La négociation collective sectorielle
Volume : 26-1 (1971)
Sectorial Collective Bargaining
Ever mindful of the changes our society is undergoing, and with a view to improving the relations existing between the parties involved in the negotiation of collective agreements, as well as those existing between the sub-system of labour relations and the entire socio-economic system, the State would like to know whether negotiation for a given sector of production, an industry as a whole, throughout a particular region or even throughout the whole province, would not be the proper solution to the problem at hand.
On the other hand, if we consult the parties involved in the negotiation of a collective agreement, we find that they are actually questioning the validity of the present industrial relations system.
Thus, for some time already, certain labour representatives such as the Québec Federation of Labour have been preconizing, for Québec, the carrying out of collective bargaining of a broader type. The same holds true for the Canadian Labour Congress, which, in the very words of some of its most authoritative representatives, acknowledges that Canadian trade-unionism will eventually have to broaden its negotiation policies in order to cope with the imperatives of an increasingly concerted economy.
As to management, its reaction to the idea of negotiation for industrial sectors seems more negative.
Finally, various labour experts in universities, the civil service and labour and management associations are also questioning the validity of the present labour relations system. Among other changes, they preconize the establishment of increasingly broader negotiation systems. Besides, such a tendency can also be noticed in the public sector as well as in certain highly concentrated sectors. However, these very same experts point out that such a broadened negotiation system has certain disadvantages as well as certain definite advantages.
Faced with such general trends, such questions, and such arguments, favouring or against negotiation on a higher level, the State must now proceed to examine, as objectively and as fully as possible, the advantages and disadvantages likely to issue from the broadening of the scope of negotiations, and to appraise the favourable and unfavourable conditions surrounding the implementing of such a plan.
It is important, at the very outset, to define the bargaining level.
This concept may be considered from two distinct points of view :
— the formal level of collective bargaining : that of the official hierarchic position of the negotiators of each party as also that of the juridical status of the institutions the latter represent at the bargaining table;
— the true level of collective bargaining : that which is mostly given by the extent of the scope of one or more of the main clauses of either one or several collective agreements.
In practice however, various bargaining levels interweave and entangle, and therefore formal and true levels of collective bargaining don't coincide. Usually, the basis of the formal level of negotiation is the enterprise or the establishment considered as a unit. It is to this level that the legal mechanisms governing accreditation, certification, negotiation, the enforcement of the agreement, conciliation and the development of labour disputes usually refer.
The formal level of collective bargaining has risen, to a certain extent, because of the organization of industrial unions and trade unions, as well as of the existence of large undertakings having several establishments and also because of the presence of more extensive labour and management groups. Indeed, representation of the parties by negotiators belonging to institutions that were larger than the bargaining unit brought about considerations of a higher level than that on which the labour agreement was signed. However, in the private sector of our economy, the industrial relations system that we have is characterized by the absence of true negotiation covering industries on a national, provincial or regional level.
The true level of negotiations is determined by the combined influence of several institutional and economic factors which contribute to a reduction of the differences in wage rates and to greater similarity in content of the collective agreements negotiated for the various bargaining units in an industry or a sector of activity. Indeed, the bargaining level depends not only on the formalities existing between employers and trade-unions in an industry, but also on the differences between the results of each negotiation. It is important to know these differences in results, because it might prove as difficult to lessen the differences between the contents of collective agreements — (which goes and in hand with the broadening of negotiations) — as to create the very mechanisms that will broaden the scope of negotiation.
Various phenomena may promote the widening of the scope of collective bargaining. Three principal types of such phenomena lead to bargaining for a production sector.
(a) The unionization rate in an industrial sector rises, and the trade unions enjoying the best strategic position within the sector tend to structure the bargaining mechanisms in such a way as to ensure, and then to preserve, a certain standardization of wages and working conditions in such sector or in a part of such sector. The same holds true as concerns the very application and interpretation of the collective agreement. This standardization of working conditions and of the procedures for the negotiation and application of the latter can better be achieved at the sector level, at least within the geographic area of the sector involved.
(b) The employers have to face a union or a coalition of unions whose bargaining power seems greater than their own; the only means of opposing worthwhile résistance is to form a common front for the negotiation of the collective agreement. This case occured in the past in certain sectors including many small production units vigourously competing with one another, such as, services, retail trade, clothing, printing and, up to the adoption of Bill 290, the Construction Industry. Those are exactly the sectors in which our Québec decrees apply.
