The Impact of Replacement Worker Legislation on the Employment Relationship

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Introduction and Purpose
In the area of labour relations, there is much controversy and division between labour and management on the issue of a legislative ban on replacement workers (Cramton et al., 1999). The use of strike replacement workers is one of the most controversial and emotional issues facing industrial relations, and the debate on replacement worker use is marked by differing claims. This paper provides an overview of the use of replacement workers in unionized environments. More specifically, it investigates the use of replacement workers during strikes or lockouts. It explores Canadian legislation as it pertains to federal and provincial jurisdictions. In addition, the United States (US) and Mexico jurisdictions are briefly reviewed. The US legislation is compared to Canadian jurisdictions, both provincially and federally. This information provides a condensed overview of North American legislation. Varying forms of strikes exist, however this paper focuses on economic and unfair labour practice strikes. The advantages and disadvantages of replacement worker legislation are reviewed and an analysis of management and union perspectives pertaining to this issue will be addressed. This paper will also review the impact of replacement worker legislation on the employment relationship. More specifically, it will look at the balancing of interests between both parties and the effect of this legislation on bargaining power. Background

To help facilitate a comprehensive understanding of this paper, various terms require some brief explanation. A replacement worker is defined as a person hired to take the place of an employee who is on strike or locked out (Sack and Poskanzer, 1984). In Canada, employees cannot be fired for exercising the right to strike; therefore replacement workers can only be hired on a temporary basis. Where labour matters are under provincial jurisdiction, legislative bans on permanent replacement exist in most jurisdictions. This legislation mandates that striking workers have the right to their job once the strike is over. According to Singh et. al (2005), professional strike breakers are prohibited in Ontario, Manitoba, Alberta, Quebec and British Columbia. Further, in these provinces, and in Prince Edward Island and Nova Scotia, labour statutes ensure that strikers retain their jobs at the end of the strike. Even though there may be a lack of explicit legislation on reinstatement rights in New Brunswick and Newfoundland, the practice of hiring permanent replacement workers is rare across Canada. Striking workers cannot be permanently replaced by workers who were temporarily hired during a strike (Cramton et. al, 1999). A strike breaker is known as an individual who accepts employment during a strike. This individual crosses the picket line and works for an employer while a strike is in progress (Sack and Poskanzer, 1984). According to Langille (2009), a strike is referred to as an employee’s refusal to work. Within the meaning of the labour relations legislation, an economic strike is undertaken for the purposes of inducing the employer to agree to the terms and conditions of employment. An unfair labour practice strike is caused by employer misconduct. A lockout can be described as the employer’s refusal to employ. It can also be referred to as the closing of company operations for the purposes of compelling employees to agree to terms and conditions of employment (Sack and Poskanzer, 1984). The North American Perspective

The United States
According to Budd (1996), a fundamental premise of both the Wagner Act system of US collective bargaining and its Canadian counterpart is the maintenance of a balance of power between labour and management. The US government seeks to achieve this balance through the existence and regulation of economic weapons and the strike is labour’s paramount economic weapon. In 2004, the Fraser Institute published a report entitled “Measuring the...
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