La négociation sectorielle par décision de l’État : le cas de la construction au Québec
Volume : 26-1 (1971)
Industry-Wide Bargaining by Leglislation : The Quebec Construction Industry
The formula and history of industry-wide bargaining in the Québec construction industry is a rare if not unique case in North America.
LEGAL SYSTEM AND STATUS
Prior to a new law enacted December 1968 — The Construction Industry Labour Relations Act, known as Bill 290 — labour relations in the construction industry had operated under two different laws, the Labour Code, which regulates the general system of certification and collective bargaining at the employer's level, and the Collective Agreement Decrees Act, which provides for the possibility of extending a privately bargained collective agreement to make it, by way of decree, mandatory to all employers and employees of an industry in a definite region. Since 1934, the construction industry in Québec had chosen to operate under this system of juridical extension. From the very beginning, an industry-wide bargaining system was set up juridical by the parties themselves. Fifteen decrees thus determined the conditions of work for all the general trades in as many different areas ; the bargaining for the respective agreements was conducted on an industry-wide basis at the regional level. A few highly specialized trades had provincial agreements and decrees. There were very few instances of certifications ; many of these were used as a protection or a weapon against a rival union, especially in the mechanical trades.
Bill 290 has eliminated the double system and placed the construction labour relations under one single Act. At the same time, it purported to centralize even more fully the bargaining process, stating that there will be strictly one bargaining and one agreement by region (or for the whole province, if the parties involved so desired).
To ensurecomplete industry-wide bargaining, the certification system was abolished and replaced by a new concept, that of representative associations. Two provincial labour bodies are thus designated in the Act itself, the Confederation of National Trade Unions (C.N.T.U.) and the Québec Federation of Labour (Q.F.L.) with respect to their own affiliates, respectively the national construction syndicates, which are preponderant in the various regions outside of Montréal, and locals of the international building trades unions, more heavily concentrated in the Montréal area and, on a province-wide basis, in some highly technical trades. On the employers' side, five contractors' groups are named to represent management jointly at the bargaining table.
The system of juridical extension remains basically as before, with the possibility, now, that the whole agreement may be incorporated in the decree, including union security clauses. The law provides that the agreement and the ensuing decree must contain certain provisions respecting wages, social security and other fringe benefits, union security and check-off, grievance procedures and the like ; it may contain any other clause which is not against the law or public order. Strike or lock-out action is permitted at the expiration of any decree and negotiations must begin at least three months before that date.
OBJECTIVES AND IMPLICATIONS
Bill 290 can be considered as an attempt to bring unity and order in an industry that is deeply divided because of its complex nature : inter-trades, inter-regions and inter-unions conflicts have disrupted construction labour relations more than any other sector of the economy. An industry-wide highly-centralized system is hoped to prevent some of these disruptions. At the same time, it can bring much needed uniformity in trade definitions and qualification requirements. The system is also designed to provide more stability to unions and employers' organizations, the development of which was somewhat hampered by the juridical extension system as it existed since 1934.
The formula will bring more power to the designated parties but also increased control over them. A union security clause will make membership in an affiliate of one of the two main labour bodies obligatory for all workers in the industry. Although certain mechanisms are foreseen to ensure freedom of association and the possibility for new groups to be recognized, the power that the designated associations will acquire will be so great that a change may become practically impossible. They will thus appear almost as public organizations and will require heavy controls to protect the individual member and his fondamental rights. The same may be said, with the appropriate qualifications, of the employers' associations.
The one bargaining and one agreement principle will also call for more government intervention in the bargaining process itself. The Act foresees the possibility for the Minister to appoint, of his own motion, a conciliation officer from the very beginning of the negotiations, what he did in 1970. The implications will be so big and far-reaching, especially if the bargaining is conducted at the province level, both for the government as a buyer of construction and for the economy as a whole, that it is almost impossible to imagine that the agreement, mainly its monetary clauses, can be settled without some kind of government intervention.
But centralization has also other aspects. A unified system may permit the implementation of portable social security benefits, as well as some kind of seniority provisions, greater job security and the like.
APPLICATION AND PROBLEMS : AN HISTORICAL OVERVIEW
The history of the Bill, both before and after its enactment, provides an excellent example of the antagonizing forces of unity and disruption within the industry.