(c) In certain industries, generally oligopolistic ones such as the steel, automobile, meatpacking, oil and chemical products, pulp and paper and other industries of that type, we note an increasing trend amongst large enterprises towards the adoption of certain forms of coordination in collective agreement negotiation and application practices, certain more or less official exchanges in matters of information and consultation, though the formal practice of negotiating at the enterprise unit level continues to be observed.
The term « sector » means a sector of production and corresponds to at least one branch of activity such as : shoes, textiles. It is used here as opposed to the terms « establishment » and « enterprise » or « undertaking » which refer to the smallest physical unit of production.
Why should one wish or not wish to negotiate at a higher level ? Let us first weigh the arguments of the promoters of a type of negotiation most often referred to as sectorial. In order to have as complete an idea as possible of the subject, we shall also examine the arguments brought forth against any rise in level of negotiations, the arguments of the supporters of the status quo.
The promoters' arguments
(1) Collective bargaining at a higher level rises the discussion from the local level to a higher level for both management and the trade-unions, thus rendering more objective the approach to labour problems such as rationalization, definition of tasks, wage rate structures, personnel direction procedures, productivity standards and various other conditions of employment and of admission to work. The high degree of liability to emotion which is present at the local level is greatly lowered in negotiation at a higher level since bargaining is carried on between more competent and better informed persons.
(2) Negotiation carried out at a higher level is more apt to contribute to the establishment of general policies than the present system of negotiations on the establishment or enterprise unit level. Indeed, it will be much easier for the parties to measure to overall effect off the changes in labour contracts and for the government to influence the results of negotiations so that the latter may be compatible with community policies and general objectives.
(3) Negotiation at a higher level has the advantage of simplifying the problem issuing from non-unionization.
(4) Negotiation at a higher level broadens the problems that may require negotiation.
(5) Technological change, which very often affects a whole industrial sector renders it necessary to negotiate at a higher level.
(6) Negotiation of this type will promote the increase of union membership.
Arguments of those favouring a status quo
On the other hand, it seems that negotiation at a higher level implies certain disadvantages.
(1) Negotiation at a higher level reduces competition, which is the very basis of an economy founded on free enterprise and the primacy of decisions, since man-power costs are the same for all employers in a given sector.
(2) Negotiating at a higher level will establish certain trends towards monopolistic or oligopolistic situations and, therefore, towards excessive rigidness and uniformity in wages and incomes.
(3) Negotiation at a higher level also leads to increased intervention in economic matters on the part of public authorities.
(4) Such new type of negotiation may also result in an aggravation of labour disputes although a drop in the number of strikes would be most likely. Moreover, as a greater number of indivuals would be involved, such a situation would afford the State an additional pretext to intervene and coerce the parties into settling their disputes.
(5) Such a new collective bargaining system would prevent the particular circumstances of individual understaking from being adequately taken into account.
(6) Collective bargaining at a higher level may cause trade unions to have to cope with certain extra problems ; for instance, it may prevent the individual needs of local unions from being sufficiently taken into account.
THE LEVEL OF COLLECTIVE BARGAINING
After having explored the various possible courses of action, one must make his choice. It is an established fact that the collective agreement negotiated for a sole establishment is no longer equal to the task. Its scope is too restricted to allow all difficulties to be solved and to counteract all the insecurities of the modem worker. Both economically and socially it is too isolated to favour the participation and concertation that our society requires for its development. It is probably very unjust toward employees as a whole, since it serves only a minority of workers.
These three serious shortcomings of the only labour relations mechanism actually in use require that the system be made more flexible and that it be completed by wider collective bargaining at levels higher. than the enterprise.
By the words « be made more flexible » I mean that the general system of collective bargaining would leave the parties free to choose the level at which they would carry out negotiations.
Theoretically, such level could either be all industries, a production sector or an undertaking. Personally, I am convinced that collective bargaining for industries taken as a whole could not deal with actual wage rates and conditions directly affecting wages. Such a bargaining level is used to determine the minimums to be imposed as dependent variables of the vital needs of the individual and his family. In my opinion, it cannot be a true level for collective bargaining, since the presence of the State is preponderant and since general considerations of all kinds prevent the principal partners, employers and workers, from reaching agreement on working conditions consistent with the market.
Therefore, the remaining recourse would be to widen traditional collective bargaining so that negotiations may cover entire sectors of production. Employer-employee agreement at this new level really offers a second usable solution.
