Après avoir rappelé les assises juridiques du régime d'accréditation, l’auteur note les effets de l'accréditation à l'égard de certains salariés dans un premier temps et à l'égard du syndicat dans un second temps.
An overview of the effects of certification on the workers and the union
From the legal point of view the Quebec certification procedure is founded on four basic principles:
1. Exclusive representation for an established unit;
2. Majority representation;
3. Links to the firm;
4. Stability of the certified union.
In spite of the fact that the labor code gives a very broad definition of "employee", the labour relations board has adopted the civil code approach, that is a rental of services. The board has refused to use the criterion of economic subordination.
The contractual approach should be abandoned in favor of the very flexible definition of the labor code. If this were the case management unions (syndicat de cadre), though excluded from the code for certification, could nevertheless operate as homogeneous staff-only organizations.
By virtue of certification a union can force the employer to negotiate, engage in strike action, and can be party to a collective agreement. The union must also ensure the application of the agreement in the collective interest of all employees in the unit.
Certification replaces the individual work relationship in favor of a collective system. This system imposes on the union two fondamental obligations: that of accepting workers for membership, and that of representing them all equally and equitably.
In closing, the certification mechanism should be made more supple in two
(1) by an enlargement of the definition of "employee*' to include management;
(2) by the abandonnant of the strict "absolute majority" rule in favor of a more flexible formula.
The civil code's notion of an "employee" necessarily implies a legal subordination while in the labor code definition this criterion is absent. We should also ask ourselves if it is even advisable to carry over into the collective relationship the former concept of « employee ».
The historical development of labor law reveals the legislator's preoccupation with the protectional the production worker. Indeed to include the non-production worker under the extended coverage of our labor law necessitates specific mention to that effect.
While it is doubtless desirable to extend collective bargaining to non-manual
workers, this step requires the study of the type of organizations that could develop
there. For many sectors (e.g., artisans, taxi drivers) traditional unionism could not be transplantedin toto.
While these classifications are « employees » according to the civil code, they are excluded from the definition given by the labor code. Though this does not prohibit such workers from joining unions, they are deprived of the rights flowing from the labor code. In addition, these groups are also subject to criminal law and to civil law. Thus, their exclusion from the scope of the labor code is complete and not merely limited to the certification process. The historical analysis of labor law thus confirms this awkward situation as the apparent intention of the legislator.
The use of economic criteria in delineating the bargaining unit should not be used except with great caution.
The certification procedure is the result of state intervention in the collective bargaining process. This is a recent legal phenomenon not explicable through — on the warrant is — the use of civil law instruments.
Also, the elements of juridical subordination are too narrow for the statutory notion of « worker ».
In the past, the delineation of the bargain unit was often the product of the needs of the applicant union. This resulted in a multitude of inconveniences steming from, for example, the union's pattern of successful organization, other kinds of units proposed by rival unions, whether in that industry there was an established certification tendency ; (Le., plant, multi-plant), and also the exclusion of certain individuals by the law.
It is also not clear whether a union is obliged to accept all workers into member-ship. No such duty is to be found in the law.