Anti-replacement Worker Provisions: The Appeal Court of Quebec Decides that New Technologies Do Not Redefine the Notion of Establishment

March 26, 2012

With the recent expansion of internet and technological devices, more and more workers may now perform much of their work outside the actual physical premises of their employer’s establishment. Indeed, new technological devices have changed the meaning of workplace, and many in the legal community have been wondering for a long time if the current anti-replacement worker provisions of the Québec Labour Code (“Code”) adequately reflect these changes.

While members of the legal community have been urging the Québec legislature to review the actual wording of the anti-replacement worker provisions for some time now, it is only recently, on November 9th, 2011, that the Committee on Labour and the Economy of the Québec National Assembly (“Committee”) tabled its much anticipated report concerning the modernization of the anti-replacement worker provisions of the Code. In this report, the Committee’s sole recommendation to the Labour Minister is to “review the notion of establishment as well as the notion of employer, provided by the Code, to reflect changing economic and technological realities to establish an equitable balance of power between the negotiating parties in a labour relations conflict” [our translation].

The Committee’s report was tabled right after the Québec Court of Appeal had to specifically study and explain the notion of establishment, in the context of a lock-out declared by Journal de Québec, one of the hundreds of corporations owned by Québécor Média Inc. (“QMI”), which publishes one of the main newspapers in Québec City. In April 2007, after negotiations failed with some of its unionized workforce, Journal de Québec decided to declare a lock-out.

The lock-out concerned approximately 65 production employees, including journalists, photographers, statisticians and messengers. However, after having declared the lock-out, Journal de Québec kept on publishing its newspaper every day with only ten managers for editing purposes. In fact, Journal de Québec was able to continue its daily publishing by contracting out services to third parties, such as a press agency for photographs, a marketing and communication agency for messenger services and a public relations business for journalists (“Third Parties”).

Further, Journal de Québec ended up using the articles of Canoë, an electronic media also owned by QMI as well as those of Nomade, a press agency designed to be similar to the Canadian Press, but entirely dedicated to QMI.

In these circumstances, two unions representing 17 employees, journalists, photographers and messengers, decided to file complaints with the Commission des relations du travail (“Commission”) to contest the use of the Third Parties, claiming that they were, in fact, illegal “scabs”.

The relevant anti-replacement worker provision of the Code reads as follows:

109.1. For the duration of a strike declared in accordance with this Code or a lock-out, every employ 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; [our emphasis]

However, there is no definition of “establishment” within the Code.

The two unions argued that Journal de Québec simply used the services of individuals employed by other employers, the Third Parties, in its establishment to provide the same services as those of the locked-out employees. They emphasized that journalists usually do not provide their services within a defined establishment, where they receive instructions, perform their work and punch out once the day is over. Rather, they may enter their employer’s premises once in a while to report but they perform the bulk of their work “where the news is”. In that context, they suggested to the court that the notion of establishment should be understood to be the “territory covered by the newspaper, where the news occurs”.

Journal de Québec, in turn, alleged that the services of the Third Parties were never rendered in the establishment where the lock-out was declared. Since the legislature knowingly decided to permit employers to sub-contract to third parties during a lock-out, as long as the services are to be rendered outside the establishment where the lock-out was declared, Journal de Québec claimed it was acting in conformity with the law.

Decision of the Commission

In an attempt to modernize the actual anti-replacement worker provisions of the Code, the Commission held that to properly understand the notion of “establishment”, one should, in comparing the functioning of an enterprise before and during a lock-out, determine if (1) the same work is being done and, if so, (2) if it is provided in another location than that of the locked-out employees. In view of this reasoning, the Commission concluded that even if the Third Parties never actually entered Journal de Québec’s premises, but rather communicated their work electronically, they had rendered their services within the establishment where the lock-out had been declared, in contravention of the Code.

Decision of the Superior Court

In the context of an application for review, the Superior Court overturned that decision, stating that the reasoning of the Commission went far beyond the intent of the legislature. Although the current anti-replacement worker provisions are likely to disadvantage employees providing their services outside the premises of an employer, and advantage the ones strictly providing their work within a definite establishment, the reasoning of the Commission deviated from the letter of the law. By verifying if the work of the replacement workers was done in another location than that of the locked-out employees, the Commission asked the wrong question and modified the law.

Decision of the Court of Appeal

The Court of Appeal, in a unanimous judgment, upheld the Superior Court decision and reiterated that the Commission’s finding was not reasonable. Indeed, even if the replacement workers do not provide their services in another location than that of the locked-out employees, it does not necessarily mean that they do provide their services in the establishment where the lock-out was declared. Thus, the condition imposed by the Code is not that the work of replacement workers should not be executed in places where the locked-out employees worked, but simply that the work must not be done where the employer theoretically locked its doors. In fact, the legislature’s intent was not to avoid replacement workers, but rather to avoid violence in the employer’s establishment.

Conclusion

The Court of Appeal determined that the Commission improperly modified the law by declaring sub-contracting illegal where the work is done outside the physical location of the enterprise where the employees used to work.

The Court of Appeal’s decision determined that any change to the notion of establishment, as defined by the Code, must come from the legislature. The Committee, in turn, has urged the legislature to conduct such a review. Within the context of the recent and widely publicized lock-out of Rio Tinto Alcan employees, we will continue to keep you apprised of any further developments in this area which promises to have a significant impact on labour relations in Québec.

Disclaimer

This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.

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