In a decision rendered on February 8, 2022, the Quebec Court of Appeal reinstated a decision of the Administrative Labour Tribunal ("Tribunal") allowing the unionization of first level managers. This ruling could put an end to the legal saga between the Association des cadres de la Société des Casinos du Québec (the "Association") and the Société des casinos du Québec (the "Society") that has been going on for over 10 years.
The fact that the first level managers were members of an association of managers not governed by the Quebec Labour Code (the "Code") was not considered sufficient within the meaning of the right to freedom of association guaranteed by the charters. The conflict of interest argument was also not accepted.
- The Administrative Labour Tribunal's Decision
On November 10, 2009, the Association filed an application for certification to represent certain management employees of the Society, namely, the Operations Supervisors ("OS")1. Since the definition of "employee" in section 1(l)(1) of the Code excludes managers, thereby preventing them from unionizing, the Association asked the Tribunal to declare section 1(l)(1) of the Code constitutionally inoperative. The Association argued that this provision violates the freedom of association guaranteed to all by section 2(d) of the Canadian Charter of Rights and Freedoms ("Canadian Charter") and section 3 of the Charter of Human Rights and Freedoms ("Quebec Charter").
In an interlocutory decision rendered on December 7, 2016, the Tribunal ruled in favour of the Association2. As in any case, the factual context was decisive. It is therefore very useful to review the main contextual elements considered by the Tribunal, and then eventually by the Court of Appeal :
- The OS are first-level managers. They supervise the dealers, who are unionized employees3.
- Each OS is assigned to a team of dealers, ranging in number from two to five4.
- The OS are often drawn from the group they supervise5.
- While they are the "eyes and ears of the employer on the floor", they do not have the privileged relationship with the Society that higher level managers may have. They do not participate in the direction of the Society, nor do they play a strategic role in labour relations: they do not negotiate collective agreements; they ensure their application in the day-to-day activities6.
- First level managers are caught between a rock and hard place7.
- The Association already represented the OS as an informal management association and a brief protocol of the working conditions of the OS assigned to the gaming tables had been agreed upon in 2001 ("Protocol").
- The Society would not allow other OS to join the Association8. The representativeness and determination of the group for which the Association could, or could not, be recognized was at the discretion of the Society9.
- Despite repeated requests by the Association, the Society reportedly refused to renegotiate the Protocol, stating that if it did so, it would be to "take things away rather than give things away"10. The protocol has thus remained unchanged since its conclusion in 200111.
- In sum, several events indicated that the Society was not
consulting with and refusing to consider the Association as the
voice of the OS as a whole, despite the fact that 70% of the OS
were members12. For example:
- The Society would have unilaterally modified the work schedules of the OS.
- The Society would have significantly reduced the working hours of the OS.
- The Society would have unilaterally modified the parking facilities that the OS had previously enjoyed near the casino.
- Unlike representatives of other employee groups, the Association was not invited to participate in a meeting of the Management Pension Plan Committee.
- There was no mechanism in place to deal with disputes13.
- In sum, the evidence demonstrated the inability of the Association to re-establish bargaining power and to negotiate for its members on matters of importance. The Society always has the last word and is not subject to any form of pressure14.
The Tribunal therefore found that the exclusion of managers from the Code's definition of "employee", both in purpose and effect, is a substantial interference with the freedom of association protected by the charters for which the state is responsible15. First, the Tribunal held that the purpose of the exclusion is to prevent representatives of an employer from collectively bargaining their terms and conditions of employment for fear that doing so would place them in a conflict of interest16. Second, the Tribunal found that the effect of the exclusion of managers from the Code was a substantial interference with the freedom of association of the OS. It found that the independence of managers is incomplete, that their recognition is entirely dependent on their respective employers, and that there is no protection against interference, which substantially impedes their ability to negotiate on important matters. The absence of a mechanism to sanction the duty to bargain in good faith and the removal of the right to strike, without alternative, do not restore the balance of power between first-level managers and employers, of state-owned companies17. Third, the Tribunal found that the state played a definite role in the Association's inability to enjoy its bargaining rights, as this substantial interference is a consequence of the general certification regime that is the Code18.
At the justification stage, the Tribunal concluded that the Attorney General was unable to demonstrate that the violation of freedom of association was justified in a free and democratic society within the meaning of section 1 of the Canadian Charter or section 9.1 of the Quebec Charter19.
