Discussion of Ontario NDP’s Anti-Scab Legislation

Discussion of Ontario NDP’s Anti-Scab Legislation – Enver Villamizar –

Secondary picket by Windsor Salt workers at Charron transport March 30, 2023, which is transporting salt out of Windsor Salt facilities during the strike.

On March 29 the Ontario NDP tabled Bill 89, An Act to amend the Labour Relations Act, 1995 with respect to replacement workers, in the Ontario Legislature. The bill was ruled out of order with no explanation on record but now appears to have been re-tabled as Bill 90.[1]

The proposed legislation was sponsored by MPPs France Gélinas (Nickel Belt); Lisa Gretzky (Windsor-West); Wayne Gates (Niagara Falls); Jamie West (Sudbury); and Jennifer French (Oshawa). Summarizing the legislation at first reading, Gélinas stated that “the bill restores the provisions that were incorporated into the Labour Relations Act by the Labour Relations and Employment Statute Act of 1992 that were repealed in 1995.”

“The provisions being restored prevent an employer from replacing a striking or locked-out employee with a replacement worker except in specific emergency situations,” Gélinas said.

In 1995, the Mike Harris government repealed anti-scab legislation that had been passed by the NDP government of Bob Rae. Similar legislation has been tabled by the NDP in almost every session of the legislature since and has never been passed. Most recently, the same legislation was tabled by Gélinas in March 2019 but it did not proceed past first reading. The draft legislation sets out rules for when and how scabs can and cannot be used by a company, and the rules that must be followed when bringing in scab labour. It would prohibit the use of scabs — either brought in as new hires, from the bargaining unit itself or from other facilities — to do the work of workers who are in a legal strike or have been locked out.

The legislation would not prohibit managers who already work at a facility from working in the facility as scabs — as is currently happening at Windsor Salt. It does prohibit managers from other facilities from being brought in to do the bargaining unit’s work. There are exceptions to permit the use of scabs in cases of secure custody, residential care for the disabled and children, emergency shelters or crisis intervention, emergency dispatch communication, ambulance services or first aid clinics or stations. There are also exceptions in what is described as an “emergency,” which is not defined in the legislation. In these cases, the union may consent to the use of replacement workers or its own bargaining unit members, if the members agree.

According to the bill, scabs are permitted to prevent danger to life, health or safety; the destruction or serious deterioration of machinery, equipment or premises; or serious environmental damage.

It is important to consider that these last exceptions are precisely the justifications Windsor Salt’s owners gave during the current strike to obtain an injunction against blocking the movement of stored salt in and out of the facilities. The company claimed they required the injunction to keep the equipment from seizing up and to prevent possible environmental damage that would result if, in the future, pipes carrying brine leaked.

The fact that the company used the injunction to keep selling salt reveals its hidden aims in raising the safety and environmental concerns. It is removing the rock and table salt to keep selling it and this prolongs the strike. This underscores the fact that workers may or may not be protected by laws but it is the strength of their numbers and organization which are decisive to achieve their aims. The aims of the narrow private interests are not the same as those of the workers. This means that the workers’ real protection lies in their fight for their rights and the rights of all within concrete situations, irrespective of what the law says. They are the ones to devise the tactics they can employ within the situation to unite everyone in action to achieve a just cause. 

The state backs up the companies as a matter of course when they twist the law to serve themselves. The law is not neutral. Today, any provisions laws might have contained which under the current conditions are seen to limit companies from doing as they please are being removed. This is done in the name of stability, security and the need for unlimited ministerial powers.

The way the law is worded, the decision about what constitutes the “legitimate” use of scabs is left to the Ontario Labour Relations Board. According to the mythical rendering of the conception of the state, the Labour Relations Board is “neutral,” which rank and file workers know is not the case. In fact, not in fiction, it is part of the state apparatus whose allegiance is to “King and Country.” This means it has a duty to enforce the demands which serve the interests of capital over labour because to do otherwise is tantamount to undermining the security of “King and Country.”

In addition, the legislation also contains a provision which would legalize the common practice where a company cuts off workers’ benefits in the event of a legal strike or lockout. It outlines how the union can agree to pay for its members’ health and other benefits through their existing benefits plan, which the company must accept. This acts as a green light to cut benefits and puts the onus on the union to cover health benefits for the workers.

The health and well-being of the workers is of direct benefit to any company but the company is permitted to cut off health benefits during a strike or lockout. This reflects an outlook that health benefits are not a right but a privilege. The practice of cutting off workers’ benefits during a strike or lockout should in fact be completely prohibited. It should not be permitted to be used as a mechanism to pressure workers into accepting an agreement under duress.

At the end of the day, the legislation has to be seen from the workers’ vantage point within the context of the vicious anti-social offensive that is underway. Will it help the working people resolve the crises in a manner that favours them and the claims they are entitled to make on society by virtue of being human and of being the producers of all the wealth society depends on for its living? Will it help the workers to deprive governments and companies of their ability to continue to act with impunity? So long as laws are used to criminalize workers’ resistance and their fight for democracy, it remains important to see things from the vantage point the workers themselves establish under all conditions and circumstances.

At this point, nobody expects the legislation to pass because within the cartel-party system of government, the NDP has no clout within the current Ontario legislature. In this context, the bill is seen as part of the modus operandi within the cartel-party system of doing something to get kudos for representing the constituency you claim to represent. In fact it does not help to organize the workers to achieve something which will benefit them in a meaningful way which in the conditions of the anti-social offensive is seriously wanted.

The Liberal-NDP coalition at the federal level has said that it will also put forward anti-scab legislation in early 2023.


1. Bill 90, An Act to amend the Labour Relations Act, 1995 with respect to replacement workers