Résumés
Résumé
Le régime québécois de maintien des services essentiels accorde une place prépondérante à la responsabilité des parties. Il est basé d'abord et avant tout sur une recherche de consensus autant dans la détermination et le maintien des services essentiels que dans le règlement des conflits qui peuvent affecter le service au public. L'auteure présente d'abord le mandat et le cadre légal de l'exercice des pouvoirs du Conseil des services essentiels du Québec. Elle explique ensuite comment s'exerce la médiation et, finalement, examine comment la question de la détermination des services essentiels, selon une approche consensuelle, est traitée par d'autres juridictions canadiennes.
Abstract
The right of public service employees and public servants to strike was recognized by the Quebec legislature in the mid-1960s. The need was soon felt to establish mechanisms for determining essential services during strikes, in particular because of the socio-political environment, numerous illegal strikes and the centralization of both administration and collective bargaining in the health-care System.
After unsuccessful several attempts, in 1982 the government adopted the current legislation and created the Conseil des services essentiels (Quebec Essential Services Council), the first permanent body responsible for ensuring the maintenance of essential services during strikes in the public services, and as of 1985, in the public sector, more precisely for establishments in the health care and social services sectors. Although the creation of the council and the mechanisms put in place to ensure the maintenance of essential services were greeted with scepticism, everyone concerned would now agree that the evidence is conclusse.
One of the most important factors contributing to this success is the consensual approach taken to determine essential services. In fact, the law requires that the parties negotiate essential services on the basis of a list which the union must file with the council and the employer. The approach favoured by the legislature rests on making the parties more responsible, implying profound changes in the mentaliry of the employers and unions concerned.
It should be emphasized that the legislature chose a narrow definition of what constitutes an essential service, both by limiting the sectors of activity subject to this obligation and by adopting the protection of health and public safety during a strike as the criterion to evaluate the sufficiency of services.
Within the context of the council's activities, mediation is viewed as the effort of a neutral person to help the parties conclude their own agreement on the services that will be provided to the public during a strike. Mediation is conducted under the Essential Services Council, a decision-making tribunal which is empowered to decide whether the services determined to be essential are in fact sufficient. The law requires the parties to negotiate essential services to be provided, thus recognizing the importance of the responsibiliry of the parties in this area because of their knowledge of the establishment in question. It also recognizes that essential services are more likely to be provided without interruption if they have been determined by the parties themselves.
The principal functions of the mediators include information, education and awareness. Their efforts are aimed at creating a link between the parties on a question that should ideally remain irrelevant unless a collective agreement is not reached. Through this process, employers and unions must contribute to the protection of public health and safety.
Mediators are assigned permanently to enterprises and establishments on a regional basis or on the basis of a specialization. They establish contacts with the parties, draw up a profile of services and establish the first contacts aimed at demonstrating their neutrality and their avallability. When the negotiation of services itself begins, the mediator must ensure that the parties attack all the issues that must be discussed. Agreements, or by default, lists, are submitted to the council for evaluation of their adequacy at a public hearing. If problems of interpretation or application of the essential services list arise during a strike, the mediators intervene with a view to determining the true nature of the conflict, defuse it and help the parties to find solutions so that provision of essential services will not be disrupted. In the absence of an agreement between the parties, the Essential Services Council may intervene, again in the form of a public hearing, and, in the absence of negotiated solutions at this stage, the council can use its powers of redress. By virtue of these powers, the council may issue orders ensuring the provision of essential services. More broadly, the council may also use its powers of redress if a private conflict in a public service or in the public sector deprives, or is likely to deprive the public of a service to which they have a right. As soon as such conflicts are brought to the attention of the council, the mediator is the first to intervene and his or her primary objective is to have the service restored as quickly as possible. The council also sees itself as an active participant in labour relations in the public services and the public sector that corne under its jurisdiction. Indeed, to ensure that essential services are provided to the public, it does not suffice to simply use the powers of redress to stop the outward manifestations of conflict and to ignore its root causes. From this point of view, the mediator works with the parties to find permanent solutions to the problem that brought about the council's intervention.
By putting such stress on the search for consensus between the parties, and by entrusting an independent and neutral third party to solve disputes, the Quebec legislature sought to dejudiciarize this sector of labour relations. The entire legislation and its application are in keeping with the search for a fair balance between the right to strike, a result of the freedom of association recognized in democracies, and the public's right to services despite industrial conflict.