2014
This document is linked to :
Revue générale de droit ; vol. 44 no. 2 (2014)
Droits d'auteur © Faculté de droit, Section de droit civil, Université d'Ottawa, 2014
Fernand Morin, « Commentaires de l’arrêt Walmart », Revue générale de droit, ID : 10.7202/1028143ar
The dissolution of the Jonquière Walmart establishment happened immediately after the employee union’s accreditation. This problem put in real opposition these two freedoms: the employer’s commercial freedom and the freedom of association of the 190 employees who were working there. However, section 59 of the Code du Travail imposes the maintenance of the statu quo ante to the employer whose employees are now represented by an accredited union, at least until the acquisition of the right to lock out or strike (art 59, al 2 Ct)! Following the Jonquière establishment’s dissolution, this double question arose: because the Court did not consider having the power to cancel the dissolution nor to order in consequence the reprisal of the activities, the Court refused to order the reinstatement of these 190 employees; moreover the Supreme Court recognized that the dispute arbitrator (art 93.1 Ct – first collective agreement), who was later appointed as adjudicator, has the requested remediation power. Thus, the Supreme Court deferred to this adjudicator to draw the legal and practical conclusions. The two dissenting judges considered that section 59 Ct was not applicable in this case because the fact that the dismantling was an anti-union act should have been established first. We have noticed that “enterprise” and “establishment” concepts are sometimes mixed up in this case, at least in the wording of some statements. Is that possible that such confusion in the concepts could lead to unfortunate interpretations or projections?