Natrel+Inc.+v.+Syndicat+démocratique+des+distributeurs

Case: || · On appeal from Commission (who found that they were employees), case was done in tribunal du travail (now defunct Labour Court ) · Hybrid interpretation – 80% employee even though Natrel sees them as “contractor”, 20% independent · “Dependant Contractor” - Big difference between Canada and Quebec labour code o Canada : Considered an employee · Employer-employee relationship? Or is it a service provider – service receiver relationship? || · Union trying to get accredation to represent milk delivery workers · Appeal from a decision of a labour commissioner granting accreditation to the respondent to represent the distributors employed by the appellant. · The employer, Natrel, contested the decision on the basis that the distributors were in fact independent contractors and not employees, and therefore were not covered by the Labour Code. · The appellant company was one of the largest milk distributors in Quebec. o It distributed milk by way of the employees, who typically had two types of clients, which were retail clients, at home or in small businesses, and clients who were in fact Natrel's clients, which billed them directly, and on which the distributors were paid a commission for delivery. o 80% of the volume of all purchases was billed directly to Natrel and 20% was payable directly to the distributor (by the smaller purchasers). · In the former case, the distributor's remuneration was based on whatever mark-up he could charge the client. It was up to the distributor to build up his clients in his territory. · For most of the distributors, clients billed directly by Natrel constituted the majority of their clients. · In those cases, the distributors had little control over territory, no control over price, availability of product, or any related factor. · Natrel was able, under the contract, to take over the business of a retail client previously serviced directly by one of its distributors. · Are the distributors “employees”, allowing them to be accredited as a bargaining unit? **Yes, but only partially.** Monsieur le Juge Paul Yergeau: ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> The Commissioner's decision was partially affirmed. The distributing agents were employees concerning customers billed by Natrel, but concerning the rest of their sales they enjoyed a degree of autonomy which was inconsistent with the status of employee. o<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> When the distributors sold products to customers billed directly by Natrel, they were, for practical purposes, milk deliverymen on commission. **Although the owner of his truck, he delivers milk to the customer for Ks concluded by representatives of Natrel. It is Natrel which negotiates shelf space within the trade, Natrel which sets the price paid per litre of milk, and Natrel which indicates to the distributor where to deliver and during what hours. The distributor must carry out its work in a professional manner and avoid criticism as it may then lose that client, which will go on the road to another distributor. The clientele belongs to Natrel.** o<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> For the other 20% the distributor buys Natrel products and is free to sell them on its territory. Natrel suggests prices for its products, but the distributor is free to follow or not. Obviously, competition from food chains made sure that the distributor is a prisoner of this reality and if he sells at a higher price than that offered to the chains, the distributor risks losing all its customers. Nevertheless, in these circumstances, the distributor faces a different reality than that of an “employee”. He can set his working hours, fix prices of the products, and sell the goodwill that has developed among its own customers. The distributor can also buy the goodwill of another distributor. ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> **80% is an “employee” (thus can bargain for 80%)** ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> It is almost as though these distributors have two jobs.
 * Facts:**
 * Facts:**
 * Issues & Held:**
 * Reasoning:**

·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> The notion of a dependent contractor does not exist in the __Quebec Labour Code__. ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> In the __Canada Labour Code__, s. 3 (dependant contractor) is someone who owns their own vehicle, and uses its vehicle to provide certain services, and is able to keep for personal use any profit made once costs have been deducted. Also, this type of worker is said to provide services on behalf of another person __in such a way that it is under the economic dependence of the latter__ and the obligation to perform certain tasks. ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> Since we do not have this concept in the Quebec Labour Code, I am forced to conclude that for the portion of sales paid directly to the distributor, they were indpdt contractors. Although heavily dependent, economically speaking, on NATREL, the evidence reveals no legal subordination. ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> Therefore, they are employees when working for Natrel for clients that bill Natrel directly, and they are not employees within the meaning of the Labour Code for the hybrid part of their work they are doing with their residential customers. This is a decision that reflects the reality of the duality of the distributors operations. || ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> Note: Superior Court held that tribunal’s decision was not patently unreasonable. It found that the distributors' freedom of action had become very limited over the years and their status as independent contractors was no longer appropriate, at least for a large part of their work. || ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> What has the Canada Labour Code done – Article 3 – recognized this relationship – dependent contractor – owner purchaser or lessee of a vehicle used by someone party to a K, under the terms of which they are required to provide the vehicle... or entitled to use o<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> Very broadly articulated definition o<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> So economic dependency is one way that a person can claim employee status, but we don’t have that in Quebec. §<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> Here, the milk delivery ppl would be full employees of natrel §<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> Why doesn’t the Tribunal simply read it in? §<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> Use Natrel for characterizing employee status, but also use Natrel as speaking directly to the fidelity of the characterization of employee status. §<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> Whether a category of employees is supervisory or not can be pivotal to whether they get certification || ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> Economic dependency (subordinate relationship) is the central quality for employment, but we’ve characterized subordination as a legal term. What’s the different between “legal subordination” and purely economic subordination? ||