Everyone knows the definition of telework, especially since millions of people have experienced it in practice. It is the performance of work through information and communication technologies, but in a location different from the employer’s premises.
My name is Naivi Chikoc Barreda, I am an Assistant Professor in the Civil Law Section at the University of Ottawa, and I have been a member of the Chambre des notaires since 2012. My research interests focus on issues that emerge in the context of the increasing internationalization of private law relationships due to the presence of foreign elements, for example: nationality of the parties, domicile, residence.
My current project on cross-border telework is obviously in line with my research interests. I am undertaking this project jointly with Professor Stéphanie Bernstein, from UQÀM, who is a professor in labour law, and we are doing it with the financial support of the Social Sciences and Humanities Research Council of Canada and the University of Ottawa.
Cross-border telework is already a reality for many companies that have decided to open up to the global market in order to obtain skilled labour to fill local labour shortages in certain industry sectors, and for States as well, it represents a compelling interest. States, since the outbreak of the pandemic, are now competing to attract the skilled workforce that cross-border telework brings. To understand the benefits of this movement, we can mention some European Union countries like Portugal, Spain, which are extremely attractive destinations for these teleworkers, and especially for the digital nomads, who are looking for flexibility in working conditions. When we talk about cross-border telework, we are referring not only to international situations, but also to inter-provincial situations. Thus, in a national context, the provinces of Canada, which have autonomous legislative jurisdiction in matters of private law, are considered to be States within the meaning of private international law.
A person who is about to adopt this form of work must be aware that the change in the place of work may have important consequences for his or her legal situation, as well as for the legal situation of the employer.
We have identified three fundamental legal issues in relation to the particularities of cross-border telework, which are, on the one hand, the dematerialization of the activity and, on the other hand, the mobility of teleworkers.
The first issue would be the issue of uncertainty. The parties are faced with a situation of legal uncertainty, but not knowing under which legal regime to place their contractual relationship, this can give rise to informal situations, to practices which are far removed from the reality of the employment contract, and which, of course, can, in the end, turn against the most vulnerable party in the relationship, which is the teleworker.
The second issue we have identified is the issue of unsuitability. The inadequacy of the current regime is basically explained by the fact that it is structured around a territorial criterion, which is the usual place of work, and this place will determine the legislation applicable to the employment relationship. In an essentially virtual context, the territorial factor is becoming increasingly irrelevant.
The third issue identified is the lack of protection resulting from the lack of coordination between the different legislations, the different sets of rules that are related to the situation of the worker. So we are talking about the rules of private international law, we are talking about the territorial applicability of laws on employment standards, which use different criteria that can lead to situations of divergence or discordance, which can ultimately result in situations of a lack of protection for the teleworker, i.e. the teleworker will find themself deprived of legal protection at the time of the termination of the employment contract, fundamentally.
We can illustrate these three issues with the example of a worker who is living in China and who is hired by a Quebec company which has its domicile and its establishments in Montreal. By hypothesis, the employment contract contained a clause choosing Quebec law to govern the contractual relationship. However, when the employment contract was terminated, the teleworker decided to file a complaint under the Quebec Act respecting labour standards to obtain reinstatement in her position, i.e. a complaint under the protection against wrongful dismissal.
If we examine the situation from the point of view of the rules of private international law, we see that the law applicable to this employment contract is indeed Quebec law. However, if we look at the situation from the point of view of the Act respecting labour standards, this teleworker will be excluded from the territorial application of the Act because she does not meet the criteria established by the Act to be able to apply it. That is to say, this teleworker has never worked in Quebec during the term of the employment contract, and this teleworker does not have her domicile in Quebec, which means that she is considered outside the territorial application of the Act respecting labour standards.
Thirdly, if we look at the situation from the point of view of Chinese law, we see that this teleworker is also considered excluded from the protection of Chinese labor legislation, because by hypothesis, this Quebec company did not have an establishment in China, did not carry out an effective economic activity in China, and therefore was not registered with the Chinese authorities. Therefore, since the conditions established by Chinese law were not met in this case, the teleworker found herself in a real lawless zone, with no protection, regardless of which legislation is used as a reference among those applied in the international situation.
Finally, the main objective is to find ways of reconciling the rules of private international law with the minimum employment laws in force in the various provinces of Canada, so as to create a coherent whole applicable to the situation of the cross-border teleworker.