A new legal landscape governing labour relations may be in the horizon in Quebec following a Court of Appeal decision that found that the provincial Labour Code breached the Canadian and Quebec Charters by prohibiting first-level managers from unionizing.
“It’s a very important decision because it kind of creates a crack in the legislative scheme that we have in Quebec with regards to labour relations,” said Shwan Shaker, a labour and employer senior associate with Borden Ladner Gervais LLP. “It’s kind of opening a breach to allow low level managers to unionize. But it’s important to keep in mind that this is really case-by-case.”
In a decision welcomed by labour, the Appeal Court found that the exclusion of management personnel from the definition of employee under s. 1(l)(1) of the Labour Code (Code), effectively banning managers from unionizing, unduly infringed on the freedom of association of members of the Association des cadres de la Société des Casinos du Québec, an organization that represents Casino front-line managers. The Quebec government has been granted a grace period of 12 months to introduce changes that will allow first-level management personnel working for the Société des Casinos du Québec to unionize.
“It was always pretty obvious to me that as a matter of law that the exclusion of managers from the definition of employee with the Labour Code was unconstitutional in light of jurisprudence from the Supreme Court of Canada since 2008,” particularly following the seminal 2015 decisions in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1,  1 S.C.R. 3, and Saskatchewan Federation of Labour c. Saskatchewan, 2015 CSC 4,  1 R.C.S. 245, said Finn Makela, a law professor at the Université Sherbrooke specializing in labour and employment law.
According to Jean-Luc Dufour, a Quebec City labour lawyer with Poudrier Bradet Avocats who successfully plead the case, the “Appeal Court underlined that we should take into account the evolution of the concept of freedom of association and that the exclusion of managers, superintendents, and foremen, from the Labour Code is a throwback from the industrial era. Labour relations have changed.”Read More
The long judicial saga dates back to November 2009 when first-level managers applied for permission to unionize in a bid to thwart their employer from unilaterally changing working conditions. The employer countered by seeking to have the petition for certification quashed, asserting that the managerial status of the first-level managers prohibited them from unionizing under the Code.
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In 2016, the Administrative Labour Tribunal sided with the front-line managers, holding that the prohibition to unionize breached the employee’s freedom of association guaranteed by the Canadian and Quebec Charters. The Tribunal also found that the Attorney General of Quebec failed to demonstrate that this infringement was justified under s.1 of the Canadian Charter and s. 9.1 of the Quebec Charter. The Tribunal suspended the application of this exclusion for the purpose of analyzing the petition for certification. But that decision was struck down by Quebec Superior Court, which in turn was overturned by the Quebec Court of Appeal who reinstated the Labour Tribunal’s interlocutory ruling in a 76-page decision in Association des cadres de la société des casinos du Québec c. Société des casinos du Québec, 2022 QCCA 180.
The Appeal Court underlined that the front-line managers, who work in the gaming area supervising dealers, are the “eyes and ears of the employer on the floor,” but they do not have the “privileged relationship” with the company that higher-level managers may have. The managers, also referred to as operations managers or table managers, have no say and do not participate in the company’s decision-making or labour relations. Moreover, the employer refused to negotiate with the Association and unilaterally changed certain of their working conditions, without even notifying the Association.
“The inability of the operation managers to receive meaningful recognition of the Association, their lack of access to a court or specialized dispute resolution mechanism to sanction the employer’s interference, obstruction or bad faith bargaining, or to seek protection of their right to return to work in the event of a strike in the context of collective bargaining are effects of the exclusion at issue and that they too constitute a substantial interference with the operation managers’ freedom of association,” said Appeal Court Justices Guy Gagnon, Marie-Josée Hogue and Michel Beaupré in the unsigned decision.
The Appeal Court also overturned Superior Court Justice Chantal Lamarche finding that members of the Association were not prevented from taking part in work stoppages as part of a negotiating tactic over their working conditions as there is no law prohibiting them. That is a finding that is not well founded in law and was overturned by the SCC in Mounted Police, noted the Appeal Court.
“The first level managers can form an association but if the employer does not want to negotiate with them, then there are no negotiations,” noted Dufour. “They did not have the right to initiate a union accreditation process. They did not have the right to negotiate, to send a notice of bargaining and then to have protection and strike provisions. That was the whole issue.”
In the absence of a legal regime that allows workers to strike, even though it’s not prohibited, employers can simply fire them as they have no protection to exercise the “freedom to strike,” pointed out Makela. On top of that, employers can sue the workers for breach of employment contract and for unlawful interference in contractual relations. That’s exactly what took place in 2014 when the Quebec Appeal Court ordered in 2014 the Fédération des médecins spécialistes du Québec to pay more than $800,000 in damages for using “study sessions” as a negotiating ploy, added Makela.
The impact of the Appeal Court decision remains to be seen, according to legal experts. Frédéric Poirier, a Montreal employment lawyer with Bélanger Sauvé, said the decision is the subject of much discussion within legal circles and the business world. “There’s no doubt it will change the dynamics of labour relations, at least a bit, because it means that first-level managers can now unionize,” said Poirier. “The decision will also raise many issues, such as how will first level managers be treated by employers.”
It also remains to be seen how, and if, unions will accommodate front line managers who may be able to unionize. They may become “juicy targets for unions,” as one Montreal labour and employment lawyer put it, but there is likely going to be some reticence among at least some Quebec labour federations to openly accept “bosses” in unions, said Makela. Even if separate new bargaining units are created for front-line managers, questions remain. “Will they be allowed to federate to the larger labour movement and will the labour movement accept them?” added Makela.
An even bigger question is how will the Quebec government respond, according to legal experts. It’s far too soon to see whether Quebec will follow in the footsteps of Ontario and amend the Quebec Labour Code to include junior managers assigned to supervisory duties. There are concerns that the Quebec government may pass a “diet-like version of the Labour Code” as it did in the past with daycare workers and Ontario with agricultural workers following court decisions that held it was unfair to exclude these workers from the respective provincial labour codes. “By suspending its declaration of invalidity of the exclusion from the Labour Code for a period of one year to give the legislature time to respond, it opens the door for legislatures to respond to the unconstitutional exclusion by adopting a very minimalist regime on the side for the excluded workers rather than just giving them access to the full regime,” explained Makela.
Others such as Shaker believe there is a possibility that the decision may prompt the Quebec government to reform the provincial Labour Code and deal with other issues such as anti-scab provision and remote working. “There haven’t been any major changes recently to the Code so the decision could be something that could push the government to say it may be time to update it,” said Shaker.
This story was originally published in The Lawyer’s Daily.
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