However, such a solution must not be imposed. Indeed, for economic and even sociological reasons, certain sectors of production are not yet ready for sectorial collective bargaining. Wherever large undertakings are concentrated on a single labour market and wherever large undertakings are concealed on the other regional markets, sectorial collective bargaining may prove detrimental to small undertakings. Moreover, certain sectors have efficiently adapted a private collective agreement to their particular needs by means of the presence of an indisputable leader and widespread unionization. This is particularly true of the basic manufacturing industry. As to these sectors, at least, it would be a pity to forcibly institute a new collective bargaining mechanism.
However, in other sectors, principally in public utilities and wherever the State is either directly or indirectly an important employer, collective bargaining extended to cover entire sectors of activities is already a reality.
In short a mistake of the past must be avoided, that is, the fact of imposing on everyone a collective bargaining mechanism without making the basic distinctions required by the very character of the industrial sectors involved. It belongs to the parties in presence, both employer and employee associations, to choose the type of collective bargaining they wish to have. It is in this manner only that the system will acquire the desired flexibility. However, such choice must be made within the limits of pre-determined professional and geographical jurisdictions, so that erratic jurisdictions may be avoided.
By a more complete system, naturally, I mean one to which would be added an adequate legal framework permitting collective bargaining for an entire sector of activity. To my mind, it is not a question of adding two bargaining levels, one corresponding to the enterprise and the other one to the sector, but to enable a choice to be made between a limited framework for negotiations, which framework would be adapted to the undertaking or the private collective agreement, and between a broadened framework adapted to the sector or to sectorial collective agreements. When the workers will have pronounced themselves in favour of sectorial collective bargaining, it will no longer be possible to negotiate private collective agreements.
The broadening of the scope of collective bargaining will make agreements between employers and employees more complete, as it will make it possible to include clauses abolishing the present limits of the definition of working conditions. Working conditions will acquire a meaning of general organization of the security of the workers and even of the viability of the enterprises concerned. The sectorial collective agreement may include clauses bearing on technological change, the employees' right to be informed on the important financial and administrative decisions of the enterprise, the professional improvement of workers, job security etc.
As we all know, at the present time it is difficult to insert clauses of this type in private collective agreements because the enterprise that accepts them thereby becomes a dangerous exception for its competitors. Far from constituting economic risks, such questions, when drawn up at the production sector level, are the remedy to numerous dissatisfactions and will contribute to the settlement of many actual disputes.
Three basic reasons have led me to consider sectorial collective bargaining as most desirable :
1. This type of bargaining renders unions more responsible for and aware of the economic context ;
2. This type of bargaining enables the establishment of a bond between the economic partners and the man-power policy ;
3. This type of bargaining is the only one capable of involving the workers who are not unionized at the present moment.
I shall briefly explain each of these reasons by dealing with them in the same order as just mentioned.
The unions will be more responsible when they will represent all the workers in a sector of activity. Then, it will be more difficult for them to ignore the employers' arguments concerning profitability, and they will no longer be able to confine their activities to the most prosperous undertakings and exact higher wages without taking into account the differences in that their demands create within the same sector of activity. As representative of all workers having similar activities, the trade-union shall have to take into account the position of the worker having the weakest bargaining power just as well as that of the worger having the largest bargaining power margin. In such a case, the action of the trade-union will be guided by the most general considerations. Moreover, since the sector of activity will be taken as a whole, in its revendication policy the workers' association will have to take into consideration elements of an economic nature such as the labour market, the trading market and the profitability of undertakings.
Negotiations will cease to be a struggle which often took on the appearance of a « personality » conflict between an employer representative and an employee representative ; they will be at the level of both parties' participation in ensuring their mutual cooperation.
The link to be established between manpower policies and collective agreements is a necessary condition for job security. Public measures alone cannot satisfactorily meet all the requirements and conform with all the circumstances of the employment situation in each sector of activity. The sectorial context must be followed to a greater extent. In addition, a share of responsibility rests on the shoulders of the parties themselves. Local collective agreements cannot initiate measures that exceed the possibilities of undertakings, a fact which forces the parties to neglect several instruments of job security. If collective bargaining were carried out at the level of the sector of activity, such instruments, which mainly come under agreements between labour and management, would be possible, since all enter-prises would be covered thereby. Consequently, this would afford us better means of bringing general and public measures closer to the sectorial context and. of truly meeting the needs of the workers in a given sector. Hence, in view of the foregoing evidence, we must favour the broadening of collective bargaining, while taking due account of the obligation that the Department has placed upon itself in matters of job security and stabilization of the labour market.