Both labour and management had been requesting a review of the legal situation for a long time, especially on the questions of certification and the relationship between the agreement and the decree. A study committee was set up by the Department of Labour in the Summer of 1967. All members of the committee appeared to be in accord on some very basic points : a new certification system was necessary, trade definitions were badly lacking uniformity, apprenticeship regulations and professional jurisdiction had to be revised and inter-union rivalry needed much soothing. But no one knew how some of these points, mainly the last one, could be implemented. In fact, while the committee was pursuing his work, violent confrontations erupted and numerous demonstrations were held.
Finally, in December 1968, the government tabled its Bill. It was turned immediately to a parliamentary committee where the parties attacked violently certain parts of the Bill, especially a section which was intended to ban any closed shop agreement and replace the union hiring hall system by a provision imposing on all employers the obligation to hire all workers through Québec Manpower Centres. The provision hurted more directly the international building trades unions since their hiring hall system is more developed and more strongly established than that of the C.N.T.U. syndicates. The opposition was so strong that the proposed section had to be deleted and the whole question was turned back to a joint commission, which was established to study other points that needed to be standardized.
Bill 290 was rapidly put to test, since ten decrees were up for renewal in the early part of 1969. The bargaining started at ten different tables, but was quickly reduced to one : the Montréal negotiations became, for all practical purposes, a provincial table. The C.N.T.U. had centered its campaign around the slogan : « Job security through joint employment offices ». Since the Joint Advisory Commission could not reach an agreement on a proposal regarding union hiring halls, while the C.N.T.U. syndicates refused to sign any agreement that would not; contain provisions on this point, a partial agreement was reached between Q.F.L. unions and the employers' organizations at the end of April which was to be applied in the Montréal area. The legality of this agreement may be questioned, but it avoided a strike for the time being. Strike action punctuated with violence developed in some areas of the province during the Summer. An agreement was finally reached in July ; it had to be revised and became the construction decree only at the end of October. The new decree contained, among other points, mandatory union security clauses, together with an engagement by the employers to implement, in the next agreement, wage parity for so-called provincial workers and, for all the other workers, to establish for each area a wage ratio according to its economic situation. As far as the employment security and hiring hall question was concerned, the parties had agreed to refer the problem to an arbitrator if the Joint Advisory Commission could not reach an agreement by the end of November 1969.
The Joint Commission did not reach any agreement and Judge Gold had to try and develop a workable system. His recommendations were taken up by an order in council dated April 23, 1970. Construction workers were divided into various categories with different hiring provisions for each : the regular employee of an employer (either a provincial regular who has worked 1500 hours for the same employer or a regional who has worked 800 hours) may be hired directly by the employer himself ; the permanent or professional employee who has worked 800 hours in the industry may be hired either through a Québec Manpower Centre or a union hiring hall ; all the others, who are called reservists, must be hired exclusively through a Québec Manpower Centre. In February 1971, the system is still not ready to operate, since the status of the various employees has not yet been completed.
The 1970 negotiations have been particularly difficult. The 1969 decree (and also the five others remaining from the previous system) expired at the end of April 1970. Bargaining had progressed very little when a strike occurred in the Montréal area during the month of May, apparently because of the fear that working conditions would be changed since there was no decree. Workers went back to work after the adoption of Minimum Wage Order No. 12, which ensured that previous working conditions would be maintained, and after the parties had agreed on a job site steward clause at the bargaining table. But in early July, strikes erupted elsewhere in the province ; after a month the government decided to step into the dispute and ordered back the workers to their jobs by special legislation. Bill 38 enjoined the parties to get back to work and to resume negotiations ; if these negotiations failed to produce an agreement within a month, the Committee on Labour and Manpower of the National Assembly would be called to hear the parties ; the Committee convened in late September, early October and November. For all practical purposes, no bargaining took place after the month of August and the decree, which was adopted in late December 1970, was wholly the work of government employees, except for the clauses that had been initialed before the enactment of Bill 38. The new decree has aroused opposition from all parties. The employers reject a too rapid wage parity (to be almost completed by January lst1973) together with the regrouping of many classifications and regions, which means dramatic wage increases in many cases. The C.N.T.U. says the wage parity is still incomplete and it attacks the government for not forcing a quicker application of the decree. The international building trades unions strongly oppose the job security and employment system.
It is hard to foresee whether the forces of unity or of disruption will finally prevail. Bill 290 has tried to impose a highly-centralized industry-wide bargaining structure ; the 1970 experiment has been a near-failure, inasmuch as the present decree had to be imposed on the parties according to the provisions of Bill 38. The employment security and hiring hall problem has not been solved either : will the government decide to impose its views on this question or will it back down to Q.F.L. unions pressure remains to be seen.