Labour disputes are among the most high-stakes moments in the employment relationship. When collective bargaining breaks down, and a strike or lockout occurs, both unions and employers look for ways to maintain leverage. One of the most contentious strategies available to employers is the use of replacement workers, often called “scabs.”

In Canada, the legality of replacement workers varies significantly depending on jurisdiction. Alberta, in particular, has taken a distinct approach compared to provinces like British Columbia and Quebec, where stricter prohibitions exist. For employers operating in Alberta, understanding the legal framework governing replacement workers is essential to managing labour disputes while minimizing legal risk.

What Are Replacement Workers?

Replacement workers are individuals who perform the duties of employees in a bargaining unit during a strike or lockout. These workers may include newly hired employees, contractors, managers, or even employees from other locations.

The use of replacement workers is often controversial because it can reduce the effectiveness of a strike by allowing the employer to continue operations. At the same time, employers view replacement workers as a legitimate tool to mitigate financial loss and maintain business continuity during labour disruptions.

Alberta’s Legal Framework: A Permissive Approach

Unlike some other Canadian jurisdictions, Alberta generally permits the use of replacement workers during a lawful strike or lockout. Under Alberta’s labour regime, there are no broad statutory prohibitions on employers hiring or using replacement workers in most circumstances. This places Alberta among the more employer-friendly jurisdictions in Canada when it comes to managing labour disruptions.

This permissive approach reflects a policy balance that allows employers to continue operating while still recognizing employees’ right to strike. It also distinguishes Alberta from provinces such as British Columbia and Quebec, where legislation restricts or outright bans the use of replacement workers during labour disputes.

Essential Services Agreements

While Alberta law is generally permissive, there is an important exception: essential services. Where employees perform essential services—meaning services necessary to protect life, health, safety, or public security—an Essential Services Agreement (ESA) must typically be in place before a strike or lockout can occur. An ESA typically provides that sufficient bargaining unit employees will continue to work, providing essential services, in the event of a strike or lockout.

In these circumstances, the use of replacement workers is restricted. Specifically, where an ESA applies, employers may be prohibited from hiring replacement workers during a work stoppage.

This limitation reflects a public policy concern: ensuring that critical services are maintained without undermining the carefully negotiated balance between unions and employers in essential sectors.

Continued Employment Status of Striking Workers

Even where replacement workers are used, Alberta law maintains important protections for striking or locked-out employees.

Employees who participate in a lawful strike or are subject to a lockout:

• Remain employees of the employer;
• Cannot be terminated solely for participating in the strike or lockout; and
• Are entitled to reinstatement following the dispute.

In fact, Alberta law provides that returning employees are entitled to reinstatement in preference to replacement workers hired during the dispute.

This means that replacement workers are, by definition, temporary. Employers cannot permanently displace unionized employees simply because they exercised their right to strike.

Practical Use of Replacement Workers in Alberta

Although legally permissible in many cases, the use of replacement workers in Alberta is not without risk.

Operational Considerations

Employers must consider whether replacement workers can realistically maintain operations. In many industries, especially those requiring specialized training or certification, it may be difficult to find qualified replacements on short notice.

There may also be safety concerns, particularly in high-risk sectors such as construction, energy, or manufacturing.

Labour Relations Impact

The use of replacement workers can significantly escalate tensions between employers and unions. It may prolong disputes, harden bargaining positions, and damage long-term workplace relationships.

Employers should carefully weigh whether short-term operational gains outweigh potential long-term costs.

Legal Risk

While Alberta permits replacement workers, their use must still comply with broader labour law obligations.

For example:

• Employers cannot use replacement workers in a manner that constitutes an unfair labour practice;
• Actions that interfere with union representation rights may still be challenged; and
• Missteps during a strike or lockout can lead to proceedings before the Alberta Labour Relations Board.

Federal vs. Provincial Divide: A Growing Distinction

Recent developments at the federal level have introduced a significant contrast with Alberta’s approach.

As of June 20, 2025, amendments to the Canada Labour Code prohibit the use of replacement workers in most federally regulated workplaces during strikes and lockouts. This ban applies to industries such as banking, telecommunications, airlines, railways, and interprovincial transportation.

Under the federal regime, employers are generally prohibited from using replacement workers, except in limited circumstances, such as threats to safety or property.

By contrast, Alberta’s provincial regime continues to allow replacement workers in most circumstances. This creates a dual system in Canada. Employers must therefore first determine whether they fall under federal or provincial jurisdiction before making decisions during a labour dispute.

Strategic Considerations for Employers

When faced with a potential strike or lockout, employers in Alberta should take a strategic approach to the question of replacement workers.

Assess Jurisdiction

The first step is determining whether the workplace is federally or provincially regulated. This will dictate whether replacement workers are permitted at all.

Evaluate Essential Services Obligations

Employers in sectors involving public safety must consider whether an Essential Services Agreement applies and whether it restricts the use of replacement workers.

Consider Bargaining Strategy

The decision to use replacement workers should align with broader bargaining objectives. In some cases, maintaining operations may strengthen the employer’s position. In others, it may entrench conflict and delay resolution.

Ensure Legal Compliance

Employers should ensure that any use of replacement workers complies with the Labour Relations Code and does not expose the organization to unfair labour practice claims.

Replacement Workers and Good Faith Bargaining

Even where replacement workers are permitted, employers remain bound by the duty to bargain in good faith.

This means that employers cannot:

• Use replacement workers as a means of undermining the union’s representational capacity; or
• Engage in conduct designed to avoid reaching a collective agreement.

While Alberta law does not impose a blanket ban, the improper use of replacement workers could still give rise to legal challenges if it is perceived as interfering with the collective bargaining process.

Reinstatement Rights and Post-Strike Issues

Once a strike or lockout ends, employers must navigate the return-to-work process carefully. Unionized employees have a statutory right to reinstatement, typically with priority over any replacement workers.

This can create logistical and legal challenges, particularly where replacement workers have been employed for extended periods.

Employers should plan for:

• Workforce reintegration;
• Potential grievances or disputes; and
• Ensuring compliance with collective agreement obligations.

Getz Collins and Associates: Helping Alberta Employers Navigate Labour-Related Business Disruptions

Navigating a strike or lockout in Alberta requires careful planning, strategic decision-making, and a clear understanding of the legal landscape surrounding replacement workers. Missteps can expose employers to significant legal risk, operational disruption, and long-term damage to workplace relationships.

At Getz Collins and Associates, our employment and labour law team advises employers on all aspects of labour disputes, including strike preparation, essential services agreements, collective bargaining strategy, and compliance with applicable legislation. We provide practical, business-focused guidance to help employers protect their operations while minimizing legal exposure.

If your organization is facing a potential strike or lockout, or if you need proactive advice on labour relations strategy, contact our team online or call (587) 391-5600 to ensure you are fully prepared.