Le rattachement de l'accréditation et de la convention collective à l'entreprise préserve assez efficacement le pouvoir de représentation de l'association de salariés et, le cas échéant, le régime collectif de travail établi avec le concours de cette dernière.
Certification, Collective Agreement and Change in the Legal Ownership of an Enterprise
Section 36 of the Quebec Labour Code, R.S.Q., 1964, ch. 141, basically states that the alienation or operation of an undertaking shall not invalide certification or the collective agreement (nor any proceeding for the security of either or the carrying out of the agreement).
Thus, to a certain extent, the association of employees is being protected from changes affecting the undertaking. The individual employee's conditions of employment embodied in the agreement are preserved, as is the employment itself, through the effects of seniority, if recognized by the agreement.
This statutory solution of continuity is automatically brought into play by a change of employer in the undertaking. This change, however, must not be such as to allow the undertaking to disappear.
THE PERMANENCY OF THE UNDERTAKING
The new employer is bound by the certificate or the collective agreement, notwithstanding the division, amalgation or changed legal structure of the undertaking. The same undertaking is meant to continue, in whole or in part. In practice, all depends on the definition of the undertaking retained by the Board.
Here, one would advocate a notion of « undertaking » centered on the occupational categories mentioned explicitely or implicitely in the certificate and which are referred to in the main provisions of the agreement.
This approach would be in accordance with the subject-matter. It would also lead to a liberal application of Section 36.
Certification and the collective agreement are defined in terms of general occupational categories and are concerned with future as well as present employees that fall or will eventually fall within these general terms. In this matter, the identity of the employees is immaterial, and so is, as such, the economic end-product of the undertaking. While the presence of the same individual employees, the identity of equipment, of production techniques, are important indications, it not should prevent the conclusion that an undertaking is being alienated or operated by another every time an employer entrusts work pertaining to the occupational categories of the certificate or the agreement.
In most of twenty or so decisions involving section 36, the Board has on the the whole preferred to this « occupational approach », a search for an undertaking conceived as a physical structure of production.
Substantial continuity of an undertaking in these decisions is found to be continent on elements such as : the individual employees, the equipment, the end-product. ..
If, in this light, the undertaking has been carefully distinguished from the physical assets it includes, on the other hand, considerations revolving around changes in the economic finality of the undertaking have resulted in decisions that appear incompatible with the subject-matter, as well as with the aim of Section 36.
The Board's attitude with respect to the presence of the individual employees has not been absolutely consistent. In the Empire Maintenance case, for instance, Section 36 was given full effect — rightly so, one would be inclined to say — even though it did not appear that former employers were being employed by the new employer. In other instances, the absence of the greater number of the former employees is seen to combine in preventing the play of Section 36 with that of the other elements contained in this rather physical notion of « undertaking ».
CHANGE IN THE UNDERTAKING
The alienation or concession of the undertaking, in whole or in part, results in a new employer owning the latter. Various question concerned with ways of substituting employers are examined according to the working of Section 36. It is namely contended contrary to some of the Board's recent decision, that the transfer must not necessarily be consequent to an agreement between the former and the new employer.