Les syndicats, comme d’autres acteurs de la société civile, ont recours à plusieurs moyens d’action pour convaincre les entreprises multinationales de se doter d’un code de conduite, d’en respecter les termes ou de les amender. Des règles de droit encadrent ces moyens d’action, qu’il s’agisse de propositions d’actionnaires ou de campagnes de boycott et de piquetage. Dans le présent article, nous présentons sommairement ces règles et tentons de voir les opportunités qu’elles créent et les limites qu’elles imposent aux acteurs, en particulier aux syndicats. Envisagées sous cet angle, il ressort que les règles du droit corporatif, du droit constitutionnel de la liberté d’expression et du droit civil constituent des ressources juridiques venant nourrir les nouveaux moyens d’action internationale des syndicats, ce qui, inévitablement, conduit à s’interroger sur le rôle du droit du travail dans la protection ou la promotion des nouveaux modes d’exercice de la liberté syndicale.
Codes of conduct for multinational companies (MNCs) can be defined as a set of principles which a company voluntarily agrees to adhere to within the context of its activities. These principles may relate to aspects that are as diverse as trade practices, corporate conduct and ethics, environmental standards, working conditions and human rights, and apply to MNCs’ subsidiaries and their subcontractors. Many Canadian companies have adopted such codes.
These codes of conduct cannot be considered as spaces for the protection of the freedom of association since, according to an ILO study, only 15 percent of the codes contain references to association, organization and collective bargaining rights. However, they can be considered as spaces for the exercise of the freedom of association. Studies by a group of researchers of which we are members show that, in fact, codes of conduct involve collective relations. These collective relations do not correspond to the institutionalized labour relations of collective bargaining but rather bring several actors together, involve several issues, and combine several means of action. The latter are not limited to collective bargaining and strikes, but involve the presentation of shareholders’ proposals, the organization of boycott and picketing campaigns, or the adoption of legal strategies that raise doubts about the MNC’s respect for its commitments abroad. These means of action make it possible to intervene in areas where the MNC is vulnerable, i.e., its corporate image or the image of its product as well as its finances.
State law is not absent from these social dynamics. Rules of law govern shareholders’ proposals or the information that the company is required or not required to divulge, the secondary boycott and picketing campaigns, and the MNC’s responsibility. This paper briefly sets out these rules and attempts to identify the opportunities that they create and the limits that they impose on actors, in particular trade unions, who wish to act on the MNC’s new sources of vulnerability.
The rules of corporate law will be examined first. The amendments made in 2001 to the Canada Business Corporations Act regarding the rules governing the shareholders’ proposals, the proposals of the Canadian Democracy and Corporate Accountability Commission as well as the creation in Europe of the Statute for a European Company reveal the striking differences between the courses of action favoured in Europe and those proposed in Canada to integrate social concerns into corporate law. While the European model favours one actor—workers—whom it recognizes, regulating their representation and participation within the company, the aim of the Canadian proposals is to ensure that the interests of all stakeholders in the company—and not only those of workers—are taken into account by company managers.
The evolving law related to freedom of expression also has an impact on the means of international trade union action. Codes of conduct are often a response to the campaigns led by trade unions and other civil society groups against the behaviour or the effects of the activities of a given company on the living conditions of populations or workers, or on the environment. These campaigns are based on strategies centred on the information about the company or its products and may take the form of a boycott or picketing, traditional union measures, if there ever were. What makes these means novel is that they are used independently of collective bargaining or recourse to a strike. Two recent decisions of the Supreme Court of Canada have cleared up any uncertainties about the legality of the trade unions’ means of international action. These decisions must be interpreted alongside other decisions where the Supreme Court of Canada has had to interpret the freedom of expression of consumers or the limits to the freedom of expression established by the legal principles for defamation. This is the legal effect of the fact that trade unions are treated as any other civil society actor.
Lastly, common law suggests that codes of conduct, which are assimilated into companies’ internal regulations, could have legal effects. Codes of conduct can be considered as internal regulations that correspond to the multinational scale of companies. The analysis of their legal effects must take into account the fact that these codes contain extraneous factors, which raises the question of the relevance of the rules of private international law under the Civil Code of Quebec to ensure their application. These developments suggest that codes of conduct do not exist in a “legal vacuum” and that an in-depth examination could lead to the development of a legal strategy with as much impact as those which were in force in the United States and allowed foreign workers to sue American companies over actions committed abroad, even though practical and legal reasons make the widespread recourse to such a strategy difficult.
Viewed from this perspective, the rules of corporate law, constitutional law of freedom of expression and civil law appear to represent legal resources which provide new means of international trade union action. This inevitably raises the issue of the role of labour law in the protection or promotion of new modes of exercising the freedom of association. However, it must be said that the law of collective labour relations does not constitute a solid basis for developing these means of international trade union action. As strikes occur in the framework of the law of collective labour relations, it is very difficult to stage an international solidarity strike. The same is true of a collective agreement which is the result of an international collective agreement. Therefore, it can even be considered with a degree of cynicism that the call to boycott and picketing can be more easily envisaged as means of international trade union action, especially because these measures are not subject to legislative measures in the laws governing the collective relations of most Canadian jurisdictions and thus, their use has not been strictly confined to conflicts over collective bargaining. To complete the critical assessment, the uncertainty about the admissibility of an application for judgment of a trade union which wishes to defend the collective interest of a broader group of workers should be mentioned. It is quite disconcerting to note that, currently, the legal rules which constitute resources for international trade union action are largely found outside labour law.
Apart from these issues related to the respective role of the different branches of law, the impact of state law on the development of new means of international trade union action should be recognized. The rules of law do not determine the behaviour of actors but they are resources which can nourish these social dynamics. The role that the state is required to play in the context of globalization, and the measures that it can promote in national law in order to foster the development of these new means of action should be noted.
Los sindicatos, como otros sectores de la sociedad civil, recurren a diferentes medios de acción para convencer las empresas multinacionales de dotarse de un código de conducta, respetar los términos establecidos o modificarlos. Las reglas de derecho encuadran esos medios de acción, que se trate de las proposiciones de los accionistas o de campañas de boicot y de piquetes. En este artículo, presentamos brevemente estas reglas e intentamos ver las oportunidades que estas crean y los limites que imponen a los actores, en particular a los sindicatos. Visto de esta perspectiva, resalta que las reglas del derecho corporativo, del derecho constitucional de la libertad de expresión y del derecho civil constituyen los recursos jurídicos que alimentan los nuevos medios de acción internacional de los sindicatos, lo que inevitablemente conduce a interrogarse sobre el rol del derecho laboral respecto a la protección o promoción de nuevos modos de ejercicio de la libertad sindical.