Law in Quebec

“It completely changes the balance of negotiation and power relations,” said Denis Curotte, an assistant director, public sector negotiations, with the Centrale des syndicats du Québec, the province’s third biggest trade union. ”Employers obviously stand to gain from such a bill because they can only see a weakening of the balance of power of employees. That much is obvious.”

The Canadian Civil Liberties Association is “deeply alarmed” by Bill 89, An Act to give greater consideration to the needs of the population in the event of a strike or a lock-out, and deems it to be a “direct attack” on the right to strike. It is “imperative” that the Quebec government does not “unduly erode” the fundamental right to strike, as protected by section 2(d) of the Canadian Charter and section 3 of the Quebec Charter of Human Rights and Freedoms, said Anaïs Bussières McNicoll, director of the fundamental freedoms program at the CCLA. “If it is adopted, this bill is likely to greatly erode the right to strike in Quebec because the new thresholds suggested by the government to limit employees right to strike are in our view too vague, too broad and could lead to abuses,” added McNicoll.

At present, Quebec is deemed to have the oldest and most robust essential services legislation in Canada, notes Finn Makela, a labour and employment professor at the Universite de Sherbrooke. Under the Labour Code, organizations that provide public services may be obliged to maintain essential services if a strike might “endanger public health or safety.” In Quebec it falls on the Administrative Labour Tribunal to determine the minimum necessary to safeguard the health and security of the population while taking into account the right to strike.

The courts however have been narrowly interpreting the notion of endangerment, points out Anne-Sophie Ouellet, an employment and labour lawyer with Beauvais Truchon LLP in Quebec City. “They require a demonstration that the interruption of service constitutes a danger, a real, obvious and imminent threat to the life, safety, health and security of the population,” said Ouellet. “This is a demanding burden to meet.”

New untested notions introduced

That’s about to change with Bill 89. It introduces the notion of “services ensuring the well-being of the population.” That encompasses services “minimally required to prevent the population’s social, economic or environmental security” from being “disproportionately” affected, in particularly that of persons in “vulnerable” situations.

“We don’t know what that exactly means,” said Makela. “It’s a wholly new legal concept. But it appears to be quite malleable, extendable and and in those cases the employer and the union can, after a period of time on strike or lockout, be subject essentially to the essential services regime. So it’s a kind of backdoor expansion of the essential services regime in services that by definition are not essential.”

While Bill 89 does not define what these new concepts mean, there is little doubt that these criteria depart from the current trend applied by the courts, said Ouellet. “It’s certain that we’re going further than is currently the case,” added Ouellet. “But everything will depend on the way and the strictness of the criteria that will be applied.”

Bill 89 confers the government the power to refer the labour conflict to the Administrative Labour Tribunal, which may determine whether services ensuring the “well-being of the population” must be maintained in the event of a strike or a lock-out. If so, parties would have 15 days to negotiate an agreement to maintain services. If they cannot reach an accord, the tribunal has the authority under Bill 89 to determine the list of services that would have to be maintained.

By introducing the notion of the population’s well-being, it is clear that situations of inconvenience and major constraints will have to be taken into account, said Curotte. That represents a “major break” in the appreciation of what minimum services are expected to be maintained in public services. “One thing is certain: the aim is to circumvent what the courts have established to date,” added Curotte. “A strike exists to disturb. If you take away all the irritants, a strike becomes meaningless.”

In the landmark 2015 ruling in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245, the Supreme Court of Canada held that the right to strike is an essential part of a “meaningful” bargaining process, promotes equality in the bargaining process, and is the “irreducible minimum of the freedom to associate in Canadian labour relations.”

But Bill 89 goes too far in authorizing the Administrative Labor Tribunal to limit employees’ right to strike, said McNicoll. The notion of “well-being of the population” and its underlying provisions that refers to the “social, economic or environmental security of the population” are concepts that are too vague and too broad, added McNicoll. “There’s no real right to strike if this right can be limited as soon as it generates significant discontent among the population,” said McNicoll.

New powers conferred to Labour minister

Bill 89 also grants the provincial labour minister the power to refer a labour dispute to an arbitrator if he considers that a strike or a lock-out causes or threatens to cause “serious or irreparable injury” to the population and if the intervention of a conciliator or mediator was unsuccessful. If the labour minister goes ahead with such a decision, then the strike or lock-out in progress must be terminated. That provision of Bill 89 however will not apply to the public and parapublic sectors. “He does not want a third party imposing working conditions on his employees – that is clear,” noted Curotte.

Curotte had hoped that the proposed legislation would at least have included a mechanism that would give the parties a place to be heard after the minister orders the suspension of the strike or lock-out. “It seems to me that it would have been appropriate at the very least for there to be a debate before a body such as the Administrative Labour Tribunal before the matter is referred to arbitration,” explained Curotte.

Makela notes that the new powers bestowed on the labour minister are “completely discretionary” within the bounds of the criteria that he is supposed to apply. But Bill 89 does not, added Makela, provide guidelines on criteria he is to consider before making such a decision. “If you apply the Supreme Court decisions on the limits of ministerial discretion, the minister can do what he wants as long as it’s not clearly unreasonable,” remarked Makela. “It’s a fairly high bar to pass.”

It is clear, adds Makela, that governments have come to the conclusion that the Supreme Court’s decision in Saskatchewan has hampered their ability to “interfere” in labour conflicts. In Saskatchewan, the Supreme Court held that “where strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, it must be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations.” Since that decision the Quebec government has twice attempted to adopt special back-to-work legislation, and on both occasions were rebuffed by the courts.

“The Quebec government came to the completely logical conclusion that it could no longer interfere directly in strikes on behalf of employers through special legislation, and so they’ve decided to give themselves other ways to interfere in strikes generally in favour of employers,” said Makela. “Governments are basically trying to find new ways or back doors to do what they’re no longer allowed to do directly by legislation.”

There is little doubt that the proposed legislation, if it passes, will be challenged, according to pundits. A legal challenge against the federal government’s use of section 107 of the Canada Labour Code to order binding arbitration will likely have a bearing on Quebec’s proposed legislation, said Makela. “If the courts find that the federal legislation is constitutionally permissible, then they’re quite likely to find that these new powers to the minister and the Quebec legislation are as well,” said Makela.

The expansion of the essential services regime too will be a novel question that the courts will likely face, not within the ambit of a particular Labour Code but under the Constitution, added Makela. “We don’t have decisions from courts of appeal really on these questions so it remains kind of an open question,” said Makela.

The Quebec labour movement would rather not launch legal proceedings. It is demanding nothing less than the complete withdrawal of Bill 89. “Fundamentally, we don’t see any way of improving what has been tabled by the Minister,” said Curotte.

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This story was originally published in Law360 Canada.