Days of release for conferences henceforth to be reimbursed in full and include travel time. This is a fine victory for the members.
In late 2018, months after our new collective agreement was signed, a new provincial government was elected, and Danielle McCann was appointed as Quebec’s Minister of Health and Social Services. A few months later, a new Deputy Assistant Minister sent all Quebec healthcare establishments a new directive unilaterally amending the scope of the article concerning conference leave in our new collective agreement. The directive stipulated that:
“(…) if the conference does not take place over a full day, the establishment may not grant leave under Article 13.02 for that whole day. Moreover, such leave may not be used in the context of travel relating to participating in such a conference.”
But according to the collective agreement, scientific activities are a priority for resident physicians during their postgraduate education, as set out in Article 13.01, followed by Article 13.02, whose wording was contested by the Ministry.
13.01 Scientific activities
Participation in scientific activities, within the framework of the university training program, shall be given priority over any other activity of the resident, except when he is required to deliver emergency care to patients under his responsibility.
13.02 Conference leave
Any resident shall have the right to attend, without loss of salary, one or more medical or scientific conferences related to competencies to be acquired in the specialty program, up to a total of ten (10) days per year until June 30, 2018 and seven (7) days per year effective July 1, 2018.
Notification to the establishment
Except where a shorter notification period is agreed upon with the establishment, the resident shall give the establishment at least thirty (30) days’ notice of the location and nature of the conference.
Grievances filed
The FMRQ, with the faculty associations, filed a dozen grievances after some establishments denied or withdrew approval after the fact for our members’ conference leave in line with this ministerial directive. Travel to and from conferences was no longer taken into account in release time, nor were periods during those conferences that were not deemed to be an integral part of the scientific activities. The establishments then asked resident doctors to dip into their leave banks, including their annual vacation. At that point, the FMRQ mandated its external legal counsel to contest the legality of the unilaterally imposed ministerial directive. Hearings and arguments before the Tribunal took place in April and May 2021.
Fine legal victory for the FMRQ
The Tribunal handed down its decision recently, this fall, finding in favour of the FMRQ across the board!
Below are the relevant extracts from the Tribunal’s decision:
[31] The Tribunal believes the wording [of our Article 13.02 in particular] is clear, and requires no interpretation.
(…)
[34] The Tribunal believes release days cannot be split, and must include travel time.
(…)
[35] In the first case, the collective agreement provides for release days and makes no reference to fractions of days.
[36] It would be going against the spirit and the letter of Article 13.02 to conclude that the establishment can break down a conference day and extract from it only those hours or minutes when the resident is seated in front of a trainer or speaker.
[37] The expression “medical or scientific conferences” must be understood to mean a series of activities bringing together healthcare professionals and including all its aspects.
[38] As to travel time, [the Tribunal] believes accessorium principale sequitur (the accessory follows the principal), and an establishment releasing a resident with pay to attend a conference must also release him for the time it takes to travel to and from the conference.
(…)
[40] Finally, we emphasize that the text of Article 13.02 must also be read and understood in connection with the provisions of articles 2.01 and 13.01 of the Collective Agreement (see paragraph 8).
[41] These articles addressing the principle of the importance of training and acquisition of competencies must guide the establishment in its management of medical and scientific conference leave in order to facilitate, and not complicate, the resident’s participation.
[42] ON ALL THESE GROUNDS, having reviewed the relevant texts from the collective agreement, the parties’ written arguments, and the jurisprudence, the TRIBUNAL:
▪ UPHOLDS the grievances;
▪ FINDS that the ministerial directive dated March 12, 2019 is invalid, and does not comply with articles 13.01 and 13.02 of the Collective Agreement;
▪ FINDS that residents can be released for reasonable travel time in order to go to and return from their medical and scientific conferences pursuant to Article 13.02 of the Collective Agreement;
▪ FINDS that the medical and scientific conference leave set out in Article 13.02 of the Collective Agreement cannot be split into portions of days during the days on which the conference takes place;
▪ DIRECTS the Minister of Health and Social Services to inform all establishments of the invalidity of the directive dated March 12, 2019;
▪ ANNULS any administrative decision issued by an establishment in compliance with the ministerial directive of March 12, 2019, since the date of this grievance;
▪ RESERVES jurisdiction as to redress (…)
Two and a half years before we won our case
It is often frustrating to observe that some partners believe they can change the rules unilaterally, to their advantage, and sometimes the only way we can get respect is by means of the judicial process.
That takes time, and the members adversely affected in each case have often started out in autonomous practice by the time the disputes are settled. But it must be remembered that today’s resident doctors are benefitting from the union struggles carried out by the members who went before, and, of course, today’s struggles will help our future members. The battles waged today are often aimed at far more than merely the tangible subject of the dispute at issue, raising questions of respect for the members and their representatives, and of compliance with signed agreements, too. They also represent excellent opportunities for carrying out prevention, since an employer decision invalidated by a Tribunal sends a message to the community, and helps prevent similar decisions in future.
At a time when we are preparing to negotiate the renewal of our collective agreement, this recent victory also represents a very humbling lesson for our highly placed colleagues in the MSSS — with whom, that being said, we regularly have constructive dialogue — by reminding them that they must show respect for Quebec’s resident doctors and agreements signed by both parties.