The Administrative Labour Tribunal (ALT) in Quebec has ruled that a portion of the province's Labour Code restricting how much certain public sector employees can strike violates the Constitution.
The ruling was made on August 31.
The Labour Code mandates how many health-care employees need to continue working during a strike. This amount varies depending on kind of job and workplace. In hospitals, it is 80 per cent or 90 per cent, depending on the type of hospital. In community health centres it is 60 per cent, and 55 per cent in child and youth protection centres.
Two Confédération des syndicats nationaux (CSN) locals and two CUPE Quebec locals mounted the challenge. Eleven unions participated as interveners, including the provincial nurses' federation and CUPE National.
The CSN, which represents more than 132,000 public health and service workers, argued the law violated the constitutional right to freedom of association. A recent Supreme Court of Canada decision, the Saskatchewan Federation of Labour v. Saskatchewan, said freedom of association includes the right to collective bargaining. This includes the ability to have meaningful strikes. That decision was rendered while the Quebec unions were preparing for province-wide Common Front strikes.
The law outlines four categories of workers and the degree to which they are essential, from nurses and cardio-respiratory workers, to technicians and health and social services professionals. The tribunal agreed that this part of the Labour Code violates the Constitution. It said the minimum requirements for essential services are "arbitrary" and do not always reflect what are essential services. The tribunal has no way of determining what work is essential.
It has given the Quebec government 12 months to review the law.
The conditions laid out in the Code aren't subject to negotiation, so workers have limited ability to challenge what is and what isn't essential. This gives the employer an unfair balance of power, said Caroline Senneville, CSN vice-president.
"We have to decide together what is essential or not. It's not the boss's job to decide that on their own," she said.
Public health and safety need to be maintained during a strike, said Senneville. Nurses, for example, still need to take care of patients. But not all jobs in a hospital are as essential for health and safety. Requirements need to be different depending on people's jobs, she said.
The impact on public health and safety is "not the same if you work in the office, a kitchen or an emergency room," she said.
"Of course you need to have a balance between the right of the public to security and health, but you have to have a balance between the right to strike."
CUPE Quebec spokesperson Serge Morin said in a press release that this was "a major victory for public sector workers." He promised that the union would be active in the debate about how to balance workers' rights with the right that the population has to access care.
The government has 30 days from the date of decision to appeal. Collective agreements in the health sector don't expire until March 2020.
Meagan Gillmore is rabble.ca's labour reporter.
Photo: Michael Coté/flickr
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