Important as it may be to collective bargaining, the right to strike is not absolute. In fact, when faced with a potential danger that threatens public health and safety, some companies and certified associations must refrain from exercising their unfettered right to lockout or strike and instead negotiate the essential services that will need to be maintained if work stops.
With that in mind,the National Assembly passed Bill 33[1] amending the Labour Code[2]in 2019 to include the possibility for any private company to ask the Administrative Labour Tribunal[3] (ALT) to order the maintenance of its essential services during a labour dispute.
Maintaining Essential Services Within the Meaning of the Labour Code
The Labour Code[4] now provides that companies, which it defines as “public service” or similar enterprises, can obtain an order to maintain essential services if a strike in their establishments could potentially threaten public health and safety.
Once such an order has been granted, the companies and certified associations subject to it will be obliged to negotiate the essential services to be maintained in the event of a strike. No concerted work stoppage may be exercised until an agreement has been reached or a list has been submitted for assessment by the ALT[5].
Enterprises explicitly described as “public services” by the L.C. include[6]:
- Municipalities or intermunicipal agencies;
- Transportation services carried on by bus, boat, subway or railway;
- Enterprises engaged in the production, transmission, distribution or sale of gas or electricity;
- Ambulance services.
In the past, the maintenance of essential services was ordered periodically by ministerial decrees after a company’s collective agreement expired. The executive power required that companies explicitly described as “public services” by the L.C. maintain essential services when it was warranted by a danger to public health and safety.
However, as we have said, Bill 33[7] came into effect on October 30, 2019 and gave the ALT the power to issue orders for maintaining essential services with respect to companies explicitly referred to as “public services” in the L.C. and similar enterprises.
One of the purposes of this statutory amendment was to allow the ALT to adapt essential service maintenance orders to the changing reality of service delivery to the public, especially with regard to private companies serving hospitals[8].
The important takeaway is that this order will be granted if:
- The nature of the company’s activities makes it possible to equate it with a “public service.”
- An interruption of its activities would pose a clear danger to public health and safety.
Review of Recent Case Law
In Fabrique de la paroisse Notre-Dame de Montréal[9], administrative judge Irène Zaïkoff listed the criteria to be met in order for an enterprise to be considered a “public service”:
- An enterprise that fulfils a public mission that could be or has been provided by the State in the past
- Providing universal services to a community
- Providing uninterrupted services
- Providing services for which no reasonable alternative exists
The administrative judge also stated that proving a danger to public health and safety sets a high bar that cannot be reached by proof of mere discomfort or simple harm to the well-being of citizens.
Since that leading case, several other judges have applied the same criteria systematically, including:
- The Gîte-Ami[11] case: The maintenance of activities in the event of a strike was ordered at a community organization offering shelter and meal services to homeless people, since it is the only one in the Outaouais region that operates on a 24-hour basis.
- The SOS Violence conjugale[12]case: The employer operates a hotline to listen to, help and refer victims of domestic violence to the appropriate resources. Since it is the only Quebec organization that has identified and harnessed all the relevant resources in the province, its essential services must be maintained during a strike.
- The Veolia[13] case: The ALT ordered that the maintenance services provided by Veolia for the Centre Hospitalier de l’Université de Montréal (CHUM) be continued since no competing supplier could step into its partnership with the hospital within a reasonable time frame.
- The Centre[14] d’action bénévole des Sources and Carrefour d’alimentation et de partage St-Barnabé[15] cases: Two community-based organizations providing food and support services to needy people could not obtain an order to maintain essential services because similar organizations were operating in their region.
- The Carrefour Providence[16] case: A private long-term care centre offering services exclusively to religious persons could not be considered a “public service” since it does not offer its services to the entire community. The application for an order to maintain essential services was rejected.
- The Centre résidentiel communautaire Arc-en-Soi inc.[17] case: A halfway house providing substance abuse management and community follow-up services is a “public service” enterprise, but its closing does not constitute a danger to public health and safety since offenders will simply have to return to prison during a labour dispute. The ALT saw the damage suffered by the offenders as less serious than the impact on the right to strike.
Takeaways
Three years after coming into effect, the new provision of the Labour Code has seen some action and the ALT has received at least three applications from private companies for essential services to be maintained in the event of a strike.
Private companies that provide services similar to public services can now seriously consider maintaining some activities in the event of a strike.
However, the new provision of the Code has not created an open door for employers. The decision makers are strictly following the criteria requiring that the enterprise operate on a continuous basis and that it cannot be reasonably replaced.
This leads us to point out that the evidence presented to the ALT in any application to maintain essential services will have to be serious and extensive. The chances of successfully meeting the above criteria will have to be properly assessed before legal proceedings are initiated.
For any questions and assistance with essential service maintenance orders, please contact one of the professionals of the Fasken Labour, Employment and Human Rights group.
[1]An Act to amend the Labour Code concerning the maintenance of essential services in public services and in the public and parapublic sectors, S.Q. 2019, c. 20.
[2]CQLR c. C-27, (L.C.)
[3](ALT)
[4]L.C., ss. 111.0.16 and 111.0.17
[5]L.C., ss. 111.0.18 et seq.
[6]L.C., s. 111.0.16
[7]An Act to amend the Labour Code concerning the maintenance of essential services in public services and in the public and parapublic sectors, S.Q. 2019, c. 20.
[8]Commission de l’économie et du travail, vol. 45, no. 23 (October 1, 2019), pp. 10h37-15h35 and 16h18-17h, Étude détaillée dans le Journal des débats. Online:<http://www.assnat.qc.ca/fr/travaux-parlementaires/commissions/cet-42-1/journal-debats/CET-191001.html#10h30)>.
[9]2020 QCTAT 2274,
[10]para. 44.
[11]Gîte-Ami inc. et Syndicat des travailleuses et travailleurs du Gîte-Ami inc., 2021 QCTAT 1677.
[12] SOS Violence conjugale et Syndicat du personnel des organismes communautaires, 2022 QCTAT 1776.
[13]Veolia Infrastructure Services Canada Inc. et Teamsters Quebec, Local 1999, 2022 QCTAT 2826.
[14]Centre d’action bénévole des Sources et Syndicat des travailleurs du Communautaire de l’Estrie (CSD), 2021 QCTAT 3434.
[15]Carrefour d’alimentation et de partage St-Barnabé inc. et Syndicat des travailleuses et travailleurs en intervention sociale de Montréal-Laval, 2020 QCTAT 5003.
[16]Carrefour Providence et Syndicat des travailleuses et travailleurs de Carrefour Providence, 2021 QCTAT 5391.
[17] Centre résidentiel communautaire Arc-en-Soi inc. et Syndicat des travailleuses et travailleurs du Centre résidentiel communautaire l’Arc en Soi, 2021 QCTAT 3616.
