Résumés
Résumé
L'auteur tente de rechercher les éléments fondamentaux d'une notion universelle de fonctionnaire i.e. de rechercher ce qu'il y a de commun dans la plupart des pays dans la nature du rapport entre l'individu fonctionnaire et l’Etat, ce qui permettra de faire la distinction entre le fonctionnaire et le salarié privé et de situer les enseignants et les employés d'hôpitaux par rapport à l'Etat.
Abstract
Yves Ouellette
The problems of the bargaining unit and of unionism itself in the public sector emphasizes the need to analyse the concept of the « civil servant » in administrative law. An employee of the state, the civil servant helps to operate a public service and is incorporated into the permanent structure of the administrative hierarchy. This type of worker finds himself subject to public law which is based on the juridical inequality between state and citizen.
In Quebec the citizens' distrust of the state added to the influence of North American liberalism have together produced a system whereby all workers are subject to a single labor law. This has led to an ambivalence in the status of the civil servant.
In the hospital and school sectors, even though the worker is subject to the same labor code as is his private sector counterpart, the real employer has turned out to be the state and it is with the state that negotiations have in fact taken place.
It is no longer meaningful to maintain a multitude of bargaining units when there is a single set of negotiations and where the legal employers — hospital and school commissions — are relegated to the role of passive observers.
This centralizing tendency is distorting existing administrative structure. It is not too far-fetched to envisage total integration of all hospitals into the department of Health and of the hospital workers into the civil service.
If this occurs, it will require a great feat of the imagination to separate state-employer from state-legislator. Also, the state is not bound by order-in-councils unless it so consents.
Jean-Réal Cardin
The introduction of collective bargaining into the public service has revived interest both in the concept and the realities of the bargaining unit. At the Federal and Provincial levels the broad occupational categories have been devided into several sub-groups then deemed appropriate for bargaining purposes.
The Quebec system has created bigger units each composed of workers with diverse occupations. This policy indicates the government's adherence to the private sector's « industry-type » unit. At the Federal level the craft or occupational identity was essentially retained. This has led to greater fragmentation of bargaining units.
The structure of unionism in the public sector also influences the type of unit and is in turn influenced by the latter. The larger units facilitate the implementation of government policy. These types of public service bargaining units will encourage the development of « management unions » (syndicat de cadre) since they have given their upper echelons the right to bargain collectively.
In the hospital and in school sectors, it would be desirable for the formal bargaining unit to be the actual, negotiating bargaining unit. Recent experiences in these sectors in Quebec has encouraged sectional bargaining and helped to clarify the notion of « employer » in the public service.