In Quebec, as in other Canadian provinces, only an "employee" can join a union. Managers have always been excluded from this definition for fear that collectively bargaining their own conditions of employment would create an obvious conflict of interest.

However, the Tribunal administratif du travail of Québec (the "Tribunal") rendered two decisions questioning the constitutionality of this managerial exclusion under Quebec's Labour Code (the "Code"). Reflecting on the freedom of association, these decisions will be surprising to many.

The Facts

The facts date back to 2009 when the Association des cadres de la Société des Casinos du Québec sought to be certified to represent first level managers from the gambling section at the Montreal Casino. In 2014, the Association professionnelle des cadres de premier niveau d'Hydro-Québec filed a similar petition with respect to Hydro-Québec's first-level managers.

The Tribunal was asked to rule on whether the Code's exclusion of managers infringed the freedom of association guaranteed by Canada and Québec's Charters of rights and freedoms, and if so, whether this infringement was justified.

Has the Freedom of Association been Infringed?

The Tribunal first held that the exclusion of managers had serious prejudicial effects. Notably, the applicant associations were denied the habitual protection against anti-union discrimination, interference, and hindrance from employers.

Secondly, the Tribunal found that this exclusion also affected the managers' capacity to collectively bargain their conditions of employment. The imbalance in their bargaining power made it impossible for them to effectively negotiate important conditions of employment.

Absence of Justification

According to the Tribunal, this serious interference with the freedom to associate was not justified in a free and democratic society. Excluding managers from the certification regime had no rational connection with the underlying objective of maintaining loyalty and preventing conflicts of interest, particularly given that some managers are actually unionized in the federal jurisdiction, even in Québec.

Indeed, under the Canada Labour Code, employees whose duties include the supervision of other employees may be unionized, and supervisory employees are even allowed to be in the same unit as that of the employees they supervise. The Tribunal specifically acknowledged two associations of managers that had been voluntarily recognized by their employer.

Finally, the exclusion of managers failed to account the different management levels that might exist within an organization. The infringement could not be considered minimal and the Tribunal ultimately concluded that the exclusion infringed on the freedom of association of managers and declared the relevant section inoperative in their regard.

Conclusions

These decisions call for some nuances which may not be apparent at first glance. For one, the Tribunal's decision did not broadly invalidate the exclusion under the Code, but instead invalidated it solely for the managers aimed by the specific petitions for certification of these cases.

Second, the particular facts of these cases cannot be overlooked: the employees were first-level managers in a Crown corporation with five or more management levels. This does not reflect the reality of most Canadian businesses and corporations. For many private sector employers, first-level managers are the eyes and ears of upper management on the floor and these cases could be distinguished on that basis.

It will nonetheless be interesting to monitor both the legislative and jurisprudential impact of these decisions.