La substance de cet article a été présentée au congrès de l'ACFAS, à Ottawa, le 7 novembre 1964. L'auteur y résume d'abord les étapes franchies par le bill 54 avant son adoption le 22 juillet 1964. Il rattache ensuite à l’évolution générale de la législation ouvrière canadienne les principales innovations introduites par le Code du travail dans trois domaines: le droit d'association, l’unité de négociation et le règlement des conflits.
Trends in the New Quebec Labour Code
The new Québec Labour Code came into effect September 1st, 1964. It replaces the former Labour Relations Act and, in full or in part, six other related Acts. It represents Title One of a future Code which will eventually comprise all Québec legislation pertaining to labour.
Bill 54 — as the proposed Labour Code was known before being adopted — was brought before the Legislative Assembly on June 5, 1963, by the Honourable René Hamel, then Minister of Labour. It was simultaneously announced that the Parliamentary Committee on Industrial Relations would be revived and public hearings were set for late June. At these hearings, objections were so strong against certain sections, and recommendations so thorough-going that the government had to abandon its first idea to pass the Bill quickly.
When the second version was tabled, January 15, 1964, it was found strikingly similar to the first one, even worse in the eyes of the labour movement. Following public manifestations which included the threat of a general strike, major amendments were made to the Bill and a third version was presented to the Legislative Assembly on April 30, 1964. The amendments were intended to wider the scope of the Code, to eliminate the legal obligation of the secret ballot strike vote and to delete a reference to the Civil Code which has been introduced in the second version of the Bill.
Meanwhile the case of public services had been set aside for separate study. In March, a special Parliamentary Committee sat to examine all sections of the Bill relating to these employees. The Committee presented its report in May, but due to further interventions of labour bodies, the government went far beyond the Committee's recommendations. The fourth version of Bill 54, presented July 9, 1964, incorporated basic amendments to labour relations in public services : it granted the right to strike to all public service employees except policemen and firemen (except also public school teachers and public servants whose cases still remain unsettled) with limited special powers to the Lieutenant-Governor in Council when public health or safety would be endangered by a work stoppage.
Seldom did a Bill provoke so many discussions between interested groups and the government and seldom did it undergo so many changes between its first « first reading » in June, 1963, and its unanimous adoption on July 22, 1964.
The main changes introduced by the new Labour Code fit properly although differently in the evolution of Canadian labour law over the past hundred years. This evolution has centered successively around three aspects of labour relations : 1 ) the right of association, which dominated the last century ; 2 ) progressive government intervention in dispute settlement, a process which began with the present century and was topped by P.C. 1003 and the Québec Labour Relations Act in 1944; 3) determination of a special type of labour-management relations through certification of labour unions, a system entrusting a union with exclusive rights of representation for bargaining purposes regarding employees of a defined unit.
RIGHT OF ASSOCIATION — The Labour Code has considerably widened the scope of application of the former Labour Relations Act, bringing under the jurisdiction of the Code new categories of employees previously deprived of such legal help in the exercise of their right to organize (s. 1, m). Among those who may now apply for certification are to be found : domestic servants, farm employees, provided they number at least three, engineers, architects, doctors, accountants and other professional employees wishing to organize, provided they do so as a separate group (s. 20). But this does not mean legal sanctioning of a real unionization of cadres : all employees with managing functions remain outside of the application of the Code.
In certain fields where unionization is already recognized but difficult, the Code provides new support. Thus the owner of any land or limit where logging or mining operations are carried on must allow any representative of an association of employees holding a permit of the Labour Relations Board to pass and have access to the camps (s. 8 and 9). From now on and by law the employer must make the check-off of union dues for all his employees members of a certified association who authorize him in writing to do so (s. 38).
Thus the recent Québec Labour Code continues the general trend of labour legislation over the last century, which has tended to give increasing protection to the right of association and to the groups organized in accordance.
BARGAINING RIGHTS AND BARGAINING UNITS — By establishing the certification system, the law has imposed a definite type of labour-management relations. A very important aspect of this relationship is the bargaining unit.
In his book on LABOUR POLICY AND LABOUR ECONOMICS IN CANADA, Professor H.D. Woods has underlined the tendency of Labour Relations Acts and Labour Relations Boards to favour single-employer bargaining units. He has pointed out the advantages of redrafting the legislation to eliminate this bias toward plant or single-employer units, in order to emphasize the importance of the judgment of the interested parties and the members of the Boards. He considers also that technological change and government economic planning call for larger bargaining units.
The provisions contained in the new Labour Code ignore the school of thought represented by Professor Woods's study. The Code recognizes no other certification unit than one-employer units (s. 20). It has even suppressed the few elements in the Labour Relations Act that gave some support to larger units.
Multi-employer bargaining and industry-wide bargaining will have to remain on a strictly voluntary basis. The few provisions in the Code that may lead in that direction (such as the inchoative status given to recognized associations already bargaining at the industry) will prove either too weak to be significant or, as in the case of the binding character of a collective agreement made by an employers' association on all its members, present and future, it may even hamper employer organization, a prerequisite to industry-wide bargaining.
From the viewpoint of the bargaining unit, the Labour Code represents no progress from the original provisions of 1944 in that field. It even appears to run counter to present economic development and seems rather inspired by economic liberalism of the past century.
DISPUTE SETTLEMENT — The biggest change concerns dispute settlement. A new trend had manifested itself in the June, 1961, amendments to the Labour Relations Act, which had introduced a first restriction to government intervention in that sphere. The Labour Code, emphasizing that trend, reduces government intervention to almost its simplest expression : it leaves only one step — conciliation — and a shortened over-all waiting period (60 days from the notice to the Minister of a deadlock in negotiations, 90 days in the case of a first convention) before the strike or lock-out becomes legal.
These modifications correspond to a rather new way of thinking among Canadian labour experts, according to whom the best way for government to help solve industrial conflicts is, after intervening through a relatively short conciliation effort, to leave the parties free to use the economic weapon of the strike or the lock-out at their discretion. Solving the dispute is their own responsibility, to be put squarely on their shoulders.
The restitution of the right to strike to public service employees (although it appeared only in the final version of the Bill) reflects the same approach to the problem. Even where public health or safety is involved, the Cabinet has no other power than to set up a fact finding board; after the appointment of such a board, the Attorney-General may petition a judge of the Superior Court for an injunction, and the judge may grant the injunction if he considers that a work stoppage would imperil the public health or safety; but the injunction must cease not later than twenty days after the 60-day delay allowed to the board to file its report. Further than that, the government has no power, except the general power it always has to call the Legislative Assembly for ad hoc legislation, if the case would justify such an extraordinary measure.
This new approach represents a complete reversal of trend in Canadian labour legislation, which was marked, from 1900 to 1950, by ever growing and more normative government intervention.
In summary and in relation to past Canadian labour law, the provisions of the Québec Labour Code reveal the following orientations. They broaden the scope of the right of association and add new supports to its exercise. Concerning the bargaining unit, they seem to go contrary to the new forces shaping our economy. In dispute settlement, they rightfully reverse an over-saturated trend of increasing government intervention.
As a whole, they represent a liberalization of labour-management relations. In the second case, the term would have to be understood in reference to economic liberalism of the past century. Save for that exception, the new Code appears as a landmark of real social progress.