On November 5, 2018 the Quebec Superior Court decided that the exclusion of management personnel from the Labour Code (the “Code”) pursuant to section 1(l)1o thereof does not unduly infringe the freedom of association guaranteed by the Canadian Charter of Rights and Freedoms (the “Canadian Charter”) and the Charter of Human Rights and Freedoms (the “Quebec Charter”), and is thus constitutionally valid, applicable and operative.
The Superior Court’s decision overturned the interlocutory decision rendered on December 7, 2016 by the Administrative Labour Tribunal (the “ALT”) wherein the ALT declared section 1(l)1o of the Code inoperative for infringing the right to freedom of association. The ALT’s decision was pursuant to an application for accreditation submitted by the Association des cadres de la Société des casinos du Québec (the “Association”) in order to represent certain first-level management personnel employees of the Société des casinos du Québec (the “Corporation”), specifically operations supervisors (the “Supervisors”).
In its decision the ALT concluded that because the Supervisors are excluded from the application of the Code, they are not entitled to certain rights protected by constitutionally guaranteed freedom of association, particularly the right to bargain collectively, the right to negotiate material conditions of employment, and the right to have access to a specialized labour law tribunal1.
The ALT was also of the view that even though the Supervisors were members of the Association and could participate in its activities, in particular by choosing its representatives and controlling its financial administration, this was not sufficient to give them full freedom of association, as they could not form an independent association since recognition of the Association was at the discretion of the employer2. The Corporation accordingly applied for judicial review of the ALT’s decision3.
Decision of the Superior Court on judicial review
The Superior Court overturned the ALT’s interlocutory decision. The Court recognized that while there had been infringement of some aspects of the Supervisors’ freedom of association, the infringement was due to actions of a private nature on the part of the Corporation, and not due to the State’s responsibility4, which would have had to be proven in order to conclude that section 1(l)1o of the Code was unconstitutional. The substantial infringement of the Supervisors’ freedom of association was due rather to unilateral changes to their conditions of employment, without consulting with or notifying the Association, and conduct on the part of the Corporation that was contrary to the precepts of good-faith collective bargaining, which in the Supreme Court of Canada’s view is an essential element of freedom of association5. Thus, the obligation to bargain in good faith was not something for which the State was responsible, but was a private obligation of the Corporation.
The Court concluded that the exclusion of management personnel from the collective labour relations regime under the Code was the consequence rather than the intention of the legislator in adopting section 1(l)1o, which intention was not to exclude management, but to rather group together non-management employees and facilitate their unionization6, and to eliminate the risks of confusion of professional roles, and conflicts of interest7.
In response to the ALT’s conclusion that the Supervisors did not have a specialized tribunal to hear their complaints, the Court pointed out that any person whose fundamental freedoms have been infringed can seek relief by application of section 24(1) of the Canadian Charter or section 49 of the Quebec Charter. In this regard, the Court distinguished the instant situation on its facts from Dunmore8, in which the workers could not benefit from the Canadian Charter or other labour law statutes, or band together in an association of any kind. In the instant case, the Supervisors did associate, and the Corporation recognized their association for the purposes of managing their labour relations. Moreover, negotiations took place between the parties regarding employment conditions. Thus, despite the fact that the Supervisors are excluded from the Code, they still enjoy the protections afforded by the Canadian Charter and the Quebec Charter, as well as those afforded by other legislation, particularly the Labour Standards Act9.
This decision of the Superior Court is remarkable because the exclusion of management from the Code has proven to be a constitutional question, now argued for the first time in Quebec10. The reader should note however that the Association has taken steps to appeal the decision. Keep an eye on our forthcoming publications to see how this matter turns out!
The authors would like to thank articling student Caitlin McCann for her contribution to the preparation of this article.
1 Paras. 25 and 147
2 Para. 139
3 Para. 1
4 Para. 4
5 Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27
6 Para. 123
7 Para. 125
8 Dunmore v. Ontario (Attorney General), 2001 SCC 94
9 Paras. 245-246
10 Para. 33