Law in Quebec

The revamp began last February when the Quebec government tabled Bill 89 which gives it sweeping new powers to curb and limit strikes or lockouts by broadening the notion of essential services and grants the labour minister the power to refer labour disputes to an arbitrator. The bill, in force on Nov 30, has been decried by the civil rights groups and labour as a direct frontal attack on the constitutionally protected right to collective bargaining. Bill 89, now known as Law 14, is already being challenged. Four newly established faculty unions representing more than 500 academics at McGill University filed an application for judicial review in Quebec Superior Court, seeking to repeal the new law. Other unions may follow suit.

That was followed by another contentious omnibus bill that amended a slew of legal regimes in labour and employment law. Bill 101, in effect since October, introduces an obligation to consider mediation before resorting to arbitration, stricter grievance arbitration procedures with mandatory timelines,  a new obligation to disclose evidence during arbitration, and strengthens protections for vulnerable workers under occupational health and safety law. But unions also contend that the new law also creates a two-tiered system for health and safety in the workplace, and discriminates against women workers in the education, healthcare and social services sectors because it rolls back the implementation of certain occupational safety measures.

The stated aim of Bill 3, in essence a follow-up to Bill 89, is to increase transparency within unions. Certified associations will be required to produce financial statements every year, at their expense but that is something large unions already do. Under Bill 3, unions representing 50 to 199 employees must submit its financial statements to a review engagement while those representing 200 workers or more will be compelled to perform an audit engagement.

Far more controversially, under the proposed legislation, union dues are divvied up into main and optional dues. Optional dues would be used to finance activities that are not directly related to labour relations, such as advertising campaigns, participation in political and social movements or initiating legal challenges over the constitutionality or validity of a law. These new type of union dues would have to be annually approved through a majority vote before they could be collected.

“The core mission of a trade union is training, representation and negotiation,” remarked Quebec Labour Minister Jean Boulet. “Anything peripheral to that becomes optional.” The Quebec government has also regularly voiced its displeasure with the Fédération autonome de l’enseignement (FAE), a group of nine unions representing over 66,500 teachers, for using union dues to challenge its controversial secularism law, known as Bill 21.

The labour minister’s stance on the role that unions should play runs counter to what is stipulated in Article 1 of the Labour Code, and Article 6 of the Professional Syndicates Act (Act), noted Marc Daoud, a labour lawyer with the Quebec Labour Congress (CSQ), the third biggest trade union in Quebec by membership. Under the Act, unions have “exclusively” a mandate to study, defend, and promote the economic, social and “moral” interests of their members. The scope of a union’s mission, while almost identical, is broader under the Labour Code. “Defending economic and social interests is not just about trying to get a raise of a 50 cents or a couple of dollars,” said Daoud. “It goes much further than that. Over time, trade unions have been major players in social change, and that has been a source of discomfort. This government does not want that to be the case. They do not want their policies to be criticized.”

The draft law has alarmed labour and legal stakeholders. In an exceptional riposte, the head of the Quebec Bar, Marcel-Olivier Nadeau, publicly voiced his concerns over the “erosion of the rule of law” in Quebec, deploring that several bills recently introduced in the National Assembly include provisions that “significantly impede” the capacity of citizens to assert their “rights and opinions.” Besides Bill 3, Nadeau asserted that Bill 1, Quebec’s constitutional proposal, and Bill 2, a recently enacted law that imposes new working conditions on doctors, include provisions that “significantly deviate” from the values and traditions of Quebec society “in favour of strengthening the power of the state.”

Assault on union autonomy

The real objective behind Bill 3 is to place obstacles on trade unions by limiting its ability to mount legal challenges, and curb its capacity to act as a counterbalancing force in the public sphere, said Mélanie Hubert, FAE president. “In a society based on the rule of law such as Quebec, it is really worrying that a government wants to question the right of citizens or groups to go to court to settle disputes when we believe that certain legislation violates our rights,” said Hubert. “It is an attempt to weaken the counterbalancing forces in society, and that’s a shame because it’s the very foundation of democracy.”

The “alleged” underlying rationalization of Bill 3 is sound and commendable as it seeks to create additional safeguards to ensure union democracy, said Makela, echoing the stance of several labour lawyers. “Nobody’s against apple pie,” said Makela, who teaches at the Université de Sherbrooke. “Like any institution, I’m sure there are some labour unions that could be better in terms of governance. That would be a laudable objective.”

But, added Makela, the ostensible objective of increasing union democracy is a “fig leaf” or an “assault” on union autonomy to weaken them as part of civil society’s counter-power to the government. The Coalition Avenir Québec is borrowing the right-of-center playbook from the U.S. and Alberta to implement a construct where trade unions become junior partners in the management of an organization rather than “full-fledged social forces,” said Makela.

