Syndicat Catholique des Employés de Magasins de Québec Inc. v. Paquet Ltée

[19591 couRs.

LE SYNDICAT CATHOLIQUE DES

*Jun 18

EMPLOYES

DE MAGASINS

DE

APPELLANT; QUEBEC INC. (Plaintiff) ..........

Jan.27

AND

LA COMPAGNIE

PAQUET

LTEE.

(Defendant) ....................

R

ON APPEAL FROM THE COURT OF QUEEN'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Labour-Collective agreement---"Rand Formula"-Whether compulsory check-off clause a "condition de travail"-Whether valid in the Province of Quebec-The Labour Relations Act, R.S.Q. 1941, c. 16A, as amended-The Professional Syndicates' Act, R.S.Q. 1941, c. 168, as amended-Articles 1701 of the Civil Code.

A clause in a collective bargaining agreement between an employer and a union certified as a bargaining agent whereby the employer is to withhold from the wages of all his employees, whether union members .

or not, a sum equal to the union dues fixed by the union for its members, and to remit the same to the union, is valid and binding in the Province of Quebec (Taschereau, Locke and Fauteux JJ., contra.)

The plaintiff, a labour union incorporated under the Professional Syndicates' Act and duly certified as a bargaining agent under the Labour Relations Act, sued the defendant to recover certain sums of money which had been withheld by the latter from the wages of a number of non-union employees and which had not been remitted to the union as provided for under a check-off clause in the collective bargaining agreement between the parties. The defendant alleged that it had deposited the money in a special bank account because these employees had objected to the withholding; and further pleaded that the check-off clause was null as being unlawful. The trial judge dismissed the action and held the check-off clause to be null and void since it could not be considered as a "condition de travail". This judgment was affirmed by the Court of Appeal.

Kerwin C.J. and Taschereau, Locke, Cartwright, Fauteux, Abbott and Judson JJ.

Held (Taschereau, Locke and Fauteux JJ. dissenting): The plaintiff union was entitled to recover the sum withheld from the non-union members S and not remitted to the union.

Per Kerwin CJ. and Cartwright, Abbott and Judson JJ.: The compulsory DES check-off clause here in question was a "condition de travail" within E o the meaning of the Quebec legislation. There was nothing in the legislation to justify the subdivision made by the trial judge into DE QutBEc conditions "en soi", which did not need the assent of the C Q CIE employees, and conditions "conventionnelles", requiring such assent. Once the union and the employer agreed upon the clause, it became as much regulatory of the employer-employee relationship as any other clause in the agreement. Being a regulation of the contract of labour to that extent, it could not be rejected as being something outside the scope of the Act. The test must be its real connection with the contract of labour, and assent or non-assent of the individual member of the unit was immaterial.

By virtue of its incorporation and certification, the union negotiates as the compulsory statutory representative of the whole group of employees whether members of the union or not. This leaves no room for private negotiation between the employer and employee on the matters covered in the agreement. The agreement tells the employer on what terms he must conduct his master and servant relations. As to the employees, they are put to their election either to accept the terms or seek other employment.

The compulsory check-off was not prohibited by any law. Section 17 of the Professional Syndicates' Act, which limits the right of the union to three months' dues from a member who resigns, did not affect the non-union employees. It did not affect the right of the union and the employer to contract for a compulsory check-off as a condition of employment.

There was nothing in the legislation which disclosed any intention to make the law of mandate applicable to the situation contemplated by the Act. The status conferred upon the union resulted from the legislation and not from a contractual relation of mandate. Per Taschereau and Locke JJ., dissenting: The withholding by the employer for remittance to the union of part of the salary of an employee objecting to such withholding was not a "condition de travail" within the meaning of the legislation. It related only to the financial administration of the union and had no relation to the conditions under which an employee must or must not work. Such a clause was not included within the restricted limits of s. 2(e) of the Labour Relations Act or s. 21 of the Professional Sydicates' Act. The objecting employees could be bound only by the conditions envisaged by the legislation.

It seemed indisputable that the Legislature never had the intention of considering the compulsory check-off as a "condition de travail". The check-off made its appearance in Quebec a long time after the enactment of the Quebec legislation and could bind the parties only by consent.

The plaintiff union could not rely upon the provisions of arts. 1028 and 1029 of the Civil Code.

Appeal Side, Province of Quebec, affirming a judgment of Choquette J. Appeal allowed, Taschereau, Locke and Fauteux JJ. dissenting.

