In Cascades,1 the Commission des relations du travail (the "Commission") determined that the concerted refusal to work overtime constitutes a slackening of work within the meaning of section 108 of the Quebec Labour Code (the "Code") and not a strike.
When the events took place, Cascades Fine Papers Group Inc., Rolland Division ("Cascades") and the Communications, Energy and Paperworkers Union of Canada, Local 174 (the "Union") were negotiating the renewal of a collective agreement and had not exercised their right to lock-out, in the case of Cascades, or right to strike, in the case of the Union.
On September 27, 2010, Cascades applied to the Commission to have an order granted under sections 108, 118 and 119 of the Code, arguing that the Union and the members identified in the application had ordered, encouraged or supported a slackening of work designed to limit production by refusing to work overtime.
This proceeding was temporarily suspended because the Union agreed to comply with the proposed order. Alleging that the Union had failed to uphold its end of the agreement, Cascades reapplied to the Commission on October 27, 2010.
In support of its application, Cascades explained that the establishment in question operated continuously, i.e., 24/7. To ensure operational continuity, the jobs required for production had to be occupied on an ongoing basis by employees. The collective agreement specified that employees had to remain on the job and work overtime if their co-workers assigned to the following shift did not show up at the agreed time.
In view of the facts presented by Cascades, the Commission allowed the application. An interim order was rendered on November 1, 2009 requiring, among other things, that the respondents cease a slackening of work designed to limit production, including [translation] "systematically refusing, on a concerted basis, to work overtime." It also ordered the employees, who were members of the Union, to immediately recommence working overtime. A few days later, as part of the deliberations regarding the permanent order, the Union maintained that an "overtime strike" did not constitute a "slackening of work designed to limit production" within the meaning of section 108 of the Code. In the Union's opinion, a strike and a slackening of work are two different concepts, i.e. an overtime strike is a recognized form of strike and therefore legal under the circumstances because the right to strike had been acquired.
Cascades claimed the opposite and requested that the orders be extended until the right to strike or lock-out was exercised or until a collective agreement was signed, whichever came first. In support of its claims, Cascades invoked the principles retained by the Labour Court in Gohier2: [translation] "several types of slackening of work within the meaning of section 108 may occur, including decreased overtime with the objective of restricting the employer in carrying out the purposes of the business."
The Commission ruled in favour of Cascades, stating that the grounds for the Gohier decision had been used in several subsequent decisions. According to the Commission, the facts presented by Cascades in its application demonstrated that the business had routinely used overtime to ensure operational continuity.
Taking its analysis one step further, the Commission stated the following: [translation] "insofar as businesses do not, as a general rule, use overtime on a whim but because they wish to achieve their objective - in the case at hand, to deliver production - an overtime strike is necessarily a 'slackening of work designed to limit production.' If this were not so, one would have to wonder what interest there would be in using such a pressure tactic."
The Commission added that by definition a strike could not be the act of a few employees who, even on a concerted basis, refused to work overtime while their co-workers remained on the job. All employees in the bargaining unit are required to participate in a legal strike, failing which those who continue to work could be qualified as strike-breakers within the meaning of section 109.1 of the Code.
Citing a recent ruling by the Superior Court in Procureur général du Québec3 (a ruling that is, however, under appeal), the Commission underscored the illegality of any partial strike. A strike is said to be partial when only some of the employees of a bargaining unit strike while the other employees continue to carry out their duties.
Consequently, while the name may cause some confusion, an "overtime strike" is not a real strike within the meaning of the Code.
The Cascades decision serves as a reminder that a concerted refusal to work overtime is a slackening of work within the meaning of section 108 of the Code and not a strike. This distinction is important because such a slackening of work is prohibited at all times, even when the right to strike has been acquired. The decision is confirmation that it may be important to remind a court or tribunal that what matters is not the name or description given to the actions of the protagonists, but rather the impact of their actions on the business.
As for the general statement regarding the illegality of any partial strike, it will be interesting to follow the appeal proceedings against the judgment of the Superior Court in Procureur général du Québec.
1. Cascades Groupe papiers fins inc., division Rolland c. Syndicat canadien des communications, de l'énergie et du papier, section locale 174, et al., 2010 QCCRT 0526 (November 10, 2010)
2. Gohier c. Syndicat canadien de la fonction publique, section locale 301, AZ-93147039
3. Procureur général du Québec c. Syndicat de la fonction publique du Québec, C.S. Québec, 200-17-005811-054 (April 27, 2010) , inscription in appeal 2010-05-25 (C.A.), 200-09-007052-100
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