L'ancienneté du salarié est une notion présente dans plusieurs systèmes de relations du travail. Cette commune importance de l'ancienneté conduit à étudier sa nature juridique en débordant les cadres d'un système particulier. Après avoir examiné les thèses dominantes quant à la nature juridique de l'ancienneté du salarié en France et au Québec et avoir décrit les diverses manifestations de l'ancienneté dans ces deux systèmes, l'auteur conclut que l'ancienneté du salarié est une notion individualiste fondée sur l'appartenance à l'entreprise ou sur l'existence d'un lien contractuel avec l'employeur.
Seniority is not a new criterion, nor is it limited to contemporary labour law. However, modern-day labour law, along with collective bargaining, have helped to embed the concept of seniority in the organization of work in the private sector. The idea that the benefits obtained by a employee should increase with his or her length of service seems to be commonly accepted in different legal contexts. This common emphasis on seniority suggests that it might be interesting to consider the issue of its legal nature by looking beyond a single legal system. Are we always talking about the same thing when we base employees' rights on seniority, length of service or length of uninterrupted service? Is the concept of seniority understood similarly from one system to another? Are its foundations and effects the same? Our intention here is not to discuss the role of seniority in regulating the labour market or the appropriateness of using this criterion in managing workers, but rather to determine whether there are similarities from one legal system to another in the concept of seniority.
The comparative method is used to explore this question. Without wishing to return to the "universalist approach" typical of comparative research in the early part of this century, we believe that certain "principles" can be found in the labour laws of different countries which might appear at first glance to have little in common. Our point of view here is that seniority, i.e. the recognition of continuous service, is one of these principles. Since we have chosen to study seniority as a point of convergence between different legal Systems, we will compare the Quebec and French labour law Systems which are highly dissimilar. While both Systems are based on the same written private law, over the years labour law in the two jurisdictions has evolved into two vastly different models, which correspond closely to the main contemporary labour relations models.
The first part of the paper reviews the literature on seniority in the Systems studied. In some cases the literature concerns the roles played by seniority, which may be compared with the effects of passage of time in various branches of law and in traditional societies; in other cases it bears on the evolution of the concept of seniority, as related to the principal institutions in the two Systems. North American literature defines seniority in terms of its role, either as a point beyond which the worker acquires certain rights and benefits (benefit seniority, length of service), or as a criterion creating a hierarchy among workers (competitive status seniority).
In France, the former of these two roles is by far the more important, both in law and in collective agreements. The two Systems have also taken different approaches to calculating seniority, which raises questions as to its foundations. In North America, the legal foundations of seniority have been discussed in jurisprudence and in doctrine with reference to collective agreements, today the main pillar of the seniority concept. There are two opposing theories in this regard: the inherency theory, whereby rights relating to seniority exist outside the collective agreement, and the contractual basis theory, whereby seniority is a creation of the collective agreement. The latter approach has been applied by the courts in both Canada and the United States. In France, the dominant theory considers that seniority is based on the performance over time of the obligations under the individual contract of employment. Thus there is "effective" job seniority, which measures the performance over time of work, and seniority arising from the contractual bond, based on the length of the employment relationship. A minority approach, inspired by German labour relations doctrine, defines seniority as the length of time the employee has been with the enterprise, considered the central institution in the employment relationship.
These dominant theories do not clearly establish the legal nature of seniority in labour law, at least when all its different manifestations are considered. This is the subject of the second part of this paper.
Recognition of the employee's seniority is not limited to unionized institutions, and predates the institutionalization of collective bargaining. Employee seniority has long been a subjective criterion used by the courts in France and Quebec. In civil law, it is an aspect of theories that consider the employer's right to unilaterally terminate a work contract a relative right, subject to some control by the courts: the theory of reasonable notice, in Canada, and the theory of abuse of rights, in France. Another example of this use of seniority is the way in which the employee's seniority is seen as a criterion for attenuating discipline, in Canada, and as a mitigating factor in cases of serious fault and minor disciplinary infractions, in France. In Quebec, there have been debates in arbitral jurisprudence, before the regular courts and in doctrine, with regard to the use of seniority as a criterion for determining whether the economic grounds cited in support of terminating the employment relationship are the true cause of an employee being laid off, or whether it is simply a disguised dismissal. Seniority is then considered a determining factor in the criteria used by the employer in selecting which workers' positions are to be eliminated. Judges who use seniority in this way do not define the concept in detall, but refer to the usual criterion, the length of the employment relationship between the worker and employer, without taking into account any interruptions in the performance of work. Seniority then becomes a social value integrated into legal interpretation.
The labour legislation of both the legal Systems in question also makes seniority a condition for the acquisition of rights. In addition, in Quebec, it is interpreted by grievance arbitrators when the collective agreement bases entitlement to benefits on a vague definition of seniority. In these cases, seniority is a means of measuring the performance over time of the obligations of the employment relationship between an employer and employee. The individual contractual basis approach appears dominant, in both individual and collective work relationships, where the practices of different jurisdictions in the labour field point to the existence of a form of "common seniority law" founded on the performance over time of the obligations of the individual work relationship and the length of the relationship with the employerrather than the length of time an employee has belonged to a bargaining unit. In some cases, the use of the concept of the enterprise means that the employee's seniority is maintained even if the enterprise changes hands.
In both France and Quebec, seniority is connected to the individual characteristics of the employment relationship. The dual nature of work relations, attached in part to the contract of employment and in part to the enterprise/institution, appears to determine the legal nature of seniority in labour law. Recognition of seniority based on the length of the individual employment relationship does not take away the recognition of rights attached to seniority. Consequently, this notion of seniority is quite different from the inherency theory. The point is not to make the employee's seniority an inalienable individual right but rather to show that the calculation of seniority is related to the individual employment relationship and the implicit obligations of this relationship. Although this may be an individualistic view of seniority, it does not stem from a unilateral perspective, such as that of the inherency theory, nor from a perspective making it a right that could not be handled differently in the collective agreement. In the debate on the legal nature of seniority, there is room for an approach that recognizes both the fundamentally individualistic dimension of seniority and the role it plays in the organization of the community of employees through the collective agreement.
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