JUDsow J.:-The judgment under appealP holds that a certain clause in the collective bargaining agreement made between the appellant and the respondent is null and void. The clause in full is as follows:

The object of the clause is well-known and obvious. It is to throw upon all employees, whether members of the union or not, equal responsibility for the financial upkeep of the union on the theory that the gains achieved by the union on behalf of all employees must, at least to the extent of financial support, be paid for by all. For the union the advantages and convenience of a compulsory check-off are equally obvious.

The appellant is a labour union incorporated under the Professional Syndicates' Act, R.S.Q. 1941, c. 162.

i1 was duly certified as a bargaining agent under the Labour Relations Act, R.S.Q. 1941, c. 162A, by decisions of the Quebec Labour Relations Board dated December 6, 1950, and May 20, 1954. The collective agreement, which contains the impugned clause, is dated March 24, 1955. It was made between the appellant and the respondent following a strike of the respondent's employees.

Immediately after the signing of the agreement all the employees were notified in writing of the existence of the clause by a circular prepared by the union but distributed by the company.

With the week ending April 9, 1955, the company began to deduct fifty cents per week from the wages of all em- Emoyris ployees whether members of the union or not. Shortly afterwards, on April 22, 1955, a number of employees, who were almost all non-members of the union, expressed their dissent by signing the following document:

Ultimately, 254 out of 607 employees covered by the agreement expressed this dissent.

Of the remainder, 230 union members authorized the deduction and 123 employees gave no authorization but made no objection.

The company nevertheless continued to withhold the fifty cents per week from all employees but instead of remitting the amounts collected from the 254 dissenting employees, deposited this money in a special bank account and notified the union of its-action. After intermediate negotiations and proceedings under the agreement, which are of no significance in the determination of this matter, the union began this action in the Superior Court to claim from the company the amount collected. The Superior Court held that this compulsory check-off was null and void. This judgment was affirmed by the unanimous decision of the Court of Queen's

Bench'. The union now appeals to this Court.

The main reason given for the rejection of the clause was that it was not a "condition de travail" within the meaning of the Professional Syndicates' Act and the Labour

Relations Act and that consequently, it was outside the scope of the contracting power of the union and company when they made their collective labour agreement.

therefore turn immediately to an examination of the relevant provisions of these two enactments. The Professional Syndicates' Act, enacted in 1924, authorizes the incorporation of these associations and provides for the negotiation of collective labour agreements, which agreements are enforceable contracts.

"Any agreement respecting the conditions of labour (les conditions du travail)

not prohibited by law may form the object of a collective labour agreement" (s. 21). It is apparent that a collective agreement may be of wide scope. There are only two lmiting factors. The terms of this agreement must relate to conditions of labour (conditions du travail) and must not be prohibited by law.

This Act did not provide for compulsory collective bargaining. This came with the Labour Relations Act in 1944, which compelled an employer to recognize as the collective representative of his employee "the representatives of any association comprising the absolute majority of his said employees and to negotiate with them, in good faith, a collective labour agreement" (s. 4).

"Collective Agreement" is defined as

Section 19(a) provides that the Act applies "to a collective agreement entered into under the Professional Syndicates' Act .... "

The Professional Syndicates' Act was enabling only, not compulsory, and the right of representation of the syndicate was confined to its members.

Theoretically it was possible to have a collective agreement under this Act which left untouched the position of employees who were not members of the syndicate. The change made by the Labour Relations Act in 1944 was profound. The collective representative with the necessary majority acquired the right of representation for all the employees, whether members or not, and the employer became obligated to negotiate in good faith with that collective representative.

Failure to agree might result in conciliation proceedings and eventually in the appointment of a council of arbitration.

The legal problem under consideration in this litigation has to be determined with this compulsory aspect of the legislation in mind. Nowhere do the two Acts attempt to define "conditions de travail", "conditions of labour" or "conditions of employment". The differences in phraseology between the French and English versions of the two Acts leap to the eye but the reasons of the learned trial judge and of the Court of Queen's Bench, rightly, in my respectful opinion, decline to make these differences a governing factor in their decisions. Whatever the phrase may be, 1as "conditions de travail", "conditions of labour" or "conditions of employment", all three deal with the same general concept and in one language the terminology is uniform.

Why has the impugned clause been rejected as a "con- c dition de travail" and consequently as being beyond the proper scope of a collective agreement?

