Législation du travail, liberté, peur et conflit

Sommaire

L'auteur décrit d'abord une série d'équivoques « secondaires » du régime légal de règlement des conflits d'intérêts dans la province de Québec hors les services publics. Il rattache ces ambiguïtés actuelles ou virtuelles à une équivoque « fondamentale », qui est l'écartèlement entre la liberté qui doit servir de base à une société démocratique et la peur qui suscite les lois restrictives. Pour éliminer la crainte et pour redonner à la démocratie industrielle toute sa vitalité, l'auteur s'efforce de situer le conflit social (surtout industriel) dans sa véritable perspective, en décrivant sa diversité et ses conséquences utiles fort nombreuses.

Summary

We shall be dealing here with the legal arrangements for the prevention or the settlement of union-management disputes over matters of interests, thus excluding conflicts over rights. The Quebec conciliation system shall be used as a case in point, since it is typical of most labour legislations in Canada and other "free entreprise" countries. Conflicts in public utilities shall not be dealt with, nor shall we analyse the whole picture of union-management relations, since our study is strictly juridical and theoretical in nature.

Our aim is to improve labour legislation in the area of disputes settlement by pointing to a number of ambiguities and confusions in the law which should be corrected. Any body of social legislation which is not constantly improved on the basis of its obvious consequences is a dead body and a dangerous nuisance. It should be noted, however, that the most technically correct piece of legislation will yield poor results in a hypothetical climate of political tensions, antagonisms and distrust, while a less perfect body of laws will foster peace and harmony where there exist freedom, confidence and co-operation.

SOME SECONDARY CONFUSIONS

1. "Arbitration". Our "councils of arbitration" arbitrate nothing, inasmuch as the final award is solely a set of recommendations which have no binding power (and more often than not very little moral authority) on the parties. They constitute only the second step of the conciliation procedure.

2. It might be very useful for our legislation to distinguish clearly between "conflicts of interests" and "conflicts over rights", in order to determine the proper jurisdictions (conciliator or arbitrator) and effects (binding or not) of the award, if any. Although most collective labour agreements do draw the line by stipulating compulsory arbitration of grievances, some ambiguities still remain. The main one is the tendency to assimilate "grievances" with "conflicts over rights", and to limit conflicts of interests to the pre-contract phase, while it should be obvious that many disputes arising while an agreement is in force cannot be dealt with on the basis of clear predetermined rights. Since the agreement cannot foresee and provide for every situation, conflicts of interests are bound to arise after it has been signed, and deserve the same careful discussion and honest consideration as conflicts arising at the negotiation phase prior to the signature of the agreement.

3. The meaning and scope of the word "dispute" must be looked for, not in the Quebec Trades Disputes Act, but in the Labour Relations Act. And care must be taken not to unduly restrict the field of so-called "conditions of employment" nor to limit the scope of the agreements which the parties are allowed to reach, with a view to reducing the possibilities of conflict.

4. "Equity and good conscience" are resorted to only when the law is silent or ambiguous. They are mere natural justice and common sense. And since objective economic criteria are lacking, on the whole, for the "council of arbitration" to make a scientifically-based award, it should be kept in mind that "equity and good conscience" will permit only an approximation of justice.

5. Being the first step in a compulsory procedure, the conciliation officer does not have an easy job, especially when the parties are powerhouses in strategic bargaining centers and are expected to create patterns which will be followed by an industry or a region. True, he intervenes only when direct negotiations break, and at the request of one of the parties; but as an essential part of a rigid procedure, he is often seen as a hurdle to be cleared as quickly as possible, rather than as a competent friend eager and able to help. He can be imposed by either party upon the other whenever negotiations (whether seriously carried out or not) run into a deadlock. It is this very imposition that irritates some of the parties and leads them to retaliate by treating the conciliator lightly, particularly so in the hypothesis of a tense political environment. The conciliation officer will usually be more welcome in sectors where collective bargaining is new or relatively weak, or where one party is much weaker than the other. In all cases, however, the conciliator may be relatively useful he realizes that he is above all the servant of the parties themselves, and never the distributor of rules of conduct and "solutions" to the parties.

6. The president of the "council of arbitration" will do a helpful job (again despite the compulsory character of the procedure) in some cases if he understands clearly that his first duty is to serve the parties, and not the minister of Labour who appoints him. He is primarily a man of conciliation, not a man of awards. He will realize this more easily if he ponders over the scarcity of sound and safe economic criteria by which he can reach not too haphazard decisions in a most complex field, economic activity. For conflicts of interests are born out of the antagonism of two freedoms which, left undefined by law, may pretend to total discretion. Such being the case, the president will never attempt to pass judgment as a magistrate would do in a court of law, but will on the contrary always be looking for the very mobile point of mutual acceptability at which the parties may agree.

7. The representatives of the parties on the "council of arbitration" are exactly that; they should not be expected to be impartial, since their appointment is suggested by the respective parties and since they are in most cases remunerated by them. They may be assimilated to assessors trying to enlighten the president on the merits of a given viewpoint (their own) and to get the best possible deal for their party. To see them as "arbitrators" would be extremely misleading.