Finally, representation of non-unionized workers gives rise to a social problem of the greatest importance. If 70% of all workers continue to be deprived of the advantages of all mechanisms of representation and official trade-unionism, recourse will be had to other means of expression that will affect social order to a greater extent. It is imperative that public administrators as well as partners in the labour world bring about the integration of non-unionized workers in the representation and collective bargaining system. Now, legislation which recognizes only collective bargaining for the enterprise will never meet the needs of all workers. Unavoidably, the workers in small undertakings, workers in non-accessible regions, workers with little professional competency will be foresaken because they represent too great a financial burden for the unions. Therefore, the solution consists in rejoining the non-unionized workers and enlarging the foundations of trade-unionism.
When collective bargaining is carried out on a sectorial basis, bargaining power is compensated : the workers enjoying the most advantages will share their position on the labour market with those enjoying the least advantages. Thus, all workers become equal within the same association and obtain a normal channel of expression. Hence, the non-unionized will not be inclined to seek the help of representative organisms other than those recognized by labour relations laws. In this sense, sectorial collective bargaining is an element of social order as well as of justice.
The fact of opting for sectorial collective bargaining with all the flexibility required by two coexisting labour relations systems does not necessarily imply that doing so is quite easy. On the contrary, there are many pre-requisites to be dealt with. I shall now point out a few of the most difficult conditions to be met.
THE DIFFICULTÉS OF SECTORIAL BARGAINING
Collective bargaining by sector of production will not be achieved as readily in Québec as in the remainder of North America.
Far from stemming from current principles in labour relations, it will require wide ranging changes, on the one hand, in the attitudes of all parties involved in collective bargaining, namely : the labour movement, employers and officers of the Department, and, on the other hand, changes in the legal framework.
These changes, born within a renewed approach, bear a measure of grave risks.
Indeed, it is a matter of adopting a formula before having acquired sufficient experience of it to know the answers to the problems issuing from collective bargaining at a wider level. However, since collective bargaining by sector of production should be viewed both as a betterment of the present system and as a quest for a better balance between the partners, there is a price to pay. That price is the endorsing of a new set of rules for collective bargaining.
Let us first appraise the expected consequences on the attitude and structures of the labour movement.
Representation of the workers
In considering the feasibility of widened bargaining, the first question which comes to mind deals with the mechanics of the representation of the workers. Indeed, we are familiar with the kind of representation involving a sole bargaining agent within the framework of the traditional bargaining unit : the enterprise. In accordance with the Labour Relations Act, workers in Québec have been represented by sole bargaining agents since 1944.
European workers, on the contrary, may join a number of labour unions and be represented by them even at the company level. We adopted the american system in order to avoid interunion disputes : the union with a majority of the workers within its ranks is their sole bargaining agent.
This is the simple underlying concepts of all british inspired democracy. It meets with century old traditions, with the very way of thinking on this continent and with social values which constitute the foundations of our large institutions.
I believe this concept of a sole bargaining agent for a bargaining unit has proven successful. The laws stemming from this principle forstered a measure of order in labour relations : notices for bargaining, periods for bargaining, the introduction of conciliation and mediation steps, strike procedure, the identification of the workers' bargaining agent. If we are concerned today with the shortcomings of our present industrial relations system, it is far more as concerns the size of the bargaining unit than as to the type of representation provided for the workers. The answer then lies in broadening the bargaining area without departing from the concept of a sole union representative for the workers of a barganing unit encompassing a sector of production.
There will certainly remain proponents of a union cartel, that is to say the grouping of the various unions already engaged in a sector around a single bargaining table for the purpose of negotiating a single collective agreement for that sector of production. This will cause the existence of a boundary between representation and negotiation ; regarding workers' representation, we maintain the status quo, whereas for negotiation a single union committee may be set up. In my opinion, this is quite dangerous, to say the least : indeed, by seeking to reconcile the various interests within the cartel, we may jeopardize any agreement with the employer. A new concept for our system of representation is the prerequisite of an enlarged bargaining area. Workers choose representatives for the very purpose of negotiating their working conditions. There should be no boundary between workers' representation and negotiation.
