Canada Industrial Relations Board Dismisses Complaint Against Employer's Use of Replacement Workers

Reasons for decision Canadian Union of Public Employees, Local 4317, complainant, and [NAME], respondent . Board File: 039190-C Neutral Citation: 2026 [NAME] 1225 January 23, 2026 The panel of the Canada Industrial Relations Board (the Board) was composed of [NAME], Chairperson, sitting alone pursuant to section 14(3) of the Canada [NAME] (the [NAME] ). Counsel of [NAME], for the Canadian Union of Public Employees, Local 4317; [NAME], for [NAME]. [ 1 ] Section 16.1 of the [NAME] provides that the Board may decide any matter before it without holding an oral hearing. Having reviewed all of the material on file, the Board is satisfied that the documentation before it is sufficient for it to determine this complaint without an oral hearing.

I. Nature of the Matter [ 2 ] The Canadian Union of Public Employees, Local 4317 (the union), filed an unfair labour practice complaint with the Board, pursuant to section 97(1) of the [NAME] . In its complaint, the union alleges that [NAME] (the employer or [NAME]) used replacement workers in violation of the provisions of section 94(4) of the [NAME] and requests that a safeguard order be issued. [ 3 ] As the parties were unable to reach an agreement during a mediation session, the complaint was referred to the Board for determination. [ 4 ] For the reasons set out below, the Board finds that the employer has not violated the provisions of section 94(4) of the [NAME] . [ 5 ] The complaint is therefore dismissed.

II. Factual Background [ 6 ] The employer is a company that operates sections 62 and 77 of the [NAME], where container transfer operations take place with respect to both the reception and shipment of containers. [ 7 ] Each section includes access points (pedestrian, truck and rail), administrative offices, a garage for machinery maintenance and facilities on the docks where the operations take place. [ 8 ] [NAME] employees include supervisors, superintendents, clerks, administrative personnel and management personnel. [ 9 ] The employer is located at [ADDRESS] in Montréal, Quebec. [ 10 ] The longshoring duties are performed by longshorepersons and checkers. The [COMPANY] is the recognized employer for these employees. [ 11 ] [NAME]’s customers include shipping, rail and trucking companies that transit through the [NAME]. [ 12 ] Pursuant to Board certification order no. 10232-U, the union is the certified bargaining agent for the following group of employees: all employees of [NAME] excluding the following classifications: secretary to the assistant director general, executive secretary, informatics coordinator, informatics specialist, manager - purchasing and stores, superintendents, supervisors, directors and those above, as well as those already covered by a certification order. [ 13 ] The parties were bound by a collective agreement that expired on December 31, 2024. [ 14 ] On September 3, 2024, the employer sent the union notice to bargain, pursuant to section 49(1) of the [NAME] . [ 15 ] On August 27, 2025, the parties signed an agreement, pursuant to section 87.4(2) of the [NAME] , in which they agreed that no activities performed by the employees in [NAME] would be maintained in the event of a strike or lockout. [ 16 ] On September 18, 2025, the union sent the employer a strike notice, pursuant to section 87.2 of the [NAME] . Further to this strike notice, the employees in [NAME] stopped performing their work as of September 22, 2025. [ 17 ] In its complaint, the union alleges that the employer has violated sections 94(4)(a) and (c) of the [NAME] by using, on several occasions since October 9, 2025, the services of persons hired after the date on which notice to bargain was given and the services of employees transferred from another workplace to perform work that is the responsibility of employees in the striking [NAME]. [ 18 ] According to the union, the employer has used the services of replacement workers to perform the work of the maintenance transportation agents at the trucking office at the Racine Terminal, located at [ADDRESS]. [ 19 ] In particular, the union alleges that four workers are performing duties related to the trucking agent positions covered by its certification. The union identifies the following employees of the employer who have allegedly performed such duties: [NAME], Programmer Analyst; [NAME], Network Administrator; [NAME], Human Resources Coordinator; and [NAME], Human Resources Coordinator. [ 20 ] The union filed an affidavit by [NAME], with supporting photos, in support of its complaint. [ 21 ] The union also alleges that another person, [NAME], is conducting an internal analysis of certain operational data related to vessel movement and to the reception of merchandise and the validation and compilation of information and that this analysis work falls within the scope of [NAME]. [ 22 ] The employer states that these five individuals were working for it before the date on which notice to bargain collectively was given. The employer provided evidence of these individuals’ dates of hire , which shows that the individuals in question were hired on the following dates: 1. [NAME]: hired on May 23, 2023, as a trainee, and on July 17, 2023, on a permanent basis. 2. [NAME]: hired on January 20, 2003. 3. [NAME]: hired on September 16, 2019. 4. [NAME]: hired again on February 13, 2023. 5. [NAME]: hired in 1995 until the winter of 2025 and has continued as a dependent contractor since the winter of 2025, in the early retirement phase, after having held the position of logistics supervisor. [ 23 ] Except for the duties performed by [NAME], the employer does not deny that the persons identified by the union have performed [NAME] work. [ 24 ] Regarding the duties performed by [NAME], the employer explains that the analyses assigned to her do not fall within the scope of [NAME]. The employer explains that this type of analysis was regularly conducted before the strike began and that it is never assigned to the employees in [NAME].

