Résumés
Résumé
L'auteur fait quelques réflexions sur certains des aspects nouveaux que le Code du Travail contient en regard des lois qui l’ont précédé et tente certaines critiques d’ensemble.
Abstract
Perhaps it is too soon to give a final opinion on a legislation as young and complex as the Quebec Labor Code.
It is difficult to criticize it for two reasons :
1.—On the one hand the actual Code is in fact the amalgamation of already existing laws.
2.—On the other hand, the new principles brought by the innovations do not find their places in this piece of legislation and do not influence the general economy of the law in a satisfactory manner.
I will not make a detailled criticism of the Code, I will discuss it from the actual state of things and, in concluding, I will try a few criticisms of the whole and a look of the future of this legislation.
THE RIGHT OF ASSOCIATION AND « CADRES » UNIONISM
One of the main innovations brought by the Labor Code was the extension of the right of association to certain categories of workers who were not considered as wage-earners by the old labor laws.
If the Code gave the professional the right of association, it continued to refuse the title of wage-earners to those who represent the employer in his relations with his employees. The Code did not fulfil all the sociological requirements over this point.
Anyway the professional world uses more and more the unionist formula and it is, I think, an irreversible trend. Would not it be time for the legislator to adapt his labor laws in order to prevent conflicts coming from these people ?
Regarding the civil servants, I think that the Code has made a step toward evolution that no one will deny. The Civil Service Act facilitates the application of the right of association by two different dispositions :
1.—In section 71, it is said that the certification of professional groups will be granted only upon the recommandation of a joint committee constituted for such purpose by the Lieutenant-Governor in Council and one half of the members of which are representatives of the group concerned and if a conflict takes place, the Quebec Labor Relations Board shall decide.
2.—Also the section which allows many professional groups to be constituted in association in order to be certified and to negotiate.
NEGOTIATION, CONCILIATION AND DELAYS PRECEDING THE RIGHT TO STRIKE
We know that the Labor Code has considerably simplify and shorten the procedures regarding negotiations, conciliation and delays preceding the right to strike or lockout.
The government has ceased its many intervention thus giving a much more responsible and serious character to the negociations and parties involved.
However there is a great weakness in our present Code : the right to strike or lockout depends upon the notice provided for in section 42. Consequently the parties are tempted to skip direct negotiations in order to ask conciliation before the proper time. It is surely not the intention of section 42 of the Code. In my opinion, it would be wise to dissociate entirely the delays preceding the right to strike or lockout from conciliation. Would not it be possible to consider a regime similar to the american Taft-Hartley Act in which conciliation is volontary and offered to the parties but not imposed. It would then be possible to adjust the delays preceding the right to strike or lockout.
SUB-CONTRACTING
This problem has raised many discussions in the industrial and juridical world since the carrying of the Labor Code.
I think that the difficultes brought by section 36 are due to the complexity of the problems created by this industrial practice regarding modern collective agreements are to the fragmentary character of the decisions accumulated up to date.
But a fact remains : the problem of sub-contracting is not yet settled and the Code satisfied almost nobody by its section 36.
The problems come from the fact that people still assimilate the firm to the employer : this is thus a juridical notion of the firm while in fact it is in the first place a technical, social and economical notion.
THE RIGHT TO STRIKE IN THE PUBLIC SERVICES
We assist here to a radical change of our labor relation policies and of our labor laws which prohibited since 1944 the right to strike to employees of such services, contrary to most of other north american legislations.
The question hereby raised is not to know what was the result of the new attitude adopted by our legislator, but to know, if, by allowing the use of the right to strike to the majority of the wage-earners in the public services, the measures foreseen in the Code in order to limit its length and effects are really adequate since the coming into force of the Code ? The answer is quite difficult to give. It seems that the measures of section 99 concerning the eight days' prior written notice to the Minister, the board of inquiry and the injunction failed to attain the purposes they were established for.
Many people criticized the legislator about its measure putting into the hands of a judge of the Superior Court powers which normally should have stayed in the hand of the political authority. I agree entirely with this criticism. But I think that if the government wants to keep this procedure working, he must give it some teeth. He should use it when necessary and penalize anyone who refuse to obey it. Otherwise it is anarchy.
CONCLUSION
The only way, to my thinking, to avoid the perpetuance of the present malaise in certain sectors is to allow the wage-earners organizations an increased participation to higher bodies studying their problems. This cannot be done if contestation and negotiation stay at their present level with their well known structures and mecanisms. A renovated Labor Code would do quite a lot in our opinion to help such changes.
I think, with many others, that it is urgent to have a serious study made in Quebec on our labor laws and on all our industrial relation system, as it is already underway in Ontario, in Ottawa, and in many other Canadian provinces.