The proposed legislation is disquieting because it makes it plain under Article 7 that unions will be compelled to use optional union dues to intervene or make representations in civil, administrative, penal or criminal cases, “regardless of its object,” that deals with the operability, constitutionality or validity of a law, regulation, government order or a ministerial order, pointed out Guillaume Lavoie, a lawyer with the Quebec Federation of Labour (FTQ), the largest labour federation in Quebec, with over 500,000 members, accounting for 44 per cent of the unionized workforce in the province. It is also forbidden under Bill 3 for unions to raise legal issues “incidentally” in a grievance, unless it uses optional dues, added Lavoie. That potentially places unions and its members in a dicey situation, said Lavoie. Members cannot on their own challenge or assert their rights under a collective agreement in court on their own. They must go through the union, explained Lavoie. But if union members opt out of optional dues, trade union will “no longer have the right to assert the constitutional rights of their members, and workers will find themselves in a legal vacuum,” said Lavoie.

Rand formula

There are also questions about whether Quebec’s latest labour reform goes against the grain of the Rand formula, a principle in Canadian labour law established by a 1946 Supreme Court of Canada decision. The Rand formula, whose purpose is to “simply promote industrial peace through the encouragement of collective bargaining” as the SCC put it in another decision, requires all employees covered by a collective agreement to pay union dues, regardless of whether they are union members, otherwise “free riders” would benefit without contributing, said Makela. Bill 3 is a “technical end run around” the Rand formula because it gives workers who refuse to become a member of the union to have a say on how optional dues will be spent, maintains Makela. “It’s giving an extra vote to people who by definition are anti-union on how the union spends its dues,” said Makela. “That’s one of the things that I find is particularly egregious, and it’s a real departure from every other provision of the Labour Code.”

Labour union lawyers are convinced that Bill 3 “absolutely” attacks, and not whittles away, the Rand formula by introducing the notion of optional dues. This new concept also likely goes against a seminal 1991 SCC ruling in Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, said Lavoie. In that case a college teacher, who was not a member of the OPSEU, objected to certain expenditures made by the union. In a landmark decision that examined the scope of freedom of expression under s. 2(b) of the Canadian Charter and the freedom of association under s 2(d), the SCC unanimously confirmed the constitutionality of the Rand formula, though different justice gave varying reasons. Some justices found there was no Charter violation while others held that there was a violation of freedom of association but that it was justified under s. 1. Three of the SCC justices  underlined that an opting-out formula could seriously undermine a union’s financial base, and that the alternative of having the government draw up guidelines “as to what would be deemed valid union expenditures could give rise to the implication that union members are incapable” of controlling their institutions. “The state objectives in compelling the payment of union dues which can be used to assist causes unrelated to collective bargaining are to enable unions to participate in the broader political, economic and social debates in society, and to contribute to democracy in the workplace,” wrote the justices.

“Already, in 1991, the Supreme Court expressed reservations about all attempts to limit union spending and to say what could be valid and how to do it properly, or to attack union co-consultation,” said Daoud. “Over time, there has been a strengthening of the protection of freedom of association in terms of workers’ rights, to the point of constitutionalizing the right to strike. Obviously the Quebec government is attacking these principles.”

Administrative nightmare

Besides making it “seriously” challenging for trade unions, federations and confederations, to contest and criticize the government, obliging unions representing 50 to 199 employees to submit its financial statements to a review engagement will prove to be an administrative and accounting nightmare, said Madeleine Pastinelli, president of the Quebec Federation of University Professors (FQPPU). “It will drain resources and divert money and labour union time towards accountability exercises that either already exist or appear completely disproportionate compared to practices in other organizations in relation to the rules that the government imposes on itself,” said Pastinelli.

The accounting ordeal extends to large unions as well, noted Hubert, because they will have to determine what monies should be devoted to the activities that fall under the scope of mandatory and union dues. They will also have to annually produce a report that discloses the amount of dues sent to the union, federation or confederation with which the association is affiliated, the total official expenses – including accommodation, travel and meal expenses — for each of the persons who hold an elective office, and the expenses made using optional dues and information relating to each expense, including the amount and object of the expense.

“It’s going to be a nightmare from an accounting perspective,” said Hubert. “We’re going to spend hours poring over budget lines and then writing reports, because it’s not just the financial statements that are audited by accountants. We are also being asked to produce certain financial reports. All of this is added bureaucracy, costs that will have to be covered by members. The government has just added bureaucracy and administrative constraints.”

Parliamentary hearings on Bill 3 have begun at the Quebec National Assembly. The Quebec Bar called on the government to strike out articles dealing with optional union dues and new financial obligations. Unions like the FTQ and the FAE are asking the government to withdraw the bill.

“The setbacks suffered by trade unionism today will be tomorrow’s setbacks for society as a whole, just as the progress brought about by trade unionism has led to progress throughout society,” said Hubert. “So everyone should feel concerned about what is happening right now.”

 

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This story was originally published in Law360 Canada.