I do not believe the right to freedom of association should be construed to justify the preserving of company wide certification and to coerce this cartel of unions into bargaining for a sector of production. If this freedom of association truly raises a matter of principle, in the case of employers there is a serious problem at hand. Indeed, the union monopoly has been imposed upon employers for a long time, and no one ever felt it was an infringement of the right of association. Broadening the bargaining unit does not alter the principle : a single union for a single bargaining unit. Our way of enforcing the right to freedom of association is to base the authority of union representatives on a majority of the workers and to provide by law for periods during which one may change his membership. The fundamental reason for single union representation follows the very character of labour relations. Collective bargaining is primarily a number of compromises between workers and employers, and these compromises are arrived at more easily if we can avoid conflicts of interest amongst a number of unions facing a single group of employers.
Unity of representation requires unity in both attitude and undertaking. We should not lose sight of this stabilizing component of our system.
You may think I readily dismiss the notion of a cartel for the purpose of collective bargaining, while it is the rule of law, in Québec, for the construction industry. Furthermore, a cartel of labour unions was always possible under the Collective Agreement Decrees Act, and was indeed operating in some sectors of production, namely, the printing and shoe manufacturing industries.
Sometimes, a cartel is the only answer, but by no means the best answer. As a matter of fact, following our experience with the construction industry, we may say that a number of problems stemmed directly from the cartel of unions.
With the emergence of a new system of bargaining for a sector of production, it is important to seek realistic unionization of the workers, and thus avoid the situation that prevailed in the past in the construction industry by reason of inter-union disputes.
The single bargaining unit for all the workers of a given sector of production shall create problems for the present workers' unions. The structures of these unions were designed to meet the requirements of certification at the company level. So it is that the federation or union is composed of locals from many establishments in a given sector of production without covering all the establishments in that sector. Thus, also, the powers of the federation or union derived from bodies tailored to the establishments, and decisions are arrived at by a majority of the locals, and not by a majority of the workers. So it is that the workers from the larger establishments retain leadership in the adoption pf the federation's or union's policies.
To broaden the bargaining unit to the limits of a sector of production, to remove representation of the workers from the confines of the establishment, to consider all workers in a sector of production as members of a sole bargaining unit, is to put many locals out of existence. Indeed, the federation or union, and even the parent-organization, may have to struggle vigourously to survive. Unity of representation means that all workers for whom bargaining in a sector of production is carried out, whether they be unionized or not, are enabled to vote for the representative union of their choice. Individual locals will die out to the last ; only one of the federations or unions in presence will survive. As to any parent organization which is ousted from several sectors of production, its life span may be quickly shortened.
Apart from the serious risks involved for the unions already in place, there are still problems for the selected union. The latter rapidly grows in membership, or at least it may collect dues from all the workers within its sector of production. But it loses its foundations in local establishments while at the same time it inherits the responsibility of equally representing all workers in the sector of production involved.
In saying « all workers », I especially refer to those who, from a union standpoint, are actually considered a liability. Members who wield tremendous bargaining power under the present circumstances, because of the very nature and size of the establishment employing them, will, in future, carry no more weight than any other worker in their sector. The union certified for that sector will have to press for working conditions applicable to all establishments in it.
In short, present union structures will have to be entirely reshaped, if we are to obtain efficient sectorial representation. This is the main consequence resulting from the adoption of this new labour relations system. The sooner the unions accept to operate in a sectorial context, the better will be their prospects of survival. Besides, unions have no alternative ; they must ready them selves for broadened bargaining units. Such bargaining units are already a reality for many workers. Present union structures may delay the implementation of a system of sectorial negotiation and even bring about needless disputes, but, some day, this kind of negotiation, warranted by modem contingencies, will be the only answer, and unions failing to adapt to them will have to make way for more adequate groups.
In this respect, the cartel formula is but a dilatory measure which, to no avail, prolongs the transitional period and its concomitant painful operations.
I, for one, do not hesitate to take such a step into the future. The broadening of the scope of collective bargaining is urgently needed. While, on the one hand, sectorial negotiation increases the power of labour associations, on the other, it renders them responsible for all the workers in a sector as well as for that: sector's profit-earning capacity. And, this element of responsibility is absolutely necessary for the proper functioning of social engagement alongside economic planning.
These new types of collective bargaining will also greatly affect the « employer party ». Therefore, let us now examine one of their main effects on the structure of such party.
