December 3, 2020
Practical Law Canada Competition (of which I am Lawyer Editor) has published a new Legal Update, which discusses the Competition Bureau’s (Bureau) recent statement on no-poaching and wage-fixing agreements between competing employers. Such agreements have increasing been the subject of debate following U.S. enforcement in relation to tech company no-poaching agreements, enforcement guidance issued by the U.S. Department of Justice and Federal Trade Commission and, in Canada, questions including by Parliamentarians whether grocery chain decisions to cut employee wages violated the federal Competition Act. Contrary to the guidance issued by U.S. antitrust enforcement agencies, Canada’s Bureau has taken the narrower position that no-poaching and wage-fixing agreements between employers can be challenged civilly under section 90.1 of the Competition Act but not criminally under section 45 of the Act. Below is an excerpt with a link to the full Legal Update.
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On November 27, 2020, the Competition Bureau (Bureau) issued a statement setting out its position on the application of the Competition Act, R.S.C. 1985, c. C-34 to no-poaching and wage-fixing agreements between employers (see Competition Bureau statement on the application of the Competition Act to no-poaching, wage-fixing and other buy-side agreements, Competition Bureau, November 27, 2020).
According to the Bureau, since the United States Department of Justice’s (DoJ) Antitrust Division and Federal Trade Commission (FTC) issued guidance that they would criminally investigate naked no-poaching and wage-fixing agreements unrelated to any legitimate collaboration, the Bureau has also received growing interest from the Canadian legal and business communities as to the treatment of such agreements under the Competition Act.
The question of whether such agreements are illegal under the Competition Act was also recently raised by a Liberal Minister of Parliament (MP) in the context of major grocery chains’ decisions to cancel, on the same day, pandemic pay for their workers, which led to a Parliamentary hearing.
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For the full Legal Update, see: Competition Bureau Reiterates Narrow Enforcement Position For No-Poaching and Wage-Fixing Agreements Between Competing Employers.
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