The learned trial Judo J. judge subdivided "conditions de travail" into two classes, "conditions de travail en soi" and "conditions de travail conventionnelles" and in doing so doubtless accepted the suggestion put forward in Beaulieu, Les Conflits de Droit dans les Rapports Collectifs du Travail. The first type of condition, he held, was a true "condition de travail" and could be inserted in a collective agreement without the individual assent of the employees, and the second, in his opinion, required such assent. The ratio of his judgment on this point is expressed in the following extract from his reasons:

I can find nothing in this legislation which would justify this subdivision nor any guide for the doing of it. It is obvious that one may have a collective agreement which is satisfactory to the parties without this clause. When, however, the parties have agreed upon it, it is to me just as much regulatory of the employer-employee relationship as any other clause in the agreement. It is directly concerned with the right to hire and the right to retain employment, for without accepting this term a person cannot be hired, or, if he is already an employee, cannot retain his employment. If it is a regulation of the contract of labour to this extent, and it clearly is, how can it be rejected as being something outside the authorization of the Act? A term either is or is not a "condition de travail". The test must be its real connection with the contract of labour, and assent or absence of assent of the individual member of the bargaining unit seem to me to be matters that have no relevancy in the determination of the question.

In the Court of Queen's Bench' the clause was variously Quc described as being solely in the interest of the union at the U.

expense of the employees; as being directed against the freedom of the employer in his hiring of employees, and as JluE,.

being in no way concerned with the work of the employee. Consequently, it was rejected as a "condition de travail". I cannot accept this characterization of the clause. It is easy to see its convenience and advantage to the union. Nevertheless, the union is negotiating as the compulsory statutory representative of the whole group of employeeswhether members of the union or not. How can one validly infer that a compulsory check-off clause is not a necessary incident of employer-employee relations or is not the proper concern of those who are negotiating about these relations? It is not an assumption that would be made by one of the parties. The other party that now attacks the clause signed the agreement. The clause is one that has been used in collective agreements for some considerable time. This, in itself, is some indication that it has been found useful to and is accepted as desirable by those who are the interested parties in these agreements and I have already indicated that in my opinion, it is directly concerned with the regulation of employer-employee relations. This, I think, prevents any judicial inference that it is outside the scope of the collective agreement as not being a "condition de travail".

The union is, by virtue of its incorporation under the -Professional Syndicates' Act and its certification under the Labour Relations Act, the representative of all the employees in the unit for the purpose of negotiating the labour agreement.

There is no room left for private negotiation between employer and employee. Certainly to the extent of the matters covered by the collective agreement, freedom of contract between master and individual servant is abrogated. The collective agreement tells the employer on what terms he must in the future conduct his master and servant relations. When this collective agreement was made, it then became the duty of the employer to modify his contracts of employment in accordance with its terms so far as the inclusion of those terms is authorized by the governing statutes. The terms of employment are defined cA for all employees, and whether or not they are members of the union, they are identical for all. How did this compulsory check-off of the equivalent of union dues become a term of the individual employee's contract of employment? They were told by the notice that in future this deduction would be a term of their contract of employment. They were put to their election at this point either to accept the new term or seek other employment.

They made their election by continuing to work and the deductions were actually made. It is admitted that all these employees were employees at will and no question arises as to the right of the employer to make or impose new contracts or of the length of notice that may be required to bring this about. It was not within the power of the employee to insist on retaining his employment on his own terms, or on any terms other than those lawfully inserted in the collective agreement.

I now turn to the question whether the compulsory withholding is prohibited by law. The learned trial judge stated that it was clearly unlawful against non-union members on the ground that it infringed s. 17 of the Professional

Syndicates' Act. The Act authorizes the imposition of an annual assessment upon the members.

Section 17 provides:

How does this make the collection of the equivalent of union dues from non-members unlawful? It deals only with the position of members and limits the right of the syndicate to three months' dues from a member who resigns. If this section were not in the Act, it would be possible, by bylaw, to compel payment of dues for a longer period even after resignation. The non-union employee is not affected in any way by this section. As long as he retains his employment he is subjected to a compulsory check-off of the equivalent of union dues but if he resigns his employment, as he is free to do at any time, he pays no more. The only effect of s. 17 is to limit the right of the union to collect dues from its members after their resignation.

It does not affect the right of the parties to contract for a compulsory check-off as a condition of employment.

