Représentativité et représentation Representativity and Representation

Résumé

Cette étude a pour objet de découvrir ce que l’on entend par représentation et représentativité. Après avoir exploré la nature et les limites de la représentativité, L’auteur indique à quels critères il est possible de recourir pour donner crédit à ceux qui prétendent exercer une représentation. Dans une seconde partie, il est question de représentativité syndicale selon la législation de la province de Québec.*

(*) Communication présentée partiellement devant les membres de la Société Royale du Canada en 1966.

Abstract

REPRESENTATION AND REPRESENTATIVITY

This study aims at exploring the notion of representativity. Once its nature and its limitations are analysed, an attempt will be made to determine the criteria which could be used in practice for discovering the credit due to those who pretend being representative. A second section is concerned with union representativity according to the Quebec labour legislation.

REPRESENTATION AND REPRESENTATIVITY

The idea of representation is anterior to that of democracy and even participation. Any time there is a group more or less important where the affairs cannot be managed through the direct and immediate action of the members it is necessary to rely upon representation: an individual or few people should have the possibility of speaking or taking action on behalf of the group. The idea of representation involves two aspects: a) to take the place of somebody; b) to make this person or group present to another.

Representation is concerned with three inter-related elements: a) a plurality or a multitude; b) an individual (or an identified small group of persons) which takes the place of the multitude; c) a third party which is distinct from the represented multitude and the representative.

Representativity could be defined as follows: it is the conformity or the accord, between the opinions and the attitudes expressed by the representative and those held by those represented.

The notion of representativity is essentially limited to the relation « representative-representees », whereas the notion of representation refers to the relation « representees-representative-third party ». It is a new notion and implies between the representative and the representees a communication, a participation. Representation is taking a new dimension when founded on representativity.

Representation and representativity may be said in the case of an individual (or a small number of individuals) towards the members of an organized group, and also in the case of an organized group towards a social category. For example, the leaders of a labour union towards the members of this union; and a labour union central body towards all the working class.

Representativity may be considered under two aspects: juridical and sociological.

This juridical aspect is the easiest to establish. Juridical representativity exists when in an organized group some individuals have been formally authorized to represent the group. It is evident this kind of representativity cannot be found when an organized group claims to be representative of all those belonging to the same social category.

Sociological representativity is either static or dynamic.

Static representativity is the actual conformity between what the representees are explicitly thinking and wanting and what is expressed by the representatives on a specific question at a given moment. It is relatively quite easy to discover because quantitative criteria can generally be used. Actually there exists control instruments to check the conformity or the non-conformity between the positions of the representatives and those of the representees. And this is also true in the case of an organized group towards the whole social category. They are: the membership, the vote, opinion pools, etc.

The static representativity, however, does not offer a true and complete image of the reality. There is the problem of knowing if, in a group, general opinion equalizes the opinion of the majority. Because many types of opinions have been distinguished: internal and external; actual and hidden, momentaneous and lasting. Static representativity deals only with external, actual and momentaneous opinion.

Dynamic representativity is in no way less real than static representativity, but it is much harder to discover, because, here, one has to deal with a qualitative and not a quantitative evaluation. It refers not only to the actual conformity which has been described but it refers also to the future attitudes of the representees in function of historical forces influencing them and of general tendencies which might take place. Thus, a minority might at a time be representative.

In the case of dynamic representativity, factors related to the leaders, to the nature of the group and to the representees them selves have to be taken into account. This is very difficult to appreciate, because it requires value judgments and these are easily influenced by emotions, prejudices, doctrinal options. How to define a line of force, a trend? The course of events might change many things. There is no safe criteria to which to refer. Although being real and complementary to static representativity, dynamic representativity cannot be ever used as a basis for institutionalized representation.

UNION REPRESENTATIVITY IN QUÉBEC LEGISLATION

Some legislative measures deal directly or indirectly with representation and representativity for labour organizations.

The Superior Council of Labour is formed by representatives of employers and labour unions. But the law does not fix any criteria to which the Minister of Labour should refer to when appointing them.

In the Quebec Labour Code, there is question of representativity for the composition of the Labour Relations Board and for the certification of unions. There is no criteria fixed for the appointment of representatives at the Quebec Labour Relations Board.

It is different in the case of the certification of a union. The QLRB is bound to certificate unions along three criteria: a) the union should group the majority of the workers belonging to the bargaining unit (art. 24; 28); b) the union should not be dominated by the employer (art. 11); c) the members of the union should have freely joined the union without any intimidation or threats coming either from the employer or from the union) (art. 12).

The Quebec Labour Code aims at organizing a stable representation which will be the closest possible to the representativity of the bargaining unit. It is a legal, a juridical representation. Hence, this legal representation is not acquired once and for all. It can be revoked. The stability of representation sometimes has priority over representativity. This is the case when the members of a union cannot change their affiliation except during a period of time fixed by the law.

There is also another legislative measure which deals indirectly with union representativity: The Collective Agreement Act.

REPRESENTATIVITY AND COMMON SENSE

Anytime the government is obliged to take into account the « most representative associations » the law does not give a definition of what this means. As regards this matter, the question is best left to common sense and to jurisprudence.

Without being exhaustive it seems the following should be considered:

1—The organization which claims the representation of a whole social category should, at least, be representative of its own members.

2—An association is representative of its members when it is democratic in its structure and functionning. Members should have the possibility to elect the leaders, to participate in the decision-making process and to control the affairs of the association. Concretely, it should be presumed as representative when the formal structure is democratic and the members do not complain about its functionning.

3—In accounting for the representativity of an association with regards to a whole social category, if the membership is an important criteria, it should be weighed against other non-qualitative factors, such as the age of the group, its stability, its experience and the degree of its expansion as well as the seriousness, competency and prestige of the leaders.

4—Objective representativity has nothing to do with the consideration and acceptance of the leaders by the third-party. The weight of representation may be affected, but it is external to the relation representees-representatives.

5—The representativity of a group with regards to a whole social category cannot be juridically established.

6—Juridical representativity should aim at corresponding with sociological representativity.

7—Attempts to define with too many details the rules of representativity through legislation may at times be a screen hiding reality. Nevertheless, law must avoid any encouragement towards the arbitrary.