Quebec Court declares laws denying right to join a union unconstitutional | National Union of Public and General Employees

Quebec Court declares laws denying right to join a union unconstitutional

The Superior Court of Quebec has declared unconstitutional two pieces of legislation denying certain home care and child care workers their right to join a union and other labour rights.

Quebec City (1 Dec 2008) - The Court struck down Bills 7 and 8 introduced by the Charest government in December 2003 on the grounds of violation of freedom of association and of the right to equality before the law, as guaranteed by the Canadian and Quebec Charters of Rights.

Bill 7 targeted workers who provide room, board and care, in their own homes, for people with disabilities, youths or the elderly, while being legally bound to a government agency. Bill 8 targeted workers offering publicly financed child care services in their homes, while answering to a state regulatory agency.

Both pieces of legislation declared that these workers were not employees, but ‘independent entrepreneurs’. The effect of this was to deny them not only the right to unionize and bargain collectively under the Quebec Labour Code, but also the right to minimum labour standards, health and safety protection, workers compensation, pay equity and QPP. The legislation was applied retroactively on the workers.

The Charest government had forced quick passage of Bills 7 and 8 in December 2003, as part of a series of controversial bills that aimed at restructuring government and ‘rationalizing’ labour relations in the public sectors. Since the 1990s, an increasing number of unions had succeeded in organizing the workers targeted by Bills 7 and 8, and their employee status had been clearly established by the labour tribunals.

Justice Danielle Grenier, in her October 31 ruling, found that Bills 7 and 8 violated the workers’ right to freedom of association, by denying them access to a meaningful, good faith collective bargaining process.

“By refusing them employee status and all related labour rights, the government struck at the heart of what is most important to a union. Moreover, the new discretionary agreement process and the lack of any protection against unfair labour practices excluded true good faith bargaining.”

Justice Grenier concluded that Bills 7 and 8 were clearly passed to put an end to unionization of the two groups of workers.

The justice also found Bills 7 and 8 to be in violation of the workers’ right to equality before the law. “The two bills were discriminatory based on sex: the workers were denied their rights because they form a group that is largely female, and whose work is identified with the feminine sphere. The bills also discriminated on the basis of an analogous motive: their professional status as “care” givers working at home.”

The Court stated that these bills “perpetuated stereotypes and prejudices which explains why traditional women’s work in the home continues to be undervalued.”

Justice Grenier rejected the government’s plea that the bills were justified by pressing and substantial objectives. “The only apparent “urgency” was to contain the unionization movement. Nothing suggested that unionization jeopardized the quality of services in any way. Moreover, the government chose the most “draconian” method available, by denying the workers employee status, and failed to consider other less intrusive solutions.”

This ruling comes less than one year after the judgment striking down another labour law passed by the Charest government imposing pre-determined bargaining units in the Quebec healthcare sector.

The above is based on an analysis of the decision completed by Matthew Gapmann with the Quebec-based law firm Grondin, Poudrier, Bernier

More information:

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