La négociation collective dans le secteur public québécois : une évaluation des trois premières rondes (1964-1972) Collective Bargaining in the Quebec Public Sector : A Diagnosis of the First Three Rounds (1964-1972)

Résumé

Dans cette étude l'auteur décrit, analyse et critique les trois rondes de négociation que le Québec a connues dans le secteur public. Il en tire certaines conclusions générales.

Abstract

The Quebec public sector industrial relations system could be easily depicted as a duplication of the private sector industrial relations system. The reason for this great similarity is the fact that the 1964-1965 revisions of the labour legislation made only slight distinctions between the two sectors. However, when we examine closely the various rounds of negotiations which occurred between 1964 and 1972, we discover substantial differences which can be attributed mostly to the particular nature of the government as an employer.

The purpose of this article is to analyse the Quebec public sector experience with collective bargaining (municipalities and universities are excluded from the scope of this study) from the period preceding immediately the adoption of the newLabour Code in September 1964 until the very last negotiations which ended on October 15, 1972 for most of the 250,000 public employees.

THE LEGAL FRAMEWORK BEFORE AND AFTER THE ADOPTION OF THE 1964 LABOUR CODE

Prior to the 1964 revision of the labour legislation, public employees in general had the right to bargain according to theLabour Relations Act of 1944, but disputes arising out of contract negotiations had to be submitted to compulsory binding arbitration pursuant to thePublic Services Employees Disputes Act and theAct Respecting Municipal and School Corporations and their Employees. Civil servants had no right to bargain since civil service regulations had unilateral control over their working conditions within the discretion of the National Assembly.

More precisely, as regards impasse procedures, there was a major distinction between the private and public sectors. In the private sector, the Labour Relations Act obliged the parties to submit their dispute to two compulsory procedures before obtaining the right to strike or lock-out. There was a conciliation period followed by a tri-partite arbitration panel whose recommendations were not binding. In the public sector, after the conciliation period, the arbitration panel's recommendations were binding upon the parties and public employees had no right to strike according to the Public Services Employees Disputes Act and the Act Respecting Municipal and School Corporations and their Employees.

The 1964 Labour Code represents quite a departure from the previous situation. First, there is no more separate legislation applying to public sector disputes. Civil servants were granted collective bargaining rights, including the right to strike. They are covered by a special statute — the Revised Civil Service Act of 1965 — but the « labour relations » section of that Act states that civil servants' labour relations are regulated by the Labour Code.

A uniform procedure, which is shorter than the previous one since the only requirement prior to exercising the right to strike is a conciliation period, applies to both private and public employees.

The only restriction applying to employees of a public service is that in addition to the general requirement of Section 46 they must give at least 8 days' prior written notice to the Minister of the time when they intend to have recourse to a strike. In the case of employees covered by theCivil Service Act, they are forbidden to strike unless the essential services and the manner of maintaining them are determined by prior agreement between the parties or by decision of the Labour Court. It is to be noted that, contrary to the Canadian Federal government where the determination is made on a permanent basis, in Quebec, this determination is made on an « ad hoc » basis each time a strike by civil servants is threatening.

Policemen and firemen are covered by theLabour Code but, contrary to other public employees, they do not have the right to strike. Their disputes are referred by the Minister of Labour to a council of arbitration upon the report of the conciliation officer. The recommendations of the council are binding and reasons must be given for the decision.

All other public employees have the right to strike if they have met the requirements of Section 46 and the 8-day notice period. However, a special procedure — a Taft-Hartley cooling-off period — allows the Lieutenant-Governor in Council to appoint a board of inquiry if the public health or safety is endangered by an actual or potential strike. Section 99 reads in part as follows :

Whenever in the opinion of the Lieutenant-Governor in Council a threatened or actual strike in a public service endangers the public health or safety, he may appoint a board of inquiry which shall have the powers of a council of arbitration to inquire into and report upon the dispute, save that it shall not pronounce any decision or make any recommendations, but must confine itself to ascertaining the facts in compliance with Sections 69 to 78 (procedural details).

Upon the petition of the Attorney-General after the appointment of a board of inquiry, a judge of the Superior Court, if he finds that the strike imperils the public health or safety, may grant such injunction as he deems appropriate to prevent or terminate such strike. An injunction granted under this Section must cease not later than 20 days after the delay of 60 days within which the board of inquiry must file its report, and such delay cannot be extended.

