The case concerning the anti-scab provisions which apply or not to teleworking takes on new proportions, while the Court of Appeal of Quebec has just agreed to hear the arguments on this subject from the Conseil du patronat du Québec, the FTQ and the Public Service Alliance of Canada.
The three large employer and union organizations addressed the Court of Appeal on Tuesday to ask to intervene in this case, which initially affected the Unifor union and the CRH Group, which operates the Joliette cement plant, where a lockout had been declared.
In November 2021, the Administrative Labor Court ruled in favor of Unifor, ruling that the CRH Group had contravened the anti-scab provisions of the Labor Code by using the services of an employee who teleworked during the lockout.
In Quebec, the Labor Code prohibits the use of replacement workers, also called strikebreakers or scabs, “in the establishment” where a strike or lockout has been declared.
But where does the employer’s “establishment” begin and end when an employee works from home?
The Administrative Labor Tribunal (TAT) then saw teleworking as part of the employer’s “deployed establishment”, especially since we were then in the middle of the COVID-19 pandemic, when teleworking was generalized. He judged that it was necessary to update the notion of establishment, otherwise the anti-scab provisions risked becoming irrelevant in many labor disputes.
Last April, however, the Superior Court overturned this decision. “The decision-making autonomy entrusted by the legislator to the TAT does not allow it to broaden, as it did, the scope of article 109.1 g)” of the Labor Code, she ruled.
In turn, the Unifor union wants to challenge the Superior Court’s decision. He applied to the Court of Appeal which, in September, granted his application for leave to appeal. The case will therefore be heard on the merits.
It is in this context that the FTQ, the AFPC and the Employers’ Council asked to be able to put forward their arguments in this case. All believe that this cause could have repercussions on thousands of other companies and workers in the event of a strike or lockout.
The Quebec Employers Council argued before the Court of Appeal that it represented 70,000 employers and that it had a “clear interest” in this case. And the FTQ too, which has more than 600,000 members. Moreover, the Unifor union is affiliated with the FTQ, just like the AFPC in Quebec.
The Public Service Alliance of Canada emphasized to Judge Marie-France Bich that it had certified a union, with the address of the employer, while all the members are teleworking — which demonstrates, according to she, that the notion of establishment and the right of association are not limited to the walls of the employer’s building.