Abstracts
Sommaire
Après avoir observé les réactions des travailleurs en face de notre législation du travail, l'auteur signale les écarts et les ruptures qui, selon lui, existent présentement entre la réalité économico-sociale et les structures juridiques chez nous.
Summary
In the Province of Quebec, the average employee is an orderly, law-abiding citizen. He feells, however, that the legisaltive structure of industrial relations must not be rigid, definitive, but most flexible and ever mindful of the social and economic and political facts of life. He believes in a constructive evolution of labor law in which ne wants to participate democratically, through critical and realistic suggestions.
The employee agrees that our Labour Relations Act clearly recognizes the right of association among workers, and that the Labour Relations Board will grant a certificate to that union which will group the absolute majority of the employees of a given bargaining unit. But he wonders wether it would not be fairer and really more democratic — as occurs during elections in the larger society — if the results of the vote to establish a majority were calculated, not on the basis of the number of workers in the bargaining unit, but on that of the workers who have in fact voted in that bargaining unit, so that the indifferent worker be not compelled, as he now is, to silently cast his vote against the union through his own abstention. The parellelism with the larger society would be justified, according to him, by the statement that trade unions are a "must" of our industrial civilization.
The employee realizes, moreover, the weakness of his legal position when he lawfully participates in an organizational drive to introduce unionism in a business concern. The Jaw, as everyone knows, forbids dismissal for union activities. But such a form of intimidation is always hard to demonstrate, and anyway, in the case of forbidden practices the griever must seek redress in common law courts, will all accompanying delays and relatively weak sanctions against the culprit.
If, however, the union, in order to protects its members, engages into technically illegal acts, such as a premature strike, he becomes literally an "outlaw".
In the case of final and binding arbitration awards, such as they exist in the public services where striking is illegal, the union is put in the position of a plaintiff; its demands are weighed, analyzed, challenged, and then decided upon without resort. If the union comes out on top, there will be cases where the employer will refuse to abide by the award; if it loses, no redress can be sought. In the first case, the union's sole recourse, with the permission of the Board, is to sue the employer, and here starts again the long and expensive judicial fight for the practical possession of a right clearly stated in the law.
As regards the right to strike, the employee sees that it is granted, under given conditions, by our labour legislation; its practical use, however, is subject to the prescriptions of the criminal code. Such a divergence, while making for technical difficulties, puts the employee in a most awkward and uneasy position in relation to public opinion. On this matter of strikes, the labour legislator has used the timid, reserved approach, which seems to be based on a rather restrictive and repressive philosophy. In the light of this attitude, one must state firmly that labour legislation has already conquered — and must further gain — a certain amount of independance and autonomy with regard to the private body of laws, that it has its own ends and specific techniques, which way or may not be in agreement with civil law. Labor law, furthermore, is collective law. Strike, a collective phenomenon, must be judged by legislation as the same level, while individual acts committed during the strike should be judged isolatedly as such. Strike would therefore cease, in our body of laws, to be solely a juxtaposition of individual acts. This distinction is clearly made in France and other countries.
Resort to the judiciary by the employer during the strike is at best an artificial gesture, meant to exert psychological pressures on the strikers and to break their resistance.
The employee believes that the gap, the difference between the individual and the collective in matters of law as applied to union recognition and activity must be maintained and stressed, so that ambiguities with respect to the exercise of a clearly granted right finally cease to block the way to industrial harmony and industrial relations realism.