Over 100,000 federal public servants who belong to the Public Service Alliance of Canada (PSAC) exercised their right to strike in April. The federal government responded to this pressure tactic by offering its employees the option of continuing to do their jobs by teleworking.
Although the approach taken by the federal government was denounced by the unions, it was perfectly consistent with the current provisions of the Canada Labour Code. At present, companies governed by the Canada Labour Code have very broad latitude when it comes to using replacement workers. As well, although provincially regulated businesses do not have the same flexibility, they may now use teleworking in certain circumstances in the event of a strike or lockout.
The Situation at the Provincial Level
Quebec and British Columbia are currently the only two provinces whose labour law includes rules prohibiting the use of strikebreakers.
In Quebec, more specifically, the Labour Code places strict limits on the ability to replace striking or locked out workers. Employers may not use a subcontractor, a manager hired after negotiation begins, a non-unionized employee, or, obviously, a unionized employee to work in their establishment during a strike.
During the pandemic, due to the widespread adoption of teleworking, the Administrative Labour Tribunal twice considered the interpretation of “establishment” and thus an employer’s ability to use its teleworking employees during a strike or lockout. In both cases, the employer in question had non-unionized employees work from their homes, and this practice was uniformly rejected by the Tribunal.
In fact, according to the Administrative Labour Tribunal, under Quebec law, the establishment in which an employer must not use replacement workers is to be understood as what it called a deployed establishment and to include places where the employer can virtually lock the doors.
However, on April 21, 2023, the Superior Court reversed and rejected this interpretation. Reiterating the principles laid down by the Court of Appeal, Justice Cullen held that the establishment in which an employer cannot use its non-unionized employees corresponds to the precise place where it can theoretically lock the doors and where the striking employees in the bargaining unit ordinarily perform their duties.
As a result, under the law as it now stands, an employer under provincial jurisdiction can use the services of its non-unionized teleworking employees during a strike or lockout.
The Situation at the Federal Level
Currently, the only practice prohibited by the Canada Labour Code is the use of replacement workers “for the demonstrated purpose of undermining a trade union’s representational capacity rather than the pursuit of legitimate bargaining objectives.” The limited case law governing this prohibition suggests that the CLC recognizes an employer’s right to put economic pressure on a union in order to achieve its bargaining objectives.
In practice, in order to ask a court to order a federally regulated employer to stop using replacement workers, a union must prove anti-union animus, a clear act of bad faith on the part of the employer. This is no small task and obviously requires extensive evidence, which is only available in exceptional situations.
In this instance, the federal government could allow its striking employees to work from home without worrying about its decision being overturned by a court.
That said, it is important to note that further to an agreement between the Liberal Party of Canada and the New Democratic Party, Employment and Social Development Canada has committed to introducing a bill governing the use of replacement workers during a strike or lockout by the end of 2023. Consultations on the subject were held and completed in January 2023, but as of the date this is written, no bill has been introduced.
If anti-strikebreaker provisions are indeed adopted by Parliament, it will be interesting to see whether they are interpreted in a manner consistent with the provisions that apply in Québec law.
In purely legal terms, assuming no evidence of anti-union animus, the federal government allowing its employees to work remotely during the recent labour dispute was not a problem. While this situation may change with the adoption of a future bill, to which the federal government has committed, a company under federal jurisdiction may allow its unionized and non-unionized employees to do their jobs remotely during a strike or lockout.
For businesses under Quebec’s jurisdiction, following the recent Superior Court decision, non-unionized employees will be able to telework during a strike or lockout without violating the Labour Code.
 CQLR, c. C-27, section 109.1.
Unifor, section locale 177 v. Groupe CRH Canada inc., 2021 QCTAT 5639, decision reversed by the Superior Court in Groupe CRH Canada inc. v. Tribunal administratif du travail, April 21, 2023 (500-17-119468-216); Syndicat des travailleuses et travailleurs de la Coop Lanaudière CSN v. Coop Novago, 2022 QCTAT 1324, Application for judicial review pending, 2022-4-25 (S.C.) 705-17-1-010323-226.
 Groupe CRH Canada inc. v. Tribunal administratif du travail, Supra, note 3.
 Syndicat canadien de la fonction publique, section locale 1450 v. Journal de Québec, 2011 QCCA 1638, application for leave to appeal to the Supreme Court dismissed, S.C.C., 2012-04-05, 34518; Les avocats et notaires de l’État québécois et Gouvernement du Québec, Direction des relations professionnelles, Conseil du Trésor, 2017 QCTAT 2152, application for judicial review dismissed, 2017 QCCS 5226, appeal dismissed, 2018 QCCA 224.
 R.S.C. 1985, c. L-2, section 94(2.1).
 See, inter alia, the Telus Communications Inc. cases, 2004 CIRB 271, para. 106 and 9193383 Canada Inc. v. Société du Vieux-Port de Montréal inc., 2020 QCCS 370, paras. 77 et seq.
 Delivering for Canadians Now: A Supply and Confidence Agreement from March 22, 2022 until when Parliament rises in June of 2025, https://pm.gc.ca/en/news/news-releases/2022/03/22/delivering-canadians-now.
On this point, it is interesting to note that there have been several attempts to amend the current federal legislative regime to make it stricter on employers. However, the bills that were introduced all died on the order paper, including Bill C-234, introduced by a New Democratic Party member of Parliament in 2016.
 EMPLOYMENT AND SOCIAL DEVELOPMENT CANADA, Prohibiting replacement workers in federally regulated industries - Discussion paper, https://www.canada.ca/en/employment-social-development/services/labour-relations/replacement-workers/discussion-paper.html.