In recent years, the Québec Tribunal administratif du travail (the “TAT”) (formerly the Commission des relations du travail) has frequently been called on to address the legal implications involved in the hiring of temporary employees through personnel agencies in the health and social services field.

Most recently, in the case of Professionel (le)s en soins de santé unis (FIQ) and Centre intégré universitaire de santé et services sociaux de l’Est-de-l’Île-de-Montréal[1], the TAT ruled on the issue as to whether nursing and cardio-respiratory professionals who were assigned to the Montréal West Island Integrated University Health and Social Services Centre (the “Centre”) through personnel agencies were included in the Centre’s Professionnel(le)s en soins de santé unis’ bargaining unit (the “Bargaining Unit”), since the union had filed an application under section 39 of the Labour Code, CQLR, c. C-27 to have these professionals included in the said Bargaining Unit.

The union argued that its request was consistent with the principles established by the Supreme Court of Canada (the “Supreme Court”) in Pointe-Claire (City) v Quebec (Labour Court) (“Pointe-Claire”)[2] which promoted a comprehensive and flexible approach to the identification of the “real employer” in a tripartite relationship. In this context, the union emphasised the particular institutional framework of health and social services to support its contention that the true employer was the Centre and not the personnel agencies.

The issue was decided upon on August 25^th 2016 by Mr. André Michaud from the TAT, who ruled that in light of the particular institutional framework of health and social services in Québec, the real employer of the temporary employees hired through personnel agencies was the Centre and not the personnel agencies. Hence, the temporary employees were included in the Bargaining Unit.

In reaching this decision, the TAT began its analysis by examining the criteria set forth in Pointe-Claire in order to identify the real employer in the tripartite relationship. The TAT held that the temporary employees assigned by the personnel agencies had to adapt to the strict working conditions of the Centre and were fully integrated into teams of different services or care units. These employees were directly under the control of the Centre. The Court added that the temporary employees had to perform the same tasks, in the same manner and under the same conditions as the permanent employees of the Centre. Furthermore, they were overseen by the same supervisors and used the same equipment in the facilities. From a patient’s perspective, no distinction could be made between both categories of employees. Finally, the TAT underlined that the purpose of using the services of said agencies was not for their nursing expertise but rather for their specific expertise in providing qualified professionals who had such expertise. The Centre communicated very specific requirements with respect to the necessary qualifications and training of the temporary employees and the personnel agencies would in turn find the appropriate candidates. As such, the Centre directly and indirectly controlled almost every aspect of the temporary employees’ hire and working conditions. For all of these reasons, the TAT concluded that the Centre was actually the real employer of the professionals who were assigned to the Centre through personnel agencies.

The implications of the TAT’s findings in this case are highly important because there may be an increase of requests under section 39 of the Labour Code to have all the professionals assigned through personnel agencies included in the employer’s pre-existing bargaining units.

It is worthy to note that this decision is currently undergoing judicial review as both the Centre and personnel agencies argue that the TAT reached its conclusions by misinterpreting the health and social services institutional framework, and without sufficient evidence on the criteria defined by the Supreme Court in Pointe-Claire such as the legal subordination, the selection, discipline and evaluation process as well as the assignment of duties, remuneration and integration into the Centre. We will follow the developments in this important matter with great interest.

[1] 2016 QCTAT 5036.

[2] [1997] 1 SCR 1015.

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