L'arbitrage de première convention collective au Québec: 1978-1984

Résumé

L'auteur examine l'expérience de relations du travail vécue par les parties après qu'une décision arbitrale eut impose une première convention collective.

Abstract

First contract arbitration was initiated in British Columbia in 1973. It is a form of interest arbitration designed to resolve a dispute in the case of the negotiation of a first agreement. The basic idea is to assist in the intervention of a third party (either a labour board or a single arbitrator) in a bargaining process characterized by a union recognition conflict. In essence, therefore, it is an exceptional device.

Quebec followed BC in adopting in 1977 first contract arbitration provisions. The objective of this paper is to present the labour relations experience of the parties after a first agreement has been imposed. But first let us briefly describe this device. The Law Adopted in December 1977, amendments to the Quebec Labour Code included first contract arbitration provisions which would come into force on February 1, 1978.

Any party to a first negotiation can ask the Minister of Labour in writing to refer the dispute to a tripartite arbitration board. Such a request must be made after conciliation has failed.

The first duty of the arbitration board is not to impose an agreement on the parties. A period of mediation must first be completed. It is only when the board concludes that negotiations have not been attempted in good faith, and within reasonable delays, that it may decide to determine the content of the first agreement.

The Board then informs the parties and the Minister. In determining the content of the agreement, the Board is bound by any provisions agreed upon by the parties. The Board hears the parties and has the power of a judge of the Superior Court. In deciding over working conditions, the Board may take into account such conditions in similar firms or circumstances. Once the decision is made to render an agreement, any strike or lock-out must cease. The length of such an agreement can be of not less than one year and not more than two years.

Two main modifications were made in 1983. First the dispute is no longer referred by the Minister of Labour to a tripartite arbitration board, but to a single arbitrator assisted by two assessors. Second, good faith is no longer the criterion for the arbitrator's decision to impose an agreement. Now he can make such a decision when he thinks it improbable that the parties will corne to an agreement in a reasonable delay.

MethodologyandResults

Between February 1, 1978 and December 31, 1984, 376 requests were made to the Minister of Labour. 205 of those requests were accepted (54.5%); 165 were refused (43.8%) and six were under consideration at the time those data were compiled (1.5%). 85.6% of these requests came from unions, 13.5% from employers and 1.3% from both. In only 19.1% of these cases was there a strike or lock-out.

The fact that 205 cases were referred to arbitration by the Minister of Labour does not mean that 205 agreements were rendered. Only 88 arbitration awards were actually rendered, because in 63 cases the parties signed an agreement before the arbitration board had completed its work. In 12 cases, the Board decided to intervene. Union certification was cancelled in 8 cases, and the union withdrew its request in 13 others. There were also 8 plant closings and, in one case, the arbitrator declared himself without jurisdiction. All 88 cases where an award was rendered were included in this study. A structured questionnaire was administered by telephone. The parties were reached in 72 of the 88 cases (81.8%). In 49 of these 72 cases, the rendered agreement had not get come up for renewal. 16 awards were still in force, bargaining was underway in 4 cases, union certifications were revoked or in the process of cancellation in 16 cases, and there were 10 plant shutdowns. These figures suggest that in 22 of the 88 cases, nothing followed the rendering of a first agreement.

The main results of this research are the following:

— Only one third of the arbitration boards also acted as mediators throughout the process.

— In the large majority of cases, the arbitration board did not enforce the entire collective agreement, but only certain provisions such as wages, hours of work and seniority, to mention the most important.

— In 23 cases, the agreement was renewed at least once. Let us note that 5 cases had experienced 2 renewals of their collective agreement and in 4 cases there had been three such renewals.

— On these 23 cases where at least one renewal of agreement was signed, 17 never used the conciliation, mediation or arbitration services of the Ministry of Labour.

— In total, there was 36 renewals of agreement. Only four strikes occurred and there were no lock-outs.

— Bargaining for renewal was relatively expeditive. In only 8 cases was 4 months or more necessary, and in 12 cases it took less than a month.

— Nearly half the firms have seen grievances brought to arbitration. For these, between one and five grievances were arbitrated.

— The major disagreement during renewal bargaining was over wages (26 out of 36 cases).

— A comparison of the contents of first agreements and freely bargained agreements suggests that arbitrators are more conservative on monetary provisions and as liberal on non-monetary issues. One exception must be noted: the length of the agreement is longer for freely bargained than for enforced contracts.

— The labour climate was assessed by respondents in 26 of the renewals. Management described it as from good to excellent in 24 cases, while unions shared this view in only 14 cases. Both agree, however that the climate has improved over time and that they have learned to speak to one another and to come to agreements.

Conclusion

Stable relations characterized the majority of the cases in Quebec where a first agreement was rendered. Data collected suggest putting more emphasis on mediation and increasing the maximum length of such an agreement to three years. But due to the basic philosophy of our labour relations System, first contract arbitration must remain an exceptional device.