August 10, 2022

In an important ruling rendered by the Administrative Labour Tribunal (TAT), Judge Myriam Bédard recognized that the government did not negotiate in good faith with the FIQ when it announced premiums of $12,000 to $18,000 after signing the tentative agreement and it obstructed the activities of labour organizations by not working with them to come to an agreement on measures. The state of emergency did not justify bypassing unions, said the judge.

What you need to remember about the ruling is that it is important leverage that can be used to rebuild bargaining power for the next negotiations. The government is obliged to demonstrate good faith in negotiations, which will begin next fall. The FIQ and FIQP are heading into this next step with the confidence that they have the tools to negotiate as equals with the government.

Context

In fall 2021, Quebec faced a significant spike in COVID-19 cases. In September, the government unilaterally announced significant premiums for healthcare professionals who agreed to work full time after a tentative agreement was just reached.

Faced with what they consider an obstruction of their activities and negotiations in bad faith, the FIQ and FIQP, along with other labour organizations, filed a complaint with the TAT in November 2021.

Highlights of the ruling

• The ruling recognized that labour organizations are not challenging the measure, but its implementation and the statements made by Mr. Dubé on November 9, 2021:

[189] The associations state that they do not challenge the validity of the adoption of Ministerial Order 2021-071, but maintain that the decree does not suspend the application of the provisions of the Labour Code. They are not asking for a ruling on the measures put in place by the government, but to determine if there was an obstruction of union activities and a failure to negotiate in good faith as pertains to the process of adopting Order 2021-071, which was enforced with a disregard for the obligations set out in the Labour Code.

• The ruling recognizes that the government contravened the objectives of the negotiations, i.e., to implement sustainable and long-term workforce attraction and retention measures:

[201] Therefore, the conclusion is that negotiations were not conducted in good faith and that union action was obstructed. One could even say that the employer impeded its own action by adopting this decree. The foundations of the revision of the organization of work, in which the negotiators believed and strived to implement, were undermined. Consequently, the upcoming negotiations are compromised since the relationship of trust has been seriously shaken.

• The ruling recognizes that the unions always wanted to negotiate in good faith with the government, even during a public health emergency:

[217] As such, for one to prevail over the other, there must be a contradiction between the two texts. Yet, the two pieces of legislation in question are not incompatible. “The application of one does not exclude the other.” To decide on emergency measures is not incompatible with the obligation to negotiate, which can be “adjusted” based on the prevailing context. This is evidenced by the fact that we held discussions with the unions at the time Order 2020-007 was adopted at the start of the pandemic, when the situation was not only critical, but new. Furthermore, the order stipulated that unions be consulted by the employers locally in each institution before a request to use the order was sent to the ministry.

• The ruling recognizes that Order 2021-071 was in contravention of the measures negotiated for the collective agreement:

[220] For the TAT, it is crucial and essential that the government show consistency in the measures adopted, not only during a pandemic, but also when there is a critical workforce shortage. The contradictions between the measures in the order and those in the collective agreement caused great confusion and discredited the associations, which prevented them from defending the interests of the employees they represent and fulfilling their role.

• The ruling recognizes that Minister Dubé blamed labour organizations when they were negotiating with the same objective as the government:

[224] The search for solutions to make up for the lack of staff could have involved the unions, social partners who could have, thanks to their knowledge of the network, helped to ensure the consistency of the measures taken. This is what the associations were working toward throughout negotiations, however, the Minister seemed unaware of this when, at a press conference, he required their help to “go find staff.”

• The ruling recognizes that Minister Dubé completely skewed and instrumentalized the labour organizations’ words at his press conference on November 9, 2021:

[234] However, during his statements, the Minister specified that he was directly addressing employees, skewing the unions’ demands that he then sharply condemned to the extent that journalists were pointing out that he was questioning the capacity of the associations to properly represent the employees. In the same breath, he accused them of only being concerned about their delegates’ interests to the detriment of people who need care.

[235] Speaking of union delegates once again, he asked “that they rise above the fray and help us find staff.” And yet, the matter of attracting staff was at the core of the negotiations the associations had been working on for months.

Consequences of the ruling

Judge Bédard asked the government to stop violating sections 12 and 53 of the Labour Code, and therefore to respect the autonomy of the unions and to negotiate in good faith. The government must make the ruling public.

As for the FIQ and FIQP, they have begun an in-depth legal analysis of this ruling in order to evaluate its scope for members. The health and social services workers’ unions also plan to challenge the measures announced unilaterally in summer 2022 in the same way, as the conditions were also far too restrictive.