On November 9, 2011, the Committee on Labour and the Economy
(the Committee) filed its awaited report on the update of anti-scab
provisions (available in French only). In its
single recommendation, the Committee, composed of Members of
Parliament from all parties, asked the Ministère du Travail
(Ministry of Labour) to review the concepts of
"establishment" and "employer" in the Labour Code
of Quebec in order to take into account the evolution of economic
and technological realities and with the objective of establishing
a balance of power between negotiating parties in a labour
In Quebec, section 109.1 of the Labour Code prohibits
an employer from using, during a strike or a lockout, replacement
workers to perform the duties of the employees who are on strike or
lockout in the establishment in which there is a labour dispute
(unless the workers are volunteers or managers, subject to certain
conditions). The employer can nonetheless utilize the services of a
contractor or of employees of another employer, subject to the
condition that the work is being performed outside of the
establishment where the strike or lockout has been declared. In
Canada, only British Columbia provides for similar prohibitions on
the use of replacement workers (section 68 of British
Columbia's Labour Relations
In recent years, a lockout of nearly sixteen months at the
Journal de Québec, followed by a lockout of
twenty-five months at the Journal de Montréal, have
raised many questions regarding the application of these provisions
in a world where work is increasingly being done remotely and
virtually. As part of the conflict at the Journal du
Québec in 2007, the unions lodged a complaint before
the Commission des relations du travail (the CRT), alleging that
the employer was in breach of section 109.1 of the Labour
Code by hiring news and photography agencies that sent content
electronically, thus making possible the publication of the
newspaper despite the lockout.
The CRT allowed the union's
claim and ordered the employer to stop using the
services of such agencies. The CRT decided that even though the
agency journalists and photographers did not perform their tasks
and duties in the employer's establishment, they were deemed to
have worked in the establishment since they traveled to the events
to carry out their work and transmitted their results
electronically, as done by the locked-out journalists.
An additional question raised in the circumstances is what is
meant by "another employer" or "contractor" in
a context where the employer of the strikers or locked-out
employees is part of a conglomerate of companies and may use the
services of employees of a related entity. In its recent decision,
the Court of Appeal did not clearly rule on this issue.
It was therefore in the wake of the highly publicized
Journal de Montréal labour dispute and of the
Official Opposition's bill proposing amendments to section
109.1 of the Labour Code that the Committee held
consultations and public hearings on this issue in February 2011.
While unions have called for a modification of the anti-scab
provisions to today's reality, which would include broadening
the concept of establishment, the employers' representatives
(such as the Quebec Employers Council and Quebecor Media) have
called for a review of the Labour Code in its entirety so
that it may take into account the context of globalization.
The request for an in-depth modernization of the Labour
Code was not well received by the Committee. The Committee
instead invites the Ministère du Travail only to review the
anti-scab provisions and, more precisely, the concept of
establishment, in order to adjust this concept to current
realities. The Committee also asks the Ministère du Travail
to clarify the concept of employer.
We will follow with interest the developments on this issue,
that may have a significant impact on the management of
negotiations and labour disputes in Quebec.
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