In British Columbia and Quebec, the use of replacement workers during a strike or a lock-out is restricted. Replacement workers are not restricted in other provinces and the federal sector (although they were banned in Ontario from 1992 to 1995). Quebec may be moving toward a more stringent law, as its anti-scab legislation is being debated this summer.

Quebec's Anti-Scab Legislation

The Quebec provisions in question have been part of the legal landscape since 1977. They restrict the right of an employer to use replacement workers to replace employees on strike or lock-out. They don't, however, prevent an employer from having work carried out by a third party - as long as the third party is not doing work ordinarily done by employees on strike or lock-out, in the establishment where the strike or lock-out has been declared.

Where has this move arisen from? This debate is prompted by two recent major labour disputes.

The Journal de Québec Case

In April 2007, after unsuccessful negotiations to renew collective agreements, the Journal de Québec newspaper locked-out its journalists and photographers. During the lock-out, the newspaper published articles that were provided by a news agency, Agence Nomade. For its photography needs, the newspaper used Agence Keystone, which used its own photographers to cover events in the city. The work was done outside the premises of the newspaper and sent in via the Internet.

The unions representing the employees who were locked-out applied to the Labour Relations Board, asking the Board to prohibit the newspaper from using the services of these agencies. The newspaper fought back, arguing that the agencies' employees were not discharging their duties in the employer's establishment where the lock-out had been declared. In fact, the agencies' employees never came to the newspaper's establishment.

The Labour Relations Board ruled that the work performed by the agencies' employees was controlled by the newspaper, which issued specific instructions, either directly or indirectly. These employees were, in essence, performing the same duties as those who were on lock-out, at the same locations where they ordinarily worked. Therefore, the newspaper violated the anti-scab provisions of the Quebec Labour Code. In making its decision, the Labour Board gave the term "establishment" a broader scope than had been done before - to include any place where striking or locked out employees ordinarily performed their duties, in cases where the employer directly or indirectly controlled the work done by replacement workers.

Luckily for employers, this decision was reversed by the Superior Court. In the Court's view, since the journalists and photographers sent in their news stories or photographs via the Internet, the work was not performed in the establishment where the lock-out had been declared. The Court of Appeal will hear this case very shortly.

The Journal de Montréal Case

In January 2009, another newspaper, the Journal de Montréal, ordered a lock-out of its journalists, photographers, office staff and employees of its classified advertising department. The newspaper had the work done by employees of Agence QMI, its suppliers and different websites, all of which were hosted on the Canoë portal.

The unions applied to the Labour Relations Board. The newspaper in this case faired better. The Labour Board dismissed the complaints and ruled that the newspaper was entitled to use the "fruits of labour" of employees working for another employer, as long as the work performed by those employees was done under the direction and for the benefit of that other employer. When the decision was challenged, the Superior Court agreed with the Labour Board. Again, this matter will be heard by the Court of Appeal.

What's Next?

The Quebec Liberal government has said it has no intention of re-opening these provisions of the Labour Code. In view on these ongoing labour disputes, it may very well be that this matter may be ripe for analysis. If so, it will be interesting to see how British Columbia deals with similar situations – particularly given that replacement workers are permitted everywhere else in the country. We will keep you posted if there are any further developments.