CUB 21211
TRANSLATION
IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
Hubert TOUZEL
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IN THE MATTER of an appeal to an Umpire by
the Commission from a decision by the Board of Referees
given on April 16, 1991 at Sept-Îles, Quebec
CORRESPONDING FEDERAL COURT DECISION: A-1063-92
DECISION
DUBÉ, J., UMPIRE:
This claimant was refused entitlement to receive benefit from May 4 to May 23, 1990 for having lost his employment because of a stoppage of work attributable to a labour dispute at the factory, workshop or other premises at which the claimant was employed. A Board of Referees allowed the appeal of the claimant, and the Commission appeals to the Umpire.
The case involves a labour dispute that occurred in the spring of 1990 in the Quebec construction industry, and more particularly at the Reynolds construction site at Baie-Comeau. The appeal of the Commission was heard at Sept-Iles, Quebec on Tuesday, April 28, 1992. Other appeals concerning similar situations at the same site were heard on the same day and on April 29 and 30, at Baie-Comeau. It was understood between counsel and the representatives of the parties that all the arguments presented would be valid, mutatis mutandis, for each of the appeals.
For some years, negotiations in Quebec's construction industry have been governed by special legislation, and collective agreements are legally extended by decree, in this case the Quebec Construction Decree. On July 14, 1989, a coalition of the three unions concerned, namely the Quebec Federation of Labour (Q.F.L.), the Quebec Provincial Building Trades Council and the Confederation of National Trade Unions (C.N.T.U.), filed applications to negotiate a collective agreement. In late March 1990, after a series of negotiating sessions, the parties had still not reached an agreement. On April 4, a conciliator was appointed. On April 20, the Association of Building Contractors of Quebec (A.B.C.Q.), the employers' group, filed a general offer with the central negotiating table, but without success, and later filed a general offer for each of the trades negotiating tables. Faced with an impasse in negotiations, the Minister of Labour thought it appropriate to extend the Construction Decree to May 21, 1990. This action was not well received by the unions.
Thereafter, the situation gradually worsened. From March on, pressure tactics were brought into play, and workers kept employers waiting before going to work. The crane operators at the Reynolds site in Baie-Comeau waited until 10 a.m. before operating their machines, claiming that they had to do safety checks. Throughout the province, the crane operators of Guay Inc. did not come to work. On April 2 and 3, there was a work stoppage by all crane operators in Quebec. On April 3, carpenters stayed away from construction sites, and on April 4, the boilermakers at Petro Canada's refinery in East Montreal were off the job. On April 6, there was a general stoppage of work involving all wage earners.
For its part, the A.B.C.Q. suspended negotiations in retaliation for the pressure brought to bear by the unions. Three applications for an injunction were filed by the employers' group to force workers back on the job, but they were rejected by the courts. The situation was thus seriously deteriorating, and productivity was gradually declining. Every employer tried individually to remedy the situation using the means it thought most suitable. Some employers used disciplinary actions, while others elected to suspend their operations.
It should be remembered that the aluminum plant construction project at the Reynolds site, a very large undertaking worth some five hundred million dollars, was reaching a critical stage because the construction completion date was approaching. This vast operation required the simultaneous cooperation of all contractors, because each had its role to play in the process, and the chain of events leading to completion could not advance unless each link were productive.
Technically speaking, the labour dispute was finally settled on May 20, 1990, the Construction Decree being extended for three years. The recall process began on May 22, 1990 for construction sites that had been closed down. The Commission now accepts May 20, 1990 as the date on which the stoppage of work ended.
Turning more particularly to the claimant's case, we find him working for Les Entreprises Neru Ltée on the Reynolds construction site in Baie-Comeau. On May 4, 1990, the employer laid off all its employees except for the foreman. It is clear that if there had been no labour dispute, the employer would have continued its operations, since its contract was not completed. The employer in fact had to hire additional workers after the dispute, to make up for lost time.
It is, of course, not the Umpire's role to determine whether the unions or employers were in the right. My function is rather to decide whether the claimant in this case (and the others involved in this series of appeals) lost his job because of a stoppage of work attributable to a labour dispute at the premises at which he was employed, namely the Reynolds site. If he did, he was not eligible to receive benefit during the stoppage of work unless he was covered by one of the exceptions provided for in the section in question.
There are thus four factual circumstances that the Commission must prove - and the Commission must assume the burden of proof - in order to make the claimant ineligible under section 31:
1. There must have been loss of employment.
2. This loss of employment must result from a stoppage of work.
3. The stoppage of work must be attributable to a labour dispute.
4. The labour dispute must occur at the premises at which the claimant was employed.
In the first place, it is a certain fact that the claimant lost his employment.
Secondly, the claimant did not lose his employment because of a lack of work, as indicated in his claim for benefit. The evidence in this case clearly shows that his employer had to stop the construction work because it could not function due to the situation on the site, as described above.
Thirdly, is the stoppage of work in question attributable to a labour dispute? The term "labour dispute" is not defined in the Act. However, case law has determined that two factors must be present for a labour dispute to occur, namely insistence by one party and resistance by the other in regard to certain claims. "A dispute is a disagreement, a dissension" (Gionest v. Unemployment Insurance Commission, A-787-81, Federal Court of Appeal, Pratte, J.A.). A labour dispute does not necessarily mean a strike or lock-out, which is rather the outcome of a dispute. When the parties are negotiating an agreement and one party pushes on one side while the other blocks, there is a dispute in the sense that there is obviously no agreement.
If one of the parties uses pressure tactics that prevent the other party from functioning, even if no strike or lock-out occurs, the result may be a forced stoppage of work. Given that the Construction Decree does not allow strikes or lock-outs, if one party uses pressure tactics to get what it wants, the result may be a stoppage of work attributable to a labour dispute. This clearly happened in the case before us.
Fourthly, the main argument advanced by the claimant's representative is that more than one hundred thousand workers are involved in Quebec's construction industry and are covered by the Construction Decree, while there are only some eight hundred workers employed at the Reynolds site, or less than one per cent of the total. According to this argument, then, even if there were a labour dispute in the province, the stoppage of work does not approach the 85 % formerly established by case law and now enacted by legislators.
The answer to this argument is found in subsection 31(1) cited above, which states that the labour dispute must take place "at the factory, workshop or other premises" at which the claimant was employed. The Act does not require the Commission to prove that the labour dispute and the stoppage of work were raging throughout the province and affecting all workers in the construction industry in Quebec. The fourth factual circumstance is thus established, since there was indeed a stoppage of work attributable to a labour dispute at the Reynolds site where the claimant was employed.
To escape the application of the provisions of subsection 31(1), the claimant must show in accordance with subsection 31(2) - and he is responsible for this proof - that he fulfils all the following conditions:
1. He did not participate in the dispute.
2. He did not finance the dispute.
3. He was not directly interested in the dispute.
4. He did not belong to a group or category of workers of whom some participated in, financed or were directly interested in the dispute.
Case law has clearly established that these four conditions are conjunctive in the sense that the claimant must fulfil them all to escape from the general rule. Obviously, the task is an extremely onerous one, but this is what the legislators wanted. In the case before us, it is clear that the claimant was directly interested in the dispute, not only because he belonged to an interested union, like all other construction workers, but also because a favourable outcome would be beneficial to him.
Consequently, the appeal of the Commission is allowed.
These reasons shall also apply mutatis mutandis to all the appeals concerning the labour dispute at the Reynolds sites, which were heard at Sept-Iles and at Baie-Comeau on April 28, 29 and 30, 1992.
UMPIRE
May 22, 1992