Can an employer use the services of an employee working from home during a strike or lockout?
In a decision dated April 21, 2023, the Quebec Superior Court overturned an important ruling by the Administrative Labour Tribunal (hereinafter the “ALT”), which had found that an employer operating a cement plant had contravened the anti-scab provisions of the Quebec Labour Code (hereinafter the “Code”) by using the services of an employee working from home during a lock-out. The Superior Court clarified that the ALT’s powers did not allow it to broaden the scope of the prohibition in section 109.1(g) of the Code and extend the notion of establishment to include the residence of a teleworking employee, and confirmed that the notion of establishment is limited to the specific physical location where employees in the bargaining unit on strike or locked out habitually perform their duties.
The employer, Groupe CRH Canada inc (the “Employer” or “Groupe CRH”), operates a cement plant in Joliette. The union, Unifor local 177 (the “Union”), is certified to represent the Employer’s office and plant employees. As the collective agreement expired on May 28, 2021, the Union gave notice to bargain to Groupe CRH on March 1, 2021.
On June 4, 2021, Groupe CRH sent lockout notices to the Union. Suspecting a violation of section 109.1 of the Code, the Union requested that an investigator be dispatched to the Employer’s facility. In a report dated July 20, 2021, the investigator concluded that Groupe CRH had violated the anti-scab provisions of the Code by using the services of certain individuals during a lockout, including a teleworking employee. Section 109.1(g) of the Code prohibits an employer, for the duration of a strike or lockout, from “utilizing, in an establishment where a strike or lock-out has been declared, the services of an employee he employs in the establishment to discharge the duties of an employee who is a member of the bargaining unit on strike or locked out”. During the lock-out, Groupe CRH used the services of Ms. Racicot, an employee working from home since March 2020 and who was not part of the bargaining unit in question. During the lockout, Ms. Racicot was still working from home and was performing some of the duties of the employees covered by the bargaining unit in question. Therefore, following the investigator’s report, the Union filed an application with the ALT for an order putting an end to the alleged contraventions.
The decision of the Administrative Labour Tribunal
Before the ALT, the main issue was whether the Employer violated the anti-scab provisions by allowing Ms. Racicot, the teleworking employee, to perform the duties and tasks of employees in the locked-out bargaining unit from her private residence.
The ALT therefore had to interpret the notion of “establishment” provided for in article 109.1 of the Code. To do so, the ALT considered the large-scale deployment of teleworking triggered by the COVID-19 pandemic, and concluded that the notion of establishment could not ignore this new reality. Thus, taking into account the technological means that the Employer had deployed to teleworking employees, including Ms. Racicot, the ALT considered that the notion of establishment was deployed virtually from the place where employees performed their work, including their personal residences. Consequently, the ALT concluded that the Employer had contravened section 109.1(g) of the Code by using Ms. Racicot’s services, and ordered Groupe CRH to cease and refrain from using, in the establishment where the lockout was declared, the services of certain employees, including teleworking employees, to perform the duties of an employee in the locked-out bargaining unit.
The Decision of the Superior Court
Groupe CRH sought judicial review of the ALT’s decision, challenging in particular the portion of the decision concerning the employee working from home. The Superior Court upheld the standard of review of reasonableness as the one applicable to the ALT’s decision, and cited Vavilov for the principles of interpretation that the ALT judge should have applied in making his decision:
“The administrative decision-maker cannot adopt an interpretation he knows to be inferior – but plausible – simply because it seems possible and opportune. It is incumbent upon the decision-maker to truly strive to discern the meaning of the provision and the intent of the legislature, and not to construct an interpretation from the desired result.”
The Superior Court raised several aspects of the ALT’s decision that it considered unreasonable in scope:
- First, the Court raised the inconsistency between the “certification establishment” and the “establishment” defined in s. 109.1 of the Code, and disapproved of the ALT’s broadening of the notion of establishment. Indeed, the Superior Court considered that, since the lock-out had not been declared at Ms. Racicot’s personal residence and she was not part of the bargaining unit covered by the certification, it was inconsistent for the notion of “establishment” to be broadened to include her personal residence or any location other than the Employer’s establishment, in this case its Joliette plant.
- Moreover, the Court emphasized the incompatibility between the ALT’s decision and the interpretation of section 109.1 of the Code developed by the Court of Appeal in three key decisions. In the Superior Court’s view, these rulings reduced the ALT’s decision-making autonomy, and there were no sufficient circumstances or explanations in this case to justify departing from them.
- Finally, the Superior Court rejected the ALT’s argument regarding the constitutionalization of the right to strike, referring to a Court of Appeal decision in which the same argument had been validly rejected to justify the broadening of the notion of “establishment” in section 109.1 of the Code. In addition, the Superior Court emphasized the absence of expert evidence to support the fact that the ALT had equated the technological means used by Ms. Racicot for her teleworking with a physical establishment within the meaning of article 109.1 of the Code. The Court also pointed out that broadening the scope of the notion of establishment would entail broadening the scope of section 109.4 of the Code and, consequently, allow an investigator to visit the private residence of an employee working from home in order to verify compliance with the anti-scab provisions. This would represent a potential violation of an individual’s right to privacy, and the Superior Court refused to interpret this as the intent of the legislator.
The Superior Court therefore concluded that the ALT had not rendered a reasonable decision in view of the legal and factual constraints in the case. Consequently, the Superior Court allowed the appeal for judicial review and intervened to modify the ALT’S conclusion concerning the employee working from home, so that she was no longer affected by the order rendered by the ALT.
The Court also pointed out that amendments to legislative provisions such as section 109.1 of the Code are a matter for the legislature and not for the courts.
Takeaway for Employers
In conclusion, the Superior Court’s decision confirms that the notion of “establishment” set out in section 109.1 g) of the Code refers to the physical location of the employer, does not extend to the employees working from home, and consequently does not include the private residences of employees working from home. It is therefore possible, provided the other conditions of the anti-scab provisions are met, to use the services of a non-unionized teleworking employee to perform certain tasks of an employee included in a bargaining unit on strike or locked out, without contravening the Code.
For more information on this subject, please do not hesitate to contact a member of our Labour & Employment team.
Groupe CRH Canada inc. c. Tribunal administratif du travail, 2023 QCCS 1259 [in French only].
Unifor, section locale 177 c. Groupe CRH Canada inc., 2021 QCTAT 3930 [in French only].
Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
Syndicat canadien de la fonction publique, section locale 1450 c. Journal de Québec, 2011 QCCA 1638 3930 [in French only] ; Les avocats et notaires de l’État québécois c. Procureure générale du Québec, 2018 QCCA 224 3930 [in French only] ; Syndicat des professionnelles et professionnels du gouvernement du Québec c. Procureure générale du Québec, 2018 QCCA 2161 3930 [in French only].
Syndicat canadien de la fonction publique, section locale 1450 c. Journal de Québec, 2011 QCCA 1638 3930 [in French only].