There is no doubt that freedom of expression is a fundamental right recognized to "every person" under section 3 of the Québec Charter1. While the underlying objective is to protect fundamental rights and freedoms from unlawful infringement, the exercise of these rights and freedoms is not without limits. In Syndicat des travailleuses et travailleurs d'Amazon Montréal – CSN/Montreal Amazon Workers Union – CSN v. Amazon Canada Fulfillment Services, 2024 QCTAT 2716, the Administrative Labour Tribunal (the "Tribunal") established, among other things, that "... in the context of a unionization campaign, [the employer's freedom of expression] has certain limits" [our translation].
On June 2, 2023, the Syndicat des travailleuses et travailleurs d'Amazon Montréal – CSN/Montreal Amazon Workers Union – CSN (the "Union") filed a complaint based on sections 3, 12 and 13 of the Québec Labour Code against the employer Amazon Canada Fulfillment Services, ULC ("Amazon")2. The Union alleged, among other things, obstruction attempts and the use of threats and intimidation to prevent employees from joining the unionization movement underway.
For its part, Amazon contested the admissibility of the complaint, alleging that the Union had tardily filed it beyond the 30-day limitation period from the knowledge of the alleged contravention, and that the recourse was therefore time-barred. Amazon also asserted that it had not excessively exercised its right to freedom of expression or obstructed the Union's actions, as the actions alleged by the opposing party did not fall within the case law definition of what constitutes attempted obstruction. Lastly, Amazon contested all allegations of threats or intimidation by its representatives.
The dispute in the Amazon case therefore involves the right to freedom of association guaranteed by the Charter as well as the right of every employee to belong to an association of their choice enshrined in the Labour Code. In this respect, the law prohibits any employer, or anyone acting as such, from obstructing the exercise of this right. Following the teachings of case law, the scope of the notion of obstruction could encompass "... any search or attempt by the employer to dissuade or persuade employees to take or not to take a collective decision, to take a concerted action, to participate or not to participate in any union action"3 [our translation].
Analysis of the Decision
The Tribunal did not spend great deal of time on the issue of the inadmissibility raised by Amazon with regard to certain evidence presented by the Union that was allegedly time-barred. While it is true that some of the alleged actions were taken more than 30 days before June 2, 2023, the date on which the complaint was filed, and could not on their own have led to the Tribunal's intervention, this did not prevent the judge from taking them into account as part of the overall context. There was therefore no reason to conclude that the complaint was time-barred.
The allegations of threats or intimidation were also only briefly analyzed. The hearsay evidence of certain witnesses was not enough to convince the Tribunal that Amazon had threatened or intimidated the employees. It should be noted that none of them personally testified to these allegations.
To determine whether or not Amazon had attempted to obstruct the unionization campaign, the judge first drew up an overall picture of the situation. An initial unionization campaign was carried out among distribution centre employees in April 2022. The Union's activities at the time were essentially limited to distributing information leaflets and stopping workers outside the workplace. Given the campaign's lack of success in the four months following its launch, the Union had no choice but to suspend it.
It wasn't until April 2023 that the Union resumed its activities, this time collecting membership card signatures in addition to distributing leaflets. In the months that followed, Amazon was quick to respond, issuing a series of messages in connection with the ongoing unionization campaign. Broadcasted continuously on the screens reserved for human resources, these messages were also inserted in all the table toppers in the cafeteria, in the break room, and even on the bulletin boards in the washrooms. These messages, which were in French and English on a bright background, stated the following:
- "A union card is a legal document." [our translation]
- "Unions can't guarantee change in the workplace." [our translation]
- "You don't have to provide your personal information." [our translation]
- "Unions charge you dues." [our translation]
- "Joining a union is a personal choice—it should not be taken lightly."
- "You have the right to decide whether or not to sign a card."
The Union had also reported similar messages conveyed by Amazon during the first campaign, but these disappeared following its suspension in August 2022. According to the testimony of an employee present during both campaigns, while Union members were stopping employees outside the centre, Amazon representatives, collectively nicknamed "Amazonians," were doing the same during their working hours on the premises, but for completely opposite purposes.
In its assessment of the acts alleged against Amazon by the Union, the Tribunal referred to the six markers established in the decision Syndicat canadien des communications, de l'énergie et du papier, Section locale 194, v. Disque Améric inc., (the "Disque Améric" case)4. With the exception of the aforementioned testimony, the facts alleged by the Union and the other evidence presented indicated that there had been obstruction by Amazon. The Tribunal reiterated a principle established by its predecessor, the Commission des relations du travail, namely that "[i]t is the context, content and consequences of these communications that make it possible to draw the delicate line between the exercise of freedom of expression and the prohibition contained in the Québec Labour Code, like those of Canada and other provinces"5 [our translation]. While it was not proven that the presence of "Amazonians" constituted a form of obstruction to the unionization campaign, the judge reached the opposite conclusion with regard to Amazon's messages.
In this case, the Tribunal noted a number of aggravating factors, namely:
- The vulnerability of the union, considering that it was at that time in the process of formation and that it was its second attempt to organize Amazon employees;
- Worker profile (e.g., high proportion of immigrants, lack of information about the legal framework governing labour relations in Quebec).
The particular circumstances of this case are not without consequence. In particular, they motivated the conclusion that (1) Amazon was not appealing to people's logic, but was trying to elicit an emotional response, (2) employees had no choice but to receive the messages in question, and (3) Amazon was using its authority to propagate its anti-union views. This breach of three of the six criteria established in the Disque Améric case justified the Tribunal's decision to allow the complaint filed under section 12 of the Labour Code and to order Amazon to pay the Union a total amount of $30,000, i.e., $10,000 as moral damages as well as $20,000 as punitive damages. However, the Court rejected the Union's request for payment of $1,000 to each employee in service since May 2023 as exemplary damages, given the absence of proof of any real and personal harm suffered by each of them.
Lastly, we note that Amazon filed an application for judicial review with the Superior Court of Québec on August 30, 2024. Our Labour and Employment Law team will be closely monitoring developments in this case and the application of this decision over the coming months. For more information on this subject, please contact a member of our Labour & Employment Law team.
The authors would like to thank Marianne Raymond (law student) for her valuable contribution to this blog post.
Footnotes
1 Charter of human rights and freedoms, CQLR, c. C-12, s. 3 (the "Québec Charter").
2 Labour Code, CQLR, c. C-27, ss. 3, 12 and 13.
3 Michel Coutu et al. in Droit des rapports collectifs du travail au Québec, vol. 2, 2nd ed., Cowansville, Éditions Yvon Blais, 2013, p. 391, cited at para. 28; Montreal Amazon Workers Union, 2024 QCTAT 2716.
4 Syndicat canadien des communications, de l'énergie et du papier, Section locale 194, v. Disque Améric inc., [1996] T.T. 451.
5 Syndicat canadien de la fonction publique, section locale 4290 v. Municipalité de Sainte-Béatrix, 2004 QCCRT 0527, para. 19, cited at para. 35; Montreal Amazon Workers Union, supra, note 4.
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