- June 9, 2021
- Miscellaneous
This matter concerned the arbitration of a first collective agreement between the Union and the Employer. On May 7, 2015, Arbitrator Bernard Lefebvre rendered an interim decision without reasons ordering the Union and its members to cease breaching the dress code established by the Employer, which it had adopted as a collective bargaining pressuring tactic. In the present decision, the arbitrator provided reasons for its May 7 2015 decision.
On April 27, 2015, the union advised the employer that pressure tactics would begin being employed in the Colossus Laval and Ste-Foy Cineplex cinemas. According to the Union, the positions taken by the Employer during bargaining suggested that it had chosen to engage in “‘long’ bargaining” and that the parties should have already reached agreement on many of the clauses that were still in dispute. The pressure tactics employed by the Union included not wearing name tag, wearing the shirt outside of the pants, not wearing the hat or wearing it backwards, all of which were contrary to the dress code established by the Employer.
The Employer considered these tactics illegal to the extent that they constituted a change in working conditions contrary to the Quebec Labour Code (“the Code”). Section 59 of the Code prohibits employers from changing the conditions of employment of its employees during collective bargaining. Section 60 provides that it is “forbidden to advise or enjoin employees not to continue furnishing their services to their employer under the same conditions of employment.”
The Employer requested that the arbitrator order the Union and its members to cease violating the dress code. Although it recognized the dress code as a condition of employment, the Union opposed the Employer’s request on the basis that the arbitrator lacked the jurisdiction to make the order requested by the Employer. Alternatively, the Union argued that the arbitrator should not grant the employer’s request on the basis it had not proved its allegations and there was no evidence of urgency or of irreparable harm.
The Code distinguishes between “dispute arbitration” (a.k.a. interest arbitration) and grievance arbitration. The arbitrator held that determining whether sections 59 and 60 of the Code had been breached did not normally fall within the meaning of “dispute” for the purposes of interest arbitration nor did the Employer provide evidence supporting its allegations. However, “the arbitrator would commit a denial of justice if he refused to decide on the basis of a lack of evidence” (para. 37).
Further, the arbitrator held that interest arbitrators could interpret and apply the provisions of the Code related to the interest arbitration of a first collective agreement in order to determine its jurisdiction. The arbitrator concluded that the Code provided interest arbitrators with the jurisdiction to “render any temporary award that he deems fair and useful” (Code, s. 91) and to “render any other decision, including a provisional order, intended to protect the rights of the parties,” (Code, s. 100.12) and, as such, could consider complaints pursuant to sections 59 and 60 of the Code and make orders to preserve conditions of employment during the course of interest arbitration.
The bargaining tactics related to the dress code adopted by the Union “created an appearance of modification of work conditions” (para. 65). As such, the arbitrator ordered the Union to suspend these bargaining tactics until further evidence can be adduced and the arbitrator can make a determine whether the tactics cause irreparable harm.