Béatrice Arronis, Montréal
Marie-Pier Côté, Montréal
With the recent expansion of
internet and technological devices, more and more workers may now perform much
of their work outside the actual physical premises of their employer’s
establishment. Indeed, new technological devices have changed the meaning of
workplace, and many in the legal community have been wondering for a long time
if the current anti-replacement worker provisions of the Québec Labour Code (“Code”) adequately reflect
these changes.
While members of the legal
community have been urging the Québec legislature to review the actual wording
of the anti-replacement worker provisions for some time now, it is only
recently, on November 9th, 2011, that the Committee on Labour and
the Economy of the Québec National Assembly (“Committee”) tabled its much anticipated report concerning the
modernization of the anti-replacement worker provisions of the Code. In this report, the Committee’s
sole recommendation to the Labour Minister is to “review the notion of
establishment as well as the notion of employer, provided by the Code, to reflect changing economic and
technological realities to establish an equitable balance of power between the
negotiating parties in a labour relations conflict” [our translation].
The Committee’s report was tabled
right after the Québec Court of Appeal had to specifically study and explain
the notion of establishment, in the context of a lock-out declared by Journal
de Québec, one of the hundreds of corporations owned by Québécor Média Inc. (“QMI”), which publishes one of the main
newspapers in Québec City. In April 2007, after negotiations failed with some
of its unionized workforce, Journal de Québec decided to declare a lock-out.
The lock-out concerned
approximately 65 production employees, including journalists, photographers,
statisticians and messengers. However, after having declared the lock?out,
Journal de Québec kept on publishing its newspaper every day with only ten
managers for editing purposes. In fact, Journal de Québec was able to continue
its daily publishing by contracting out services to third parties, such as a
press agency for photographs, a marketing and communication agency for messenger
services and a public relations business for journalists (“Third Parties”).
Further, Journal de Québec
ended up using the articles of Canoë, an electronic media also owned by QMI as
well as those of Nomade, a press agency designed to be similar to the Canadian
Press, but entirely dedicated to QMI.
In these circumstances, two unions
representing 17 employees, journalists, photographers and messengers, decided
to file complaints with the Commission des relations du travail (“Commission”) to contest the use of the
Third Parties, claiming that they were, in fact, illegal “scabs”.
The relevant anti-replacement
worker provision of the Code reads as
follows:
109.1. For
the duration of a strike declared in accordance with this Code or a lock-out,
every employer is prohibited from
(…)
(b) utilizing, in the
establishment where the strike or lock-out has been declared, the services
of a person employed by another employer or the services of another contractor
to discharge the duties of an employee who is a member of the bargaining unit
on strike or locked out; [our
underlining]
However, there is no
definition of “establishment” within the Code.
The two unions argued that Journal
de Québec simply used the services of individuals employed by other employers,
the Third Parties, in its establishment to provide the same services as those of
the locked-out employees. They emphasized that journalists usually do not
provide their services within a defined establishment, where they receive
instructions, perform their work and punch out once the day is over. Rather,
they may enter their employer’s premises once in a while to report but they perform
the bulk of their work “where the news is”. In that context, they suggested to
the court that the notion of establishment should be understood to be the
“territory covered by the newspaper, where the news occurs”.
Journal de Québec, in turn,
alleged that the services of the Third Parties were never rendered in the establishment
where the lock-out was declared. Since the legislature knowingly decided to
permit employers to sub-contract to third parties during a lock-out, as long as
the services are to be rendered outside the establishment where the lock-out
was declared, Journal de Québec claimed it was acting in conformity with the
law.
Decision of the Commission
In an attempt to modernize
the actual anti-replacement worker provisions of the Code, the Commission held that to properly understand the notion of
“establishment”, one should, in comparing the functioning of an enterprise
before and during a lock-out, determine if (1) the same work is being done and,
if so, (2) if it is provided in another location than that of the locked-out
employees. In view of this reasoning, the Commission concluded that even if the
Third Parties never actually entered Journal de Québec’s premises, but rather
communicated their work electronically, they had rendered their services within
the establishment where the lock-out had been declared, in contravention of the
Code.
Decision of the Superior
Court
In the context of an
application for review, the Superior Court overturned that decision, stating
that the reasoning of the Commission went far beyond the intent of the
legislature. Although the current anti-replacement worker provisions are likely
to disadvantage employees providing their services outside the premises of an
employer, and advantage the ones strictly providing their work within a
definite establishment, the reasoning of the Commission deviated from the
letter of the law. By verifying if the work of the replacement workers was done
in another location than that of the locked-out employees, the Commission asked
the wrong question and modified the law.
Decision of the Court of Appeal
The Court of Appeal, in a unanimous
judgment, upheld the Superior Court decision and reiterated that the
Commission’s finding was not reasonable. Indeed, even if the replacement
workers do not provide their services in another location than that of the locked-out
employees, it does not necessarily mean that they do provide their services in
the establishment where the lock-out was declared. Thus, the condition imposed
by the Code is not that the work of replacement
workers should not be executed in places where the locked-out employees worked,
but simply that the work must not be done where the employer theoretically
locked its doors. In fact, the legislature’s intent was not to avoid
replacement workers, but rather to avoid violence in the employer’s establishment.
Conclusion
The Court of Appeal
determined that the Commission improperly modified the law by declaring sub-contracting
illegal where the work is done outside the physical location of the enterprise where
the employees used to work.
The Court of Appeal’s
decision determined that any change to the notion of establishment, as defined
by the Code, must come from the legislature.
The Committee, in turn, has urged the legislature to conduct such a review.
Within the context of the recent and widely publicized lock-out of Rio Tinto
Alcan employees, we will continue to keep you apprised of any further
developments in this area which promises to have a significant impact on labour
relations in Québec.
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