La Loi 9 et les relations de travail dans l’industrie de la construction au Québec

En 1973 le gouvernement du Québec, par la loi 9, modifiait substantiellement la Loi sur les relations du travail dans l'industrie de la construction. L'auteur souligne ces changements et en expose les conséquences.Bill 9 has brought substantial amendments to the Construction Industry Labour Relations Act (Bill 290). It was adopted by the Québec Legislature and sanctioned June 1st, 1973.MAIN PROVISIONS OF BILL 9Four provisions will be considered here : the bargaining unit, the designation of the bargaining agents, the decree and the Construction Industry Commission.One Joint Industry-wide BargainingUnder the Collective Agreement Decrees Act, the contracting parties in construction, from 1934 to 1968, bargained on the basis of their choice, and voluntarily requested ofterwards the juridical extension of their collective agreement. Thus, for more than thirty years, an industry-wide bargaining situation had been experienced, with few exceptions, in fifteen regions that covered altogether almost the whole province.Bill 290 made it mandatory, since 1969, to negotiate jointly for the industry as a whole, without any exception for any trade : there was to be one collective agreement determining all working conditions for all the trades. Although favouring bargaining on a provincial basis, the Act left it to the parties involved to bargain regionally or provincially. In the first round of negotiations under the new Act, bargaining quickly moved from the regional level to a provincial table. Bill 9 has sanctioned this situation by ruling out the possibility anymore of any bargaining for the construction industry on a regional basis.Designation of the Bargaining AgentsThe choice and designation of the bargaining agents and the employers' representatives have been changed substantially by Bill 9. To put the problem intoperspective, and acknowledging an oversimplification, it may be said that the various employee representation schemes fall into two models : the North-American model based on a monopoly of representation, and the European model based on simultaneous multi-union representation (union pluralism).The Collective Agreement Decrees Act foresaw no official recognition of the unions involved. It must be remembered that the juridical extension system was introduced in 1934, ten years prior to the Labour Relations Act and the union certification framework. The thrust of the Decrees Act was toward the collective agreement, not the bargaining parties. Either side or both of them could petition the Minister of Labour for their collective agreement to be juridically extended. The required conditions pertained to the preponderant significance and importance of the agreement itself. If the juridical extension was granted, the bargaining parties were thus implicitly recognized.Bill 290 brought a basic change by removing the initiative of the extension from the parties : it implied there would always be a decree. A formula became necessary to identify the bargaining agents for each side. The Act itself designated by name the employee and employer representatives, stating « [these] associations shall be deemed representative throughout the province of Quebec » (s. 5). This concept of representative associations is typically European and commonly found in French labour legislation.The designated employee associations were not the local syndicates or the locals of the various building trades international unions ; they were the central provincial bodies, namely the Confederation des syndicats nationaux (C.S.N.) and the Federation des travailleurs du Québec (F.T.Q. ), with respect to their own affiliated bodies. On the employer side, the Act designated five province-wide associations or federation of associations. AU the designated associations were on an equal footing. Each one of them enjoyed a veto power as to the signing of the agreement, except for the unlikely case where one such designated association would come to represent only5% or less of the employers or employees in its own class ; such an association would then have only the right to be present at the bargaining table,This veto power was responsible for the fact that there was no signed agreement by the contracting parties in 1970 ; the government had to prepare and adapt the decree by itself, following long and difficult strikes, terminated by Bill 38 and special government powers. The dramatic rivalries between the C.S.N. and the F.T.Q. — but also the less publicized but quite deep oppositions between some of the employers' associations — threatened a similar situation to materialize in the 1973 round of bargaining.Bill 9 has developed a new scheme to identify the bargaining agents. The Bill maintains the concept of representative association, but defines it differently ; instead of being designated in the Act, an association will be recognized as representative by the chief investigation commissioner, if it has jurisdiction throughout the province and in respect of all the trades and occupations. On this last point, two exceptions are mentioned : the two Corporations of Master Electricians and Master Plumbers will continue to be considered representative although limited to one trade.After having ascertained whether the applicant is an association within the meaning of the Act, the chief investigation commissioner must evaluate its degree of representativeness. This degree depends on three percentages and is equal to the arithmetic average of these percentages : 1° the percentage of its membership with respect to all the employees or all the employers in the industry, 2° the percentage of the wages earned or paid by the members of the association in comparison to the total construction wage bill for a specified period (according to the Act, the levies are to be measured, but since the levies are directly proportional t6 the wages, the result is the same), 3° the percentage of the number of hours worked in relation to the total hours worked in the industry. Total number of employees and employers, hours of work and wages are those of the first nine months of the calendar year