada’s industrial relations system, and workers have a Charter-protected right to engage in such collective work refusals. “Strikes in Canada allow everyday people to make incremental gains and fight ill-treatment. And in an era of soaring corporate profits, with wages lagging far behind the rising cost of living, it’s never been more important to strengthen collective bargaining,” he continued.

Employer representatives like the CFIB would have us return to a dark past when workers had few rights and unions had little power. They certainly don’t want workers’ ability to strike strengthened through anti-scab legislation.

This time, it seems the bosses aren’t getting their way, and they are incensed with the federal government about it. “The role of the minister of labour should be as an arbitrator, balancing the interests of worker representatives and employers. Minister O’Regan must be neutral and decide for the good of the country, not for the good of any particular group,” Guénette and Santini write.

I understand the CFIB is engaging in public relations spin here, but let’s be frank: there is no such thing as “the good of the country.” Rather, the economy is structured around the competing interests of workers and employers. It’s called “class struggle”! The Liberals are making a political concession to the NDP, on whom they currently depend to stay in power, and this has opened an opportunity for labour to win a key reform that will leave federally regulated workers better off — and hopefully make it easier for workers in provinces other than Quebec and B.C. to win anti-scab protections.

No one should be fooled by the scare tactics of the CFIB or any other bosses’ club. Anti-scab legislation is good for unions and it’s good for workers. It’s time we win it in every Canadian jurisdiction.

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