Next, it is said both in the reasons of the learned trial judge and in certain of the reasons of the Court of Queen's Bench that by virtue of the provisions of ss. 4 and of the Labour Relations Act the union became a mandatary of the members of the bargaining unit and that this precluded it from inserting a term in the collective agreement in its own interest. Section 4, which I have already referred to, deals with the compulsory recognition of a union comprising the absolute majority of the employees, and s. 9 states that "The Board shall issue, to every recognized association, a certificate specifying the group which it is entitled to represent."

There is nothing in the legislation which discloses any intention to make the law of mandate applicable to the situation contemplated by the Act. There is only a legislative recognition and certification of a union as the collective representative of the employees, provided the union comprises the absolute majority of the employees. When this situation arises the employer must negotiate and contract with the collective representative and the collective representative represents all employees, whether union members or not, not because of a contractual relation of mandate between employees and union but because of a status conferred upon the union by the legislation. If the relation between employee and union were that of mandator and mandatary, the result would be that a collective agreement would be the equivalent of a bundle of individual contracts between employer and employee negotiated by the union as agent for the employees. This seems to me to be a complete misapprehension of the nature of the juridical relation involved in the collective agreement. The union contracts not as agent or mandatary but as an independent contracting party and the contract it makes with the employer binds the employer to regulate his master and servant relations according to the agreed terms.

Planiol and Ripert Droit Civil (1932) vol. 11, no. 882, in discussing the nature of the collective agreement, defined by the law of France in terms indistinguishable from those of the Quebec legislation under consideration here, reject the legal theory of mandate in this situation in these words: The learned authors in their second edition (1954) vol. no. 881, adhere to this opinion:

Durand and Jussand, Traitg de droit du travail, t. 1, no. 106, p. 130, are of the same opinion.

What the learned authors have to say about the impossibility of explaining the collective agreements by the theory of mandate as far as union members are concerned seems to me to apply with all the more force to non-union employees, whose only connection with the collective representative is by virtue of the Labour Relations Act. Apart from the judgment under appeal, we were referred to no authority to justify the application of the doctrine to the novel situation contemplated by the Labour Relations Act. The collective agreement is a recent development in our law and has a character all of its own.

To attempt to engraft upon it the concepts embodied in the law of mandate, would, in my opinion, effectively frustrate the whole operation of the Act.

J. (dissenting) :-II est inutile de relater de Dis nouveau tous les faits de cette cause, qui 1'ont t d6ja par mon coll6gue M. le Juge Judson. Il me suffira d'en signaler quelques-uns seulement.

cm".

Pour solutionner le probl6me qui se prisente, il est important de retenir deux lois statutaires, qui ont 6t discut6es et analys~es par les cours infirieures et par les procureurs des deux parties. La premie're est la Loi des syndicats professionnels de la province de Qubbec, S.R.Q. 1941, c. 162 et amendements, en vertu de laquelle l'appelant est incorpor6, et la seconde est la Loi des relations ouvribres, S.R.Q. 1941, c. 162A et amendements, qui 6dicte entre autres choses que tout employeur est tenu de reconnaitre comme repr6sentant collectif des salari6s A son emploi, les repr~sentants d'une association groupant la majorit6 absolue desdits salari6s, et de nigocier de bonne foi avec eux, une convention collective de travail. La loi d6finit la "convention collective" comme 6tant une entente relative aux conditions de travail, conclue entre les personnes agissant pour une ou plusieurs associations de salaries, et un ou plusieurs employeurs ou personnes agissant pour une ou plusieurs associations d'employeurs.

Le 24 mars 1955, une "convention collective" a t6 sign~e entre l'appelant, qui est l'agent n6gociateur pour repr6senter les employ6s de 1'employeur, et l'intim6e, et la clause 2.01 qui est A la base du pr6sent litige se lit ainsi:

A cette date du 24 mars 1955, la compagnie intimbe avait A son emploi au delh de 600 employds affectis par le certificat de reconnaissance syndicale de 1'appelant, mais 230 membres seulement du syndicat appelant autoris~rent la compagnie A diduire de leurs salaires le montant de la cotisation syndicale, 123 ne donnbrent aucune autorisation mais ne s'objecterent pas a l'application de la clause, et 254 employ6s, non membres du syndicat, refushrent de reconnaitre l'application de la clause 2.01, et interdirent a la compagnie intimbe de faire aucune d6duction. L'intim6e a quand m~me retenu les cotisations des employds non membres du syndicat, et en a d6pos6 le produit dans un compte de banque "In Trust", en attendant une adjudication finale, et le syndicat en a t6 avis6.

