On February 19, the Minister of Labour Jean Boulet (the “Minister”) tabled Bill 89, An Act to give greater consideration to the needs of the population in the event of a strike or a lock-out (“Bill 89”), in the National Assembly.
This bill introduces numerous changes affecting the exercise of the right to strike or to a lock-out when doing so may affect the well-being of the population or cause serious or irreparable injury. These changes limit the exercise of the right to strike or lock-out in certain sectors and circumstances or reduce the duration of such events.
Essentially, Bill 89 introduces three (3) major changes affecting labour relations and disputes. We will provide an overview of the additions as currently proposed in this new bill.
Lock-outs in Public Services
Currently, the Labour Code (the “Code”) provides that if a certified association in a public service[1] intends to exercise the right to strike, at least seven (7) days’ notice must be given to the employer, the Minister and, where applicable, the Administrative Labour Tribunal (ALT).[2]
However, the Code only addresses the exercise of lock-outs insofar as prohibiting them in public services where a decision has been rendered to maintain essential services.[3] In such a case, the employer may not order a lock-out. Where a public service is not covered by a decision to maintain essential services, the Code neither prevents the use of lock-outs nor specifies how to exercise this right.
Bill 89 modifies this[4] by harmonizing the provisions governing labour disputes in the public services, so that any party exercising its right to strike or lock-out must give at least seven (7) days’ notice to the other party, to the Minister and, if exercising the right to strike in a public service ordered to maintain essential services, to the ALT.
This means that if Bill 89 comes into force in its current form, any employer of a public service not ordered to maintain essential services who wants to declare a lock-out will have to give at least seven (7) days’ notice to the certified association and the Minister.
The right to a lock-out in public services ordered to maintain essential services is still prohibited.
Maintaining Services to Ensure the Well-Being of the Population
A key change introduced by Bill 89 concerns the expansion of services that can be maintained in the event of a labour dispute.[5]
The Code currently provides that in the event of a strike in the public and parapublic sectors, essential services will be maintained. Essential services are services which, if absent, will likely endanger public health or safety. Therefore, a strike cannot suspend the provision of these services. These are the only services that can be maintained during a strike. Since 1982,[6] the only limit to the right to strike has been founded on the notion of “essential services.”
Bill 89 proposes that, in the event of a strike or lock-out, “services ensuring the well-being of the population” must now also be maintained.[7] Such services are defined as:
(…) the services minimally required to prevent the population’s social, economic or environmental security from being disproportionately affected, in particular that of persons in vulnerable situations.[8]
These “services ensuring the well-being of the population” certainly seem to cover a broader spectrum than “essential services.” Although more precise criteria for identifying such services have not yet been defined, the few examples presented by the Minister at the press conference give us an idea of their nature, namely:
- services in schools for children with special needs;
- funeral services;
- school transit services;
- ferry services;
- food processing industry.
Bill 89 gives the government the power to designate, by order, workplaces offering “services ensuring the well-being of the population.” This decree will have the effect of giving the ALT jurisdiction to effectively determine whether or not an employer is providing services that must be maintained because they ensure the well-being of the population. However, this jurisdiction will not be automatic; rather, once an order has been issued, it will be up to the certified association or employer to submit the request to the ALT.
The order may be made at any stage of the negotiation period and shall be valid only for the duration of that period. It will cease to have effect upon the filing of a collective agreement, and will not automatically continue for any subsequent period of negotiations. Similarly, the ALT’s decision requiring the parties to maintain services that ensure the well-being of the population will only apply to the current negotiation period.
As is already the case for essential services, within 15 days of receiving notice of the ALT’s decision requiring them to maintain services, the parties must negotiate the services to be maintained.
As soon as the parties reach an agreement, they must immediately submit it to the ALT for approval. The ALT will assess whether the agreement reached between the parties is sufficient to guarantee the maintenance of services ensuring the well-being of the population. If this is not the case, or if the parties fail to reach an agreement within 15 days, the ALT will determine which services are to be maintained and on what terms.
