L’extension des conventions collectives dans le droit du travail : France, Grande-Bretagne et Canada

Après avoir fait un rappel historique des circonstances qui ont entouré l'instauration des régimes de conventions collectives étendues dans les trois pays considérés, l'auteur procède à une étude comparative des législations en ce domaine. Il considère les dispositions relatives aux conventions susceptibles d'extension, à la procédure d'extension, aux effets de l'extension et à l'application des conventions étendues. Il accorde une attention particulière à certains aspects de la législation québécoise en cette matière.INTRODUCTIONThe extension of a collective agreement is a process by which the field of application of an agreement can be extended to all employers and all workers in the professional and territorial field of application of the agreement, even if they are not parties to that agreement.Regarding the kind of organizations having the right to extend such agreements we might identify two categories of countries : those where the extension is granted by the political executive (v.g. France and quebec) and those extending agreements by way of appeal to arbitration boards or judicial tribunals (v.g. Great Britain and other countries members of the Commonwealth).However the categories are different if we compare the result of the extension with the original agreements. In France and Great Britain the extended agreements seem to have a real continuity with the private collective agreements in force in those countries. However in the Province of quebec both regimes are developing in a parallel direction and one does not necessarily see continuity between the two types of agreements. This is what we will look into.SOME HISTORYThe economic crisis of the thirties brought the three countries considered in this paper to the passing of laws favorising the extension of collective agreements :quebec and Great Britain — 1934Other Canadian Provinces — 1935-1939France — 1936Since then all laws have been either amended, or replaced by other. We now find in Great Britain the « Terms and Conditions of Employment Act » of 1959, in France « La loi du 11 février 1950 (Code du travail, Livre I, art. 31 à 31zc) » and in Quebec the « Collective Agreement Decrees Act » (R.S.Q., 1964, chap. 143). The similarity existing between the different Canadian laws of extension other than Quebec to study, as example, only one case, Ontario in her « Industrial Standards Act » (R.S.P., 1960, Chap. 186 as amended by 1964, chap. 46).THE AGREEMENTS SUBJECTED TO EXTENSIONThe considerable importance taken by an extended agreement explains why all laws studied hereby include provisions establishing precise conditions thus reserving the right of extension to a few number of agreements only.a) In France the agreement must have been concluded by the most representative labor organizations in the country. The criteria establishing the representative character of those organizations are defined by the law.1.—These arguments must in principle have been concluded within a joint commission formed by the minister ;2.—They must be in a definite sector of the economic activity and cover all professional categories ;3.—They must be national, regional or local; « les accords d'établissement » and wage agreements are not subjected to extension ;4.—They must include a few compulsory provisions.b) The British law is not as precise as the French one on this point.1.—The parties to the agreement must be representative of the employers and of the workers included in the industry or the trade covered by the agreement. The law however does not define what is to be held as representative ;2.—An agreement may cover a whole industry or only part of it ;3.—It can be national or district wide ;4.—Finally there are no compulsory provisions.c) In the Province of Quebec, at least in theory, all agreements can be extended provided for the minister believes « the provisions of the agreement have a preponderant significance and importance for the establishing of condition of labour, without serious inconvenience resulting from the competition of outside countries or the other provinces » (sec. 6).According to the law the minister is free to determine the criteria of measure of the preponderant significance and importance.Also according to the law, the parties are free to determine the professionnal and territorial field application. There are no compulsory provisions and only a few provisions are susceptible of extension.d) We find in Ontario a quite different system : even if the process resembles what exists elsewhere, one might hesitate to call it extension of collective agreements.I think it would rather be a way of establishing working conditions by means of reglementation to which parties are invited to participate. In fact, the minister invites the parties himself and determine the field of application of the schedule. In addition to all this the number of provisions is very limited and is established by the law.However the terms of the agreement must be accepted « by a proper and sufficient representation of employers and employees » (sec. 8 (2)).THE EXTENSION PROCESSThe extension is never automatic. Different kind of mecanisms have been installed in order to protect the parties that will be covered by the extended agreement.a) In France the minister may begin the extension process though the parties usually do it. A notice is published in an official paper and any observation must be made within two weeks. The minister must consult the Superior Commission of Collective Agreements but he is free to do what he wants after that consultation. The minister has the power to decide the granting or the refusal of the extension but he cannot alter the content of the agreement.b) The British conception of the collective agreement is quite different. For the process to begin, an employer must have omitted or refused to apply the recognized terms and conditions. The labor will then lodge a complaint to the minister who will delegate the Industrial Relations Department to try to reach a settlement. If the latter does not succeed, the Industrial Court will hear the case and will make an award by which the employer will be forced to apply the recognized terms and conditions to the workers of the same trade as the complainant.c) In quebec any party to the agreement may apply for the extension of a collective agreement. The document is then published in the Official Gazette, in a newspaper published in the French language and in a newspaper published in English language. Any objection must then be made within thirty days. The final decision belongs to the minister who may, if he wants, modify the content of the agreement. However modifications are rarely made but when it happens the parties are consulted.d) In Ontario, when the agreement is presented to the minister by the parties, the former may ask for an inquiry to know whether he must modify the agreement or not.EFFECTS OF THE EXTENSIONEverywhere the extended agreements come into force after their publication in an official paper. Usually they expire in the same time as the original agreement. However in France and in quebec the minister has the power to repeal the extension in any circumstances. In quebec the minister may extend the decree while negotiations are underway before a new contract is signed.THE APPLICATION OF AN EXTENDED COLLECTIVE AGREEMENTBesides Great Britain where disobediance to the conditions prevailing in the sentence may bring a worker to engage in civil suit; the application of extended collective agreements is usually controlled by administrative organizations with special power granted by the legislator.In France a system of inspection provides any qualified inspector with the sufficient power to apply the law. Penal sanctions are predicted.While Ontario controls the system by means of a service of inspection (Department of Labour) the quebec law gives that responsibility to the parties by allowing the establishment of parity committees with strong powers in matters such as inspection and appeal to tribunals and sometimes in the administration of private social security fund, professional training and the control of the degree of qualification of the workers. By this last right, the committee has the possibility, at least in theory, to control the number of workers to be admitted in some categories of occupations on the labor market. It also brings up difficulties in the recognition of competence cards produced by other committees.CONCLUSIONEven if a certain continuity seems to exist between the ordinary collective agreement system and the extended collective agreement regime in Great Britain and France, it is quite different in quebec where private agreements are usually negotiated by certified unions for relatively small units (firm, manufacture or department) while the negotiations of agreements extended in decrees necessitates the formation of employer and union associations. This situation forces the parties to the decree to use a different way of concluding an agreement in such a matter that both systems co-exist in a parallel way.Is it necessary to reduce this gap