Canada: Impact Of Information And Communication Technologies On The Labour Code's Anti-Scab Provisions

The Legislative Context

Since their adoption in 1977, the anti-strikebreaking provisions of the Quebec Labour Code have never prevented an employer from keeping its operations going by having them carried out by third parties, as long as the third parties are not doing work ordinarily done by the striking or locked out employees, in the establishment where the strike or lockout has been declared.¹ This means that an employer that can maintain its operations from outside the establishment affected by a labour dispute will have an enormous advantage over one that cannot.

So, for example, an employer that owned a general store obviously could not contract out the store's operation to another establishment, whereas it would be relatively easy for an employer in the welding business to contract out its welding operations to an outside welding shop even if such a measure would usually result in reduced profits.

THE FACTS

The Journal de Québec Case

On April 22, 2007, the Journal de Québec newspaper locked out certain employees who were included in two separate bargaining units which included journalists, photographers and messengers. Printing of the paper, which was largely done by a printing shop located in the Montréal area, was not a problem.

In order to allow its coverage of local news stories to continue while its regular journalists and photographers were locked out, the Journal de Québec began using the Agence Nomade,a news agency that worked exclusively for it. For its photography needs, the paper turned to the Agence Keystone, which used its own photographers to cover events in the Québec City area. The work was done outside the Journal de Québec's premises and sent in via the Internet.

In the fall of 2007, the unions representing the journalists, photographers and messengers who were locked out applied to the Commission des relations du travail (Labour Relations Board or "CRT") for an order prohibiting the Journal de Québec from using these agencies' services to discharge the duties of the locked out employees. The employer contested the application on the basis that the agencies' employees were not discharging their duties in the employer's establishment where the lockout had been declared; rather, the journalists and photographers were doing the work at the locations where the events they were covering were taking place and never came to the Journal de Québec's establishment.

The CRT nevertheless found that the work of the agencies' employees was controlled by the Journal de Québec, which gave them specific instructions, either directly or indirectly. Since the agencies' journalists and photographers were, in essence, performing the same duties as the journalists and photographers who were locked out, at the same locations where the latter ordinarily worked, the CRT concluded that the Journal de Québec had contravened section 109.1 (b) of the Code.²

However, that decision was reversed by the Quebec Superior Court, which found the CRT's decision to be at odds with the letter of the law. In the Court's view, since the agencies' journalists and photographers sent in their news stories or photographs electronically, the Journal de Québec could not be considered to have used their services in the establishment where a lockout had been declared.³ Leave to appeal the case to the Court of Appeal was granted on November 19, 2009.

The Journal de Montréal Case

On January 24, 2009, the Journal de Montréal ordered a lockout of its journalists, photographers, office staff and employees of its classified advertising department. The locked out employees filed a complaint with the CRT on March 31, 2009, alleging that the paper was using the services or the "fruit of the labours" of persons working for another employer, in this case Agence QMI, and its suppliers, the websites argent.ca, 7jours.ca et 24heures.ca, all of which are hosted on the Canoë portal. The union argued that the creation of the suppliers was a ploy the sole purpose of which was to enable the Journal de Montréal to obtain editorial or photographic content.

Unlike the decision in the Journal de Québec case, the CRT dismissed this complaint.⁴ In the CRT's view, any employer was entitled to use the "fruit of the labours" of employees who were working for another employer, as long as the work done by those employees was performed under the direction and for the benefit of that other employer. Notably, the journalists and photographers whose stories and photographs were made available to the Journal de Montréal through Agence QMI never set foot in the establishment of the Journal de Montréal where the lockout had been declared. This decision has been challenged by way of a motion for judicial review, which motion has yet to be heard.

Commentary

The CRT wanted to give the term "establishment" considerably broader scope than had generally been extended to it in the case law, where it was limited to the physical premises mentioned in the accreditation certificate. According to the CRT, an establishment could include any place where a striking or locked out employee ordinarily discharged his duties, in cases where the employer directly or indirectly controlled the work of employees employed by third parties who performed those same duties during a strike or lockout. The Superior Court held that such an interpretation could not be reconciled with the wording found in the Labour Code and that, even where the duties were similar, the work had to be performed in the establishment where the strike or lockout had been declared in order for the employer to be found to have violated section 109.1 (b) of the Code. This question will nevertheless continue to be disputed until such time as the Quebec Court of Appeal, or, as the case may be, the Supreme Court of Canada, has ruled on the appeal from the judgment in the Journal de Québec case.

Endnotes

^{1 Section 109.1 (b) of the Labour Code, R.S.Q. c. C-27, which reads as follows:}

^{"109.1. For the duration of a strike declared in accordance with this Code or a lock-out, every employer is prohibited from (.)}

^{(b) utilizing, in the establishment where the strike or lock-out has been declared, the services of a person employed by another employer or the services of another contractor to discharge the duties of an employee who is a member of the bargaining unit on strike or locked out;" [emphasis added]}

^{2 Syndicat canadien de la fonction publique, section locale 2808 (employés de bureau) et Journal de Québec, une division de Corporation Sun Media, 2008 QCCRT 534.}

^{3 Journal de Québec c. Commission des relations du travail (Syndicat canadien de la fonction publique, section locale 2808 (employés de bureau), 2009 QCCS 4168.}

^{4 Syndicat des travailleurs de l'information du Journal de Montréal - CSN c. Le Journal de Montréal, une division de Corporation Sun Media, 2009 QCCRT 0188 and 2009 QCCRT 0295.}

About Ogilvy Renault

Ogilvy Renault LLP is a full-service law firm with close to 450 lawyers and patent and trade-mark agents practicing in the areas of business, litigation, intellectual property, and employment and labour. Ogilvy Renault has offices in Montréal, Ottawa, Québec, Toronto, and London (England), and serves some of the largest and most successful corporations in Canada and in more than 120 countries worldwide. Find out more at www.ogilvyrenault.com.

Voted best law firm in Canada two years in a row.
2008 and 2009 International Legal Alliance Summit & Awards.

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.