III. Positions of the Parties A. The Union [ 25 ] The union alleges that the five identified workers do not fall within the permitted exceptions under section 94(4) of the [NAME] and that, accordingly, the employer cannot use their services to perform the duties of striking employees. [ 26 ] The union points out that the alleged circumstances do not fall within any of the situations set out in section 94(7)(a) of the [NAME] , which allows the employer to use replacement workers to deal with certain imminent or serious threats. [ 27 ] The union argues that, in this case, the employer’s use of replacement workers is solely for the purpose of continuing its operations, which is not permitted by the [NAME] . [ 28 ] In short, the union states that the employer is acting in such a way as to interfere with its right to strike and the balance of power that this right seeks to guarantee. [ 29 ] Among the requested remedies, the union asks the Board to order the employer to cease using, for the duration of the labour dispute, the services of any person mentioned in sections 94(4)(a) to (d) of the [NAME] to perform [NAME] work. B. The Employer [ 30 ] The employer raises two main arguments in response to the complaint. [ 31 ] First, the employer states that the workplace of the identified persons is located at [NAME] in Montréal, at [ADDRESS]. The employer points out that all [NAME] employees work in the same workplace. According to the employer, none of the employees in question were transferred from another workplace. [ 32 ] Furthermore, the employer argues that [NAME] and [NAME] are not “employees” within the meaning of Part I of the [NAME] . [ 33 ] More specifically, the employer submits that [NAME], who are the two individuals who work closely with the Executive Director, Human Resources and Administration, are involved in all aspects of industrial relations, including the collective bargaining process in question. They participate in strategic human resources and industrial relations planning, and they discuss all aspects of industrial relations. They also participate in the grievance and arbitration procedure and have access to information on industrial relations policies and strategies, disciplinary measures and employee files. Finally, they are in regular contact with employees regarding their personal situations, industrial relations issues and other confidential aspects. [ 34 ] [NAME], the employer submits that they have access to computer systems, which includes access to personal and confidential information, including industrial relations and financial information. Mr. [NAME] is required to work with confidential data belonging to the employer, including industrial relations data. Mr. [NAME] works with financial databases that contain financial information and budgets related to industrial relations. C. The Union’s Reply [ 35 ] In its reply, the union points out that the employer did not provide any information about the hiring dates of the individuals in question. Following a subsequent request from the Board, the employer provided this information. [ 36 ] According to the union, there is no indication of when the identified individuals were trained to perform [NAME] work. [ 37 ] The union argues that the concept of workplace should not be reduced to a mere geographic connection but should instead be interpreted as covering the place where people actually and empirically perform their work. [ 38 ] The union emphasizes that the new prohibition on the use of replacement workers must be interpreted in light of its objectives, which are to protect the right to strike, to restore the balance of power between the parties and to reduce the length of labour disputes. [ 39 ] As for the status of the identified persons, the union submits that [NAME] do not perform management functions within the meaning of the [NAME] . However, the union admits that they have access to industrial relations information. [NAME], the union submits that the employer has not demonstrated that they have access to confidential industrial relations information to perform industrial relations duties. In this regard, the union relies on the principles that the Board set out in [COMPANY]. , 2015 [NAME] 760. [ 40 ] [NAME], the union argues that there is a lack of precision and evidence on the employer’s part to support its position.

IV. Analysis and Decision [ 41 ] As of June 20, 2025, the [NAME] prohibits the use of replacement workers during a legal work stoppage while setting out certain exceptions. [ 42 ] Bill C-58, which came into force on June 20, 2025, changed the scope of the prohibition on the use of replacement workers by removing the need to demonstrate an intention to undermine the union’s representational capacity. [ 43 ] The new section 94(4) of the [NAME] provides that, during a legal work stoppage, the duties performed by the employees in the striking or locked-out [NAME] may not be performed by the following persons, subject to the exceptions set out in section 94(7): 94 (4) … (a) 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 on which notice to bargain collectively is given; (b) any contractor, other than a dependent contractor, or any employee of another employer; (c) any employee whose normal workplace is a workplace other than that at which the strike or lockout is taking place or who was transferred to the workplace at which the strike or lockout is taking place after the day on which notice to bargain collectively is given; (d) any volunteer, student or member of the public. [ 44 ] Section 94(4) does not contain a general prohibition on the use of replacement workers. In adopting Bill C-58, [NAME] instead chose to prohibit only the use of certain categories of persons to perform the work of striking or locked-out employees. [ 45 ] Furthermore, the [NAME] does not reverse the onus of proof for complaints alleging a violation of section 94(4) of the [NAME] , unlike those alleging a violation of section 94(3) of the [NAME] , pursuant to section 98(4). As such, the onus is on the union to prove that the employer has failed to comply with its obligations under section 94(4). [ 46 ] In this case, the union has invoked sections 94(4)(a) and (c). The union alleges that [NAME] is using persons who were hired after the date on which notice to bargain collectively was given as well as employees whose normal workplace is a workplace other than that at which the legal strike is taking place. [ 47 ] The situation in the present matter is relatively straightforward, and the relevant facts are essentially undisputed. A. [NAME] and [NAME]

1. Alleged Violation of Section 94(4)(a) of the [NAME] [ 48 ] With respect to the four persons who are performing duties of the trucking agent positions covered by the certification, that is, [NAME] and [NAME], they were all hired by [NAME] before the date on which notice to bargain collectively was given. [ 49 ] At the Board’s request, the employer filed the employment contracts for these four individuals, which show that they were all hired before September 3, 2024, that is, before the date on which the employer gave the union notice to bargain. [ 50 ] Thus, regardless of whether the four persons in question are “employees” within the meaning of the [NAME] , or whether they perform management functions or are employed in a confidential capacity in matters related to industrial relations, because they were hired in one of these capacities before notice to bargain was given, the provisions of section 94(4)(a) of the [NAME] have not been violated . [ 51 ] Indeed, the Board is of the view that an employer violates section 94(4)(a) only in the event that an employee, a person performing management functions or a person employed in a confidential capacity in matters related to industrial relations, who was hired after the date on which notice to bargain was given , performs [NAME] work. [ 52 ] In other words, an employer that uses the services of employees hired before notice to bargain was given, or the services of persons who perform management functions or are employed in a confidential capacity in matters related to industrial relations, hired before notice to bargain was given, is not violating the provisions of section 94(4)(a) of the [NAME] . [ 53 ] Accordingly, the Board finds that the employer has not violated the provisions of section 94(4)(a) by using the services of [NAME] and [NAME] to perform duties normally performed by employees in [NAME]. [ 54 ] In response to the union’s arguments, the Board also wishes to note that the date on which employees, persons who perform management functions or persons who are employed in a confidential capacity may have been trained to perform [NAME] work is not relevant to the analysis that the Board must perform to determine whether section 94(4)(a) of the [NAME] has been violated . It is the hiring date, not the training date, that is relevant to the application of section 94(4)(a).

