The decision of the court which had ruled that the anti-scab provisions of the Labor Code do indeed apply to employees in telework is contested.
It was the Administrative Labor Tribunal that rendered a decision to this effect at the end of last November. The Unifor union, affiliated with the FTQ, had filed a complaint in court, arguing the use of replacement workers during the lockout decreed at the Joliette cement plant, which belongs to the CRH Canada Group. However, one of the workers concerned was teleworking.
During a dispute, the Quebec Labor Code prohibits an employer from using the services of certain persons “in the establishment where the strike or lockout was declared”. But what does “in the establishment” mean when a person is teleworking?
The Administrative Labor Tribunal ruled that the work done by this person, from his home, during the lockout, contravened the anti-scab provisions.
He concluded that the employer’s “establishment” was not limited to the building itself, but included telecommuting, given the context of the COVID-19 pandemic. Administrative judge Pierre-Étienne Morand said he considered that teleworking, in this context, represented a kind of “deployed establishment” of the employer. This court decision was even welcomed by the Minister of Labor and Employment, Jean Boulet, who said that he had always maintained that Quebec labor laws applied to telework.
However, the employer, Groupe CRH Canada, is now contesting this decision of the Administrative Labor Tribunal before the Superior Court. And he says he does this for all employers who are subject to the Quebec Labor Code.
“Considering the practical impact of the Decision, not only for CRH, but also for all employers whose activities are subject to the Code, it is up to the legislator, and not the courts, to review the relevant legislative provisions and to make changes if it deems necessary”, writes the CRH Group in its request.
In its motion, the employer accuses the Administrative Labor Tribunal of having exceeded its jurisdiction. “The Administrative Labor Tribunal exceeded its jurisdiction and replaced the legislator, by creating a new concept of “deployed establishment” which is not provided for in the Code”, writes the employer in its request.
He also criticizes him for having deviated from the meaning of the decision rendered by the Court of Appeal in the case of the lockout in Quebec newspaper against the Canadian Union of Public Employees (CUPE), also affiliated with the FTQ.
The Court of Appeal had then adopted “a restrictive approach to the concept of establishment, limiting it to the precise place whose doors the employer theoretically locked”, is it written in the request of the CRH Group.