Quebec wants special powers in the event of labour disputes

The Minister of Labour introduced on February 19 Bill 89, An Act to give greater consideration to the needs of the population in the event of a strike or a lock-out.

The bill has two main components:

• creating a new category of services to be maintained in the event of a strike or lock-out, namely services aimed at ensuring the well-being of the population;
• granting special powers to the minister to end certain labour disputes.

This legal update provides an overview of the legislation introduced before the National Assembly of Quebec. It should be noted from the outset that the bill has yet to be passed and its provisions could be amended following a detailed analysis by a parliamentary committee. 

New category of services to be maintained in the event of a labour dispute

Public services, as currently defined in the Labour Code, may be targeted to the obligation to maintain essential services if a strike might “endanger public health or safety.” The notion of “endangerment” has been narrowly interpreted in case law, which holds that the term entails more than simple discomfort or inconveniences.¹

Bill 89 introduces the concept of “services ensuring the well-being of the population,” namely “services minimally required to prevent the population’s social, economic or environmental security from being disproportionately affected, in particular that of persons in vulnerable situations.” The government could, by order, designate an employer or union in respect of which the Administrative Labour Tribunal may determine whether services ensuring the well-being of the population must be maintained in the event of a strike or a lock-out. At a party’s request and after having heard its arguments, the Tribunal could then determine whether the parties should be subject to the obligation of maintaining these services during the labour dispute. 

If they are, they would have 15 days within which to negotiate the services that are to be maintained. The Tribunal would assess if the negotiated services are sufficient. If it considers them to be insufficient or if the parties fail to reach an agreement, the Tribunal may determine them. 

A decision requiring the parties to maintain services ensuring the well-being of the population will only be valid for the negotiation stage in progress. A new assessment might then have to be performed in a subsequent round of negotiations. 

In contrast to essential services (and barring exceptional circumstances), the strike or lock-out may continue following receipt of an order regarding the services to be maintained.

Takeaways

It is important to bear in mind that these new provisions will not apply to the public service sector² or health care facilities. Any other employer, including private corporations, may be targeted by the obligation to maintain services ensuring the well-being of the population should the nature of their activities be covered by the definition of such services.

We believe, however, that these new provisions will have a greater impact on such public services³ as bus transport, school service centres and school boards. 

Finally, the Tribunal will in all likelihood have to shed some light on the services ensuring the well-being of the population in order to clarify the notion and determine the cases in which it applies.

Special powers granted to the minister to end certain labour disputes

The bill also grants the minister the power to refer employers and unions to a dispute arbitrator, provided that (1) the strike or lock-out causes or threatens to cause serious or irreparable injury to the population, and (2) conciliation or mediation efforts were unsuccessful. The dispute arbitrator would be responsible for determining the conditions of their collective agreement.

Referring parties to a dispute arbitrator would automatically terminate the labour dispute in progress. At this point in time, the bill does not provide for any review or appeal of the minister’s decision to refer a dispute to arbitration.

Note that these new provisions do not apply to the public and parapublic sectors, as these are defined in the Labour Code.

Takeaways

This would be a significant change, since the minister currently does not have the power to terminate labour disputes other than by way of a special back-to-work law that must be passed by the National Assembly of Quebec. Moreover, dispute arbitration requires both parties’ consent, except in the case of a first collective agreement or if a party so requests should conciliation fail to resolve the matter.

The notion of a labour dispute that causes or threatens to cause serious or irreparable injury to the population is not well defined and will likely be interpreted by the courts if the bill is passed. 

This new special power bears some resemblance to the federal labour minister’s interventions in labour disputes involving railways, ports and postal services last year.⁴ These interventions, based on the Canada Labour Code, are being contested before the Federal Court, which should be ruling on their validity given the constitutional protection afforded to the right to strike in Canada. Unsurprisingly, many unions in Quebec have already announced that they intend to contest these new legislative provisions if they are passed by Parliament. 

In the meantime, we will be closely monitoring this bill’s progress in the National Assembly and keep you informed of any new developments.