Structure of the employer party
To face organized labour and collective bargaining, Québec employers, in the past few years, have made serious attempts at working out a common policy. However, one must admit that those endeavours have proved more or less fruitful. Not because of a lack of employers' associations, far from it. A survey that was carried out several years ago revealed the existence of nearly 500 employers' associations in the province of Québec alone. If a new inventory were taken, a fair number of new associations would have to be added to that figure. The main impediment to efficient structuring of the employer party is the latter's lack of the discipline required to achieve a common policy. Subject to the competitive forces of the market, employers are in the habit of organizing their production resources without anyone's help. This is also true of their dealings with their employees. Even in spheres of activity already having some experience in sectorial bargaining, at least at the regional level as in the construction industry, it is very difficult to achieve unity amongst employers. Each one's sole concern is to settle his own urgent problems.
In the public and para-public sectors such as Education, Health and Welfare, where the State, by its very presence, serves as catalyst to unite the employing bodies, employers have yet to achieve cohesion in their midst. With disconcerting perseverance, local employers hold out against structural changes that would give the employer party a single voice. For the sake of autonomous management and for the sake of that sort of pride connected with management responsibilities, employers, whether of the management of private ownership types, feel reluctant to adopt a rigid 'framework and delegate to an association the responsibility for collective bargaining and for the administration of the collective agreement.
Still, sectorial collective bargaining requires employers to be united. Indeed, one must understand the very essence of this new bargaining system : labour-management relations are brought to the level of the sector of production in a given geographic territory. This implies that individual employers, local bodies, no longer determine the working conditions of their employees. Aside from the day-to-day administration of their collective agreement, these individual employers must leave all negotiations with their employees to the care of their association. As to their working conditions, the workers are in exactly the same situation, regardless of the establishment for which they work. If employers fail to give a complete mandate to their representative association, and if they go on insisting that they be the only ones to conclude agreements with their workers, how are they to achieve an adequate management strategy within the bounds of their sector of production?
Although it is an essential component of sectorial bargaining, the delegation of powers is surely far from being implemented. Employers must not only acknowledge the labour movement — such acknowledgement is not yet complete, even 100 years after the birth of unions as we know them today — but furthermore, they must refer to an association all matters pertaining to these unions. In other words, an individual employer will no longer exercise absolute control over his labour costs, and his use of human resources shall be governed by terms determined at a higher level. True, some employers, among the largest, will retain a voice of paramount importance in the formulation of management policies. But these employers will have to take into account the repercussions, on smaller employers, of the concessions they grant in order to attract the most highly qualified workers. It will be somewhat more difficult to create available manpower reserves for oneself. On the other hand, small employers will have to tailor their production to meet the competition of larger employers, while granting their workers equal rates of pay. Collective bargaining for a sector of production will then help employers to compete in realms other than labour and working conditions. But prior to that, employers must agree to realign their action in this field.
Besides requiring that employers accept this discipline, sectorial collective bargaining will also demand that they change their behaviour completely. Individual employers are in the habit of holding out against the demands of the workers. They wait until demands are submitted, and there follows hard bargaining about the minimums agreeable to the union. Their objective is to keep on producing and, at the same time, to limit any rises in manpower costs.
Sectorial collective bargaining belongs to another context. Indeed, in sectorial bargaining, the workers are more like partners than mere production resources, since the purpose to be achieved is the establishing of working conditions for an entire sector of acticity while taking due account of human needs and the sector's economic possibilities. Thus, the employer party's attitude takes on a more positive and more engaging aspect. In sectorial collective bargaining, the main concern of the employer's bargaining association is neither the financial situation of any firm in particular nor any definite difficulty in marketing. It goes without saying, however, that although its concerns remain above such immediate problems, the association is fully aware of the sector's general problems and each of its members' cares. Then, because of the openness of the employer party's reaction to the workers' demands, negotiations will prove more constructive.
Furthermore, the necessary change of behaviour will follow in the wake of the new collective bargaining technique, if the latter is accepted in good faith. Agreeing to maintain discipline in their very ranks, while fully delegating their authority in matters pertaining to the fixing of working conditions, constitutes a radical change of attitude on the part of the employers, since it amounts to the very opposite of the tactics they have been using for so many years.
Adjustment to broadened collective bargaining is also necessary for civil servants in the Department of Labour and Manpower.
The role of the conciliator
Because of far-reaching changes in the attitudes of workers' and employers' associations and because of the content of collective agreements covering an entire sector, the Department of Labour and Manpower can no longer continue to proceed in the same way where labour relations are concerned.
