Non-unionized teleworker took on duties of unionized worker in 2021
An employee working from home can be doing replacement work inside a struck workplace, Quebec’s top court has ruled.
Unifor Québec announced that the Quebec Court of Appeal had ruled in favour of Unifor Local 177 in its dispute with Groupe CRH Canada over its Joliette cement plant.
The court overturned a Quebec Superior Court judgment and reinstated a decision of the Administrative Labour Tribunal (ALT), finding that telework does not, in the circumstances of the case, let an employer escape the Labour Code’s anti-scab provisions. Its full reasons are not yet public.
“An employer should not be able to do behind a screen what the law prohibits them from doing on their premises. Protections against strikebreakers must remain fully relevant in the era of remote work,” said Daniel Cloutier, Quebec director of Unifor (translated).
A teleworker at the centre of a lockout
According to the restored decision, 2021 QCTAT 5639, the employer sent lockout notices on June 4, 2021, to a union representing about 130 Joliette workers.
A non-unionized operations analyst attached to the plant, working from home on the employer’s network, then took on duties of unionized production clerks.
Section 109.1(g) of the Labour Code bars an employer 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 do bargaining-unit work.
Groupe CRH argued the worker's home fell outside that establishment. Administrative judge Pierre-Étienne Morand disagreed, finding an establishment can extend virtually to wherever employees work under the employer’s authority. Otherwise, he reasoned, employers could do from home what the law forbids inside the plant.
Superior Court’s narrower view
That reasoning did not survive its first challenge. In a 2023 decision, the Superior Court said 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," according to an analysis by André Baril, labour and employment partner at McCarthy Tétrault, and colleague Nadine Houle.
The court also raised privacy concerns about inspecting employees’ homes.
Their takeaway: conditions permitting, a non-unionized teleworker could cover some locked-out employees’ tasks “without contravening the Code.”
The Superior Court rejected the “deployed establishment” concept, says another analysis by Frédérique Boutin, lawyer at BCF.
"It adopted the Court of Appeal’s interpretation that an “establishment” is limited to the employer’s physical premises, whose doors may be locked, and does not extend to the teleworking employee’s home."
The issue has surfaced in Québec solidaire’s legislation for remote work rights.
Court of Appeal reverses course
The Court of Appeal disagreed. According to Unifor’s release, the court concluded the tribunal could reasonably find the practice unlawful, because working remotely with the employer’s tools and under its authority did not break the employee’s link to the Joliette establishment.
It added that the provisions also exist to keep the right to strike effective, not only to curb picket-line violence.
The tribunal’s 2021 decision found that the analyst’s work remained part of the Joliette operation because she did it under the employer’s legal authority, using information technology the employer provided, including access to its virtual private network. The Court of Appeal relied on the same link, citing the employer’s technology tools and its authority over the employee.
The decision also addressed when that link ends. Once a pressure tactic begins and a teleworker’s network access is withdrawn, the tribunal wrote, the employer has in effect locked the doors of both its premises and the place where the telework is done.
The ruling lands as replacement-worker bans spread, after federal anti-scab legislation received royal assent and amid a broader push for provincial anti-scab legislation across Canada.
