Written by Richard O. MacDowell, Arbitrator and Former Chair of the OLRB (1995-2001)
At common law, the judiciary was hostile to collective bargaining, with the result that, historically, that process has primarily been regulated by legislatures and by labour boards – specialized tribunals that are charged with that responsibility. But there are still important policy questions to be answered, like: Who is collective bargaining for? In what configurations? Can some kinds of workers be excluded or subject to different legal rules? Which ones? And who decides?
Examples include: farm workers; Uber drivers who resemble, or are, independent contractors; Crown employees; essential service workers, however defined; salaried professionals who may be employees; and so on.
However, since the Supreme Court “constitutionalized” collective bargaining a few years ago, under the aegis of “freedom of association”, it is now clear that Judges can play a much more active and prescriptive role in shaping the legal rules in accordance with what they think the Charter requires or permits. And that means that legislatures may have to revise the legislation in response to the Judges’ pronouncements – or invoke the Charter’s “notwithstanding clause”. Which raises the political question: Who “should be” making labour law?
With that in mind, then, it is interesting to note that on September 29, 2022, the SCC granted leave to appeal in Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, et al. The Charter issue in that case was whether some “managerial persons” can be excluded from the ambit of a collective bargaining statute that creates organizing and bargaining rights for workers more generally.
If the answer to that question is “yes”, then it will preserve the status quo in virtually all collective bargaining regimes in Canada, and it will leave it open to legislatures and labour tribunals to draw those lines. In practical terms, it means that lower level managers will have to fend for themselves, as best they can, under the common law.
Conversely, if the answer is “no”, then it will represent the negation of a longstanding pillar of collective bargaining law, and it will raise a host of issues about bargaining unit structures, what collective bargaining for “managers” will look like, the right to strike, and much else. Which will all be justiciable legal issues, to be viewed through a Charter lens, and perhaps with Judges having the final say. And THAT could affect every employer in Canada, including the Crown.
So, let’s look at some mechanics, using the Ontario law as the template.
The Ontario Labour Relations Act is typical of both the national status quo and the legislative premise referred to above, namely: that there are workers and bosses, and in the contest between them, managers are assigned to the side of the bosses. Thus, the OLRA defines a “union” as an organization of “employees”, and it conceives of collective bargaining as a tool that is available to those “employees”.
However, section 1(3)(b) excludes from the definition of “employee”, any persons who, in the opinion of the OLRB,“exercise managerial functions”. But that term is left undefined; so it is the OLRB that elaborates what it means in particular contexts. Ostensibly, exclusively. (See OLRA,section 114).
Moreover, the underlined words are significant. They were added in 1957 to over-ride a Court decision and to make it clear that it was the OLRB, the specialized tribunal, and not the Courts, that determined the ambit of the managerial exclusion, and thus who had access to the employee rights and representational opportunities addressed in the statute. And so it has been ever since. The OLRB is the gatekeeper.
In the result, managerial employees have no protected right to organize or bargain collectively, nor, generally speaking, can they be covered by a collective agreement (section 1(1),and 56). Their only possibility are voluntary collective bargaining arrangements with their employer – which are not uncommon, but which tend to be underinclusive, to founder when times are tough, and to lack a settled means for clarification, amendment, or the enforcement of its terms.
Be that as it may, the purpose of the statutory exclusion is to ensure that persons in a bargaining unit are not faced with a conflict of interest, as between their obligations as persons who exercise “managerial responsibilities” on behalf of the employer (usually vis a vis other employees), and their interests as members of a bargaining unit. Collective bargaining, by its very nature, involves an arm’s length relationship between “the two sides”, whose interests are often divergent.
This purpose was succinctly stated, 50 years ago, by the British Columbia Labour Relations Board, in Corporation of the District of Burnaby,  Can LRBR 1 at page 3; and I returned to it myself, in International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 880 v. Ford Motor Company of Canada Limited, 1993 CanLII 7810 (ON LRB), which was written at a time when extending collective bargaining to “managers” was creeping onto the legislative agenda (i.e. whether the the legislature should do, by statute, what the Supreme Court may now be able to do, by judicial fiat).
The Ford case involved a group of foremen, who were excluded from the CAW bargaining unit, yet were very unhappy with their treatment at the bottom of the management hierarchy. They were “getting it from both ends”, as they put it at the time. So they approached the Teamsters for union representation. And the OLRB’s job in that case was to explain to them, why, as the legislation then stood (and still stands), their quest for union representation had to fail.
It will be seen, therefore, that the exclusion of managers from collective bargaining has been one of the fundament tenets of labour law since its inception in the 1940s. In this regard, it is like the OLRB’s equally important (and purportedly exclusive) power to “determine” the “appropriate bargaining unit”- which is what gives collective bargaining its structure and distinguishes it from some European models, were multiple union relationships in an undertaking are more common.
Accordingly, if the Supreme Court is inclined to tinker with one fundamental pillar of the law, then one has to wonder whether it will resist tinkering with that other pillar, which is actually more directly related to – indeed is the instrumental expression of – those magic Charter words: “freedom of association”.
For after all, why shouldn’t each company department, or professional group in a hospital, have its own union and its own bargaining unit? Shouldn’t that be up to employees, whose right to associate with one another is in issue? Or is there a role for policy making? And if the answer to that is “yes”, should it be Judges doing it?
Consider, for example, how the OLRB approached that problem in International Brotherhood of Electrical Workers Local Union 1687 v. Kidd Creek Mines Ltd.,1984 CanLII 937 and 1986 CanLII 1511, where 108 electricians, working in a sea of unrepresented employees, wanted their own bargaining unit, and the OLRB said “no”. Would a Charter-minded Court reach the same result – which, in that case, resulted in there being no union presence in the workplace at all?
R.O. MacDowell, “Who Defines Appropriate Bargaining Units After the Constitutionalization of Labour Law?” Law of Work (October 10, 2022)