The case of forced overtime imposed on nurses went before the Court of Appeal on Tuesday in Montreal.
The starting point for the long-running case was a motion by the FIQ, which had asked the administrative labour tribunal to force employers in the health-care network to use all available means to limit mandatory overtime.
In 2019, the tribunal ruled that this was a management right over which it had no control since the service was rendered all the same. It upheld an objection by the employers, which meant that it did not rule on the merits of nurses' union the Fédération interprofessionnelle de la santé (FIQ)'s application to intervene.
The FIQ challenged this decision before the Superior Court. In March 2022, the Superior Court ruled in favour of the FIQ, stating that mandatory overtime may be "abused or allegedly abused because it is less complicated or less costly," according to the unions' claims "but that this cannot be decided without examination."
The Superior Court referred the case back to the Tribunal administratif du travail "to rule on the merits of the FIQ's request for intervention."
Now, the Comité patronal de négociation, which represents 27 employers in the health-care network, has appealed to the Court of Appeal, asking it to reject the Superior Court's decision.
The employers' lawyer argued that the law does not allow the administrative labour tribunal to rule on the quality of services but only on whether or not they are rendered. However, they are rendered when mandatory overtime is used.
In her view, the FIQ's request implies that the service rendered when there is mandatory overtime is a bad service, which is "an intellectual shortcut."
She also pointed out that not all employers use mandatory overtime with the same frequency. Some local collective agreements stipulate that the employer must exhaust other means before resorting to it.
The FIQ's lawyer referred to 30,000 grievances accumulated over several years relating to the measure -- proof, in her view, that this is not a matter of a few disputes involving a limited number of employers but rather a method of management.
In many cases, employers don't even bother to contact other nurses to see if they would be available; mandatory overtime has become an easy solution, she said.
The nurses' union organization is convinced that "public service is threatened by such practices" in the short, medium and long term because nurses are exhausted and end up resigning, which further worsens the scarcity of staffing and, therefore, the overtime phenomenon.
The three judges heard both parties on Tuesday and took the case under advisement.
This report by The Canadian Press was first published in French on Jan. 23, 2024.
