(Montreal) The Court of Appeal will examine the application of anti-scabies provisions to telework.
In fact the Court of Appeal accepted the application for leave to appeal brought by the FTQ union Unifor. Therefore, you will listen to the subject of the case.
The dispute concerns the definition of what an employer’s “enterprise” is in the context of telecommuting.
In Quebec, the Labor Code prohibits the employment of replacement workers “in the establishment” where a strike or lockout has been declared. But how far does an employer’s “enterprise” extend when an employee works from home?
In November 2021, the Administrative Labor Court ruled in favor of Unifor, ruling that the CRH Group, which operates the Joliet cement plant, where the closure decree was issued, had violated anti-scab provisions by using the services of an “employee who was working remotely.”
The court then held that telecommuting was a “pervasive enterprise” of the employer, especially since we were then in the middle of the COVID-19 pandemic, during which telecommuting had become widespread.
But the Supreme Court overturned this decision last April. It ruled that the Administrative Labor Court exceeded the meaning of the word “establishment.”
Unifor therefore wants to appeal in turn.
Before the Court of Appeal, in order to obtain leave to appeal, Unifor first argued that the Supreme Court had already issued some contradictory decisions on the subject of remote work.
Subsequently, Unifor said that the COVID-19 pandemic created a new situation, namely remote work that became widespread.
“To grant leave, the applicant must demonstrate that the appeal raises an issue worthy of consideration by the court in particular because it is a question of principle, a new issue or a ‘question of law that is the subject of contradictory case law’,” the Court of Appeal wrote.
The Court of Appeal itself stresses that “leave to appeal against judgments in matters of judicial review is granted only sparingly.”
Ultimately, Unifor argued that the definition of enterprise raised serious questions about the principle, which went beyond the right to strike.
Judge Peter Kalichman concluded: “Without ruling on the merits of the appeal, I conclude that there is reason to grant the application for leave to appeal, to which the employer does not object.”
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