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 dispute.
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 Code).
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.
However, the Superior Court of Quebec reversed the decision, on the basis that the CRT's interpretation was unreasonable. In September 2011, the Court of Appeal upheld the Superior Court's decision. According to Justice Marc Beauregard, the legislator did not intend to prevent any work from being performed by replacement workers, but rather prohibit the work of replacement workers carried out in the employer's establishment, that is, in the offices where the employer has "locked" the doors.
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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