On November 24, the Quebec Court of Appeal issued a unanimous decision1 clarifying the state of the law regarding the co-existence of a collective agreement’s return-to-work provisions with the provisions of public order in the Act respecting industrial accidents and occupational diseases (AIAOD).2 The court confirmed that a collective agreement can provide rights to return to work following an occupational injury that are more extensive than those set out in the AIAOD and, in such a case, the grievance arbitrator will have jurisdiction to rule on the additional rights. Employers with collective agreements already providing for additional return-to-work rights therefore need to pay special attention, as they may be required to submit to the grievance procedure and to offer employment that would not necessarily qualify as suitable employment within the meaning of the AIAOD.
Quebec’s occupational health and safety commission, the Commission de la santé et de la sécurité du travail (CSST), issued a final decision determining suitable employment for a unionized worker who had suffered an occupational injury that had resulted in permanent functional limitations. As the employer did not have such a position, the worker was assigned to light duties during his many attempts to return to work. Nearly five years after suitable employment was determined by the CSST, the employer decided to dismiss the worker on the grounds that such a position was still not available. The union filed grievances contesting this measure.
At the grievance hearings dealing with the concept of the right to return to work, the employer successfully argued that the arbitrator did not have jurisdiction in the area and such matters fell within the exclusive jurisdiction of the CSST. The Superior Court overturned that decision and returned the matter to the arbitrator so he could rule on the merit of the grievances. The employer appealed the Superior Court’s decision.
The Court of Appeal ruling
The first question the Court of Appeal had to answer was whether the parties to a collective agreement could provide more favourable conditions than those in the AIAOD. If so, then court had to determine who should have jurisdiction to hear a dispute on the application of those contractual provisions.
To answer this question, the court referred to the second paragraph of Section 4 AIAOD which states that “any covenant or any agreement […] may provide more favourably for a worker than does this Act.” The interpretation of such provisions by a grievance arbitrator therefore does not fall within the jurisdiction of the CSST3 or Quebec’s occupational injuries board, the CLP.4
After answering yes to the first question, the court had to determine whether the collective agreement in the case at issue contained such a provision. As the collective agreement provided that the employee’s return to work could be made to “[translation] another position the employee’s health permits him or her to occupy,” the court decided that this provision encompassed more possibilities than the suitable employment provided for in the AIAOD.5
Since the practical arrangements for the exercise of the right to return to work provided for in the collective agreement were more generous than those in the AIAOD, a grievance arbitrator seized of a dispute on the application of those arrangements had complete jurisdiction to hear it.6
The court therefore dismissed the employer’s appeal and ruled that the arbitrator was going to have to evaluate the employee’s ability to perform the duties of the positions covered by the grievances.
Justice Bich clearly states that when a collective agreement gives an injured worker broader rights than those provided in the AIAOD, any dispute arising out of the application of those rights will relate to the collective agreement specifically, outside of the scope of the AIAOD. They are an addition to the AIAOD – one that is entirely legal and permitted under the Act – as opposed to a parallel regime created alongside the AIAOD – something that would not be permitted under the Act. On this last point, the judge also states that an arbitrator ruling on such provisions may not, however, “[translation] reject, refute or discuss the CSST’s determinations […] regarding the existence of an occupational injury, the employee’s ability to resume his or her pre-injury employment, the employee’s functional limitations or suitable employment.”
In this sense, the decision clarifies the scope of SEPAQ7 and Tembec.8 In those cases, the collective agreements did not contain, with respect to the right to return to work, any provision that was more favourable that those in the AIAOD. The arbitrators were therefore justified in declining jurisdiction, having to cede way to the exclusive jurisdiction of the CSST (and ultimately the CLP).
In conclusion, employers who find it useful or necessary to address such matters in their collective agreements will now have to pay attention: if the return-to-work rights granted by them are more generous that those provided in the AIAOD, they will be required to submit to the grievance procedure in the event of a dispute and may be required to offer a worker employment not qualified by the CSST as suitable within the meaning of the AIAOD.
1 Université McGill c McGill University Non Academic Certified Association (MUNACA), 2015 QCCA 1943. In a decision rendered two days after this decision, the Court of Appeal applied the same reasoning and arrived at the same conclusions: Montréal-Est (Ville de) c Syndicat des cols bleus regroupés de Montréal, section locale 301, 2015 QCCA 1957.
2 RSQ c A-3.001.
3 Ibid, s 349.
4 Ibid, s 369.
5 Ibid, s 170.
6 Ibid, s 244.
7 Société des établissements de plein air du Québec c Syndicat de la fonction publique du Québec, 2009 QCCA 329.
8 Syndicat canadien des communications, de l’énergie et du papier, section locale 427 c Tembec, Usine de Matane, 2012 QCCA 179.