8. The award of the "council of arbitration" is usually at best a good guess, having little claim to scientific accuracy. It is a set of recommendations, and not a judgment, since in the first place it is not binding for the parties which constitute our object of study here. Therefore, it deserves little publicity, and should never be intended to be used as precedent. It is strictly the property of the parties themselves, and should not, as a rule, be used as an instrument of public control. If made public prematurely, it may have most injurious effects on subsequent, post-arbitral negotiations, on the precarious equilibrium of the parties, on the relative flexibility of their positions, by creating false hopes on not too certain grounds and by possibly displacing artificially and arbitrarily the point of mutual acceptability and thus delaying the settlement of the dispute.

THE MAIN CONFUSION

All the above confusions may be traced to one fundamental ambiguity, one big opposition between two prime movers: liberty, on the one side, and fear, on the other. In a democratic society, the freedoms of association, professional activity, expression, enterprise and contract, among others, are held as sacred and seen as the very foundations of democracy itself. And yet, in the face of oppositions of interests (just another definition for conflicts), we are tempted to quickly throw overboard all principles, allowing ourselves instead to be governed by sheer physical fear of potential outbursts of violence. Without realizing that aggressive forms of conflict are the exception in Canada and in Quebec particularly, and possibly led by fear-mongers with an axe to grind, we are inclined to favour restrictive measures (in legislation and administration) destined to prevent conflict at all costs. Needless to say, conciliation legislation based on freedom will be diametrically opposed to another based on fear. In the first instance, the parties will be allowed to bargain on all matters which do not go against public order and safety; the preventive procedure will be optional and will provide alternatives; if for a while the procedure remains compulsory, its steps will be as few and as short as possible; and the conciliation services provided by the government will be aimed not only at prevention, but mainly at education of the parties in the intricacies of collective bargaining. In the perspective of fear, conciliation legislation shall be exactly the opposite. To prevent open conflict, the law will provide a number of time-consuming steps, with the hope that the parties will gradually "cool off".

Unfortunately, the "cooling-off period" more often than not turns into a "warming-up period", and the procedure defeats its avowed purpose by creating or at least magnifying the object of its fear. The parties, frustrated and irritated by long delays, and compelled to stimulate their respective militancy during the protracted debates under "public scrutiny", are often led to uncompromising stands where flexibility could have been possible otherwise, thus multiplying the possibilities of aggressive conflict.

THE NATURE AND FUNCTIONS OF CONFLICT

The fear just described has its main root in a false notion of the meaning, variety and functions of conflict, social and particularly industrial. Conflict is essentially an opposition, manifested in a good number of ways, "diplomatic", "aggressive" and possibly violent. "Conflict and co-operation are not separable things, but phases of one process which always involves something of both". "Social conflict... mean[s] a struggle over values and claims to scarce Status, power and resources in which the aims of the opponents are to neutralize, injure or eliminate their rivals". Furthermore, conflict is everywhere, and seems only partly avoidable: we have it in primary groups (family, groups of friends, neighborhood), within and between cities, associations and countries; once institutionalized, however, conflict becomes an essential element of the social structure.

Industrial conflict, for instance, can be expressed in a number of ways, such as: systematic restriction of output, sabotage, excessive turnover, absenteeism or lateness, boycott, grievances, accident-proneness, waste, pilfering, unduly strict abidance by the letter of the agreement or deliberate dents into its provisions, and more aggressive and concerted forms like the strike. We exclude the lockout, which has ceased to be a tactically useful and socially acceptable mode of industrial warfare.

Social conflict, despite the harm which may accompany it in some instances, has many positive functions. It is an essential element of sociation, together with co-operation. It is responsible for most of the dynamism of a social structure. It helps a group or a society rid itself of violently disagreeable features which weaken it. It provides a safety-valve for the reduction of conflict of a more violent and persistent nature; by bringing oppositions into the open, it permits their quick solution under the eye of public opinion. It increases the cohesiveness and individuality of the contestant groups. It provokes associations and coalitions which are so many forms of sociation; in a perspective of synthesis, of global social relationship, opposition ( even violent ) between individuals, groups or societies may be signally positive in its consequences.

Now with regard to industrial conflict, the strike, for instance, does perform a useful function. It is, either as a fact or as a possibility, part and parcel of the collective bargaining process. "In the last fifteen minutes of big controversies, it is the right to strike, the possibility of a strike, that is the instrument with which the controversy is settled. It is always present at the conference table. Without it, you do not have collective bargaining". Moreover, the strike helps reduce social tensions by airing grievances, suggesting improvements and establishing a new "order" on more acceptable grounds.

And finally, the strike is a symbol of freedom and independence. The fact that it occurs or can happen is a clear indication of the vitality of a society and of the liberty therein.

CONCLUSION

The above notions may suggest a new outlook on social and industrial conflict which would eliminate fear, restore freedom in practice and provide us with a more rational labour legislation in the specific field of disputes settlement.