Replaçant la procédure d'injonction dans son contexte sociologique en se référant aux caractéristiques essentielles du droit du travail, l'auteur préconise le rapatriement d'une procédure d'injonction modifiée dans la législation du travail et analyse les nouveaux pouvoirs accordés au Conseil canadien des relations du travail (CCRT) en matière d'ordre de ne pas faire (cease and desist order).
In our days, the industrial relations field is yet unexplored. It would be quite an incomplete view to examine the injunction in its judicial context ; it is adequate to re-situate it in its sociological context. It is important to question the impact of the sociology of labour regarding the evolution of labour laws The free collective bargaining System imposes itself more and more on our occidental democracies as being the rule and the instrument able to assure industrial peace; it is important to rightly recognize its requirements. The face to face pattern, the « rapport de force », and the conflict are the basic elements of the regime. The protection and the promotion of Freedom of Association, which tends to encourage and privilege collective bargaining, is the cornerstone of this System.
Furthermore, labour laws are essentially established for the protection of the workers; this characteristic is largely recognized and implemented. But, there is also a certain particularism attached to labour laws to such an extent that they tend to dissociate from the civil law, and to set up in an independent judicial System. The main reason for this tendency towards autonomy lies in the incompatibility of nature between the two disciplines. For example, notions like the absolute authority of employer regarding dismissals, the civilist theory on risk, the dismissal notice period, the rupture or resiliation of lease of personal service contract, have totally contradictory connotations or applications, as long as you consider them in the civil code perspective, or in the scope of the collective bargaining System.
Considering the injunction procedure in the global context of the collective bargaining System, where the right to strike is sanctioned by the law as a « corollaire » of the right to collective bargaining, it is quite easy to realize that the injunction looks like an anachronism, a « cataplasme » artificially imposed and attacking the intergrity of the System. Instead of encouraging or promoting the collective bargaining System, the injunction has the very direct effect of undermining the System itself.
Showing the way, and suggesting some guidelines for the future, the author recommends that priority be given to the particularism of labour laws regarding civil law, common law, or criminal law. By doing so, one might contribute to the de-mystification, the de-dramatization or the de-criminalization of the strikes phenomenon.
It would be advisable to replace the injunction with an alternative formula. The last amendments recently applied, to the Canada Labour Code, (June, 1978), give new powers to the Canada Labour Relations Board in matters related to illegal strikes, and suggest a new approach. Therefore, at the request of an interested party, the Board, after an investigation, may issue a declaration of illegal strike or lock-out, or an order of « statu quo ante ». But these quasi-judicial decisions may be preceded by an investigation and by mediation efforts, in an attempt to settle the conflicts. The new powers grant considerable pressures and effective means of dissuasion to the C.L.R.B. A judgment of the Supreme Court of Canada, involving a construction union and the Nova Scotia Labour Board reflects this issue. The court established the distinction between the traditional injunction procedure and the new powers given the labour boards. In addition to this, the constitutional aspect concerning the competence of a labour board to issue cease and desist orders was equally decided.
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