We have already seen that one of the important reasons militating in favour of bargaining by sectors was the need to expand collective agreements so that they would cover manpower problems. Job security, adaptation to technological and administrative change, the permanence of the careers for which workers are trained are all problems which require solutions on a sectorial level. Without jeopardizing its own chances of success, no single enterprise can supply full guarantees of job security to its workers. To do this, there must be agreements covering all employers in a given field of production. Then the principle of collective responsibility can be applied, and the risks which, in recent years, have threatened job security can be met without dangerously affecting financial stability. Indeed, this type of solution is far from being novel, since it has been used for many years in the field of workmen's compensation.
Sectorial agreements are necessary to cover the whole range of working conditions that constitute the workers' lot. Support from the Department of Labour and Manpower through legislative measures and retraining allowances cannot, alone, meet the workers' needs with regard to job security. The law is too general to adjust itself directly to varying needs, and public financial assistance cannot be so inclusive as to fully free the employer of his responsibility, the responsibility of the immediate consumer of the wage earner's labour.
As soon as sectorial bargaining enters manpower policy areas, and as soon as it attempts to reach appropriate solutions, the Department of Labour and Manpower is directly implicated. In short, manpower is a single entity, a single resource which must be allocated to the various activity sectors in such a way as to make the best use of individual talents and with proper regard for keeping the various labour markets in balance. In addition to this allocation of workers, people must be given an opportunity to acquire the competence required by the various activity sectors. This vocational preparation of workers is a matter of many years, and is a public responsibility. Measures appropriate to a sector naturally lead to the necessity for general manpower policies.
There can be no solution limited to a single sector of activity. If manpower and employment security measures must correspond to conditions in an activity sector, none the less, they must be integrated into general policies on vocationaltraining and maintaining the balance between labour markets. In this sense, theDepartment of Labour and Manpower would, to a certain extent, be a partner in sector-wide negotiations. For it would be the link between measures appropriate to a given activity sector and general policies.
We can more readily envisage state participation by reason of manpower problems, still, for quite different reasons, it is necessary for the Department to be present at the bargaining table even when private enterprises only are concerned. These reasons relate to the salary structure, working hours and fringe benefits. When negotiations involve only one business at a time, the economic and social impact of the working conditions on which agreement is reached is generally of minor importance. But in the case of sectorial negotiations, and considering the State's responsibilities with regard to economic development, these repercussions are no longer incidental. They can be tragic. The Department of Labour and Manpower cannot forfeit its duty to speak for the State as the general organizer of economic activity. Hence it is preparing to fulfil this duty.
The presence of a third party at the bargaining table will certainly have major effects on the attitude of workers' and employer's associations, but it will also have a serious impact on the part played by the conciliator. Until now, the only thing the conciliator sought was the suitable compromise possible between the workers' demands and the employer's opposition to them. Tomorrow, the conciliator will have to give due attention to the nature of this compromise. Workers and employers will no longer be able to agree on any terms they like. The conciliator will be there to indicate the bounds imposed by legislation with regard to working conditions and manpower policies, and make clear the possible lines along which agreement may be reached.
It is certainly necessary to avoid too rigid a formula, too great authority for the State as party to the negotiations, so as to assure the major participants — workers and employers — their rightful position in bargaining for their activity sector. Yet it is equally necessary to supply mediation, guidance and coordination services within the limits of labour and manpower policies. This balance between the State and the socio-economic partners is far from being easy to ensure. The only thing we know is what we must aim to achieve ; still, we have no idea of how we may attain this goal. One thing is certain : the new context will be just as exacting with the Department of Labour and Manpower as with labour's and managements associations.
The legal framework
Obviously, the legal framework must be modified in such a manner as to make sectorial bargaining possible. This implies certain amendments to sections governing certification and the right of association as well as the drawing up of new provisions which would define sectors of activity and bargaining areas. Bargaining areas must be interpreted as referring to professional units within the same sector of activity. Maintaining a distinctive identity between large occupational groups is important in order to avoid finding within the same union the whole range of workers, from clerks to managers. Bargaining areas are the very professional groups that cause different unions to operate within the same sector of activity.
Namely, they are termed : ordinary workers, technicians, professionals and executives. The last named category does not indicate our policy of regrouping fonctions : it only illustrates bargaining areas to be considered under the new system.