preceding the expiry date of the decree, while membership will be counted as the number of employees or employers who informed the chief investigation commissioner of their member status during the seventh month preceding the expiry date of the decree.Using these three percentages instead of the membership only should give a better-balanced picture of the representativeness of the associations involved ; their economic importance is thus recognized and considered. Because certain associations have many workers who do little work in the industry or employers who run very small business, while others have fewer members but doing a lot of the work, the legislator considered appropriate to balance the membership aspect by some measure of either the attachment of the workers to the industry or the economic significance of the employers.With this measure of the three percentages, a new type of majority rule has been introduced. To force the order party to begin and continue negotiations, one or more associations must be representative to a degree of more than 50%. Any representative association may notify any other association that it is prepared to negotiate a collective agreement, but the obligation to bargain exists only between associations (one or more on each side) that are representative to a degree of more than 50%. The other associations must nevertheless be notified. In the same manner, to be considered a collective agreement under the Act and eventually become a decree, an agreement must be signed by one or more associations which are representative on each side to a degree of more than 50%.Without imposing a union monopoly, as in the case of certification under theLabour Code, the new Act gives a definite preponderance to any association or associations representing the majority of employees or employers. It thus establishes a new type of majority rule, in a context of union multiplicity or union pluralism. The bringing together of two different models of labour relations will not be without difficulties.The DecreeBesides the already mentioned requirement of a 50% or more representation degree on both sides, Bill 9 has made another important modification in connectionwith the decree it self. A certain number of clauses in the agreement, such as job classification, hours of work and monetary items in general will become mandatory from the moment of their first publication in theQuébec Official Gazette as a notice of agreement ; still there will be the usual period during which objections will be received by the Minister of Labour before the final publication of the decree. The immediate application of the monetary clauses serves a valuable goal, namely granting the employees the new advantages as soon as possible ; but it implies an engagement on the part of the government that any agreement on these clauses will be accepted and juridically extended automatically, once they have been bargained and signed by the majority representing associations. A serious situation could develop if government considered that the parties have gone into a sweetheart agreement at the expense of the public.A transitional provision gave the Minister of Labour the right to consider a collective agreement under the Act an agreement signed before the adoption of the Act if it met the prescribed requirements. Actually, the legislator had in mind precisely to recognize such an agreement which had intervened between the F.T.Q. international unions and four employers' associations at the end of April, agreement which was unlawful under the terms of Bill 290 as it stood before, because it was not signed by all the representative associations.The Construction Industry CommissionBill 9 has introduced two important modifications in relation to the Construction Industry Commission (C.I.C.). One regards the designation of its members, the other the vote-taking system.The C.I.C. remains composed of fourteen members, six representing the employers, six the employees, plus a president and a representative of the Minister of Labour. Bill 290 stated specifically that the C.S.N. and the F.T.Q. would have three representatives each, and that every one of the five employers' associations would have one representative, plus a sixth to be named by the other five.Under the new provisions, each representative association has the right to designate one member. On the employers' side, the count will be complete immediately, for the Montréal Construction Association has become a representative association and the number of employers' representative associations has thus been brought to six. On the union side, with the presence of the Centrale des syndicats démocratiques (C.S.D.), the first round of designation will end up with three employee members. In the second round, associations representative to a degree of 15% or more will each designate another member. If necessary, there will be a third round, in which only associations representative to a degree of 30% or more will have a right to designate a member. In the end, considering the present situation, the F.T.Q. will have three members, the C.S.N. two members and the C.S.D. one member.Vote-taking within the CI.C. will require a majority on each side of the table. Each association will have a weighted vote corresponding to the degree to which it is representative.This new concept of the degree of representativeness is central to all the main amendments of Bill 9. It implies a radical change from the previous situation and it will have very serious implications.SOME IMPLICATIONSThese implications will bear on the representation aspect, the collective bargaining, the C.I.C. and construction labour relations in general.Impact on RepresentationTo ensure an immediate application of the Act, the Minister was empowered to verify by himself the current degree of representativeness of the previous representative associations and of those who had asked before May 9, 1973, to be recognized as such. Table 1 in the article gives the results of this verification.The practical consequences of the new system will be much more dramatic on the union side than on the employer side. Through the new majority rule, the