No. 9-Replacement Workers Complaint

Rules of Procedure

This document outlines the procedures that must be followed when filing a complaint about an employer using replacement workers during a strike or lockout (work stoppage). It also outlines the procedures that the employer and any interested party should follow after they receive the letter from the Canada Industrial Relations Board (the Board) notifying them of the complaint.

The person filing the complaint is called the complainant. A complainant must be either an individual worker within a bargaining unit subject to a work stoppage or a representative of the bargaining agent (that is, the union).

An interested party is a person or other organization that may be affected by a Board decision. This could include another union, another employer or a contractor working on the same worksite or alleged to be performing replacement work. Interested parties can ask the Board for permission to intervene (participate) in the file, but the Board can decide whether to grant this request in each case.

In section 1 of the Canada Industrial Relations Board Regulations, 2012 (the Regulations), “day” is defined as a calendar day. Deadlines falling on a weekend or holiday are automatically moved to the next working day.

To ensure there are no delays in processing your complaint, please read these rules carefully. Amendments to Part I of the Canada Labour Code (the Code) have led to important changes to the procedure that the Board follows for this type of complaint. The new provisions of the Code and these rules apply as of June 20, 2025, in respect of any strike or lockout that is ongoing on that day.

If you have any questions about the Board’s replacement worker procedure, you can contact a Board officer at 1-800-575-9696. For more information on filing replacement workers complaints, visit the Labour Relations - Replacement workers section of the Board's website.

General

Amendments to the Code, in effect as of June 20, 2025, have expanded the ban on using replacement workers. Following these changes, section 94(4) states that, during a legal work stoppage, work normally done by a striking or locked-out person cannot be performed by the following persons:

any employee or any person who performs management functions or who is employed in a confidential capacity in matters related to industrial relations, if that employee or person is hired after the day the notice to bargain collectively is given;
any contractor, other than a dependent contractor, or any employee of another employer;
any employee whose normal workplace is not the one where the strike or lockout is taking place or who was transferred to the workplace where the strike or lockout is taking place after the day notice to bargain collectively is given; and
any volunteer, student or member of the public.

Certain exceptions apply to continuing services. Section 94(5) says that if some of the work normally done by the striking or locked-out persons had been performed by contractors before the notice to bargain was filed, this work can continue.

In accordance with section 94(6), an employer (or a person acting on its behalf) is not allowed to use the services of a member of the bargaining unit involved in the legitimate work stoppage, unless it is using these services to comply with a Maintenance of Activities Agreement, with a Board order relating to the maintenance of activities (section 87.4) or with the obligation to provide certain services to grain vessels (section 87.7).

Section 94(7) also lists certain exceptions to these rules, which are called threat or damage exceptions. The employer can use the services of the persons listed in section 94(4) if:

the employer is only using the services to deal with a situation that presents or could reasonably be expected to present an imminent or serious:
1. threat to the life, health or safety of any person;
2. threat of destruction of, or serious damage to, the employer’s property or premises; or
3. threat of serious environmental damage affecting the employer’s property or premises.
the employer has to use the services to deal with the situation because it or a person acting on its behalf cannot deal with the situation in any other way, such as by using the services of a person who is not referred to in sections 94(4)‍(a) to (d) or section 94(6); and
in the case of the services of a person referred to in sections 94(4)‍(a) to (d), the employer or person acting on its behalf gave the striking or locked-out bargaining unit employees the opportunity to perform the necessary work before using the services of that person.

The Board considers it important to process replacement worker complaints quickly to ensure that the objectives of the Code are met. It uses its expedited (accelerated) process to deal with these complaints. Please note that to allow the proper administration of the Code, the Board has modified some of the timelines mentioned in the Regulations by using its power to do so under section 46 of the Regulations.

You can access copies of the Code, Regulations, rules of procedure, forms and information circulars on the Board’s website.

You need to provide certain documents when filing your complaint

When filing your complaint, you must provide the Board with as many of the following documents as possible:

A copy of the completed Replacement Worker Complaint Form;
A copy of the Certification Order (if applicable);
A copy of the expired collective agreement;
A copy of the Maintenance of Activities Agreement or of the Board’s order directing that certain activities be maintained;
A copy of the Notice to Bargain;
A copy of the Notice of Dispute;
A copy of the Notice of Strike or Lockout;
A reference to any Board decisions about the ongoing work stoppage (if applicable);
A detailed explanation of the facts alleged and any supporting evidence of the alleged violation of section 94, if available;
A list of the workers who are on strike or locked out, including their names and job titles; and
A list of the individuals believed to be performing replacement work, if known.

