Depuis le 1er janvier 1994, Québec s'est doté d'un nouveau Code civil qui établit, en harmonie avec les chartes, le droit commun applicable aux rapports entre les personnes. Ainsi se pose la question de l'harmonisation de ces règles à celles qui régissent les rapports particuliers entre employeurs, syndicats et salariés. La question est d'autant plus intéressante que ce nouveau Code civil traite directement de la relation de travail et qu'il ne comporte aucune réserve à l'endroit du Code du travail et des conventions collectives. L'arrivée de ce nouveau Code civil imposera une délicate gestion des conflits de droit en raison de l'inévitable rencontre de ces deux codes, Code civil et Code du travail, et de leur acte respectif, le contrat de travail et la convention collective.
Since January 1,1994, Quebec has had a new Civil Code which, in combination with the charters of rights, establishes the common law applicable to relations between persons. Thus arises the question of how to harmonize these rules with those that govern the specifie relations between employers, unions and employees. The question is all the more interesting because this new Civil Code deals directly with the employment relationship without any reference to the Labour Code or to collective agreements. The appearance of this new Civil Code will require delicate management of conflict of laws because of the unavoidable connection between the Civil Code and the Labour Code and their respective instruments, the contract of employment and the collective agreement.
The coexistence of the two codes will necessitate a re-examination of several decisions of the Supreme Court of Canada which establish that, where there is a collective agreement in place, there will no longer be room for a contract of employment. The Supreme Court of Canada itself will have to examine this issue and make the necessary distinctions, taking into account the fact that the Civil Code makes no exceptions for the employment relationship and that it now contains 13 articles dealing directly with the contract of employment. The explanation put forward on a few occasions by the Supreme Court to the effect that the collective agreement would be a tripartite contract, will no longer be acceptable.
The study of the coexistence of these two codes is all the more interesting owing to the fact that the development of collective labour relations law was meant to preclude certain effects of the rules of civil law which were at the time too favourable towards Syndicat catholique des employes de magasins de Quebec Inc.v.Compagnie Paquet Ltee, R.C.S. 206;McGavin Toastmaster Udv.Ainscough, 1 R.C.S. 718 ;CAIMAWv.Paccar of Canada Ud, 2 R.C.S. 983.employers or which ignored the situation of employees. Now the new Civil Code lays down a series of rules meant to protect employees through the enforcement of the criteria of equality and good faith.
If the contract of employees was to disappear due solely to the presence of a collective agreement, it would follow that the Quebec Civil Code would not apply to these employees, at least for the purposes intended by the Labour Code and the collective agreement. If this were the case, such employees, unions and employers, would, find themselves set aside for the same purposes and roles by the application of the following articles :
— Article 2085 C.C.Q. with respect to employee loyalty;
— Articles 2089, 2090 and 2095 which stipulate the contractual freedom related to the limite of free competition;
— Articles 2091, 2092 and 2094 where ways to resiliate a contract of employees are set out;
— Articles 2097 which ensures the survival of the employment relationship following the arrival of a new employer at the helm of the enterprise.
The same applies to common law provisions concerning the respect of reputation and privacy of a person (articles 35 to 41 of the C.C.Q.), the interpretation of contracts, articles 1379,1432, 1435 and 1436 (contract of adhesion) and the requirement of good faith (articles 6 and 7 of the C.C.Q.), etc.
It should be immediately stated that it is essential that the harmonization of the rules of law not create a backlash which would allow the contract of employment to serve as a valid legal tool to reduce the real importance of the collective agreement. Furthermore, we maintain that this legitimate and necessary protection of the collective agreement should not in any way override the Quebec Civil Code, the renewed common law, nor should it repudiate the contract of employment. It should be noted that our common law, the civil law of French origin, which is codified in a concise, simple and direct style, is specific to us. It is recognized indirectly by the 1867 Constitution, since it predated the Constitution and this situation was confirmed. Barring a serious legal and political heresy, or shameful laxity, or else recalcitrant judicial imperialism, one cannot act as if our codified common law did not exist or was simply interchangeable with or able to be assimilated to the Common Law.
Aside from the very existence of the Labour Code and collective agreements, the specifity of the law of collective labour relations is not so special as to require, suppose or imply that this branch of labour law be removed from the common body of Quebec private law. It should be remembered that labour law, just like its component related to collective labour relations, is concerned with persons (employee and employer), relations between these same persons and the properties to which these relations are directed or which result from these relations. However, these same three aspects are precisely those set out in the preliminary provision of the Quebec Civil Code : "The Civil Code of Quebec, (...), governs persons, relations between persons, and property".
In labour law, it is necessary to be able to draw from a broad and rich source of law in order to use it as a basis for this area of law and to make up for these inevitable gaps, deficiencies or silences. This source and this general framework cannot, for constitutional, political and cultural reasons, be an avowed or hidden common law. As well, only the Civil Code of Quebec can and must serve in this way. Such is the usual legal and political function of the Quebec Civil Code, and this role can only serve to bring closer together the attributes appropriate to law, namely coherence, security, logic, foreseeable nature, etc. If the situation is as described in this paper, then we must learn how to harmonize the law of collective relations with the Civil Code of Quebec.
Analyses of the contents of collective agreements confirm our common knowledge that the legal foundations of the basic data of labour relations and the employment relationship are not found there. It would be a matter of :
— the presence of the employee, his constraint, his obligations to be available;
— his obligation related to discretion and loyalty, etc.;
— the employer's power to give orders, to discipline and even to suspend unilaterally the provision of mutual benef its, his obligation to pay a salary, his right of accession, his responsibility towards third parties somehow related to the employee, etc.
If employees not covered by collective agreements are subject to the Civil Code of Quebec as codified common law there is no principle or postulate that would allow us to believe that the simple presence of a collective agreement would change this situation.
In order to settle any real or apparent conflict over the terms and conditions of employment that derive from these different sources, the two necessary criteria are : public order and the objectively more favourable norm. Furthermore, there are several provisions in the Quebec Civil Code which favour employees and which cannot for whatever reason be ignored because of the existence of a collective agreement. We would also argue that, with the same reservations, the collective agreement would be subject to the Quebec Civil Code. In fact, if this common body of Quebec private law is applicable to persons and relations between persons, then it also applies to the persons and property which are the subject of collective agreements. This means in particular that the collective agreement cannot validly contain clauses that go against the provisions of public order decreed in the Quebec Civil Code (article 62 of the Labour Code) and that other provisions of the Civil Code, in as much as they are compatible, make up for the gaps, innuendos and silences of the collective agreement. Furthermore, the Labour Code sets out several special rules to manage the development of the collective agreement, to specify its contents and its importance. These special and precise rules obviously constitute as many provisions that can be added to and taken out of this same Quebec Civil Code.
The sole fact that one would be tempted to use the contract of employment to reduce, violate or destroy the importance of a collective agreement cannot justify such a denial of principle. In reality, of course, employees and employers do not generally negotiate the individual employment contract. Even so, this fiction does not stand in the way of the application of the Civil Code of Quebec to employees covered by collective agreements.