Canada: Contentious Labour Relations A Factor In Evaluating Employer Decisions During A Strike

Delastek Case

In early March 2018, the Administrative Labour Tribunal (the "Tribunal") rendered two decisions on the same day in the context of a protracted labour conflict (the "Delastek Case"). These decisions are quite interesting for Québec employers, as they illustrate how a context of tumultuous labour relations between the employer and the union can colour the Tribunal's perception when it is called upon to assess the legality of changes made by the employer during a strike.

Delastek is a business specialized in the design and manufacture of parts for the aerospace and transportation industries, located in Shawinigan, Québec. Unifor, Local 1209 (F.T.Q.) (the "Union"), is the union representing Delastek's production employees. The Union and Delastek share a history of litigious labor relations. Here are some examples:

  • Multiple dismissal complaints for Union activities;
  • Application to revoke the Union's certification by the employer;
  • Strike starting the day after the expiry of the collective agreement;
  • Problems of repeated strike-breakers;
  • Provisional interlocutory injunction against intimidating strikers; and
  • Accusations of bad faith bargaining on both sides.

It is in this context of conflict and confrontation that the present decisions were rendered.

First Decision: The Abolition of 23 Unionized Positions

While the strike had been underway for over two years, Delastek decided to abolish the positions of 23 employees included in the bargaining unit, three of which were held by Union representatives. The company justified this decision by the transfer of activities to the United States and third parties, as well as by the loss of contracts and changes in production methods. The Union filed complaints under sections 12, 13, 14, 15 and 53 of the Labour Code, alleging that the employer had violated its obligations and engaged in anti-union practices.

Administrative Judge Myriam Bédard rendered a decidedly stern judgment against Delastek. First, she considered that, by abolishing the 23 positions, which practically amounted to half of the unionized employees, Delastek "clearly and objectively sought to weaken the Union while the strike had been persisting for years and the employees' motivation was likely to wane" (our translation).

Then, Administrative Judge Bédard considered that Delastek knowingly took advantage of a "legal vacuum," namely, the period following the beginning of the strike where the obligation to safeguard working conditions provided for in the Labour Code is no longer in effect, to push the Union aside. According to Administrative Judge Bédard, this intention, which she imputed to Delastek, would in itself be sufficient to conclude that there existed an anti-union strategy in violation of the Labour Code.

The Administrative Judge also reiterated the important distinction between the burden of proof applicable to sections 12, 13 and 14 of the Labour Code, and that applicable to section 15. In the first case, the Union must demonstrate the prohibited actions of the employer, while in the second case, the Union benefits from a legal presumption alleviating its burden of proof. Thus, when a measure is imposed concomitantly with the exercise of a right, this legal presumption requires the employer to prove the existence of another just and sufficient cause in support of its decision.

In the case at hand, the Administrative Judge considered that the Union benefited from the application of this presumption, and that Delastek failed to establish convincingly that the work reduction by which it sought to justify the position abolitions was real, and that, instead, the decision was "clearly tainted by anti-union animus" (our translation).

The Tribunal, presided by Administrative Judge Bédard, ordered that the abolition of the 23 positions in question be overturned, and it reserved jurisdiction with respect to damages and remedies.

Second Decision: Strike-Breakers

On the same day, Administrative Judge Sylvain Allard also ruled in favour of the Union, stating that Delastek had contravened the anti-scab provisions of the Labour Code.

The Tribunal was called upon to determine whether the work performed by Delastek employees during the strike could be categorized as production or as research and development ("R&D"). Since the bargaining unit covered the production employees, if the tasks performed by the employees in question qualified as R&D, as Delastek claimed, the Tribunal would have to conclude that they were working legally.

However, the Administrative Judge stated that it could not be left to Delastek alone to determine when the R&D process ends and when production begins. The Tribunal analyzed the different stages involved in the commercialization of the products in order to settle the issue, and it concluded that the employees in question were indeed engaged in production tasks, thus violating section 109.1 of the Labour Code.

In light of Delastek's repeated strike-breaking activities, the Tribunal issued an order allowing Union representatives to visit the factory during working hours once per day for the duration of the strike. This order was rendered under the authority of section 9 of the Act to Establish the Administrative Labour Tribunal. This provision enables the Tribunal to decide any issue of fact or law necessary for the exercise of its jurisdiction, including rendering any order it considers appropriate to safeguard the parties' rights.

Takeaways for Employers

The importance of the context and history of events is definitely highlighted by the Delastek Case. However, we wish to point out that Québec employers should not take this decision to mean that they are precluded from imposing changes to working conditions during a strike, such as abolishing positions, although such right is not unfettered under the law.

Indeed, abolishing positions was not in itself illegal, but the following elements added up to convince Administrative Judge Bédard that the employer exercised an otherwise legitimate right in an anti-union manner, contrary to the provisions of the Labour Code:

  • The decision was made more than two years after the start of the strike;
  • The abolition could only come into effect when the employees returned to work;
  • The significant proportion represented by the abolished positions, which included three Union representatives; and
  • The deficiency of the evidence in support of the grounds alleged by the employer.

An employer in a similar situation would be well-advised to wait until the end of the strike and to raise the abolition of positions at the time of the return to work, either in the negotiation of a return to work protocol with the Union or by exercising its management rights.

The second decision signals to Québec employers that their definition of the duties performed by employees during a strike may very well be scrutinized and reviewed by the Tribunal. Moreover, the order issued by Administrative Judge Allard is novel, and demonstrates that the Tribunal may impose creative measures upon the parties if deemed appropriate in the circumstances. We would highlight the fact that Delastek's recidivism justified such an order, and that, in principle, this type of order will not necessarily become commonplace.

That said, Québec employers should understand that exceptional circumstances may give rise to exceptional measures.

About BLG

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions