La convention collective et les professionnels salariés au Québec Collective Bargaining and the Professional Employee in Quebec

Résumé

L'auteur, dans le présent article, tente de faire le point sur un certain nombre d'aspects caractérisant la situation des employés professionnels en ce qui touche leur statut juridique dans le droit québécois du travail, et plus particulièrement en ce qui a trait à l'organisation syndicale et à la négociation collective.

Abstract

When we speak, in Quebec, of professional employees, we have to distinguish rather sharply between the various groups of persons to which this expression may apply. We have to distinguish between professionals, members of a liberal profession governed by a professional corporation (which we call a « closed corporation » ) and those who are not governed by such a corporation.

Up to the enactment of the new Labour Code, in September 1964, employees who were members of one of the fourteen « corporations », contemplated by the Labour Relations Act of 1944, were not considered to be « employees » under the terms of that Act. They were specifîcally excluded from the definition of « employee ».

Professional employees, members of « closed corporations », could generally organize under the Professional Syndicates' Act and try to negotiate collectively with an employer. However, the fact remains that, in practice, there was no collective bargaining going on up to the recent years for the professional workers, members of corporations, in Quebec.

Other classes of professionals, insofar as they were « employees », had the full right to join a union and were exactly on the same footing as any other group of « employees » as to the right to bargain collectively, affiliate to a central body, go on strike, etc. They were, in a word, and still are, covered, as any other group, by the labour laws of Quebec. It is safe to say, however, that none of these groups of « professionals » even tried, up to now, to form and join unions in order to bargain collectively.

Starting in the year 1960, a series of events took place which transformed this situation. « Employee » engineers were the first to overthrow the regulations of their « corporation » and to initiate a movement toward what we call in Quebec a « syndicalisme de cadres ». They fought to have professional employees, members of corporations, brought under the definition of « employee » in the Labour Code enacted in 1964, and they succeeded.

So, there is no longer any restriction in the definition of « employee » in the Code, concerning members of professional corporations. As long as they comply with the general criteria defined in the Code for the term « employee », they are on exactly the same footing as any other kind of « employees » and they may form unions, receive certification and bargain collectively under the general prescriptions of the law.

However, when the Code permits professionals to form unions and bargain collectively, this new liberty is available only to those who are pure « employees » according to the north-american definition of the term.

So, professional employees in Quebec, and more particularly the engineers, have in fact disregarded the provisions of the Labour Code, and they have fought to develop « syndicalisme de cadres » through incorporation under the Professional Syndicates' Act, direct action and voluntary recognition by the employer, being ready to go on strike eventually to gain recognition by the latter. That is what they did successfully at the Quebec-Hydro in August 1965. The purpose of such an action was to be able to bring into the ranks of the union, not only the mere « employees » covered by the Labour Code, but also all those engineers who may be held to be part of management, so long as they don't have the right to hire, fire or promote other engineers. That is truly the concept of « syndicalisme de cadres ».

We must remember also, that the new Civil Service Act of Quebec (Bill 55) enacted in August 1965 recognizes the right for the employees of the Civil service to organize into unions and to bargain collectively with the government. This new statute considers the government employees as covered generally by the Labour Code, while stipulating certain limitations of its own which, by and large, do not destroy the substance of the rights recognized in the Labour Code.

Members of professional corporations mentioned in the Labour Code, who are « employees » of the Government within the meaning of this Code, may be granted a certification, either for each group of them, or if a majority in the group wishes so, they may join in a more general association including other groups of professionals in order to bargain collectively for them all. They even may join with other groups of professionals, not members of a full corporation (e.g. economists, biologists, etc.) to form a multi-professional association negotiating with the provincial government.

But here again, the big problem appears to be that of delineating the frontier between those professional civil employees who are « employees » under the Code and those who are not. The same attitude as was adopted by the engineers at the Quebec-Hydro, as to « syndicalisme de cadres » is, I think, being adopted by their Civil service employee group and we may suspect that other classes of professionals in the civil service will act along the same pattern.