In September 2011, the Quebec Commission des relations du travail handed down a decision in which it determined who is the real employer of workers in the respiratory therapy unit at the Maisonneuve-Rosemont Hospital in Montréal.1 In its decision on an application by the United Health Care Professionals (FIQ) pursuant to section 39 of the Quebec Labour Code, the Commission declared that respiratory therapists from two agencies (Agence M.D. santé inc. and Girafe Santé inc.) should be considered to be employees of the Hospital, for which the FIQ is the accredited union. If the Commission's analysis in this case is maintained, placement agencies in the health care sector will find it more difficult to be recognized as the real employer of the workers they place.
This case arose out of an application by the Union concerning 21 respiratory therapists for the period from April 5, 2009 to January 16, 2010 seeking to have the workers declared members of the bargaining unit. The Union is certified to represent all nursing and cardio-respiratory professionals at the Hospital. During the period to which the application refers, the Hospital was experiencing great difficulty hiring and retaining respiratory therapists due to the working conditions in the applicable collective agreement and was therefore using the services of agencies, which were at liberty to offer more attractive working conditions to respiratory therapists whom they hired directly.
The concept of real employer
The Commission began its analysis by recalling the criteria developed by the courts to determine who is the real employer in a multiparty environment. The Commission repeated the statement made in the leading decision Pointe Claire (City) v Québec (Labour Court)2 that to identify the real employer, a comprehensive approach must be taken to determine which party exerts true control over various aspects of the job. Recognizing the different approaches that have been adopted in this area since Pointe-Claire, the Commission chose to weight the following relevant criteria while taking into consideration the specificities of the health care system: the selection process, hiring, training, discipline, evaluation, supervision, assignment of duties, remuneration, integration into the business, length of service and agency structure. In so doing, the Commission was sensitive to the Union's view that since the current structure of health care institutions reflects the policy objective of streamlining the health care system, resorting to agencies is contrary to the legislator's intention because it increases the number of parties involved.
The Commission's decision
The Commission remarked that although the agencies in question appear at first sight to be acting as employers, it is an impression that does not hold up on closer examination. The Commission observed that a shortage of staff allows agency professionals to hold more than one position and avoid the constraints associated with a permanent position, that the system is operating as a closed system since the agencies recruit staff among the professionals in the public sector and that all public health institutions and certain aspects of the work of the professionals within those institutions are subject to the considerable effects of a single regulatory framework. In addition, the Commission noted that a single collective agreement governs certain matters in all health care institutions.
The Commission weighted differently the various criteria traditionally used to determine who is the real employer of a worker. Thus, although the agencies are responsible for recruitment and hiring, the pool in which they recruit is the public system and is therefore subject to certain requirements imposed by public health care institutions. As for orientation and training, the staff of the Hospital and agency staff are generally subject to the same process, since the agreement between the Hospital and the agencies provides that professionals who have already completed orientation at the Hospital are given priority for assignments. In addition, although the agencies offer and pay for training, the respiratory therapists themselves bear the main responsibility for their training and can also receive such training in the public institutions. Although their compensation is set by the agencies, it is directly related to the number of hours performed for the agency's client. Meanwhile, the Commission did not consider benefits, CSST contributions and other source deductions to be of significance for purposes of determining who is the employer. As for length of service, the Commission ascertained, based on the evidence, that many of the respiratory therapists concerned by the application had performed most of their assignments at the Hospital.
The Commission pointed out that the conditions in which the work was performed were essentially those prevailing at the institution. The respiratory therapists worked according to the Hospital's schedules and work methods. The agency personnel were even integrated into the Hospital's multidisciplinary team in accordance with the Hospital's policies and procedures. With regard to the assignment of duties and supervision, the evidence showed that the agencies had a very limited role in this area since software was used to match assignments and professionals and the professionals ultimately made the decision as to whether or not to accept an assignment. Moreover, it was the Hospital who assigned duties and determined how the work should be done. The same was true of supervision, as the agencies could not provide supervision, among other reasons, because they were not authorized to be present in the Hospital. The Commission remarked that in any case the Hospital was responsible for supervision as part of its duty to provide a certain standard and continuity of care. As for evaluation of the work, the Commission was of the opinion that the agencies' role was purely administrative since they had to rely on information gathered from the client. As for discipline, although the Hospital did not get involved in disciplinary matters, it was the Hospital which requested that a person be removed or reported a problem. Finally, the Commission considered that the integration of the professionals in the agencies was virtually non-existent, as evidenced by their freedom to switch between agencies and to determine their availability.
The Union has touted this decision as a great victory in its fight to prevent the use of placement agencies in the hospital system. However, it is unlikely that this decision will be the last word on the matter and indeed an application for judicial review has already been filed. The facts of this case were also very specific and it is clear that a number of placement agencies, including those that supply nursing staff, will claim that the findings in this decision do not apply to them. We recommend keeping abreast of developments in this case, which is likely to give rise to further disputes that may ultimately require the legislator's intervention.
1 Les Professionnel(le)s en soins de santé unis (FIQ) c Hôpital Maisonneuve-Rosemont et Agence M.D. santé inc. et Girafe Santé inc., 2011 QCCRT 0447.
2  1 SCR 1015.
Norton Rose OR LLP
Norton Rose OR LLP is a member of Norton Rose Group, a leading international legal practice offering a full business law service to many of the world's pre-eminent financial institutions and corporations from offices in Europe, Asia Pacific, Canada, Africa and the Middle East.
The Group's lawyers share industry knowledge and sector expertise across borders to support clients anywhere in the world. The Group is strong in financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and pharmaceuticals and life sciences.
Norton Rose Group has more than 2600 lawyers operating from 39 offices in Abu Dhabi, Amsterdam, Athens, Bahrain, Bangkok, Beijing, Brisbane, Brussels, Calgary, Canberra, Cape Town, Dubai, Durban, Frankfurt, Hamburg, Hong Kong, Johannesburg, London, Melbourne, Milan, Montréal, Moscow, Munich, Ottawa, Paris, Perth, Piraeus, Prague, Québec, Rome, Shanghai, Singapore, Sydney, Tokyo, Toronto and Warsaw; and from associate offices in Dar es Salaam, Ho Chi Minh City and Jakarta.
Norton Rose Group comprises Norton Rose LLP, Norton Rose Australia, Norton Rose OR LLP, Norton Rose South Africa (incorporated as Deneys Reitz Inc), and their respective affiliates.
On January 1, 2012, Macleod Dixon merges with Norton Rose OR, creating a global energy and mining powerhouse within Norton Rose Group. For more information, please visit nortonrose.com.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.