DHL Express Requests Permission to Violate Canadian Labour Laws

DHL's Lawful Right to Use Replacement Workers Ends on June 20

Back in the 1990s, I worked on a case that led to the first unionized Walmart in the world, in Windsor Ontario. I worked for the Steelworkers Union, which had lost a certification vote at the store. However, the OLRB ruled that Walmart had tainted that vote by essentially hinting to the employees that if they voted to unionize, the store could close and they would all be fired. The OLRB issued “remedial certification” as the remedy for Walmart’s illegal threats.

In the months that followed, Walmart heavily lobbied the sympathetic Mike Harris “Open for Business” Conservatives to enact what became known as “the Walmart Bill”: the law said that no matter how egregiously the employer behaves in the period leading up to a certification vote, the OLRB cannot certify the union as a remedy. All the Board could do is order a new vote.

I remember going to a briefer on the Walmart Bill at the Labour Board at which a government representative explained the reform. Someone in the room chimed in, “So basically you’re saying that an employer could threaten to kill workers who vote for a union and the labour board could just order a vote?” The government officials scoffed and suggested that hyperbola like that wasn’t helpful. The law passed and almost immediately came the infamous Baron Metal decision, in which the employer hired known violent gang members to roam the factory threatening the employees and their families’ lives if the Steelworkers won a certification vote. All the OLRB could do was order another vote, which predictably the Steelworkers lost. Funny thing about being told you will be killed for voting for a union. The threat seems to stay with you. As soon as the Harris Conservatives were voted out, the Liberals restored remedial certification and you can find it today in Section 11(2) of the Labour Relations Act.

DHL’s Incredible Request to Canadian Government

Anyways, I was reminded of the Walmart Bill today when I read a crazy letter written by CEOs of DHL Express to none other than the Prime Minister of Canada and the Minister of Jobs and Families (remember when we had Ministers of Labour?).

This letter (which spells “labour” as “labor”, so we know who wrote it) is ostensibly to complain about the new law coming into effect tomorrow (Bill C-58) that will ban use of replacement workers by federally regulated employers. DHL is interested in this law because it will bring to an end their ongoing use of scab workers who were hired to replace locked out workers represented by Unifor.

It’s a truly nutty situation. The federal government, with rare all-party unanimous support, passed Bill C-58 in June 2024, a year ago. Even the Pierre Poilievre Conservatives expressed full throated support for the anti-scab legislation: “Common sense Conservatives supported Bill C-58, we continue to support it, and a future Conservative government will support it.” Yet, despite this rare showing of bi-partisan support, the government delayed implementation of the law for a year. So we had a government announcing that the use of replacement workers is a terrible practice that needs to be banned, but at the same time they said, “but employers can still engage in this terrible practice for one more year.”

And so we end up with DHL busing in scab workers past the Unifor picketers right up to the final seconds before Bill C-58 comes into effect. But now, a new twist!

In the letter, DHL asked the feds to use Section 107 of the Canada Labour Code to protect DHL from the law. I should preface my next statement with the comment that perhaps I am misreading what the letter says, because it is seems so nutty that part of me believes I must be misreading. Maybe DHL means to ask the government to impose interest arbitration, like Westjet last summer. But the letter never says that. It doesn’t refer to arbitration at all. Instead, it requests that the government take steps “to allow DHL to continue operating while we negotiate”.

That doesn’t sound like a request for arbitration. It sounds like a request that the Canadian government order the CIRB to carve out an exception to the new anti-scab law to permit DHL to continue using scab workers for as long as negotiations continue. In essence, DHL appears to be requesting a right to break the law so that it retains an advantage in negotiations that Bill C-58 is specifically designed to neutralize.

Read the key passage for yourself, which follows a long rant about Bill C-58 and threats to the job security of workers:

DHL: Therefore, we respectfully request the Minister of Jobs and the Government’s intervention under section 107 of the Canada Labour Code to allow DHL Express to continue operating while we negotiate in good faith with the union. We have witnessed similar interventions during the ongoing strike at Canada Post, and we believe such action is warranted in our case, given that we provide essential logistics services to Canadians. This intervention is critical not only for the survival of DHL Express in Canada but also for the thousands of Canadians and businesses that rely on our services. Our commitment is to continuing bargaining in good faith, and we are confident that a balanced approach to labor relations can be achieved without resorting to measures that could jeopardize the livelihoods of many.

Section 107 is the beloved new tool “discovered” by the Liberals last year. Although the section has been there for decades, it took deep thinking Liberals in 2024 to conclude that it empowers governments to end work stoppages by simply sending an email to the CIRB telling it to order the work stoppage to end! No need to even bother with the messy democratic process of enacting back-to-work legislation even. Just shoot off an email and voila! Work stoppage over.

Odds are that the use of Section 107 in this manner will ultimately be ruled a Charter violation. Cases are pending. But for now, it seems sensible for DHL to believe that the Liberals new-found love affair with Section 107 makes it at least possible that their outlandish request will be taken seriously in Ottawa. “Dear sirs, would you please use that Section 107 thingy you used a few times in the past year to allow us to keep using scab workers even though ‘technically’ it’s illegal for us to do so. Thanks.”

It would be pure lunacy for the government to accede to this crazy request. I mean, even Walmart had the decency to lobby for legislative reform to avoid Canadian labour laws they didn’t like. It didn’t have the audacity to ask for a special carve out that only applies to Walmart. Imagine the precedent it would set if the Liberals decided to start handing out special “get out of the law free” passes to corporations.

Moreover, it would take some serious creative reading to interpret Section 107 as granting the government the power to direct the Board to permit a single corporation to use scab workers in contravention of the Canada Labour Code. Look at the Section again:

The Minister, where the Minister deems it expedient, may do such things as to the Minister seem likely to maintain or secure industrial peace and to promote conditions favourable to the settlement of industrial disputes or differences and to those ends the Minister may refer any question to the Board or direct the Board to do such things as the Minister deems necessary.

One thing we know about the use of replacement workers is that it definitely does NOT secure “industrial peace”. Rather, it raises tensions and contributes to higher risk of violence and conflict and creates anger and hostility in the workforce that continues long after a settlement is reached. This is the very reason Bill C-58 was passed in the first place! You can’t accept the need for Bill C-58 and at the same time conclude that allowing replacement workers at DHL will maintain and secure peace and promote the settlement of the dispute.

That is not to say that the government won’t step into this dispute eventually, as it has done on many occasions in the last year. It could order arbitration, either through legislation or the magic Section 107 power. It could appoint a special investigator as it did at Canada Post and prohibit work stoppages until that process is done. We’ll see. But I would be shocked if a government would grant a special pardon to a single corporation to violate Canadian law and policy.

That would be truly nutty.