UK: Workplace Emails: The Next Frontier Of Union Activities?

Quebec's labour relations board (the Commission des relations du travail or "CRT") recently rendered a judgment1 ordering the government of Quebec to stop preventing some of its employees from including union-related messages in their email signatures.

The case involves negotiations around the renewal of a collective agreement between the government and the union representing its engineers.  Some union members added a message to their email signature, pointing to uncompetitive salary conditions that, in their view, needed to be addressed to provide quality services to citizens and ensure the proper maintenance of public property.  The government responded by prohibiting union members from using its property (i.e. electronic equipment) to diffuse their message.

The union filed a complaint before the CRT, alleging government interference in legitimate union activities, contrary to section 12 of the Labour Code (the "Code").  While the government denied it was trying to hinder the union members' freedoms of association and expression, it invoked its property rights over office equipment as well as the employees' duties of loyalty and restraint.

While the CRT's ruling deals foremost with the union members' right to be free from employer interference under the Code, it deals more with freedom of expression and association, entrenched in section 3 of the Quebec Charter of human rights and freedoms and 2.b) of the Canadian Charter of Rights and Freedoms.

In a detailed review of the applicable case law, the CRT first acknowledged that the employees' message was neither abusive, defamatory, or illegal, which would have contravened their duties of loyalty and restraint.  The CRT also noted that the use of electronic equipment by employees for personal needs is widely accepted in 2015, and dismissed the government's argument that it had absolute right over its property.  The CRT added that the case law tends to favour the freedom of expression of union members over the employer's property rights.

Recognizing that the situation was uncommon, the CRT drew an analogy to another case in which an arbitrator authorized Canada Post workers to wear a badge on their uniform displaying union-related messages.2  In that particular arbitration award, the employees' freedom of expression trumped the employer's property rights over the uniform. There was nothing illegal about the message on the badge, and no complaints had been received by the employer.

Beyond these considerations, the CRT also based its ruling on grounds dealing with freedom of association and expression.  For the employer to prevail, the CRT requires sufficient justification to restrict these freedoms.  It places the bar quite high in this regard since union claims are part of our social and democratic life, especially considering that union demands in this case dealt with social issues involving state employees and, by extension, all citizens.

In this context, the CRT concluded that the dissemination of union-related messages in emails was a form of freedom of expression, protected by the Charters, all the more so when exercising another fundamental right (i.e. freedom of association).  Weighing conflicting rights and freedoms, the CRT ruled that freedom of expression, when exercised in a reasonable manner by the union members in the present circumstances, must prevail in the absence of any evidence of harm or negative repercussions on the employer.  In the CRT's opinion, the government was unable to demonstrate that the message had any harmful effect, that it violated the democratic values of public order and collective well-being, or that it undermined the values underlining freedom of speech.  The CRT therefore ordered the government to cease preventing union members from inserting the message in their electronic signatures.

It should be noted that the CRT drew from well-established case law of the Supreme Court of Canada to decide this unusual case.  It will be interesting how it and other cases unfold to determine if the use of emails entails a unique situation that warrants a different analysis of an employer's property rights, as well as its powers of direction and control over its employees.

Even so, one should also note that the CRT was careful to point out that freedom of expression is not absolute and that the use of information technologies does not broaden the limits of this freedom.  One should therefore not interpret this judgment as having expanded the previously established limits, particularly as regards those relating to the diffusion of illegal, defamatory or harmful messages.

Footnotes

1 Association professionnelle des ingénieurs du gouvernement du Québec c. Gouvernement du Québec, 2015 QCCRT 460.

2 Syndicat des travailleuses et des travailleurs des postes c. Société canadienne des postes, [2006] R.J.D.T. 1675 (T.A.).

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