This Section shall apply to a threatened or actual strike which interferes with the education of a group of students as well as to a strike which imperils or endangers the public health or safety.

There is nothing in the law to deal with situations where the application of Section 99 fails to stop a strike. What generally happens in practice is a special legislative intervention by the National Assembly.

It should be noted that, at the time when theLabour Code was adopted, collective bargaining relationships were established on a completely decentralized basis and the government was staying out of the picture except in cases where it was the direct employer such as the civil service, technical and vocational education, and the Quebec Liquor Board. In the fields of education and hospitals, the government was only indirectly involved through subsidizing the cost of some arbitration awards which local school boards and hospitals could not finance.

THE THREE ROUNDS OF NEGOTIATIONS (1964-1972)The First Round (1964-1968)

The first round of negotiations starts with the period immediately following the adoption of theLabour Code. It is a period characterized by many social reforms which have been identified under the theme « Quebec's Quiet Revolution ».

Since most local unions were affiliated with one of the three central labour organizations, they could benefit from the services of a personnel with a great deal of expertise in negotiating labour-management contracts. As a result, the early part of that first round led to many union victories which could be attributed more specifically to the following factors :

1. The enormous gap between public employees' wages and salaries and those of private sector employees, which had the effect of justifying public sector unions' wage claims in the eyes of the public and, in turn, reinforce the unions' militancy.

2. A lack of coherent management policy which was due to many internal divisions between public employers and to a soft attitude by the government towards the unions. Many unions resorted effectively to « end run » lobbying i.e. obtaining, from a political intervention, favourable conditions which they were not able to get at the bargaining table.

3. The effective use of whipsawing tactics in the context of decentralized bargaining structures, mostly in hospitals and in education.

4. A great deal of the success can also be attributed to the precedents created during the illegal strikes of 1963 and 1964. Settlements reached on these occasions set the pattern for future claims by other unions which had not settled before the adoption of theLabour Code.

5. The impact of Expo-67 where key workers like Montréal construction workers, longshoremen and seafarers received fat settlements which set the precedents for identical wage claims by other employees, including public employees.

At the end of 1966, however, the unions faced a more rigid attitude from public employers which were now more directly influenced in their bargaining positions by the government. In education, school boards had to follow specific guidelines for wage increases if they wanted to benefit from the government's subsidies. Because of the teachers' résistance to the guidelines, the government had to resort to a special Bill (Bill 25) to stop a wave of strikes and to impose a uniform wage schedule in February 1967. In hospitals, the three week general strike of Summer 1966 was ended only after the government had placed the hospitals under trusteeship. Towards its own employees the government also adopted a strict position. Civil servants did not receive as high wage increases as they were expecting and, after some technical and vocational teachers had refused to call off a strike despite the issuance of an interim injunction under Sec. 99 of theLabour Code, 13 leaders were jailed for a twenty-day period.

The Second Round of Negotiations : (1968-1971)

Most collective agreements including the teachers' imposed settlement were to expire on June 30, 1968. Despite the previous provincial negotiations in hospitals and despite the fact that Bill 25 had the effect of centralizing bargaining in education, the bargaining structures in these two sectors were still officially decentralized : local hospitals and local school boards still had to ratify the contracts. On the other hand, the government's financial difficulties were far from being removed. As a result, the government had to use a delicate strategy not only towards the unions but also towards the official public employers involved. The practical instrument of that strategy was what has been called the « wage policy ».

Officially, the government wanted to increase the overall wage bill by 15% over a 3-year period. The strategy vis-à-vis the unions was to find a first group that would accept the offers and to apply the pattern to other groups, while the strategy vis-à-vis public employers was to let them fight with the unions until they needed technical and financial assistance from the government.

As regards the government's strategy towards the unions it was an almost complete success. Even if the principle of a 15% increase in the wage bill was notrespected in all instances, the government was still able to convince most unions to accept its offers without taking too many strikes. Moreover, the toughest résistance to the wage policy (that of Quebec Liquor Board employees who went on strike for more than 5 months) ended up in an almost complete submission by the union.

Contract negotiations in hospitals and in education provided a good example of the government's strategy towards the « official » public employers. As we have seen, the core of that strategy consisted of leaving the initial responsibility to the official institutions (theQuebec Federation of School Boards and theQuebec Hospitals Association) and in a second step to gradually provide technical and financial assistance. We think that the length of the negotiations in hospitals (18 months) and in education (almost 2 years) provides good support for this interpretation.