- The Superior Court's Decision
The Superior Court allowed the Society's appeal for judicial review, quashed the decision of the Tribunal and declared the exclusion provided for in section 1(l)(1) of the Labour Code "applicable, valid and constitutionally effective"20.
- The Court of Appeal's Decision
The Court of Appeal allowed the appeal, overturned the Superior Court's judgment, reinstated the decision of the Tribunal and suspended the declaration of inoperability of the management exclusion21.
Among other things, the Court of Appeal noted that the Tribunal's findings of fact are entitled to deference and that the Superior Court erred in interfering with the weighing of evidence, which is the responsibility of the Tribunal 22.
Specifically, the Tribunal's findings pointed to a substantial interference with, and therefore an infringement of, freedom of association23. The Tribunal was not mistaken in concluding that :
- the impossibility for the OS to benefit from a true recognition of the Association;
- their lack of access to a tribunal or specialized dispute resolution mechanism to deal with employer interference, obstruction or bad faith bargaining; and
- the absence of the right to strike;
are effects of the exclusion at issue and also constitute a substantial interference with the OS' freedom of association24.
Finally, the Court of Appeal upheld the Tribunal's finding that the Attorney General had failed to meet the test of justifying the interference, particularly on the basis of conflict of interest25:
- The Tribunal refused to justify the interference on the basis that the exclusion of the managers in this case would be to avoid interference by the employer, through the managers, in the collective affairs of the unionized employees, and to avoid conflict of interest situations in which the managers might find themselves, or the consequences of a work stoppage by the managers26.
- Notwithstanding the above, the Tribunal found that the infringement of the freedom of association by the exclusion in question was not the most minimal possible. The exclusion makes no distinction as to the levels of management personnel excluded from the notion of "employee", nor does it make any distinction as to their rank in the Society, the nature of their functions and their participation, or not, in negotiations with unionized groups27. In fact, it has not been established that there are no "less prejudicial means of achieving the legislative objective"28.
Thus, the Court of Appeal confirmed that the OS members of the Association will be able to benefit from certain rights protected by freedom of association, including the right to collectively bargain their working conditions, to call a strike and to have access to a tribunal specialized in labour law.
Considering the potential effect of this decision on the Quebec labour relations regime for managers in general, or for managers whose situation is similar to that of the OSs, the Court of Appeal suspended the inoperability of the exclusion decided by the Tribunal for a period of 12 months starting February 8, 2022. By suspending the exclusion, the Court of Appeal allows the legislator to evaluate possible solutions such as a legislative reform modifying the definitions provided for in the Code in order to specify, for example, the exclusion of certain categories of executives from the legal regime of collective labour relations.
This decision of the Court of Appeal confirms for the first time in Quebec the right of managers in companies or organizations to unionize. However, it is important to put this conclusion in context, as the managers affected by this decision are first-level managers in an organization with five or more levels of management, which means that they do not participate in the company's orientations and do not have a strategic or management role in labour relations. Thus, it would be very surprising if this decision could be transposed to any category of executives such as senior, middle or first level managers with real management power or influence.
Given the impact of this decision, its scope and the issues at stake, this legal saga will most likely continue before the Supreme Court of Canada.
1. The OS are the first level of management in an organization with five levels of management. They supervise dealers, ensure compliance with the rules of the game and provide customer service.
2. Association des cadres de la Société des casinos du Québec et Société des casinos du Québec Inc., 2016 QCTAT 6870.
3. Id., par. 110.
4. Id., par. 111.
5. Id., par. 315.
6. Id., par. 315.
7. Id., par. 315.
8. Association des cadres de la Société des casinos du Québec c. Société des casinos du Québec, 2022 QCCA 180, par. 35.
9. Id., par. 55.
10. Id., par. 35.
11. Id., par. 55.
12. Id., par. 55.
13. Id., par. 55.
14. Association des cadres de la Société des casinos du Québec et Société des casinos du Québec Inc., supra note 2, par. 347.
15. Id, par. 443.
16. Id, par. 301.
17. Id., par. 441.
18. Id., par. 381 and 442.
19. Id., par. 403.
20. Société des casinos du Québec c. Tribunal administratif du travail, 2018 QCCS 4871, par. 273.
21. Association des cadres de la Société des casinos du Québec c. Société des casinos du Québec, supra note 8.
22. Id., par. 139.
23. Id., par. 144.
24. Id., par. 144 et seq.
25. Id., par. 180.
26. Id., par. 172.
27. Id., par. 174.
28. Id., par. 181.
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