In February, the Minister of Labour tabled Bill 89, An Act to give greater consideration to the needs of the population in the event of a strike or lock-out, in the Québec National Assembly. The bill aims to mitigate the repercussions of labour disputes on the Québec economy by amending the Labour Code, among other things.
The bill proposes two major changes: first, it introduces the notion of services ensuring the well-being of the population and guarantees their maintenance; and second, it gives the Minister the power to refer a work stoppage in progress to binding arbitration.
The proposed amendments
Firstly, the notion of essential services is clearly established in labour law; continuing in this direction, Bill 89 introduces the notion of services ensuring the well-being of the population, defining it as “the services required to prevent the population’s social, economic or environmental security from being disproportionally affected, in particular that of persons in vulnerable situations.” Inevitably, this concept will have to be clarified in parliamentary debates, or possibly by the courts.
The proposed amendments would give the Minister of Labour the power to designate, by order, a certified association and an employer in respect of which the Administrative Labour Tribunal (“ALT”) may determine whether services ensuring the well-being of the population must be maintained in the event of a strike or lock-out, until a collective agreement is reached. At the request of one of these designated parties, the ALT could order the maintenance of these services while negotiations are in progress.
Within 15 days of the ALT’s decision, the parties must negotiate services to ensure the well-being of the population and submit their agreement to the ALT for assessment of its sufficiency. If no agreement is reached, or if the agreement is deemed insufficient, the ALT itself is charged with determining which services must be maintained in the event of work stoppage and the manner of maintaining them.
Even if the ALT orders the maintenance of services ensuring the well-being of the population, the strike or lock-out would continue, unless the ALT considers that exceptional circumstances justify its suspension. It is important to note that the health and public service sectors are excluded from the application of these provisions.
Secondly, the bill gives the Minister of Labour, like his federal counterpart, the power to end a work stoppage by referring the dispute to an arbitrator to determine the conditions of employment of the employees concerned. To exercise this power, the Minister must determine that a strike or lock-out causes or threatens to cause serious or irreparable harm to the public, and that the intervention of a conciliator or mediator has failed. In this respect, the public and quasi-public sectors are excluded, as the Minister cannot effectively be both judge and party in such a decision.
Key takeaways
Bill 89 is only at the very beginning of the process, but there has already been a strong reaction, especially from unions. Having been presented to the National Assembly, the bill is now headed to the next stage of the legislative process, that of parliamentary committee consultations. This is where the real scope of certain concepts will need to be clarified.
To date, several areas have been recognized as essential services, such as police, firefighting, and correctional services. However, the notion of services ensuring the well-being of the population is necessarily broader, and could include sectors such as public transit, cemetery services, and certain school services. This means both private companies and public employers could be affected by the new provisions if they come into force.
In addition, the exceptional circumstances criterion that would allow the ALT to suspend the parties’ right to strike or lock-out will certainly be debated and possibly clarified following discussions on the bill.
As the right to strike is often an important lever in the balance of power between unions and employers, it’s possible that the validity and scope of Bill 89 will be disputed. Several trade unions have already voiced their opposition to the bill. Interestingly, the bill does not invoke the notwithstanding clause to balance the principles established by the Canadian Charter of Rights and Freedoms regarding the freedom of association. In this regard, it should be recalled that the Supreme Court of Canada ruled in 2015, in Saskatchewan Federation of Labour v. Saskatchewan, that Canadian workers’ right to strike is integral to the freedom of association.
The Minister of Labour himself has stated that Bill 89 is inspired by the powers of intervention conferred on the federal Minister of Labour by the Canada Labour Code. Recently, rather than intervening through special legislation, the federal minister has used his powers to intervene in several major disputes, including those involving CN, CPKC, WestJet, the Port of Montreal, and Canada Post.
The exercise of these powers by the federal Minister of Labour is currently the subject of a number of challenges before the federal courts. The outcome of these cases will undoubtedly shed light on the fate of Bill 89, and possibly on its scope. Employers, however, take a positive view of the bill.
We will continue to monitor the progress of this important reform of Québec labour law and will keep you informed of the situation. We will publish an article on the main developments of Bill 89 as they u