Préavis de licenciement collectif : l’expérience québécoise

Dans cet article, les auteurs se proposent de comparer la législation québécoise en matière de préavis de licenciement collectif, tant dans ses dispositions que dans son application, aux caractéristiques idéales que devrait revêtir une telle procédure dans le cadre d'une politique active et positive des services de main-d'oeuvre.It is now largely recognized that preventive measures are not only useful but necessary to workers' adjustment in cases of mass layoffs. In terms of a genuine policy of manpower services, this is to mean that measures of assistance (essential functions such as intervention over demand for labor, supply of labor and matching) must be efficiently supported by prerequisite functions such as prevention and information.It is within these prerequisite functions that the advance notice of mass layoff may be classified.The province of Québec is the first and sole North American jurisdiction to have included in a law (The Manpower Vocational Training and Qualification Act of 1969) a public compulsory adjustment program for the redundant officially aiming in accordance with ILO recommendation No 119, at finding satisfactory reemployment to redundant workers as soon as possible.The purpose of this study is to compare Québec advance notice measures (art. 45a) of Québec's Manpower Vocational Training and Qualification Act) to the "ideal" characteristics such a measure should have within the framework of a genuine policy of manpower services.This paper includes two sections. First, an effort is made to establish from the Canadian, American, French, and English literature what are the characteristics of the "ideal" advance notice of mass layoff. Secondly, following a brief presentation of Québec's advance notice approach, a comparison is made between Québec's experience and what has been established as the "ideal" advance notice. In fact, this comparison is made in two stages: it first focuses on the content of the legislation and, secondly, on the practical application of this measure.For the empirical part of this paper, two different sources of data are used. First, a questionnaire was administered to the advance notices on file at the Québec Department of Labor and Manpower. This first exercice was limited to a sample of 137 different cases (N=548) of mass layoff which had taken place between August 2 1969 and June 30 1974. Secondly, reference is sometimes made to relevant data collected from 380 redundant blue-collar workers for an evaluative research of the Québec reclassification program in cases of plant shutdowns and whose results have already been published.IDÉAL CHARACTERISTICS OF THE ADVANCE NOTICE OF MASS LAYOFFEventhough the principle of advance notice is largely accepted, differences may exist as to the practical application of this principle. Let us very briefly summarize what experience teaches and that at four different levels: the recipient, the delay, the content and the strategy of the advance notice.a)The recipient of the advance notice: the advance notice should be sent to all workers that will or could be made redundant, to workers representatives and to public manpower authorities.b)The delay of the advance notice: the advance notice should be given as soon as possible ; a minimum compulsory delay of at least two months and payments in lieu of advance notice should be determined by law.c)The content of the advance notice : the advance notice should indicate the date of the layoff, its reasons, its modalities, the action intended to help workers, the length of the layoff if it is to be temporary, the rights and privileges of concerned workers and the list of affected employeesd)The strategy of the advance notice: the advance notice should be sent by official, letter simultaneously to all individuals and organizations concerned.THE QUE'BEC APPROACHBasically, the Québec advance notice legislation requires any employer (except in the case of undertakings of seasonnal or intermittent nature) who, for technological or economic reasons foresees having to make a collective dismissal, to give notice to the Minister of Labor and Manpower within specific delays whose length varies with the number of workers to be laid off: two months if 10 to 99 workers are to be made redundant, three months if the number of employees affected is between 100 and 299, and four months if the layoff is to touch 300 workers or more. Moreover, the specifies of this advance notice is not presented in the law itself but in the Order in Council No717of March 7, 1970.Comparing the content of the law and order in council No 717 to the "ideal" characteristics of the advance note, the following shortcomings may be noted:1- The employer is not forced to send the advance notice to the individual workers concerned.2- The advance notice applies only to cases where at least ten workers are affected.3- The scope of the law establishing the advance notice is determined by Order in council 717. This is contrary to usual legislative procedure and may bring the regulation 717 to be ruled "ultra vires".4- Payment in lieu of advance notice is not required in the Québec law.5- Severance pay is absent from the Québec law.EMPIRICAL OBSERVATIONSFrom the data collected for this paper, the following observations were made:1- About 1/3 of all cases included in the sample did not contain the advance notice to the minister as the law requires.2- The advance notice was more often given by employers whose workers are unionized (69.6%) than by employers with no union (56.5%)3- The advance notice is more present in cases of complete permanent layoffs than in cases of partial permanent layoff.4- A statistically significant relationships was observed between the presence of the public compulsory advance notice and the presence of a private advance notice included in the collective agreement.5- In only 76.1% of the cases studied did the employers respect the advance notice delays imposes by law.6- As to the content of the advance notice, only 26.8% of the cases studied containedall the information required by regulation 717. Moreover one must note that the most often missing information is the list of workers to be made redundant. This information was given in only 34.4% of the cases studied.7- Most workers having received an advance notice of mass layoff have received it orally (63.5%).8- In the Québec approach, the sole official reason for the existence of an advance notice is to trigger the reclassification program. This did so in 70 of the 137 cases studied. Moreover, when the notice is given, there is a high significant positive relation-ship between the presence of the notice and the existence of a reclassification committee.CONCLUSIONThe observed shortcomings of the law and of regulation 717 and the weaknesses derived from the empirical data collected for this study may seriously delay and even make inefficient the actual advance notice procedure within the ideal frame-work of an active and positive search for solutions to problems of reemployment in cases of mass layoff.Eventhough the Québec approach is a significant first step, it remains partial and does not sufficiently take into account the individuals' problems in a redundancy.The time may have come to systematically examine this seven year experience of advance notice and to build a genuine redundancy legislation that would include the ideal characteristics of advance notice and that would be thought in accordance with recommendation 119 of the I.L.O

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