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The industry representing Canadian telecommunications carriers and manufacturers is warning that new “anti-scab” legislation could leave Canadians in the dark if a network goes down during a labour stoppage.

Bill C-58, which received royal assent last month, bans federally regulated workplaces from bringing in replacement workers during a legal strike.

It also amends the Canada Labour Code to mandate that certain agreements are signed between employers, unions and bargaining unit employees when a strike or lockout takes place. Known as “maintenance of activities” pacts, they require affected workers to maintain services necessary to prevent an “immediate and serious danger to the safety or health of the public.”

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The bill outlines the timeline for concluding such maintenance of activities agreements — which had previously been optional — and adjudicating any related disputes.

But Eric Smith, senior vice-president of the Canadian Telecommunications Association, said the ban may unintentionally leave telecom companies in the lurch when their workers go on strike.

He said the wording of Section 87.4 of the code, which deals with maintenance of activities agreements, has prevented carriers from proving their necessity before the Canadian Industrial Relations Board in the past.

“We’re not saying that we want to use replacement workers,” he said.

“I think, among some people, there wasn’t a full awareness of how the board has previously interpreted Section 87.4.”

Smith points to a 2003 ruling by the board in a case involving Aliant Telecom Inc., now known as Bell Aliant. The Atlantic Canadian carrier had sought an order for the union representing its workers to enter into a maintenance of activities agreement, arguing a labour stoppage would pose a threat to the public’s safety in a network outage.

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The board unanimously denied the order, ruling the two sides were not required to sign a deal due to the lack of a “required nexus between a strike or lockout and the possible interruption of telecommunications services.”

While the board said it’s possible network outages could occur during a work stoppage, it attributed them to an “intervening event” such as a natural disaster, accident or “act of god,” rather than the strike or lockout itself.

“The presence or absence of a strike or lockout may not even be a factor in the threat to the public’s health or safety,” it said in the decision.

Smith said that sets a precedent which could have dire consequences when combined with the replacement worker ban.

“Let’s say another hurricane hits Atlantic Canada, and there happens to be a strike or a lockout with workers that are crucial to keeping those services up and running or restoring them,” he said.

“We could have very long delays in the restoration of critical and telecommunication services.”

Labour Minister Seamus O’Regan’s office said it does not believe the board would necessarily rely on the Aliant case to inform future decisions on the matter.

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“It should not be assumed that a previous CIRB decision would dictate a future CIRB decision,” said spokesman Hartley Witten in an emailed statement.

“As past CIRB decisions have shown, circumstances in our workforce, workplaces and broader economy can change over time and impact the many factors the CIRB considers when coming to decisions on matters of industrial relations.”

Maintenance of activities agreements would also still be mandatory to protect emergency telecom services, such as the ability to dial 9-1-1, said William Hlibchuk, a partner and employment and labour lawyer with Norton Rose Fulbright Canada.

He called it “a bit of a stretch to say that a maintenance of activities agreement does not apply to telecommunications.”

The government legislation was a key element of the Liberals’ political pact with the New Democrats, and passed through the House of Commons with unanimous support.

It has been lauded by union leaders as a win for workers’ protections and bargaining power, setting a fine of up to $100,000 a day for employers who replace striking workers. The new rules will come into effect June 20, 2025 — one year after the bill received royal assent.

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Russell Groves, a partner at Dentons who practises employment and labour law, said the CIRB is not necessarily bound by its 2003 ruling, noting there have been developments in case law over the past two decades which could affect future decisions.

He said the board would likely consider individual circumstances in those cases, including the fact Bill C-58 leaves employers more “hamstrung” than ever before with the elimination of the replacement worker option.

Still, Groves said telecom companies are right to be concerned, saying the legislation “represents an incredible tightening.”

It also creates far more uncertainty, he said, with no indication yet how much weight the 2003 ruling will carry in future cases.

“That uncertainty is going to pervade through negotiations, through the employers’ operating plans. Even if they got a ruling in their favour, there’s going to be a lot of uncertainty leading up to that,” he said.

“It’s tough for businesses to operate in this environment where they don’t know what’s going to happen. They’re going to have to litigate the case to find out.”

Hlibchuk said the restriction on hiring replacement workers only adds to telecommunications companies’ concerns over whether they’ll be ready to handle “unforeseen” crises during a work stoppage.

“The government has effectively taken a tool away from the employer … to be able to respond in a situation where an ‘act of god’ does occur,” he said.

“The legislation is going to allow the system to bend more. Whether or not it causes it to break remains to be seen.”

This report by The Canadian Press was first published July 15, 2024.

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