2. Alleged Violation of Section 94(4)(c) of the [NAME] [ 55 ] The union invites the Board to interpret the concept of “workplace” in a way that does not reduce it to a mere geographic connection. According to the union, the Board must consider the workplace where persons actually perform their duties. [ 56 ] In the Board’s view, the term “workplace” refers to a geographic component, which takes into account the place where the employees, who are in a legal work stoppage situation, perform their duties. This geographic component must be identified in each case, taking into account the factual circumstances of each situation. [ 57 ] In this case, the Board finds that the striking employees’ workplace is located at [ADDRESS] in Montréal. Therefore, “a workplace other than that at which the strike… is taking place,” within the meaning of section 94(4)(c), refers to a geographic location that is separate from the workplace at which the strike is taking place. [ 58 ] In this case, the striking employees’ workplace is the same workplace as that at which the persons who are the subject of the complaint were performing their duties before the employer notified the union of its intention to bargain. [ 59 ] The union did not file any evidence that could establish that the normal workplace of the individuals who are the subject of the complaint is a workplace other than the [NAME] workplace, located at [ADDRESS], or that they were transferred to the workplace at which the strike is taking place after the date on which notice to bargain was given. [ 60 ] In the circumstances, the Board accepts the employer’s explanation that all [NAME] employees work at the same workplace, located at [ADDRESS] in Montréal, and finds that the normal workplace of [NAME] and [NAME] is the same workplace as that at which the legal strike is taking place. [ 61 ] That said, the Board shares the union’s view that the interpretation of section 94(4) must take into account the objectives of the legislation, which include, among others, protecting the right to strike and the integrity and viability of bargaining units. However, the clear meaning of the provisions does not allow the Board to find that [NAME] intended to completely prohibit the use of replacement workers in every case or to prohibit the employer from continuing its operations in all circumstances. [NAME] [ 62 ] According to the email submitted into evidence by the union and signed by the Executive Director, Human Resources and Administration, the work mandate given to [NAME] was to conduct an internal analysis of certain operational data related to vessel movement and the reception of merchandise. [ 63 ] This analysis work is an exercise in validating and compiling information for the purposes of monitoring and continuously improving the company’s processes.

1. Alleged Violation of Section 94(4)(a) of the [NAME] [ 64 ] [NAME] was hired by the employer in 1995. In the winter of 2025, after working as a logistics supervisor, she continued to work for [NAME] as a dependent contractor, in an early retirement context. [ 65 ] For the purposes of Part I of the [NAME] , the definition of “employee” includes “dependent contractors”: employee means any person employed by an employer and includes a dependent contractor and a private constable, but does not include a person who performs management functions or is employed in a confidential capacity in matters relating to industrial relations. ( employé ) (emphasis added) [ 66 ] Pursuant to this definition, the Board finds that [NAME] was still an “employee” within the meaning of the [NAME] when the alleged facts occurred. [ 67 ] Therefore, in assuming (and without deciding whether the duties performed by [NAME] fall within the scope of [NAME]), the Board finds that the employer did not violate the provisions of section 94(4)(a) of the [NAME] because [NAME] was an “employee” within the meaning of the [NAME] before the date on which notice to bargain collectively was given and she remained an employee within the meaning of the [NAME] thereafter, including when the alleged facts occurred, even though her status was changed to that of dependent contractor as of the winter of 2025. [ 68 ] Accordingly, the Board finds that it is not necessary to resolve the factual debate as to whether the duties performed by [NAME] constitute duties performed by the employees of [NAME] affected by the strike.

2. Alleged Violation of Section 94(4)(c) of the [NAME] [ 69 ] The Board also finds that the employer has not violated the provisions of section 94(4)(c) with respect to the duties performed by [NAME]. [ 70 ] No evidence establishes that [NAME]’ normal workplace is a workplace other than that at which the strike is taking place or that she was transferred to the workplace at which the strike is taking place after the date on which notice to bargain was given. [ 71 ] As mentioned, the employer notes that all the persons working for [NAME] work from the same workplace, located at [ADDRESS] in Montréal. [ 72 ] Because the union has not presented any evidence to the contrary, and in applying the principles set out above, the Board finds that [NAME]’ normal workplace is the same workplace as that at which the work stoppage is taking place.

V. Conclusion [ 73 ] For the above-noted reasons, the Board finds that the employer has not violated the provisions of sections 94(4)(a) and (c) of the [NAME] . Given this conclusion, it is not necessary for the Board to rule on the request for a safeguard order. [ 74 ] Consequently, the Board dismisses the complaint. [ 75 ] For the Board, SEQ CHAPTER \h \r 1 Translation ____________________ [NAME]