Levelling the playing field: The case for a federal ‘anti-scab’ law

Posted on November 14, 2023 in Policy Context

Source: — Authors:

TheConversation.com
November 13, 2023.   Larry Savage

The federal government has just introduced Bill C-58, its much anticipated “anti-scab” legislation. If adopted, the law will prohibit the use of replacement workers in the event of a strike or lockout in any federally regulated industry.

The legislation will also require the parties to negotiate a maintenance of activities agreement in advance of a labour dispute to allow for the undertaking of maintenance work to protect the integrity and safety of the workplace.

The bill, a product of the Liberal and NDP confidence-and-supply agreement, represents the first time a federal government has committed to an anti-scab law.

Unions have long advocated for a ban on replacement workers, arguing their use unduly shifts power to employers and gives the boss an unfair advantage in collective bargaining.

In particular, union leaders justify the need for a ban by pointing to instances where employers chose to lock out workers and “starve them out” while continuing to operate with scab labour.

Business organizations, on the other hand, frame their opposition to anti-scab laws by focusing on the potential for economic disruption. They argue that a ban on replacement workers would give unions too much power, threaten the survival of small businesses and make Canada less competitive.

Assessing the arguments

Making sense of these competing perspectives can be tricky because there is no expert consensus on the economic effects of anti-scab laws. The studies that do exist offer contradictory evidence based on different statistical methods, assumptions, time spans and the inclusion or exclusion of certain sectors of the economy.

Opponents of the legislation tend to selectively rely on corporate-funded research by right-wing think tanks to make the case that a ban on scab labour will drive away business and wreak havoc more generally.

For example, a common argument is that if employers can’t use replacement workers, businesses may not be able to operate during a labour dispute and will lose revenue as a result. This outcome would theoretically jeopardize the business and the future job security of the striking workers.

The reality, however, is that no union leader is interested in negotiating employers out of business or putting the jobs of their members at risk.

Despite corporate objections to the contrary, anti-scab laws can play an integral role in improving union-management relations. At some point, almost all work stoppages end, and workers return to their jobs.

The resentment caused by the use of scab labour lingers, however, poisoning labour relations and leading to lower workplace morale. This is especially true in the case of contentious labour disputes where the use of replacement workers triggered picket line violence or vandalism.

Such incidents are far less likely to occur if scab labour is taken out of the equation.

Read more: Striking a balance: How the law regulates picket lines

Negotiated settlements

The other benefit of an anti-scab law is that it would force employers to focus on reaching negotiated settlements rather than strategizing over how to best undermine and antagonize union members exercising their right to strike.

This levels the playing field and brings the focus back to the bargaining table where deals are made.

The business lobby’s argument that a ban on replacement workers would render unions more difficult in bargaining is belied by the fact that anti-scab legislation at the provincial level has not produced “strike-happy” unions.

Québec and British Columbia have had legislative bans on replacement workers in provincially regulated industries for decades. Neither jurisdiction experienced escalating wage demands, dramatic increases in strike activity, or economic collapse as a result.

Why then should we expect different outcomes as a result of a federal anti-scab law?

Politics of labour law reform

It’s worth remembering that corporations have resisted virtually every single improvement to workers’ rights since the 1800s.

This includes opposition to union recognition, the right to strike, the shorter work week and improved employment standards. Given this history, it shouldn’t surprise anyone that the business lobby is keen to defeat or water down Bill C-58.

At a recent news conference, Federal Labour Minister Seamus O’Regan indicated the law would not take effect until 18 months after receiving Royal Assent.

That’s an eternity in politics and provides the business lobby with ample time to change the government’s mind or pressure it to run out the clock in advance of the next federal election.

In the meantime, unions and their allies are not sitting idle. We can expect unions to continue organizing rallies and actions to pressure the government to deliver on its commitment.

Previous attempts to win anti-scab legislation through opposition-led bills have usually faltered because Liberal MPs got cold feet and switched their votes on second or third reading under pressure from the business community.

The dynamics are different this time as a result of the confidence-and-supply agreement with the union-friendly NDP and the government’s desire to use the legislation as a wedge issue to undermine recent Conservative efforts to gain support from blue-collar union members.

Whether the legislation will serve that purpose remains an open question.

But that should not distract from the policy goal of reforming labour laws in ways that promote collective bargaining, protect workers’ rights and level the playing field between unions and employers.

Larry Savage – Professor, Labour Studies, Brock University

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