F.T.Q. will enjoy, in practice, all the powers associated with a union monopoly situation : the right to give the notice to bargain and to oblige the employers' associations to start negotiations, the right to conclude the agreement whatever the position of the two other union bodies, and the determining union vote in all the decisions within the C.I.C. The only limitation it will face regards any attempt it could make to include a discriminating clause against a minority union in the collective agreement : in such a case, the Minister has the right to modify the agreement on that point without the consent of the majority representing associations.The minority unions have very limited rights, such as the right to be informed of any notice to commence collective bargaining, the right to give such a notice but without the power to force the other parties to act accordingly, the right to be present at the bargaining sessions and very likely to present their viewpoints, even their own demands, but not more, the right to appeal to the C.I.C. chairman from any decision respecting the interpretation or application of the decree.But the major impact might be on job sites, where the employees themselves seeing the relative powerlessness of the minority groups may decide to join the majority unions. The end-result may be a union monopoly in fact, despite the recognition of union pluralism within the law.On the employers' side, since no one group has a degree of representativeness of even 30%, there will need be alliances if the system is to work at all.Impact on BargainingThe veto power any representative association had under the previous system was the most important drawback in promoting true collective bargaining. From that viewpoint, the new majority rule may be a great help. The collective agreementthat has been bargained and signed in April 1973, before the adoption of Bill 9, by majority representing associations may be another sign of the practicality of the new system. On the other hand, the parties had then special incentives to agree, the main one being that their very bargaining at that time had no support of the law. Besides, the F.T.Q. unions could hope that an early settlement, later approved by the law, would bring unto them members from other associations ; and the Montréal Construction Association could hope to be recognized as representative, which it was not before.The long run effect will depend on the attitude of the majority groups. If they decide to stick to their positions, they can do so without any fear to be undercut by the minority groups : the impasse will remain, and the government will again be forced to intervene, and probably to decide by it self, for it is hard to believe that the whole system could be left to fall apart. On the other hand, if the majority groups would agree to act collusively, the employers could pass to the consumer any extravagant conditions, and the government would likely be obliged to extend the agreement any way. The rigidity of the system, coupled with the large scope of an industry-wide agreement, gives the majority groups a tremendous power.But the unity and cohesion of the industry is still endangered. Some highly specialized trades, as the elevator mechanics and their contractors, have never really accepted the one-and-only-one rule for collective bargaining and the collective agreement. The section of Bill 9 excluding the flat glass industry from the application of the Act may suggest to other trades a possible way out of a system which they feel unfavourable to them.Impact on the C.I.C.Within the C.I.C, the majority groups are likely to cooperate for the application of the decree, for it is in their interest that the agreement they have signed be respected. If they do not agree, the new Act foresees that the chairman of the C.I.C. shall decide. Moreover, any representative association may appeal to the chairman from a decision respecting the interpretation or application of the decree. If one single association decides to use this power systematically, then the chairman will have to take finally all the decisions. In this case, the Commission itself would become a mere façade, and it might well be replaced by a board under direct government supervision. Another possibility would be, of course, a strict monopoly union situation, where the right of appeal of minority groups would be revoked.Employment Security and the Hiring HallBill 9 has maintained section 62 of the Act, which already stated that « the Lieutenant-governor in councillshall make regulations respecting the employment offices of the associations of employees. » It also prohibited any agreement « by which all or a percentage of the labour force must be hired through the employment office of an association of employees ». But this may remain a wishful dream, as it has been until now. Besides, regulating hiring halls will prove a very difficult job for any government under any condition.The various employment security schemes that have been put forward and successively abandoned since 1969 have led to the current obligation of a work permit for the qualified trades only. This work permit, in conjunction with the powers granted to the majority groups at the bargaining table and at the C.I.C., might become an extremely powerful instrument for controlling the labour market and eventually the working conditions. AU will depend on how it is used.CONCLUSIONThe majority rule introduced with the degree of representation might usher in a period of improved collective bargaining and a better functioning of the whole system, together with greater autonomy for the parties. But this is not really ensured. For there are two sets of opposite dangers. The system might function so well for the majority groups that it will be to the detriment of the public, the other groups and maybe the workers themselves ; and the government would have to intervene to protect those affected. Or it might not function at all, and again the government would be called in, with more intervention and more and more regulation.The middle way remains possible, if the majority groups accept the rules of the game and give them a fair try