Remote workers are entitled to picket...but where?

A late 2023 Alberta Labour Relations Board (the Board) decision highlights the difficulty of applying 20^th century labour laws to evolving 21^st century work models. In Bioware ULC v United Food and Commercial Workers Canada Union, Local No. 401, the Board faced this question: where should striking employees picket if their workplace is online?

Alberta’s Labour Relations Code limits strike-related picketing to the striking employees’ “place of employment” (and to any secondary location approved on application to the Board). Bioware is the first case in which the Board considered what constitutes a “place of employment” in a remote work environment.

Background

In this case, Keywords Studios B.C. Inc. employed 20 remote workers who lived in Alberta. Under a service agreement, these workers provided services on Keywords’ behalf exclusively to BioWare ULC , whose offices were in Edmonton, Alberta.

Keywords had no physical offices in Alberta. The workers reported to Keywords managers in Vancouver, but took day-to-day direction from BioWare’s staff in Edmonton. The employees worked remotely, either on personal computers or computers provided by BioWare. The workers used a VPN connected to BioWare’s offices in Edmonton. When they needed special equipment for their work, they obtained that equipment from BioWare’s offices. 

In 2022, the United Food and Commercial Workers Canada Union was certified to represent the workers. In 2023, while negotiating a first collective bargaining agreement, the Alberta service agreement between Keywords and BioWare ended. Keywords terminated the workers’ employment as a result. The union then filed a bad faith bargaining and unfair labour practice complaint against Keywords (the Complaint). 

The union sought to picket outside BioWare’s office building, and BioWare filed an application seeking to prevent the picketing by the union. 

However, the Board found that BioWare’s offices were the “place of employment” for purposes of the picketing provisions of the Alberta Labour Relations Code (the Code), even though the workers did not work for BioWare.

Discussion

The Board considered, in part, whether: (1) picketing at BioWare’s office was unlawful on the basis that its offices were not, and never had been, the place of employment for the workers, (2) whether BioWare’s offices ceased to be a place of employment once Keywords stopped providing services to BioWare in late September 2023, and (3) whether the workers’ homes should be the place of employment.

Factors to Consider

The Board emphasized it is not possible to identify the place of employment for all remote workers, given the variability in such work arrangements. The Board provided the following non-exhaustive list of factors to consider when determining the place of employment for remote workers:

• Does the employer have a location that the employee can or does attend if not working remotely?
• When working remotely, does the employee connect with or log in to a specific location?
• To whom does the employee report, and where are they located?
• To whom does the employee provide a service, and is it to one location or multiple locations?

In applying these factors, the Board found that BioWare’s offices were the “place of employment” for the workers. In particular, the Board found:

1. Keywords did not have any office in Alberta at which employees worked, connected, logged in to, or reported;
2. the workers performed work exclusively for BioWare at its offices in Edmonton;
3. the workers remotely logged in to a computer located at BioWare’s offices through a VPN to perform their work;
4. the workers that required special equipment collected it from BioWare’s offices; and
5. the workers could have worked in BioWare’s offices if they preferred.

The Board further determined that the workers’ homes could not be the only place of employment for the purpose of picketing, noting that picketing is a constitutionally protected, expressive activity, and limiting picketing to homes would render picketing ineffective.

The Board also found that the workers had a sufficient continuing interest to keep picketing at BioWare’s offices despite Keywords no longer providing services to BioWare in Alberta, because there were outstanding issues such as the workers’ severance entitlements from Keywords.

Takeaway

Some labour and employment laws in Alberta, and Canada generally, were developed in an era of in-person employment at fixed locations. The Bioware case is an example of the ongoing difficulty of applying those laws to evolving working models, including remote work.

While remote work offers advantages to some employers, including access to broader talent pools, it can also raise significant challenges in practice. In a labour relations context, Bioware is a wake-up call that a remote workforce still has the same rights as any other unionized workforce, and may need a location to exercise those rights. If that location is not the workers’ homes, the proper “place of employment” may come as a surprise.

If your company is considering how to navigate the dynamic area of remote work, we can help to mitigate risk, or to deal with challenges as they arise.

The author would like to thank Chris Dick, articling student, for his contribution to preparing this legal update.