An ALT decision requiring the parties to maintain services ensuring the well-being of the population will not automatically have the effect of ending any ongoing strike or lock-out. That said, the ALT could effectively suspend the exercise of the right to strike or lock-out until the parties reach an agreement on the terms for continuing the services.
It also seems that the wording of Bill 89 can be interpreted to mean that businesses and organizations covered by the Code’s provisions on essential services will not be excluded from the application of the new provisions on services ensuring the well-being of the population.
Minister’s Intervention in Labour Disputes Causing Serious or Irreparable Injury
A third major change in Bill 89 concerns the new powers given to the Minister in the event of a labour dispute.[9] However, these powers could not be exercised with respect to the government or its departments, colleges, school service centres, school boards, and institutions within the meaning of the Act respecting health services and social services and the Act respecting health services and social services for Cree Native persons. However, this means that all other entities, including cities and all private sector businesses, would be subject to these new provisions.
In sum, Bill 89 provides that if the Minister is of the opinion that a strike or lock-out is causing or threatening to cause serious or irreparable injury to the population, the Minister will have the discretionary power to compel the disputing parties to submit the matter to arbitration, where an arbitrator will determine the working conditions of the employees. The Minister’s intervention will essentially end the relevant labour dispute.
However, the prior intervention of a conciliator or mediator is required before the Minister may refer the matter to an arbitrator.
Bill 89 also does not specify on what basis the injury will be considered serious or irreparable. However, the use of these terms in other statutes suggests that such prejudice refers to a serious injury for which no adequate compensation or remedy exists.
Moreover, when the Minister considers that a dispute is causing or is likely to cause serious and irreparable injury, the Minister will send a notice of referral to arbitration to the relevant parties, specifying when the strike or lock-out will end.
These changes are significant, and introduce unprecedented changes affecting labour relations in Québec.
These provisions are not unlike section 107 of the Canada Labour Code, which allows the federal Minister of Labour to “do such things (...) likely to maintain or secure industrial peace and to promote conditions favourable to the settlement of industrial disputes or differences (...).” In our view, however, the current version of Bill 89 gives the Minister of Labour powers that appear to be more limited than those granted under section 107 of the Canada Labour Code.
Practical Considerations and Other Concerns
Bill 89 expands the current limits on the right to strike as set out in the Labour Code. Until now, the limits on the right to strike have been based exclusively on the notion of essential services, which is closely related to a threat to public health or safety. By expanding the limit on the right to strike to sectors of activity and services “ensuring the well-being of the population,” the legislature has significantly altered the applicable legislative landscape.
The concepts of “services ensuring the well-being of the population” and “serious and irreparable injury” caused by a strike or lock-out are definitely the most likely to cause confusion, given their ambiguity. It is difficult at this time to anticipate which services or sectors may or may not be covered by the concept of “services ensuring the well-being of the population,” and what type of injury caused by a strike or lock-out will meet the threshold triggering the Minister’s intervention. To the extent that any labour dispute inevitably has its share of inconveniences, establishing a clearly defined threshold may be difficult.
Bill 89 clearly has the potential to significantly change the dynamics of a labour dispute as we know it today. Being more mindful of the impact of a strike or lock-out is clearly at the heart of Bill 89, which will undoubtedly affect how these rights are exercised, in terms of scope, sectors and duration.
Unions are strongly opposing the bill and will eventually challenge its constitutionality if the bill is enacted as currently drafted. The reaction to the tabling of Bill 89 was swift and sharp. Trade union associations are already raising concerns that Bill 89 will undermine the fundamental freedom of association and underlying right to strike.
The fact remains that Bill 89 is still in its early stages. It will be interesting to follow the progress of this bill, particularly the ensuing parliamentary debates, which will hopefully clarify some of the grey areas in Bill 89. Vigilantly monitoring for any possible amendments to the bill will also be important.
