During collective bargaining, the employer must take into consideration certain factors in its communication with its employees. These factors include the interaction between freedom of association and freedom of expression, and the terms and conditions to respect during such communications. We will address practical examples as well as the consequences of an employer's interference in the collective bargaining process, and will provide you with practical advice.
Freedom of Association1 vs. Freedom of Expression
When bargaining with a union, the employer is often tempted to address its employees directly to emphasize certain elements. To protect the principles that freedom of association entails, however, the Labour Code prohibits the employer from hindering, dominating, or financing the formation or the activities of an association of employees, or to participate therein.
Within the context of negotiations for the renewal of a collective agreement, this principle can be interpreted as the employer being prohibited from bypassing the certified association — which is the sole collective representative of employees.
The line between freedom of expression and the prohibition included in the Labour Code is drawn according to the context, content and consequences of communications2.
The employer may communicate with its employees, but must not seek to interfere with union activities. When negotiating the renewal of a collective agreement, the employer must negotiate with the association representing the employees and not the employees themselves. An employer that wishes to communicate directly with its employees during negotiations must use due caution3. The basic rule is that it must not try to influence the employees directly in the negotiation of their conditions of employment.
Conditions to Observe in Employer-Employee Communications
In terms of the employer's freedom of expression, the limits set by the courts are as follows:
- The employer must not use direct or indirect threats.
- The employer must not, either directly or indirectly, make any promises that would lead employees to adopt the employer's point of view.
- The employer's remarks must be defensible as being based on reality, and must not be misleading.
- The people with whom the employer communicates must have the freedom to listen or not, and to receive or not receive the employer's message.
- The employer must never use its authority as employer to influence employees4.
In the more specific context of collective bargaining, in addition to the employer's obligation to consider the Labour Code provisions regarding the monopoly of union representation, the employer also has an obligation to negotiate in good faith. Appreciating the balance between the right of the employer to freedom of expression and the protection against interference will be by virtue of the following terms and conditions:
- the context of communications;
- the content of the communications; and
- the consequences of the communications.
Communications that deal directly with the negotiation of a collective agreement or its renewal must be moderate, rational, and honest.
An employer in the newspaper industry that informs the public of the situation in its publication's pages, by giving facts and a global analysis of the state of negotiations, is not considered to be interfering. Likewise, the employer's opinion about the state of negotiations can be published, as long as it does not discredit the union and there is no attempt to negotiate directly with employees.
However, if an employer, by way of the Internet, communicates arguments or editorial remarks, or discloses an offer before having discussed it at the negotiation table, then this is considered interference.
An employer could announce that unless an agreement is reached he will declare a lockout, provided that this is true and based on fact.
An employer may also organize meetings with employees, provided that it presents factual and true information and that employees are free to either attend or not. These meetings must not be used to negotiate directly with employees.
Consequences of Interference by the Employer in Collective Bargaining
An employer that contravenes the rules of the Labour Code with regard to interference is liable to:
- a penal complaint, and subject to a fine of $100 to $1,000 for each day, or portion of a day, during which such offence continues;
- an order from the Commission des relations du travail to cease any interference in union business and direct or indirect communications with the employees covered by the bargaining unit on current negotiations; and
- the determination by the Commission of any remedy it deems appropriate.
Tips for Employers
An employer that wishes to communicate directly with its employees during negotiations must proceed with due caution. More specifically, the employer:
- should first disclose the content and means of its communications to the union negotiators;
- should give the same message to all employees covered by the bargaining unit;
- should make sure its remarks are true and pertain to factual information only;
- may report on the state of negotiations, as long as any such report is factual and objective; and
- should not, at any time, negotiate directly with its employees.
If you have questions pertaining to communications during the negotiation process or any other matter, please do not hesitate to communicate with one of the members of McCarthy Tétrault's Labour & Employment Group.
1 Allow us to point out that the Supreme Court, in Health Services and Support v. British Columbia,  2 S.C.R. 391, decided that freedom of association included the bargaining process.
2 Syndicat canadien de la fonction publique, section locale 4290 v. Ste-Béatrix (Municipalité de), D.T.E. 2004T-1080
3 Syndicat des employées et employés professionnels et de bureau, section locale 57 v. Caisse populaire Desjardins de Côte St-Paul, D.T.E. 93T-643
4 Syndicat canadien des communications, de l'énergie et du papier, section locale 194 v. Disque Amérique inc., D.T.E. 96T-835
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.