Definitions in Labour Code of ‘establishment’ and ‘replacement worker’ are under scrutiny
The 16-month lock-out at the Journal de Québec ended almost three years ago, but one of the issues at the heart of the dispute continues to wind its way through the courts.
The union representing journalists and photographers at the newspaper recently asked the Quebec Court of Appeal to overturn a previous decision by the province’s Superior Court on the use of replacement workers.
During the lockout, the paper continued to publish using articles and photographs provided by outside agencies. The work was filed electronically from outside the publication’s Béchard Avenue office in Quebec City.
The Commission des relations du travail (Quebec Labour Relations Board) ruled the work performed by the journalists and photographers was controlled by the newspaper and they were, in essence, doing the same duties as those locked out.
The ruling was reversed by the Superior Court which said the work was not performed in the establishment where the lock-out had been declared. Quebec’s replacement worker legislation does allow for work to be contracted out during a dispute.
This is the crux of the issue, according to Denis Bolduc, the CUPE president at the Journal de Québec during the lockout.
“It’s about the spirit of the law versus the letter of the law,” he said. “The law says you can’t have replacement workers doing the work of the employees. But does that mean inside or outside the building?”
The union would like to see the definition of “establishment” interpreted to mean “the place where work usually happens.” In the case of a court reporter, for example, a replacement worker could not file a story from the courthouse during a strike or lockout.
Bolduc said it’s important to draw a distinction between the legal action of contracting out and the illegal use of replacement workers to do the same job in the same manner in which it is usually done.
In the Journal de Québec dispute, printing was contracted out to another press where neither the workers nor the machines belonged to the company, unlike the work of the reporters and photographers who were supplying material, he explained.
Bolduc said the consequences of the Appeal court’s decision will be far-reaching.
“More and more people are working from home or telecommuting,” he said. “We need a modern understanding of the Code.”
CUPE would also like the province to implement a process for making quicker decisions on the legality of replacement workers. The first decision by the CRT on replacement workers was not made until months into the Journal lockout.
“We need to have someone from the labour ministry who can say ‘It looks like a scab’ and then the work is stopped and it goes to court,” he said. “Right now, you have to prove they are scabs first. In that kind of game, workers will always lose.”
The Conseil du Patronat du Québec (the Quebec Employers’ Council) argues it’s the province’s business community that is losing and it continues to call for the replacement worker law to be abolished.
President Yves-Thomas Dorval said there’s no evidence the 34-year-old legislation has improved labour relations in the province. Meanwhile, he said it has tipped collective bargaining in favour of trade unions.
“If you look at outcomes — the number of disputes per year, the number of lost days, the impact on salary increases, etc. — you’ll not find any better outcomes than in provinces without these laws,” he said.
