Can an employer have the duties of striking or locked-out employees performed by people working from home or at its clients’ premises rather than on its own premises? On November 5, 2026, the Québec Court of Appeal issued two important judgments on the scope of the anti-strikebreaking provisions of the Labour Code (the “Code”): one in Groupe CRH Canada (“CRH”), involving remote work, and the other in Brandt Tractor, concerning the replacement of employees who work at the employer’s clients’ premises. [1]
In both cases, the Court overturns the Superior Court judgments and reinstates the decisions of the Administrative Labour Tribunal (the “TAT”). It finds reasonable an interpretation under which the establishment where a strike or lock-out has been declared is not necessarily confined to the building identified in the certification certificate.
The meaning of “establishment”: a longstanding debate
Section 109.1 of the Code prohibits certain forms of replacement of striking or locked-out employees. Several of these prohibitions depend on where the work is performed, making it important to determine what constitutes the “establishment” affected by the dispute.
The Code does not, however, define “establishment.”
In its 2011 decision in Journal de Québec, the Court of Appeal described the establishment as “[translation] the precise location whose doors the employer has theoretically locked.”
In 2018, in SPGQ, the Court of Appeal refined that wording by adding the locations where employees in the striking bargaining unit normally perform their duties. [2]
CRH and Brandt Tractor therefore raised the same question: how should the boundaries of an establishment be determined for the purposes of the anti-strikebreaking provisions when work is performed remotely or at the employer’s clients’ premises?
The wording of the applicable provisions
The provisions of the Code at issue in these two cases read as follows:
109.1. For the duration of a strike declared in accordance with this Code or a lock-out, every employer is prohibited from
[…]
(b) utilizing, in the establishment where the strike or lock-out has been declared, the services of a person employed by another employer or the services of another contractor to discharge the duties of an employee who is a member of the bargaining unit on strike or locked out;
[…]
(e) utilizing, in an establishment where a strike or lock-out has been declared, the services of an employee he employs in another establishment;
[…]
(g) utilizing, in an establishment where a strike or lock-out has been declared, the services of an employee he employs in the establishment to discharge the duties of an employee who is a member of the bargaining unit on strike or locked out.
[Emphasis added.]
Before the Administrative Labour Tribunal
CRH: a non-unionized employee working remotely
Groupe CRH Canada operates a cement plant in Joliette. In June 2021, it declared a lock-out affecting two bargaining units representing its office and plant employees.
During the dispute, a non-unionized operations analyst performed some of the locked-out employees’ duties from her home. The analyst was assigned to the Joliette establishment and had been working remotely since the start of the pandemic, using a virtual private network provided by the employer.
The union relied on section 109.1(g) of the Code, which prohibits an employer from using, in the establishment where the dispute has been declared, the services of an employee of that establishment to perform the duties of an employee in the striking or locked-out bargaining unit.
The employer acknowledged that the analyst had performed such duties but argued that the prohibition did not apply because she had performed them outside the establishment.
The TAT rejects that argument. It adopts a contextual and dynamic interpretation under which the establishment extends virtually to the location where the employee performs her work. She continues to contribute to the activities of the same management unit, under the employer’s authority and using the technology it provides. The TAT therefore finds a breach of section 109.1(g) of the Code. [3]
Brandt Tractor: technicians working at clients’ premises
Brandt Tractor operates a branch in Saguenay to which two unionized field service technicians are assigned. They maintain and repair machinery at the company’s clients’ sites, including construction sites and forestry locations. They perform all of their work outside the branch premises.
After a strike began, Brandt Tractor assigned their duties to employees from its other branches and subsequently also retained an independent contractor. The company argued that the work was being performed outside the establishment affected by the dispute and therefore fell outside the prohibitions invoked by the union. Those provisions prohibit an employer from “(b) utilizing, in the establishment where the strike or lock-out has been declared, the services […] of another contractor to discharge the duties of an employee who is a member of the bargaining unit on strike or locked out” or “(e) utilizing, in an establishment where a strike or lock-out has been declared, the services of an employee he employs in another establishment.”
The TAT instead concludes that, in these circumstances, the establishment includes the locations where the technicians normally perform their duties under the direction of the Saguenay branch. The replacement workers serve that branch’s clients under the same work arrangements: they receive their assignments from the branch, which also supplies them with parts.
The TAT therefore finds that the use of employees from other establishments and of the contractor breaches sections 109.1(e) and (b) of the Code, respectively. [4]
Before the Superior Court
In both cases, the Superior Court grants the employers’ applications for judicial review and sets aside the challenged TAT findings.
In CRH, which we discussed in our April 26, 2023 article, the Court finds, among other things, that the concept of an establishment extending beyond its physical premises creates an inconsistency between the meaning of “establishment” for certification purposes and its meaning under the anti-strikebreaking provisions. In its view, the lock-out was not declared at the analyst’s home, nor does the certification encompass her home.
The Court also finds that the TAT departed from Court of Appeal precedents and that it is for the legislature to amend section 109.1 of the Code if the meaning of “establishment” is to be broadened.
In Brandt Tractor, the Court similarly finds that the precedents limit the establishment to the physical location of the place of business. It therefore holds that the TAT’s decision is unreasonable. [5]
The unions appeal both judgments.
