Après avoir résumé les motifs allégués par le ministre du Travail du Québec au soutien du projet de loi 30 et des objectifs qu'il y visait, les auteurs analysent les changements institutionnels apportes par cette loi, précisent le rôle et le mandat de la Commission et étudient en détail son fonctionnement et ses pouvoirs.
In this article the authors first summarize the reasons put forward by the Quebec Minister of Labour to justify Bill 30 and what the amendments to the Labour Code are intended to accomplish. They then analyse the changes brought about by the new law in the decision-making bodies: they discuss those bodies which will be abolished and the transfer of jurisdiction to other tribunals including the new Labour Relations Board which will be created. The authors next evaluate the role and mandate of the new Board and they draw a distinction between those areas where the Board alone will have jurisdiction and those where its role will be concurrent with another body. There is particular emphasis on unfair labour practice complaints since the Board will have exclusive jurisdiction over a whole new range of such complaints. The major part of the article consists of a detailed study of the functions and powers of the new Board. Here the authors begin by reviewing how the Board becomes seized of a matter: who has standing to file applications and be heard, what are the time limits and what procedural requirements must be met. Once seized of the matter but prior to the hearing, the Board is called upon to perform two distinct functions: investigation and mediation. In this context, the authors attempt to answer these questions: Who will act on the Board's behalf to investigate the facts and what are the precise powers of the investigator and who will act on the Board's behalf to mediate between the parties and at what point is such mediation likely to occur?
The hearing itself is then considered as well as the particular problem of who can act as a decision maker. Also discussed is the legality of the provision of the new law whereby a hearing does not have to be held and can be dispensed with by the expedient of allowing each party the opportunity to make representations without the possibility of cross-examining the opposite party. The new law allows the Board to examine matters «according to the mode of proof it deems appropriate» and the precise meaning of this phrase is discussed. The Board's remedial powers come under close scrutiny in the article, especially the power to order injunctive-type relief in the form of cease and desist orders. It is pointed out that the Board may refuse to intervene in certain cases and that it may take cognizance of an undertaking to conform to the Code instead of rendering a decision. Since the Board must give written reasons for any decision which terminates a matter, consideration is given to how the expressions «reasons» and «terminates a matter» are likely to be interpreted. The Board has the power to revoke and review its own decision and the circumstances giving rise to such a procedure are examined.
Finally, the authors look at the manner in which the Board's decisions become enforceable. By way of conclusion, the authors list the additional areas in which the Board will have the power to intervene and consider the consequence of such increased intervention by the Board. They also indicate how they believe employers and unions will have to adjust and change some long-standing practices. The article ends with a warning of the problems that could arise if Bill 30 is not implemented and applied with good judgment and insight.
Veuillez télécharger l’article en PDF pour le lire.