Résumés
Résumé
L'auteur analyse la méthode par laquelle les commissaires-enquêteurs et le Tribunal du travail déterminent si un employé peut-être qualifié de cadre hiérarchique au sens de l'article lm) 1° duCode du travail. Après avoir présenté sommairement le critère de fond retenu par les tribunaux et son fondement historique, il passe à l'étude des éléments constitutifs de ce critère: l'exercice de l'autorité hiérarchique ; par délégation de l'employeur ; avec liberté de manoeuvre. L'étude est complétée par une présentation de l'exercice de l'autorité hiérarchique à divers palliers d'action.
Abstract
The Labor Code states that the word employee does not include « a person who, in the opinion of the investigation commissionner, is employed as manager, superintendant, foreman or representative of the employer in his relations with his employees ». To undertake the identification of employees affected by this definition, labor courts do not care much about job titles, but rather take a criterion as a basis : freedom of action in exercising management authority. Employees carrying on such a form of authority are called management members or line management.
Job Titles mentioned in Section 1 m) 1° of the Labor Code are unimportant in themselves according to labor courts. Jobs fulfilled by an employee and the nature of his responsabilities determine if he belongs to line management. Hencetwo consequences are issued. On the one hand the probatory force of job titles is, in the views of the labor courts, very restricted and sometimes rejected by labor courts. On the other hand the agreement between parties on the nature of a given job does not deprive labor courts to study all affective angles of the work done.
The criterion used in qualifying the lines of authority finds its foundation and its meaning in the historical back-ground. The Labor Code as well as the Labor Relations Act keeps up and uses the organizing principles of enterprises at time of industrial production. Enterprises must have a two level working structure : management and operations. Management includes all persons having management prerogatives. So that a vague form of authority could be qualified as one with managerial prerogatives, three requirements are necessary : it must be of a certain nature ; it must act off the authority of a particular relevant source : and it must be exercised in accordance with specific conditions. Let us analyse those requirements.
Because the historic back-ground does not permit to cover through Section 1 m) 1° the members of scientific management of enterprises labor courts have decided that a manager could exist insofar as an employee commands and is part of management. To command implies decisive action through which top management releases and directs the activities of lower level employees towards a common goal. It is the fact of decision-making that compels and coerces. Authority then justifies such actions. This kind of authority is specific to the employer and qualifies is hierarchical or management prerogatives. Other managerial occupations such as coordination, planning, organization, information and control do not conclude in favour of carrying out formal authority, were it not in cases in which they are supported by a power of command. Necessity to fulfill this commanding function supposes that some forms of authority must be excluded from the complement of the formal authority ; we mean professionnal or technical authority of staff management.
An employee wields the employer's authority when he carries on the command on behalf and in the name of his employer. This requirement involves a preliminary authorization to manage. The authorization becomes effective through delegation. Delegation is an act through which an employer transfers part of his prerogatives to his employees. Authority so transferred remains the initial formal authority. It is transferred from higher hierarchical levels to inferior levels. At the legal level, the authority so transferred is monolithic. It must be handed over within the scope of an operational system of delegation and not within the scope of a representative system. In the first instance, the operating chart or the organization lead to think that the employee is authorized to manage as line management ; in the second one, the employee manages occasionnally as a supposed line-management. However, the moment an employee acts as line-management when the necessity aroses, he manages within an operational system of delegation. Finally it is suitable to mention that employees backing-up group decision-making way not qualify as managers, as this form of authority leaves-out dualism (management-operations) recommended by the scientific organization of enterprises at the time of industrial production.
Delegation of authority does not mean effective carrying out of formal authority. It is essential that the delegate of such handed over authority could manage with an appreciable standard of initiative, judgment and responsibility. Through initiative, the employee will manage and act by himself. Through judgment, he will be capable to render decisions out off rigid and pre-established standard and out off a strict control from formal authority. Through responsibility, he will stand to the management for his decisions which compel his subordinates. Estimation of the margin of autonomy is analysed by labor courts in examining the residual control held by the manager towards his subordinates. This study showed the differences in exercising authority between lines of programmed and unprogrammed decisions. The former do not permit to qualify an employee as manager. If an employee carries out formal authority without restraint, he will be considered as line manager. There are three types of line management : higher level management, middle management and first line management. Higher level management is clearly market by the command power upon long term general policies. Middle management is involved with middle term activities which standardize the operations of the firm. First line management is noted for its daily or short term decision upon curtailed teamwork.
In short, with a view and scope of Section I m) 1° of the Labor Code, we wish to underline that this paper affects only the employees entitled to carry on formal authority without restraint upon any hierarchical level of the firm.