(Montreal) Court of Appeal considers application of anti-scab rules to teleworking.
The Court of Appeal had originally accepted a leave-to-appeal request submitted by the Unifor union affiliated with FTQ. Hence she hears the merits of the case.
The dispute concerns the definition of an employer’s “establishment” in the context of teleworking.
In Quebec, the Labor Code prohibits the use of replacement workers “in an establishment” where a strike or lockout has been declared. But how far does an employer’s “establishment” extend when an employee works from home?
In November 2021, the Administrative Labor Court ruled in favor of Unifor that CRH Group, which operates the lockout-decreed Joliet cement plant, violated anti-scab regulations by using the services of an ’employee’. Teleworking.
The court viewed teleworking as an employer’s “designated establishment,” especially since we were then in the midst of the COVID-19 pandemic where teleworking was widespread.
However, the Supreme Court overturned this decision last April. She ruled that the Administrative Labor Court had exceeded the meaning of the word “establishment”.
Hence, Unifor intends to appeal the order.
Before the Court of Appeal, Unifor first argued that the Superior Court had already made some conflicting decisions on teleworking in order to obtain leave to appeal.
Then, Unifor argued that the Covid-19 pandemic has created a new situation where teleworking has become widespread.
“For permission to be granted, the applicant must demonstrate that the appeal raises a question entitled to Court examination because it is a question of principle, a new question, or a “question of law that is the subject of conflicting case law. ,” the appeals court wrote.
The Court of Appeal itself emphasizes that “the power of appeal from judgments given in matters of judicial review is rarely granted”.
Ultimately, Unifor argues that the establishment’s definition raises serious questions of principle, going beyond the right to strike.
“Without ruling on the merits of the appeal, I conclude that there is cause to grant the request for leave to appeal, to which the employer has not objected,” Judge Peter Kalichman concluded.
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