MONTREAL -- An unsuspected effect of the COVID-19 pandemic and the resulting widespread use of telecommuting is that the anti-scab provisions of the Labour Code may have lost some of their bite and become less effective.

These anti-scab provisions prohibit an employer from using replacement workers to perform the work of employees during a strike or lockout.

It was the René Lévesque government that had these provisions adopted in 1977, following several heated labour disputes.

Since the lockouts at the Journal de Québec and the Journal de Montréal, the court ruled that employees whose work was published in these dailies, but who did not work "on the premises" of the employer, could not be considered as scabs.

This notion of "on the employer's premises" becomes important in a context where telecommuting has become widespread, due to the COVID-19 pandemic.

ABSURD RESULT

What would happen today if there were a strike?

"I'm concerned about that. The anti-scab provisions risk losing their teeth if this interpretation (of the courts at the time) is repeated," Gilles Trudeau, a professor of labour law at the University de Montreal's Faculty of Law, told The Canadian Press. "We're stuck with an anachronistic notion, that of the employer's 'establishment.'"

With so many teleworking today, Trudeau wonders how a court would rule.

"In the event of a strike, I don't know how it would be received by the courts. It's such an absurd result! It's so contrary to the spirit of the law," he said.

SITUATION NEEDS CORRECTING

FTQ president Daniel Boyer said that "we need to correct the situation", especially with telework becoming more widespread. Telework has increased the number of places where people work away from the employer's premises.

"We want it amended to reflect the new realities. We don't want more than what was in place at the time; we want what was agreed upon," said the president of Quebec's largest labour organization.

"If it weren't for that, it would be easy for employers, in the context of a balance of power at the bargaining table, to say, 'I'm locking you out and I'm going to hire other people.' Listen, there's something that doesn't make sense here! It can't work like that. It hasn't worked like that for 40 years in Quebec. We have to adapt this. Otherwise, we're undoing what we did right 40 years ago."

The president of the 600,000-member union argues that the anti-scab provisions have had the effect of reducing tensions near the picket lines.

"It prevents conflicts from getting out of hand and lasting a long time. It evens out the playing field. That's one of the reasons why there is industrial peace in Quebec," he said.

-- This report by The Canadian Press was first published in French on Sept. 19, 2021.