Understanding unionization processes within Quebec’s unique legal framework
You’re an employer operating in Quebec and you receive a certification application from a union. Now what?
The start of the certification process can feel daunting for employers. It is generally well-known that employers are permitted to say or do certain things during the process and, conversely, that there are things they are prohibited from saying or doing. Drawing the line between the two may feel overwhelming at times. In reality, however, with a clear understanding of the rules, it doesn’t have to be.
When a union applies for certification, it’s a signal that careful attention and informed action are required. In this article, we discuss unionization processes within Quebec’s unique legal framework and share some practical “dos” and “don’ts” for employers when faced with a certification application. Understanding these particularities is an essential first step for navigating the process effectively.
Automatic certification
Quebec’s workforce has historically unionized at a higher rate than in the rest of Canada. This can be attributed to several factors, including the strong presence of tertiary and construction sectors, both of which have generally supported higher union density over time. Another key factor is Quebec’s relatively simple and efficient union certification process.
Under Quebec legislation, certification can be obtained through “card-check” or “single-step certification.” This process allows for automatic union certification without the need for a secret-ballot vote, provided that a “majority” of employees in the proposed bargaining unit sign membership cards in support of unionization. In Quebec, that threshold is a simple majority (50 per cent plus one), which is among the lowest in Canada. By contrast, some other provinces require a higher level of support - such as 55 per cent or even 60 per cent plus one - to achieve the same outcome.
This low threshold, combined with a streamlined process, makes Quebec one of the most union-friendly provinces in Canada. That said, this does not mean that employers are without rights or options when faced with a certification application.
Unionization ‘dos and don’ts’
The following are examples of “dos” and “don’ts” meant to reflect some proactive steps employers can take during a union drive. The right approach is usually nuanced and will of course depend on the stage of the process and on any measures already undertaken by an employer.
DO listen and communicate with employees
“Communication is key” is a standard but fundamental principle, especially during a union drive. Employees may seek to unionize for a variety of reasons, including a sense that they may then feel better heard or to have a sense that they have a greater say in decisions affecting their working conditions. Listening to employees and engaging with them appropriately and in a timely manner can be a powerful tool to foster an environment where employees feel valued. Generally, when employees feel heard, they may be less inclined to seek third-party representation, thereby reducing the likelihood of unionization.
DON’T resort to T.I.P.S. (threats, intimidation, promises, surveillance)
While employers retain the right to communicate with employees during a union drive, it’s imperative to understand some legislative limits. Employees must be free to listen to the employer’s message or not. They cannot be forced to hear the message, and the employer cannot use its authority to propagate an anti-union message. As a rule of thumb, don’t resort to T.I.P.S.:
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T (threats): Employers are expressly prohibited from using threats to discourage union membership. This includes threats related to dismissal, closures, pay cuts, or reductions in benefits. Typical examples include threatening to terminate, demote, or otherwise penalize employees for their involvement in or support of a union.
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I (intimidation): Intimidation is a broad concept that extends beyond more than what we may perceive as traditional aggressive behaviour, such as physicality. It can mean any action that instills a genuine sense of fear or apprehension in employees. Examples include implying that positions may be cut because of a union drive or disciplining employees for participating in union activities. It can also include interrogating employees on their union activity.
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P (promises): Any act that may interfere with employees’ right to organize is prohibited, including making promises to dissuade them from joining a union. For example, telling employees they will receive a benefit (financial or otherwise) in exchange for not signing a membership card or to resign from a union.
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S (surveillance): Excessive or abusive surveillance may be considered interference with employees’ right to organize. Examples include installing camaras throughout the workplace and constantly monitoring them, or continuously tracking the computer activity of employees in reaction to suspicion that they may be leading a union drive.
While these prohibitions may seem obvious, each case is fact specific and evaluated on its merits by the Administrative Labour Tribunal (the equivalent of a labour board in Quebec). What may be acceptable in one workplace could be in other cases deemed inappropriate, particularly in workplaces where union drives have occurred previously or recently. There is no one-size-fits-all solution; each situation must be assessed individually to determine the best course of action.
DON’T remain complacent
As noted above, it is crucial to be proactive before a union drive begins. Once a drive is underway, however, employers should take deliberate action and develop a clear response plan. Without intervention, the will to unionize amongst employees is unlikely to dissipate on its own. Employers should act promptly within the bounds of their legal obligations. Failing to respond appropriately can lead not only to financial and legal consequences, but also to reputational damage both within and beyond Quebec.
DO stay vigilant
When employees seek unionization, changes in workplace attitudes and behaviors often become more apparent. Alongside maintaining open communication, employers should remain alert to shifts in mood and monitor the overall environment. If signs of a union drive emerge, employers should take immediate steps to understand employees’ motivations and prepare responses promptly. For example, employers can consider holding voluntary townhalls to provide information, address concerns and highlight proactive measures and resources available to employees. By keeping employees informed and engaged, employers can foster a supportive environment which in turn can help mitigate potential unionization efforts.
DO seek legal counsel
Finally, and quite importantly, employers should obtain legal counsel before taking most action. As noted above, the line between appropriate and inappropriate communications with employees attempting to organize can be very thin. Non-compliance can lead not only to penalties, but also to strengthening a union’s position during the certification process. Being well-informed and supported by experienced local counsel is essential for navigating Quebec’s unique legal landscape and not overstepping obligations during a unionization process.
Ryan Schwartz and Miguel Therrien are lawyers in the Labour and Employment Relations Group in McMillan LLP’s Montreal office and regularly advise on all labour and employment issues facing employers in Quebec. Special thanks to Jenny Tran, summer student at McMillan, for her assistance with this article.
