Definitions
73.1  (1) In this section, “employer” means the employer whose employees are locked out or are on strike and includes an employers’ organization or person acting on behalf of either of them; (“employeur”) “person” includes, (a) a person who exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations, and (b) an independent contractor; (“personne”) “place of operations in respect of which the strike or lock-out is taking place” includes any place where employees in the bargaining unit who are on strike or who are locked-out would ordinarily perform their work. (“lieu d’exploitation à l’égard duquel la grève ou le lock-out a lieu”) Application (2) This section applies during any lock-out of employees by an employer or during a lawful strike that is authorized in the following way: 1. A strike vote was taken after the notice of desire to bargain was given or bargaining had begun, whichever occurred first. 2. The strike vote was conducted in accordance with subsections 74(4) to (6). 3. At least 60 per cent of those voting authorized the strike. Interpretation (3) For the purposes of this section and section 73.2, a bargaining unit is considered to be, (a) locked-out if any employees in the bargaining unit are locked-out; and (b) on strike if any employees in the bargaining unit are on strike and the union has given the employer notice in writing that the bargaining unit is on strike. Use of bargaining unit employees (4) The employer shall not use the services of an employee in the bargaining unit that is on strike or is locked out. Use of newly-hired employees, etc. (5) The employer shall not use a person described in paragraph 1 at any place of operations operated by the employer to perform the work described in paragraph 2 or 3: 1. A person, whether the person is paid or not, who is hired or engaged by the employer after the earlier of the date on which the notice of desire to bargain is given and the date on which bargaining begins. 2. The work of an employee in the bargaining unit that is on strike or is locked out. 3. The work ordinarily done by a person who is performing the work of an employee described in paragraph 2. Use of others at the strike, etc., location (6) The employer shall not use any of the following persons to perform the work described in paragraph 2 or 3 of subsection (5) at a place of operations in respect of which the strike or lock-out is taking place: 1. An employee or other person, whether paid or not, who ordinarily works at another of the employer’s places of operations, other than a person who exercises managerial functions. 2. A person who exercises managerial functions, whether paid or not, who ordinarily works at a place of operations other than a place of operations in respect of which the strike or lock-out is taking place. 3. An employee or other person, whether paid or not, who is transferred to a place of operations in respect of which the strike or lock-out is taking place, if he or she was transferred after the earlier of the date on which the notice of desire to bargain is given and the date on which bargaining begins. 4. A person, whether paid or not, other than an employee of the employer or a person described in subsection 1(3). 5. A person, whether paid or not, who is employed, engaged or supplied to the employer by another person or employer. Prohibition re replacement work (7) The employer shall not require an employee who works at a place of operations in respect of which the strike or lock-out is taking place to perform any work of an employee in the bargaining unit that is on strike or is locked out without the agreement of the employee. No reprisals (8) No employer shall, (a) refuse to employ or continue to employ a person; (b) threaten to dismiss a person or otherwise threaten a person; (c) discriminate against a person in regard to employment or a term or condition of employment; or (d) intimidate or coerce or impose a pecuniary or other penalty on a person, because of the person’s refusal to perform any or all of the work of an employee in the bargaining unit that is on strike or is locked out. Burden of proof (9) On an application or a complaint relating to this section, the burden of proof that an employer did not act contrary to this section lies upon the employer. 1992, c.21, s.32, part.