Eos Le 13 septembre 1955, vu qu'aucun rkglement n'6tait intervenu, ni par conciliation ni autrement, 1'appelant a institu6 les pr6sentes procedures, et a r6clam6 de la d6fenderesse-intim6e la somme de $3,000, repr6sentant les cotisations des employ6s protestataires, d~pos6es dans le compte "In Trust".

L'intim6e a invoqu6 plusieurs moyens de defense, mais je crois qu'il est necessaire de n'en retenir qu'un seul, car it est & mon sens suffisant pour disposer de ce litige.

En vertu de la Loi des relations ouvri&es, arts. 4 et 19(a), tout employeur, c'est-&-dire l'intimbe dans la prdsente cause, est tenu de reconnaitre comme repr~sentant collectif des salari6s h, son emploi, les repr6sentants d'une association groupant la majorit6 absolue desdits salari6s, et de n6gocier de bonne foi avec eux, une convention collective de travail. La Loi des relations ouvri&res s'applique A une convention collective de travail conclue sous la Loi des syndicats professionnels par une association qui est reconnue a compter de la date du d6p8t de cette convention au bureau du ministre du Travail, conform6ment ' la Loi des syndicats professionnels. Comme ce d6p~t a t fait au bureau du ministre du Travail le 29 mars 1955, la convention a donc pris effet A partir de cette date.

Il est certain qu'en vertu de la Loi des relations ouvribres, tous les employ6s de la Compagnie Paquet, 1'intim6e, sont lies en ce qui concerne les conditions de travail, par la convention collective signee entre les parties. Je suis bien d'avis que la d6termination des heures de travail, des cong6s, des vacances, des salaires, des droits d'anciennet6 ou des congdiements, comporte essentiellement des conditions de travail, pour lesquelles le syndicat, en vertu de la loi, peut stipuler pour le b6nifice des employds, et lier ainsi 1'employeur qui signe la convention. Mais je ne puis admettre que la retenue hebdomadaire par 1'employeur d'une partie du salaire d'un employ6 protestataire, pour remise au syndicat, soit une condition de travail au sens de la loi. Il ne s'agit alors que d'une affaire d'administration financi~re du syndicat, qui veut 6videmment faciliter ainsi la perception des cotisations, et qui n'a aucun rapport aux conditions dans lesquelles un employ6 doit ou ne doit pas travailler. Ce n'est que lorsque les conditions de travail telles que privues par les statuts, sont affecties, que le syndicat peut exercer son recours. L'article 4 de la Loi des relations ouvribres et 1'art. 2 para. (e) de la Jmime loi qui d~finissent la convention collective me semblent assez clairs pour 61iminer tout doute sur ce point. Il est certain, que la retenue du salaire peut 8tre une condition de travail dont depend le droit d'un employd de travailler. Mais la question est de savoir si une semblable condition est comprise dans le cadre restreint de 1'art. 2(e) de la Loi des relations ouvriares, ou de 1'art. 21 de la Loi des syndicats professionnels. Je ne le crois pas. Toutes les conditions ne sont pas privues aux statuts. Ce ne sont que celles que la loi envisage qui puissent Her les dissidents. Ainsi, une clause stipulant que seules les personnes appartenant ' une religion ou une race particulibre, auraient le droit d'6tre employ6es A un travail quelconque, pourrait 6tre, dans un sens, consid6r6e comme une condition de travail, mais personne ne peut sugg6rer srieusement que la L6gislature ait jamais song6 qu'un syndicat repr6sentant des employds, pourrait les lier l6galement par une telle clause.

Il me semble aussi indiscutable que la L6gislature dans la redaction de ses lois ouvribres, n'a jamais eu hintention de consid6rer la retenue d'une partie des salaires des groupes dissidents comme une condition de travail. Le "check-off", comme on est convenu de 'appeler, n'a 6t6 mis en &vidence dans la province de Qu6bec qu'en 1946, quand mon collgue, M. le juge Rand, nomm6 arbitre pour r6gler un diffrend survenu a la compagnie Ford, le sugg6ra, bien longtemps aprbs la l6gislation de Qu6bec. Il s'agissait alors d'un compromis propose par M. juge Rand, que les parties s'6taient d'avance engagies i reconnaitre, oil le "close shop" et le "union shop" entre autres, ont t refus6s, et le "check-off" accord6. La formule Rand ne peut lier les parties que par consentement, ce qui n'existe pas ici. Seule la loi spciale