Workplace Emails: The Next Frontier Of Union Activities?

Quebec's labour relations board (the Commission des relations du travail or "CRT") recently rendered a judgment1 ordering the government of Quebec to stop preventing some of its employees from including union-related messages in their email signatures.

The case involves negotiations around the renewal of a collective agreement between the government and the union representing its engineers. Some union members added a message to their email signature, pointing to uncompetitive salary conditions that, in their view, needed to be addressed to provide quality services to citizens and ensure the proper maintenance of public property. The government responded by prohibiting union members from using its property (i.e. electronic equipment) to diffuse their message.

The union filed a complaint before the CRT, alleging government interference in legitimate union activities, contrary to section 12 of the Labour Code (the "Code"). While the government denied it was trying to hinder the union members' freedoms of association and expression, it invoked its property rights over office equipment as well as the employees' duties of loyalty and restraint.

While the CRT's ruling deals foremost with the union members' right to be free from employer interference under the Code, it deals more with freedom of expression and association, entrenched in section 3 of the Quebec Charter of human rights and freedoms and 2.b) of the Canadian Charter of Rights and Freedoms.

In a detailed review of the applicable case law, the CRT first acknowledged that the employees' message was neither abusive, defamatory, or illegal, which would have contravened their duties of loyalty and restraint. The CRT also noted that the use of electronic equipment by employees for personal needs is widely accepted in 2015, and dismissed the government's argument that it had absolute right over its property. The CRT added that the case law tends to favour the freedom of expression of union members over the employer's property rights.

Recognizing that the situation was uncommon, the CRT drew an analogy to another case in which an arbitrator authorized Canada Post workers to wear a badge on their uniform displaying union-related messages.2 In that particular arbitration award, the employees' freedom of expression trumped the employer's property rights over the uniform. There was nothing illegal about the message on the badge, and no complaints had been received by the employer.

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