Wal-Mart, which has until now apparently been union-free, has had a union contract imposed on it in Quebec. The contract covers an auto center, Tire & Lube Express, which is part of a store in Gatineau, near the Ontario border. The small group of about eight employees apparently received union certification three years ago.
Under Quebec’s Labour Code, an employer may have a union contract imposed on it by an arbitrator if it is unable to reach a collective agreement with the certified union. The normal bargaining process must first have failed.
An arbitration hearing is ordered in such cases and the arbitrator decides on the content of the collective agreement, to the extent the parties were unable to agree. This can include the scope of management’s rights, seniority rules, wages, benefits, and all of the other subjects normally covered by a union agreement. Usually, the arbitrator will consider other union contracts in the industry in deciding on the contents of this particular one.
There is no right of appeal unless the arbitrator goes outside his jurisdiction. Because the arbitrator has such broad discretion, employers usually wish to avoid this process if they can. Unions, on the other hand, like to have access to first contract arbitration, as they are often able to achieve a competitive contract without having their resolve to go on strike tested.
The Gatineau store was one of several in Canada that have had union certification but, until now, no collective agreement has remained in place at any of the stores.
For a brief period in the 1990s, a Windsor, Ontario, Wal-Mart store had a collective agreement, but that store is no longer unionized. The employees voted to get rid of the union after the first contract.
Regarding another store in Jonquiere, Quebec, the Supreme Court of Canada agreed on August 7 to hear a challenge from former employees, who allege they unfairly lost their jobs because of their union activism.
Wal-Mart Canada insisted they had lost their jobs for the “good and sufficient reason” of the closure of the store. The Quebec Labour Relations Board initially found that the shutdown did not seem definitive and authentic. The Labour Relations Board noted that although the store itself was emptied, Wal-Mart remained the lessee of the premises, and did not seek to sublease nor cancel the lease, which expires in 2012. Wal-Mart then asked the Superior Court of QuÃ©bec to quash the Labour Board decision. Wal-Mart was unsuccessful there but won at the QuÃ©bec Court of Appeal. The Supreme Court of Canada is expected to rule within the next year.
Brian Smeenk is a Toronto partner in the Fasken's Labour, Employment & Human Rights Group. He is also editor-in-chief of Northern Exposure and a member of the Employers Counsel Network. Since 1981, Brian's practice has focused on management-side labour and employment law. He represents both private sector and public sector employers, including many multi-national companies, in all aspects of labour relations and employment law and appears before tribunals and courts at all levels.