The major characteristics of the second round of negotiations may be summarized in the following points : First, the government won the principle of the wage policy and it was another step towards bringing more rationality into the government's expenditures. Secondly, as union solidarity among the various sectors was weak, the government was able to use a « divide and conquer » strategy. Thirdly, and as a consequence of the preceding point, there were few major clashes between the unions and the government as compared with the previous round of negotiations.

At the end of the second round, there is no doubt that the government has taken the initiative as regards the orientation of public sector labour relations. The unions' reaction will emerge in the next round.

The Third Round of Negotiations (1971-1972)

This round is essentially characterized by a centralization of the bargaining structure which permits the government to be directly involved in the bargaining process of the whole public sector and not only in the fields where it is the direct employer. This centralization process was achieved in two steps. First, a Civil Service Department was created on November 28, 1969. The Minister of the Civil Service was given authority to coordinate labour relations in the public sector at large including hospitals and education. Secondly, legislation was adopted at the end of June 1971 (Bill 46) which had the effect of reducing the number of bargaining tables to approximately 15 for the whole public sector.

It was the third time in as many rounds that the bargaining structure was modified !

The unions entered into these negotiations with the firm conviction not to let the government divide them as it did in the previous round : They wanted to present a « Common Front » to the employers. For this reason they formed a bargaining committee composed of representatives from the three central labour organizations and gave this committee authority to bargain over key issues such as wages, salaries and job security.

The government, for its part, submitted to this committee in March 1971 a document which contained the principles upon which its wage policy was based. Inthe Summer of 1971, the union delegation met the government delegation headed by the Civil Service Minister todiscuss these principles.

At the outset, there was considerable disagreement over the nature of these discussions and over the meaning and the implications of the principles contained in the wage policy. On the one hand, the unions were considering these preliminary meetings to be real bargaining sessions while the Minister was claiming that they were just preliminary discussions since negotiations were to occur at the 15 or so bargaining tables established by Bill 46. On the other hand, the Civil Service Minister stated that the government's wage policy was not negotiable while the unions wanted to negotiate the principles upon which that policy was based at one single centralized table.The parties left each other at the end of the last meeting with no agreement over what specific actions should be taken to permit genuine bargaining to begin.

Between September 1971 and January 1972, the government made known its offers to the various unions. During hat time, the unions made no counterproposals (at least not until February 29, 1972) and kept asking for the centralized bargaining table which they finally obtained on March 13, four days after 68.5% of the union members voted in favour of rejecting the government's offer and gave the mandate to their leaders to call a strike at anytime.

The union's strategy was quite simple : It consisted of waiting until the conciliation periods lapsed before making any counterproposals in order to obtain the right to strike as soon as possible and to put more pressure on the government so that it would grant the centralized bargaining table.

Accordingly, it is only as a result of this strategy — since the Civil Service Minister yielded the centralized bargaining table on March 13 — that serious bargaining could start.

The centralized bargaining table included almost the same delegation that had met during the summer of 1971 to « discuss » the principles of the wage policy, except that the Civil Service Minister wasnot present. It comprised almost 100 persons. Four issues were to be discussed : wages, job security, pension plan, and sick leave holidays or salary insurance as the government presented it. Practically, only the first two items were seriously discussed.

Even though serious bargaining was just starting, the Common Front called a general strike for March 22. The strike was postponed because of a severe snow storm ( ! ) and on March 24, the first « horse trades » were made. On March 28, public employees nevertheless went on strike. The government took out injunctions against the employees of some psychiatrie hospitals and of Hydro-Quebec. Despite the Common Front leaders' recommendations not to respect these injunctions, Hydro-Quebec employees returned to work and they dissociated themselves from the Common Front.

Negotiations broke down on April 6 and on April 11, another general strike went on that was to last until special legislation was adopted on April 21. The legislation (Bill 19) had the following effects :

— It ended the general strike.

— It convoked the civil service Parliamentary Commission.

— It stipulated that if no agreement between the parties was reached by June lst, the government would decide unilaterally the terms of the contract through a decree effective June 30th and valid until June 30th, 1974.

— It provided for fines for the breaking of the law of $50. to $250. per day, per worker and of $5,000. to $50,000. per day per union leader or the union itself.

