L'actuel régime juridique de représentation syndicale des salariés en vue de la négociation collective survivra-t-il à la transformation contemporaine des modes de production de l'entreprise? Quelle adaptation serait requise ? Répondre à ces questions conduit naturellement à confronter les traits essentiels de cette nouvelle entreprise et ceux de cet aménagement de la représentation collective. Dans le premier cas, la problématique tient en particulier aux changements dans l'environnement de l'entreprise, à l'organisation de son système de production : gestion participative, extériorisation de la production et multiplication des statuts du personnel; dans le second, elle porte notamment sur l'étendue de l'aire de représentation, sur l'objet et le caractère exclusif de la représentation, de même que sur le maintien du caractère conflictuel du régime des rapports collectifs du travail.
Under the increasing competitive pressures of an international economic environment, enterprises are changing rapidly. This article considere how our legal framework might evolve to take account of these changes in the way that it regulates union representation. Drawing on both provincial and federal legislation, the first section outlines the major features of the regime of collective representation in Quebec. The second looks at the transformations currently taking place in the firm. The final section returns to each of the major features of the regime of union representation to consider how the existing legislative framework might be adapted in the light of the transformations discussed in the preceding section.
Any discussion of the existing legislative regime should start from two essential prerequisites. First, union action is understood in terms of the very nature of subordination at work, seeking to mitigate the inequality inherent in the relationship between wage earner and employer. In contrast with the common law and notions of contractual equality, the current legislative framework for collective bargaining, and labour law more generally, reflects such an approach. Secondly, union representation depends on trade union freedom, not only in terms of a broader notion of freedom of association, but, more particularly, a freedom from employer interference within the firm. Once these two prerequisites are established, the current regime of collective representation, as portrayed in collective labour legislation, can be characterized by two basic features: a focus on collective work relations at the level of the firm, or some part thereof, and the notion that collective work relations are conflictual opposing subordinated workers and their employers.
As regards this first feature, a focus at the level of the firm, it might be further sub-divided into five basic points. First, apart from certain important exceptions, certification units and bargaining units are generally concentrated at the level of the firm. Secondly, once in place, the certified union is the exclusive agent bargaining on behalf of the workers that it represents and receives union dues from those workers, be they members or not. Thirdly, apart from a general but quite malleable prescription concerning conditions of work, the law has little to say about the actual content of the collective agreement. Once the agreement is made, however, it constitutes a distinct and independent legal regime at the level of the firm. Fourthly, the law clearly determines which groups of workers can be represented by a union and is fairly restrictive in its approach to questions such as the inclusion of supervisory personnel in units composed of other workers or the representation, for the purposes of collective bargaining, of independent or autonomous workers. Finally, collective representation is attached to the firm and not to the employer, thus facilitating continuity of representation in the case of a transfer of ownership.
As regards the conflictual nature of collective work relations in the firm, the existing legal regime institutionalizes the opposing interests of workers and their employers, particulary in terms of the potential recourse to the strike or lock-out. This opposition is carried further in the legal regulation of the collective agreement which limits what are, otherwise, unilateral management rights.
There are a variety of factors which are currently affecting both firms and the collective representation of workers within them. First, most firms are experiencing a complex set of environmental changes resulting from the internationalization of markets, increased levels of competition, transformations in industrial and demographic structures, and the emergence of new sets of regulatory arrangements. Secondly, the internal re-organization of production is increasingly transforming internal labour markets within firms, intensifying the relationship of some workers with their firms while others are distanced both contractually and physically. Thirdly, new, more participative, culturally based models of production, entalling a certain restructuring of social relations within the firm, are being advanced as a model for the future. Fourthly, a proliferation of sub-contracting arrangements is transforming the traditional boundaries of both the firm and the employment relationship. Finally, there is an increasing diversity of employment status within firms and, for some groups at least, an accentuation of their professional identity.
What then are the implications of all these changes for the traditional legal framework of union representation? The point of departure is that the existence of subordination in the employment relationship has not been altered; indeed, in some work situations, it has been exacerbated by both increasing internationalization and the re-organization of production activities. Protection of working conditions thus remains a legitimate concern which is not easily met by direct state prescription of minimum employment standards. Collective employee representation, particularly union representation in historical terms, retains all of its relevance but the existing legislative regime needs to be scrutinized in the light of continuing changes in the firm. First, it is suggested that there are contradictory pressures working towards both a further de-centralization of existing firm level bargaining arrangements and an enlargement of such arrangements towards both a larger company level (the linking of different certifications within the same company or group of companies) and also within the same sector. The law should provide scope for both kinds of enlargement but at lessor degrees of intensity than that which currently characterizes the relationship at certification unit level.
Secondly, in as much as there is a variable move towards broader based bargaining arrangements, notions of exclusivity at these broader levels would necessarily be relaxed in favour of more pluralistic forms of representation. On the other hand, exclusivity at local level, tempered by various legal protections of the individual, continues to provide the conditions for an important counter-balance to employer power within the firm.
Thirdly, there is increasing scope to afford the collective representatives of workers more systematic rights to obtain information about the evolution of the firms in which they are representative and to expand their right to maintain a physical presence within the firm. Given the increasingly important social role played by firms in the community, it is similarly necessary to envisage union action which goes beyond the traditional narrow definition of the "conditions of employment".
Fourthly, in terms of whom unions might represent, the access of managers to union membership, should they so choose, should be facilitated. Such a consideration should also apply to so-called "autonomous" workers who are economically dependent on a single contracting party, particularly in the context of various, potential at least, sectoral arrangements for collective representation.
Finally, it would be advisable to broaden the conception of the firm to take account of the increasingly complex corporate structures, especially in terms of the continuity of ownership. However, apart from the negotiation of new international treaties concerning collective representation across borders, our legislative regime currently provides few effective solutions to the increasing problems of cross-border representation engendered by the internationalization of production.
As regards the conflictual character of labour-management relations, it should be emphasized that current trends reflect a somewhat contradictory dynamic of cooperation and conflict, itself characteristic of the employment relationship. Indeed, the law might better take account of the participative or cooperative aspects of the employment relationship by reinforcing provisions for the sharing of basic information about the firm. Nor is it impossible to envisage the imposition of employee representation at decision-making levels of the firm. Such an approach does not, however, suggest that there is a lesser need for the basic protection of trade union freedoms and independence. Similar considerations also apply to the collective agreement which therefore requires a legal framework which permits the variable expression of both the cooperative and conflictual dimensions of the employment relationship.
The traditional boundaries of union representation are currently subject to considerable modification. It is important that the legal framework take account of these changes in order to ensure the continued existence of a genuine protective institution within the context of subordination which characterizes the employment relationship. In parallel to the more intense and exclusive forms of representation at local level, there is considerable scope for the expansion of a role for collective representation at both company and sectoral levels. There is yet, however, little indication of how the legal framework of collective representation can respond to the increasing challenges posed by the internationalization of production.
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