Today, I would like to spotlight three types of legal changes required by broadened collective bargaining, changes which, in a way, constitute new labour law.
The first step involves making the Labour Code quite clear wherever the two bargaining levels are concerned, the enterprise level and the sector level, so that they will not oppose each other but easily coexist in harmony. Hence the need for enough flexibility for the parties to easily choose the negotiating levels they wish. As we hâve already said, one cannot back two teams at the same time, that is, negotiate at both levels at the same time. Therefore, adequate provision must be made to ensure that such choice may really reflect the will of the majority of the workers, even before negotiations begin.
In this connection, we must keep in mind the example of what happened in England where the simultaneous existence of two negotiation systems gave rise to many difficulties : the first, the formal level, where minimum working conditions were mostly established through sectorial bargaining, and the second, the informal level, where market working conditions were negotiated. Since we are imposing neither of these systems, we may hope that the mechanism chosen will be the one that will best meet the needs of the workers concerned and that equality of the systems may be thereby avoided. Of course, the purpose of sectorial collective bargaining is to establish actual wage rates.
The second type of changes, involving new clauses, has to do with a very delicate question, that of the rights of the members within their association. The « Woods » report has already discussed the matter at length. I know very well that workers' associations are loath to let the law, hence the government, have the privilege to interfere in their internal management. The idea of provinding for the rights of the members does not, in any way, stem from the wish to exercice control over workers' associations, but rather to guarantee rights to all workers within such associations.
Sectorial collective bargaining, and mainly the monopoly of representation, will strongly encourage all the workers in a given sector of production to belong to a single union. It is a requisite that this union show respect for democratic rules and the rights of its members. Hence this idea of a statement on the rights of the members, such as the freedom of expression, the right to be heard in cases of disciplinary action, the right to be candidates, the right to be elected to» executive posts. What's more, members must have the privilege of being able to appeal to the courts to have these rights respected. We have already set up a special court which may prove extremely useful in this kind of situation : the Labour Court.
I wish to urge labour unions to consider the necessity of having the law recognize the workers' rights even within their own associations, in the same spirit these same unions seek to obtain official assurances concerning the rights of individuals in society and the rights of workers within the private enterprise system. It is not by using two kinds of logic, one for the labour union and the other for the rest of society, that workers' association will prove they are reliable socialpartners. My concern is not control over decisions by labour unions, but to avoid that the representation unit become a manpower monopoly primarily detrimental to the interests of the workers themselves.
The third type of provision to be considered deals with the right to strike. Sectorial bargaining is much more likely to question the public interest than is bargaining at the enterprise level. With regard to labour relations, we are witnessing the reorientation of the exercice of the right to strike in those areas affecting the public interest. We cannot ignore this aspect of sectorial bargaining. There is no question of abolishing the right to strike. On the contrary, from certain points of view it is rather a question of doing away with certain present delaying factors such as compulsory conciliation and cooling-off periods before negotiations. Bill 290 already grants the right to strike when a decree expires. The same thing can apply for sectorial collective agreements. Moreover, we may wonder whether conciliatory intervention would not be more effective if it were not mandatory.
On the other hand, the public increasingly demands that it be forewarned of strikes that seriously demands that it be forewarned of strikes that seriously affect it. The question which now arises is whether or not we should adopt, for sectorial bargaining, the device set forth in section 99 of the Québec Labour Code. Such device tempers the right to strike in public utilities by imposing the serving of an eight-day notice and by allowing a factual inquiry and up to 80 days' postponement of the strike by means of an injunction.
There is also reason to consider the timeliness of requiring, in certain strickly public fields, that agreements on the operation of essential services be reached before entitlement to the exercice of the right to strike is acquired.
As yet, on this question of strikes, as on that of members' rights, the Department of Labour and Manpower has no definite opinion. It knows, however, that all the provisions governing labour relations must be rethought in the light of this new operational structure. Labour relations for a single enterprise cannot correspond to labour relations for a whole sector.
I don't think that requiring this preliminary condition will deny anyone his rights. In drawing up these new provisions, the steps already taken to safeguard the workers' rights will not be put aside. However, to perform useful work, it is imperative that our application of the basic principles of labour law be re-examined, since the very elements of the system are changing. The success or failure of sectorial bargaining depends far less on the legal framework of the system than on the good faith of the parties involved. Besides, such is and always will be the fundamental principle of any labour relations system, just as it is the very basis of the one we have now.