Before the Court of Appeal
The Court of Appeal allows both appeals. Its reasons in CRH, on which it relies extensively in Brandt Tractor, clarify both the meaning of “establishment” and the proper reading of its earlier decisions.
The Court reiterates that it must assess whether the TAT’s decisions are reasonable, rather than determine which interpretation it would itself have preferred. In both cases, it concludes that the TAT’s reasoning and findings are justified in light of the facts and the applicable law.
An establishment is not defined solely by the address listed in the certification
The Court first reiterates that an establishment is distinct from an enterprise and has both physical and organizational dimensions. Determining its boundaries therefore requires an examination of both the locations where activities are carried out and the way those activities are organized and managed. Activities conducted at different locations do not necessarily belong to separate establishments.
The certification remains the reference point. It identifies the group of employees represented by the union and defines the framework for the parties’ rights and obligations, including those relating to bargaining and labour disputes. The meaning of “establishment” under section 109.1 of the Code must therefore be consistent with the meaning underlying the certification.
That consistency does not, however, require the establishment to be confined to the walls of the building whose address appears in the certification. Employees may remain attached to that establishment and included in the bargaining unit even when they work remotely or travel for work. Their protection during a dispute cannot depend solely on their physical presence at that address. [6]
In CRH, remote work does not sever the connection to the establishment
The Court clarifies that remote work does not make an employee’s home part of the establishment. An employee may nevertheless be considered to be working virtually within the establishment to which they remain attached.
In this case, the employee remained attached to the Joliette establishment both before and during the dispute. She performed her duties using the employer’s virtual private network and communicated daily with her supervisor or colleagues through Teams. She therefore continued to work within the same management unit.
The TAT could reasonably conclude that the employer was using her services in the establishment where the lock-out had been declared, even though she was working from home. Section 109.1(g) of the Code therefore applied. [7]
In Brandt Tractor, the work arrangements connect the replacement workers to the branch
In Brandt Tractor, several aspects of the work arrangements connected the replacement workers to the Saguenay branch. They received assignments from its service manager, who also monitored the work. They served the branch’s clients and obtained parts from it. They wore Brandt Tractor uniforms and used computers supplied by the company. Employees from other branches had also used the Saguenay branch’s trucks and equipment.
These factors supported a finding that the replacement workers were attached to the establishment affected by the strike for the duration of their assignments. The fact that repairs were performed at clients’ premises did not place them outside the prohibitions. Even the designation of Trois-Rivières as the work location in the contractor’s agreement did not negate his actual connection to Saguenay. [8]
The Court clarifies its precedents without overruling them
An important aspect of these judgments is the Court’s treatment of Journal de Québec. The Court does not overrule that precedent; it clarifies its scope in light of the facts that gave rise to it.
In that case, journalists and photographers employed by third parties had supplied content to the newspaper during a lock-out. The Commission des relations du travail had found, among other things, that they were working in the establishment because they covered the same events, at the same locations, as the locked-out employees.
The Court of Appeal explains that what had been found unreasonable was the inference that this overlap in locations necessarily meant that the replacement workers were working in the establishment affected by the dispute. The decision did not establish that the establishment must, in every case, be confined to the building identified in the certification.
In CRH and Brandt Tractor, by contrast, the TAT’s findings rest on a concrete examination of the individuals’ connection to the establishment concerned. Technology, supervision and work organization establish that connection beyond the nature of the duties performed or the location where they are carried out.
As for SPGQ, the Court notes that the case primarily concerned the legality of a strike involving only some employees within a single bargaining unit. That decision likewise did not require an interpretation confined to the employer’s physical premises. [9]
Changes in working methods can be taken into account without legislative amendment
In CRH, the employer argued, among other things, that the absence of legislative amendments, despite proposals to modernize the anti-strikebreaking provisions, precluded the TAT’s interpretation.
The Court rejects that argument. Legislation can apply to new circumstances, including working methods that did not exist or were not contemplated when it was enacted. Its interpretation must nevertheless remain consistent with its wording, context and purpose.
The anti-strikebreaking provisions are not intended solely to prevent violence on picket lines. They also seek to restore the balance of bargaining power between the parties and preserve the effectiveness of a strike as a pressure tactic.
The Court finds the TAT’s interpretation consistent with that purpose. A strictly physical interpretation could, for example, allow an employer to have the duties of striking or locked-out employees performed from home on the basis that the work would then be carried out in none of its establishments. Such an interpretation could deprive the prohibitions of part of their effect. [10]
What are the implications for employers?
These judgments restrict the latitude the Superior Court had afforded employers to maintain their operations during a labour dispute.
Businesses whose activities are carried out remotely or in the field must therefore examine how the work is organized. Who assigns the duties and supervises their performance? Which clients are served? Where do the necessary equipment, parts and support come from? These factors help assess the connection to the establishment, beyond the location where the work is performed.
The judgments do not, however, prohibit all replacement work. The ability to maintain certain activities must be assessed in light of the duties involved, the people who will perform them and the prohibitions under section 109.1 of the Code. [11] Employers would therefore be well advised to review their plans before a dispute arises and give managers clear instructions to avoid reassigning duties in breach of those provisions.
The debate could nevertheless continue before the Supreme Court of Canada. Given the importance of these issues, applications for leave to appeal would not be surprising. We will monitor any such proceedings and their implications for employers.
