Left out of collective agreement by own union

Retroactivity clause does not apply to employees who left prior to collective agreement’s execution

Valerie Tremblay was employed as a lawyer with the City of Montreal from 1988 until 1992. When she commenced her employment there was no union representing the lawyers employed with the city. These employees were, however, subject to the city’s employment relationship.

In 1990 the Syndicat des employées et employés professionels-les et de bureau section locale 57 SIEPB, CTC-FTQ (the “union”) was certified to represent the lawyers employed in the penal and criminal affairs unit of the city’s corporate affairs branch where Ms. Tremblay was employed. Collective bargaining began shortly thereafter. By the time a collective agreement was agreed to and signed by the parties Ms. Tremblay had left her employment with the city.

Prior to her departure Ms. Tremblay saw a draft of a collective agreement. This draft, which was approved by the union members at a general meeting , contained a retroactive clause that provided for the agreement to be fully retroactive effective May 1, 1990.

Unfortunately for Ms. Tremblay, the final signed version of the collective agreement restricted the application of the retroactive clause to employees still employed by the city on the date the collective agreement was signed. That article incorporated the city’s administrative policy rule that denies employees who are no longer employed by the city any right to salary adjustment made after they left.

Ms. Tremblay challenged the legality of the retroactive clause in the collective agreement and sought damages from the city and the union. She argued that the clause violated the Quebec Labour Code and the Canadian Charter of Rights and Freedoms. She also argued that the union failed her in its duty of representation.

Ms. Tremblay was successful before the Quebec Superior Court. The trial judge held that the clause in issue violated s.46 of the charter as it imposed unfair and unreasonable employment conditions on Ms. Tremblay.

Section 46 provides that every person who works has a right to fair and reasonable conditions of employment, having proper regard for health, safety and physical wellbeing. This invalidated the clause in issue. The trial judge was also of the view that the union breached its duty of representation to Ms. Tremblay by agreeing to the non-retroactivity clause. Ms. Tremblay was awarded damages of $11,176 plus $5,000 in exemplary damages.

The city and the union appealed this decision to the Quebec Court of Appeal. The majority of the Court of Appeal allowed the appeal and overturned the decision of the trial judge. The Court held that the clause did not violate any of the provisions of the labour code or the charter.

Ms. Tremblay appealed this decision to the Supreme Court of Canada.

With respect to the liability of the city, the Supreme Court found that there was nothing in the code that requires that an agreement be retroactive where an agreement is first signed or even when it is renewed. The parties are free to agree that an agreement will apply only for the future.

Ms. Tremblay argued that the clause violated s.67 of the Quebec Labour Code, which provides that the employer and the certified association shall make only one collective agreement that will apply to the entire bargaining unit. She argued that by denying the employees who had resigned the benefit of retroactive payment, the parties incorporated two different sets of rules for the remuneration payable to employees who performed identical work.

The Supreme Court did not accept that argument finding that there was only one agreement. The parties had the right to choose between not providing for any adjustments, to maintain a salary freeze or even to reduce the conditions of employment. The labour code provides that the parties are free to negotiate the definition of what is meant by retroactivity, subject to the union’s duty of representation.

Ms. Tremblay further argued that the retroactivity clause violated s.19 of the charter by creating an illegal discrimination between employees who perform identical work.

The Supreme Court also rejected this argument. Section 19 seeks to prevent the types of discrimination provided for in s.10, such as discrimination based on sex or ethnic origin, or on a handicap. There was no evidence that the employees who resigned had been discriminated against.

The second argument, based on s.46, that the clause imposed unfair and unreasonable employment conditions, was also found by the Court to be without basis. In order for the clause to have violated this section, the Court would have had to find that the condition of employment was unreasonable, although there was no violation of the labour code, the mandatory provisions of the charter, or the union’s duty of representation.

With respect to the liability of the union, the Court held that the union did not breach its duty of representation. The union owes a duty of diligent and competent representation to the bargaining unit as well. The onus was on Ms. Tremblay to prove that there was a breach of these obligations.

The fact that workers were present in the bargaining union part of the time when negotiations took place did not impose an obligation of result on the union, requiring that it obtain a retroactive salary increase for all employees, including those who departed prior to the signing of the collective agreement. Although the union proposed this type of clause, the city had no legal obligation to accept these proposals. The union often has to decide whether to accept a questionable agreement rather than start or prolong a labour dispute.

The Court dismissed Ms. Tremblay’s appeals. Neither the city nor the union was liable for damages.

For more information:

Tremblay c. Syndicat des employées et employés professionels-les et de bureau, 2002 SCC 44.

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