On April 17, the Court of Appeal1 overturned a judgment of the Superior Court2 and reinstated a decision of the Tribunal administratif du travail3 (the “TAT”). The TAT had concluded that an employer had interfered with union activities by entering into a secondment agreement with an employee without the union’s consent.
The facts at the origin of the dispute
The Alliance du personnel professionnel et technique de la santé et des services sociaux (the “Alliance”) is accredited to represent, among others, psychologists employed by the Centre intégré de santé et de services sociaux de la Montérégie-Ouest (the “Employer”).
In June 2023, the Centre intégré de santé et de services sociaux de l’Abitibi-Témiscamingue (the “CISSS”), then facing a labour shortage, requested the Employer’s assistance in obtaining temporary help to ensure the continuity of its services.
The Employer then entered into an agreement with the CISSS and a psychologist covered by the Alliance’s bargaining unit, under which the employee would work for the CISSS for seven consecutive days in August 2023 (the “Agreement”). The Agreement provided, among other things, that the psychologist would retain her employment relationship with the Employer, as well as her seniority, and that she would return to her position with the Employer at the end of the Agreement. The Alliance did not participate in either the negotiation or the conclusion of the Agreement.
After becoming aware of the Agreement, the Alliance filed a grievance as well as a complaint under the first paragraph of section 12 of the Labour Code (the “Code”) before the TAT, asking to declare that the Employer had interfered with its activities and to order it to pay punitive damages in the amount of $1,000.
It should be noted that the collective agreement governing the employment relationship between the parties contained no provisions relating to secondment agreements.
The TAT’s decision
The TAT had to determine whether the Employer had interfered with the Alliance’s activities by entering into the Agreement, and if so, whether the Alliance was entitled to punitive damages.
The Alliance argued that by entering into the Agreement without consulting it, the Employer had ignored its role as the exclusive bargaining agent with respect to employees’ working conditions and had thus infringed upon its representational monopoly.
For its part, the Employer argued that since the collective agreement contained no provisions regarding secondment, it had not violated it and had merely exercised its management rights. It also contended that there could be no interference given the temporary and short-term nature of the Agreement.
Regarding the concept of interference, the TAT recalled that the first paragraph of section 12 of the Code is intended to protect freedom of association and union autonomy within the context of its representational monopoly. The TAT also noted that interference may take the form of various actions aimed at undermining union activity and that it requires a wrongful intent on the part of its author. The TAT specified, however, that the notion of intent is not limited to the performance of a deliberate act and may also result from gross negligence on the part of the employer, where the employer could not ignore the foreseeable consequences of its actions.
In this case, although it noted that secondment agreements were not expressly provided for in the collective agreement, the TAT concluded that the Agreement nevertheless affected working conditions covered by it, notably seniority, transfer, and the employment relationship. In this context, the TAT held that the Employer’s management rights did not allow it to negotiate such an agreement in the absence of the Alliance, which remains its “mandatory” interlocutor.
According to the TAT, the Employer could not ignore that such an approach infringed upon its representational monopoly. The fact that the Agreement was temporary and of short duration did not assist it, the TAT recalling that section 12 of the Code applies to both minor and major violations.
The TAT therefore found that the Employer had interfered and upheld the complaint.
However, it dismissed the claim for punitive damages, in particular on the grounds that the Employer had entered into the Agreement to respond to an urgent need of another employer.
The Superior Court judgment
The Employer applied for judicial review of the TAT’s decision.
According to the Superior Court, there was no evidence of anti-union animus on the part of the Employer in deciding to enter into the Agreement in order to assist the CISSS, which was then experiencing a labour shortage.
Moreover, since the collective agreement did not require the Employer to negotiate with the Alliance, it could therefore enter into the Agreement as it did, especially since it lasted only one week.
Finally, the Superior Court considered that the TAT should have left it to the arbitrator seized of the grievance filed by the Alliance with respect to the same facts to resolve the dispute.
The Superior Court therefore granted the application for judicial review, set aside the TAT’s decision, and dismissed the Alliance’s complaint.
The Court of Appeal decision
The Alliance appealed the Superior Court’s judgment to the Court of Appeal.
The Court of Appeal indicated that the representational monopoly prohibits an employer from negotiating employees’ working conditions on an individual basis. Thus, any negotiation of working conditions must take place with the union, even if it concerns matters not covered by the collective agreement.
The Court also held that it had not been shown that the TAT made a palpable error in concluding that the Employer had committed gross negligence in entering into the Agreement.
Finally, the Court of Appeal confirmed the TAT’s exclusive jurisdiction with respect to the application of the first paragraph of section 12 of the Code. In exercising this jurisdiction, the TAT may take the collective agreement into account or interpret it in order to analyze the complaint before it.
In sum, the Court of Appeal was of the view that the Superior Court erred in concluding that the TAT’s decision was unreasonable. Consequently, it allowed the Alliance’s appeal, set aside the Superior Court’s judgment, and reinstated the TAT’s decision.