The unions' reaction to Bill 19 was spectacular but short in duration. It consisted mainly of sporadic wildcat strikes throughout the Province between May 11 and May 15 which were mainly aimed at protesting against the jailing of the three Common Front leaders which had recommended to their affiliates not to respect the injunctions.

After the government had changed its negotiating team — the Minister of Labour now assuming responsibility over the Department of the Civil Service — bargaining resumed. From then on, the unions' strategy was to force the government to impose unilaterally a decree upon them. Since the government did not want to risk the political consequences of such action, it twice postponed the adoption of the decree until finally, after granting the unions some concessions such as a cost of living clause and a more generous salary insurance plan to mention only two, it was able to « convince » most unions to sign a collective agreement. However, for some 85,000 teachers and 2,500 Liquor Board employees, no settlement was arrived at and the decree had to be passed.

MAJOR ISSUES

By way of conclusion, three remarks are related to the major issues involved in these negotiations : the political nature of the conflict and the objectives sought by the parties ; the strategies respectively used ; the functionning of the industrial relations system in the public sector.

Political Nature of the Conflict

One of the basic prerequisites for the collective bargaining institution to work in the public sector is the establishment of an appropriate distinction between the State as legislator and the State as employer, distinction which leads to an effective delegation of powers to administrators who are dealing with the unions. The preceding requirements have been very tough to meet in reality in every political jurisdiction in North America whatever the nature of the legal framework in which labour relations were evolving. This is so because of the dual system of pressure tactics available to public employees — political and economic. As regards the Quebec experience, serious efforts were made with regards to respecting the requirements of the system. The first Civil Service Minister conceived and played his role in this fashion. He gave a clear mandate to his negotiators and refused to be personally involved in negotiations until the last moment when a final effort was made to settle the strike. This represented quite a different situation from the previous negotiations where « end run » lobbying was the general rule. However, the failure of the « professional » approach led to a new politization of the conflict as can be confirmed by the appointment of Mr. Cournoyer as Civil Service Minister.

« Politization » of this kind is not typical of the Quebec situation but can be found in most public sector bargaining in North America. However, as in manyother aspects of our political, economic and social lives, the Quebec experience does not contain the sole elements of « politization » mentioned above. We find also what can be called some elements of « over politization » of the conflict. By « over politization » we refer to the Common Front's objectives of « breaking up the system ».

It is our contention that by pursuing such objectives, the Common Front was fighting for a lost cause. First, the Common Front never explained to the populationbefore Bill 19, the political goals it was seeking through these negotiations. By doing this, it deprived itself of the support of potential allies during the battle. Further, the strike the Common Front was engaged in was hurting third parties who had nothing to do with the outcome of negotiations, thus reducing even more the possibility of getting support from an important portion of the population. Secondly, as can be seen from the events that followed passage of Bill 19, it became clear that even if the Common Front had tried to get support for its political objectives by explaining these objectives before or during the strike, it would not have got such support : Public opinion was overwhelmingly in favour of the sanctions taken by the government against union leaders ; opposition parties, including theParti Québécois, severely reprimanded the unions attitude of transgressing injunctions ; finally, even union members themselves disavowed the general movement of illegal strikes into which their leaders led them after the jailing of the Common Front leaders.

These remarks on the political objectives involved in these negotiations lead us to stress the tremendous cleavage that now exists within the Quebec labour movement between some leaders, union officers and a group of militant and the vast majority of the rank and file. In general, the rank and file is supposed to be less radical than the leadership but, we think that in Quebec, the gap between the two has reached a proportion larger than anywhere else in North America.

The Strategy Used by the Parties

The strategy used by the government was one of firmness. When the Civil Service Minister stated in the summer of 1971 that the government's wage policy was not negotiable, he adopted an attitude that was tantamount to the one taken by Premier Jean Lesage in 1962 when he affirmed that the « Queen does not bargain with her servants ». Such a statement, taken literally, challenges the whole theoretical foundations of the collective bargaining system in the public sector. It means that the first government offer is final and definitive.

Despite appearances, we think that such was not the case and that the Minister d/d not have in mind a return to a unilateral system of determining wages and working conditions when he made his declaration. But even then, the situation is quite equivocal : on the one hand, the Minister's declaration can be considered only as an element of a strategy to blur the unions' position and increase their « cost of disagreeing with the employer's terms ».

