Letting managers unionize

In the labour law field, things happen slowly and then suddenly. The law stays largely static for decades at a time, and then — like bad luck and Hollywood blockbusters — big changes arrive in threes.

Canadian labour law has seen two such jurisprudential hat tricks since the introduction of the Charter of Rights and Freedoms. The first, sometimes referred to as the “original labour trilogy,” saw the Supreme Court of Canada hold forth on freedom of association in a labour context in three companion cases (Reference Re: Public Service Employee Relations Act [Alberta], Public Service Alliance of Canada v. Canada and Retail, Wholesale and Department Store Union v. Saskatchewan).

One of the cases was a constitutional reference launched to determine the validity of laws prohibiting strikes and lockouts. The other two were, respectively, about a government wage restraint law and legislation that temporarily blocked a strike. In all three cases, a 6-2 SCC majority (with Chief Justice Brian Dickson dissenting on the main point) held that freedom of association did not imply constitutional protection for the right to collective bargaining or the right to strike.

Then, in 2015, came the “new labour trilogy” — Mounted Police Association of Ontario (MPAO) v. Canada,  Meredith v. Canada and Saskatchewan Federation of Labour (SFL) v. Saskatchewan. Of the three, the decision with the most far-reaching effects was SFL, which saw the court invalidate provincial legislation in Saskatchewan that allowed the government to designate certain public servants as essential employees denied the right to strike.

The majority in SFL ruled that the legislation interfered unduly in a constitutionally guaranteed right of employees to a “meaningful” collective bargaining process. The court then took it further by introducing a constitutional “right to strike” to its interpretation of section 2(d) of the Charter.

“The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations,” Justice Rosalie Abella wrote for the majority.

Which brings us to April 2023. Later this month, the Supreme Court will rule on a legal clash between the Association des cadres de la Société des Casinos du Québec and the Société des Casinos du Québec.

At issue generally is whether first-level casino managers can unionize — specifically, whether the section of Quebec’s Labour Code that excludes all management personnel from the legal definition of “employee” should be considered null and void with respect to first-level casino managers.

In other words, the case involves a bedrock assumption of North American labour law — that employees and managers have different interests, and different levels of authority.

“All provincial labour codes do exclude managers to some degree,” says Christopher Deehy, head of the labour law team at Lapointe, Rosenstein, Marchand, Melançon in Montreal.

Most North American labour codes — Quebec’s included — were based roughly on the American Wagner Act of 1935, which guaranteed the right of private sector employees to organize into trade unions, engage in collective bargaining and launch strikes. It was drafted during the heady early days of the labour movement when the distinction between labour and capital seemed absolute.

But the low-level casino managers pushing for certification in Quebec don’t fall neatly into one category or the other, Deehy says — which explains why Ontario and Manitoba allow low-level managers to unionize through their associations.

“Quebec casinos have thousands of employees and these low-level managers don’t have much authority,” he adds. “This isn’t a question that’s going to arise in many workplaces.”

Still, the SCC will have to walk a fine line if it wants to continue on its path of broadening labour rights without triggering the obvious conflict of interest the Wagner Act was built in part to prevent. Much will depend on how the Quebec government reacts to the SCC’s ruling.

“The SCC got involved because they thought there was a question of national interest to decide,” says Alexis Renaud, a partner in labour and employment law at BLG in Montreal. “Was it because of the evolution of its own precedents on freedom of association? Or was it because of the increased complexity of labour relations in the 21st century? To some extent, they probably want to address both issues.”

If the SCC decides the first-level casino managers have a right to unionize, it’ll likely leave the details to Quebec to work out, possibly by giving the province a year or more to redraft its labour code.

“I don’t think the province would invoke the notwithstanding clause on something like this,” says Renaud. “It’s not as if unionizing certain classes of managers is unheard of in this country. But if the province were simply to move these low-level managers from the manager column to the employee column while doing nothing else, that would be a problem.”

That, says Renaud, would clear low-level casino managers to join existing staff unions, rather than create a new one. And that would put managers in the same bargaining units with staff members they supervise at some level, which would set up a clear conflict of interest.

“If the government changes the code to allow them to unionize without specifying in law how they can unionize, that would be inappropriate,” says Renaud. “That is where you could get a shift in the labour dynamic. It would be complicated, to say the very least.”

Deehy says he thinks the SCC will take a minimalist approach to the case. “Honestly, I can’t imagine the SCC just overturning 100 years of industrial policy. I don’t think we’ll see anything revolutionary,” he says. “But we could see a decision extending the right to organize to this class of manager.”

Renaud isn’t willing to predict even that much. “I’m really not sure. The Supreme Court can surprise you,” he says. “I really don’t know which way they’ll jump.”

In that sense, the top court has something in common with casinos. Whether you’re at the blackjack table or before the bench, it seldom pays to bet against the house.