July 2010

On July 29, 2010, the Supreme Court settled an issue that has divided courts for the past few years – the implicit incorporation into collective agreements of section 124 of the Act Respecting Labour Standards[1] (A.L.S.). That decision is Syndicat de la fonction publique v. Québec (Attorney General).[2]

The case is an amalgamation of several matters that was brought before the Supreme Court to be dealt with collectively. Generally, each of the employees involved was without job security (casual employee, probationary employee, temporary employee, employee on a priority list, etc.) and was not entitled to grieve the termination of their employment under the collective agreement other than to verify whether the employment termination procedure was followed and the employer's grounds were real and non-discriminatory. However, these employees did have the right to contest their dismissal before the CRT by filing a complaint under section 124 of the A.L.S., since all were credited with two years or more of uninterrupted service. The main issue that all of these appeals seeks to resolve is whether grievance arbitrators or the CRT is the appropriate forum for exercising their recourses under section 124 A.L.S.

The union argued that statutory minimum labour standards set a threshold that the parties to a collective agreement cannot directly or indirectly circumvent. These minimum labour standards are implicitly incorporated into each collective agreement, and only the grievance arbitrator has jurisdiction to rule in disputes over such matters.

According to the employer's analysis of the legislative provisions in question, however, the A.L.S. grants the CRT exclusive jurisdiction over disputes stemming from complaints filed under section 124 ALS. The intent of the law must therefore be respected. The employer objected to the conclusions that the union drew from recent Supreme Court rulings on the automatic incorporation of the minimum standards of labour legislation into collective agreements.

In a close 5-4 decision, the majority (under the pen of Justice LeBel) concluded that section 124 of the A.L.S. is implicitly incorporated into collective agreements, given the public order status of the legislative provisions at issue.

Justice LeBel began his argument by emphasizing that the A.L.S., as he sees it, takes account of the fact that employees are often in a vulnerable position in relation to their employers, hence the necessity of establishing a stable, orderly system of labour relations.

Justice LeBel frames the debate by insisting that the issue is not whether section 124 of the A.L.S. is implicitly included in every collective agreement. Rather, this case raises a question about the hierarchy of sources of Québec labour law and, more specifically, about how a statute of public order affects the content of collective agreements. Justice Lebel gives a brief overview of the Supreme Court's case law and explains in the following terms how a statute of public order affects the content of collective agreements:

Under s. 93, an exception to the A.L.S. may be made only where one of the Act's provisions so allows or where, as provided for in s. 94 A.L.S., the parties to a contract of employment or a collective agreement negotiate conditions that are more advantageous to the employees. Otherwise, any provision of a collective agreement that deprives an employee of the minimum conditions of employment set out in the A.L.S. is absolutely null (Isidore Garon, at para. 112).

Viewed narrowly, the fact that the A.L.S. is a statute of public order would mean only that the parties cannot agree to eliminate the recourse available to employees under s. 124 of the A.L.S. Such an interpretation seems too restrictive. The public order status the legislature has attributed to this provision means that no individual contract or collective agreement can prevent an employee credited with two years of uninterrupted service who is dismissed without good and sufficient cause from contesting his or her dismissal, and that any provision of such an agreement that purports to do so is of no effect. The agreement survives, but any of its provisions that are inconsistent with the minimum standard are of no effect. They are deemed unwritten, as provided for in ss. 62 and 64 L.C., and the agreement must be considered, interpreted and applied accordingly. In other words, the legislation limits the parties' freedom of contract by denying any effect to the provisions included in the agreement that are inconsistent with standards of public order, or by requiring the parties to adopt conditions of employment that are at least as advantageous to employees as those provided for in the A.L.S. Thus, the public order status of the legislation affects the actual content of the contract of employment or collective agreement, and not just its legal framework.

This judgment not only lays this controversy to rest, it also allows unionized employees without job security to turn to grievance arbitrators, who are authorized to apply section 124 A.L.S. if the employees (who must have two years of uninterrupted service to their credit) are limited in their recourse against dismissals without good and sufficient cause by the very provisions of their collective agreement.

For more information, please feel free to contact the author of this bulletin:

Mtre Guy C. Dion
418 640 2016

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[1] R.S.Q., c. N-1.1.

[2] 2010 SCR 28