On the other hand, it is possible that the government believed it wage policy not to be bargainable but that it had accordingly prepared its first offer in such a fashion as to leave a margin between the initial offer and what was considered to be its maximum level of acceptability. This seems to be the most realistic probabilitysince the government has moved (a little) from its original position during negotiations. In the end, however, we think that it all comes down to a matter of relative bargaining power. The government knows what it can concede to the unions without having to raise taxes and/or modify other governmental priorities. If the unions are powerful enough to persuade the government that it would be wise policy to increase considerably public employees' wages and salaries, then politicians would have to take the political risk of raising taxes or reducing services. But it would take a very strong labour organization to achieve such an end, because a government has very little to lose by being firm with the unions unless they can constitute an electoral threat. This is not the case in Quebec given the cleavage mentioned above between the rank and file and the leadership, and given the absence of stable relationships between the labour movement and a special political party.

The strategy used by the unions was a reflection of both economical and political considerations. They entered into negotiations with the firm conviction they should prevent the government from dividing them as had happened in 1968. Thus, early in 1971, representatives of the three central labour organizations decided to present a Common Front to the government. The practical implications of that commitment were that individual unions should leave to the Common Front the task of bargaining over major issues such as wages and job security. Such a goal could be achieved only if a centralized bargaining table was granted. Hence the whole union strategy during the first three phases of negotiations was aimed at building up solidarity among the various local unions. Every local union's collective agreement project had either a blank spot or a general declaration as its wage clause. This attitude is quite in conformity with that used by any unions not necessarily committed to the goal of changing the whole political system.

On the other hand, the building up of union solidarity was also necessary for the realization of the Common Front's political objectives. A great show of strength was necessary for the advancement of the major cause (sic). The $100.00 a week minimum salary (which could find little objection in the population) was quite indicative of the desire to rally public employees behind their leaders and to initiate militant action. By keeping the debate within the confines of traditional economic objectives, the leadership could mobilize the rank and file for two targets at the same time. This is probably the reason why the Common Front leaders took so much time to reveal their real political intentions, although anyone acquainted with the evolution of the Quebec labour movement could foresee such an eventuality by following the leaders' public declarations in the last few years.

Impact on the Collective Bargaining Institution

Our last remark has to do with the implications of the recent events upon the collective bargaining institution itself. One of the main characteristics of the Province of Quebec industrial relations system in the public sector since the adoption of theLabour Code has been the regular transgressing of injunctions. Yet, when theLabour Code was passed and the right to strike granted to public sector unions, it was well accepted by all interested parties including the unions that article 99 (emergency injunctions) was the « quid pro quo » for that right to strike. Moreover, such a tendency to transgress the law has extended to many private sector conflicts. As a result, any analysis of labour relations in the Province of Quebec that would takefor granted that these labour relations are evolving within specific rules well accepted by the parties would miss a crucial point : each new conflict challenges the basic foundations of the industrial relations system.

The actual split within the CNTU provides a clear illustration of that new form of unionism : the French and Italian type of global contestation as opposed to traditional business unionism. As for the teachers, it seems as if they will engage in the former type of action.

Within such a context, we personally receive very coldly the recommendations of those who think that an Inquiry Commission should study Quebec's public sector labour relations and that profound transformations of the institutional framework should be made. First, with all the changes that occurred to bargaining structures (from decentralized (1965), to partially centralized (1966-68) to fully centralized bargaining (1971)thesystem was never given a real chance to work. In our opinion, the only changes that would have to be made do not require the usually wasted energy of an Inquiry Commission. They would have to deal with 1 ) a more rigorous definition of essential services (and the Federal civil service should be used as a good point of reference ; 2) a different time-table procedure for negotiations. It is absolutely untolerable that the unions' demands be made two monthsafter conciliation notices are sent to the Labour Minister. It should be mandatory that the demands and offers be known to the respective parties two months before the contract expires and that negotiations be terminated before the adoption of the provincial budget.

On the other hand, even if major institutional changes are to be made as a result of a so-called study commission's recommendations, it will nevertheless completely miss the basic problem. Whatever the legal framework's characteristics, it will not work if the parties that evolve within that framework do not take their responsibilities and do not respect the basic rules of the game. It is a problem of attitude and no study commission can cope with deficiencies of this nature. This is unfortunately the kind of situation presently existing in Quebec.