FELLOW, EMPLOYEE, OR BOTH?

Only employees may exercise the right to unionize provided under the Labour Code. If you are currently unionized, it means that you have employee status even as a postdoctoral fellow. In order to understand how this came about, one must examine the decisions of the Commission des relations du travail on the subject since 2011.

UQAM 2011
Decision

In a decision regarding UQAM handed down in 2011, the Commission des relations du travail (CRT) established that postdoctoral fellows whose fellowships come from university research funds are employees in their own right.

The CRT based its conclusions on the following criteria:

  • The fellowship granted to these postdocs constitutes remuneration in exchange for work they do for university professors. It is not disinterested financial assistance aimed primarily at allowing them to further their professional development.
  • There is a relationship of subordination between these postdocs and the university as their work is carried out within a framework defined by the university and under the supervision of one of its professors. In other words, postdocs are working for others. They are not self employed.

The decision of the CRT regarding UQAM had two important consequences:

  • Postdocs from other Quebec universities also had to be recognized as employees when in the same situation as those from UQAM in terms of remuneration and the relationship of subordination.
  • Postdocs explicitly or implicitly considered as employees obtained the right to unionize (remember that this right is reserved for employees under the Labour Code).

UQAM 2012
POLY 2013
Decisions

The CRT confirmed its position in two other decisions.

UQAM contested the decision previously handed down in its regard. The École polytechnique challenged the employee status of its postdocs when they wanted to unionize. In both cases, the CRT confirmed its position. (To read the decisions: UQAM 2012 and Polytechnique 2013 – in French only)

In short

  • Recognition of your employee status is not the result of unionization, but the prerequisite for it.
  • Being an employee means receiving remuneration in exchange for work done for others as their subordinate, regardless of whether it is a salary, a wage or a fellowship.
  • You would be considered as an employee even if you were no longer unionized.

Useful info

  About university research funds

University research funds include:

  • Research grants received by professors;
  • Amounts paid to professors under research contracts obtained from the private sector;
  • Any other financial assistance granted to the university or any of its units to support research.

Postdocs whose fellowship or salary comes from any of the sources mentioned above are therefore paid from their university’s research funds.

  Situation of postdocs receiving a fellowship from a granting agency

Postdocs whose remuneration consists exclusively of a fellowship from a granting agency (government or private) are not considered to be employees.

It should first of all be noted that the Commission des relations du travail has never been called upon to examine their particular case. Nevertheless, it is clear that several aspects of their situation appear to be incompatible with employee status.

Their fellowship grant, for example, is not strictly connected to the university where they pursue their postdoctoral research since they could change institutions without losing the fellowship. It becomes difficult, in this context, to prove that the fellowship is mainly paid in exchange for work that they do for a professor from the university.

  Definition of “employee” under the Labour Code

An employee is a person who works under the management and control of another person in exchange for remuneration. This remuneration can take various forms and modalities, whether by commission, performance, time, week, month or year. (Source here, answer A-4, in French only)

  Role of the Commission des relations du travail

The Commission des relations du travail (CRT) is a specialized tribunal with jurisdiction over, among other things, various appeals relating to job protection, essential services, and labour relations in a unionized environment.

The CRT’s responsibilities include the application of the Labour Code with regard to the following matters:

  • Union formation and legal recognition (via certification);
  • Negotiation of collective agreements and the resolution of disputes between management and labour;
  • The right to strike and lock-out.