Recent Developments in Unionizing the Precarious Workforce: The Exemption Regimes of Care Workers and Farm Workers in Quebec

Quebec has established special "exemption regimes" to govern the labour relations of two groups of precarious workers: home-based care workers and farm workers. Those regimes give the workers in question limited rights of rep- resentation and collective bargaining but otherwise exclude them from the gen- eral scheme of labour relations set out in the Labour Code. This paper reviews the history of efforts to unionize home care and farm workers in Quebec as well as the ensuing constitutional litigation, which in each case forms the immediate background to the creation of the exemption regime. In the case of home-based care workers, the regime gives workers certain associative rights, including the right to conclude "group agreements" with the responsible Minister respecting terms and conditions of employment, while maintaining an irrebuttable pre- sumption that the workers are self-employed. The author notes that although the unions representing various groups of home-based care workers have made some important gains, the constitutionality of individual elements of the scheme (e.g. restrictions on the permissible scope of bargaining) is open to question and is currently the subject of a challenge in the courts. With respect to farm workers in Quebec - mostly migrants - the applicable legislation gives employees' associations only minimal rights to make representations to the employer, and to discuss those representations with the employer in good faith. In the author's view, the scheme is highly unlikely to permit a meaningful process of collective bargaining, and is therefore also vulnerable to Charter challenge, particularly in the face of the Supreme Court of Canada's 2015 labour trilogy. Ultimately, the author argues, the piecemeal proliferation of exemption regimes is no answer to the emergence of precarious work, and a fundamental reconsideration of the principles of collective representation is necessary.