If you cannot provide some of these documents, you will need to explain why.

You will need to file your complaint by using the Board’s E-Filing Web Portal or by delivering it in person, by mail or by courier to the Board’s Ottawa office. At the same time, you will need to send a copy of the completed complaint and all the supporting documents to the employer and all the other interested parties, if any.

If you do not submit the necessary documents, there could be delays in processing your complaint, or your complaint could be dismissed.

The Board will send you a letter confirming that it received the complaint

When the Board receives a replacement worker complaint, it will send a letter to the complainant, the employer and any interested parties. The Board’s letter, called the notice of complaint, will identify the Board officer assigned to the file, will ask the parties to provide written submissions and will include:

a submissions schedule; and
a date for a case management conference.

After the complaint is filed, the employer has certain obligations

Once the employer receives the notice of complaint, it must fully respond to the complainant’s allegations within two days.

Within the same two days, the employer must also send the Board the following documents:

an alphabetical list showing the full name, job classification or position title, start date, home address and telephone number of all persons working at the worksite(s) affected by the complaint who were employed or contracted by the employer as of the date the complaint was filed with the Board (this list is for the Board only and must identify managerial and supervisory personnel, members of all bargaining units and, if applicable, casual and part-time employees);
a second alphabetical list showing the same information as requested in item (a) above, without addresses and telephone numbers;
if applicable, an alphabetical list of any persons or companies employed or subcontracted by the employer at the affected worksite(s) performing work related to bargaining unit work, with the start date of the contract, a description of the work performed, copies of the relevant contracts and time sheets of subcontracted employees for the previous three months (for added context, please refer to section 94(5) of the Code);
shift schedules of the individuals who, according to the complainant, are doing replacement work;
an organizational chart showing, as of the date the complaint was filed with the Board, the relationships between the employees as well as the lines of authority between management, supervisors and subordinate employees; and
a detailed description of the nature of the employer’s business and operations.

After the employer responds to the complaint, the complainant must file a reply

Within two days of receiving the employer’s response, the complainant must file a reply. The reply is the complainant’s chance to comment on all the arguments and documents that the employer provided, including the employee list.

Time limits can only be extended in certain situations

Part I of the Code promotes common well-being through the encouragement of free collective bargaining and the constructive settlement of disputes. Resolving replacement worker complaints quickly is a priority for the Board. The Board will only extend time limits if the circumstances require it.

Documents you file with the Board need to be sent to the other party

In accordance with section 15 of the Regulations, you have to send your complaint to the responding party at the same time you file it with the Board.

Section 23 of the Regulations requires a copy of any document filed with the Board to be immediately sent to all the other parties to the complaint. This requirement does not apply to any documents marked as “for the Board only” in the above lists. You must also tell the Board, in writing, when and how you sent the document to the other party.

All documents filed with the Board, except those that it specifically finds are confidential, will be placed on the public record.

The Board will investigate the complaint

In accordance with section 16(k) of the Code, the Board will appoint an officer to supervise the conduct of the file. The Code requires parties to provide the Board’s officer with all the information and documents the officer may request.

Within 24 hours of receiving the complaint, the officer will contact the parties to discuss:

the submission timelines;
the information required at various stages of the complaint process;
the potential settlement of the complaint; and
the parties’ views on any potential interested parties and any related matters.

The Board will make a decision

After receiving the requested submissions and documents, the Board may hold a case management conference with the parties. These conferences are usually held virtually. After the case management conference, the Board may:

ask the parties to provide additional information or submissions;
order an investigation or encourage mediation;
schedule an expedited (accelerated) hearing focused on all or only certain issues;
allow or dismiss the complaint; or
make any other order it considers reasonable.

If the Board orders an investigation, it may specify details about when, where and how it should take place. The investigation will be conducted expeditiously and may require Board-appointed persons to enter the workplace, contact employees, access employer files—such as payroll records and work schedules—or do anything else necessary to determine whether the employer is using replacement workers. Parties will receive a copy of the investigation report and will have the opportunity to provide comments in writing.

As mentioned above, the Board may ask the parties to provide more documents or submissions as necessary. It may also schedule additional meetings or hearings with the parties.

After considering all the evidence and documents on file, the Board may:

order the employer to stop using replacement workers for the duration of the work stoppage;
make any other order it considers reasonable under section 99 of the Code; or
dismiss the complaint.

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