Le devoir syndical de représentation sous l'angle de la Charte des droits et libertés de la personne: le cas des clauses" orphelin"

As a result of the present transformation of the labour markets, trade union movements are in constant search for a new equilibrium. If in this context of instability, reorganizations and flexibility are negotiated in exchange for increased protection for those who remain in employment. If on the one hand, this leads to a proliferation of new atypical forms of employment and disparities of treatment, on the other hand, the entrenchment of human rights law in the field of labour relation changes the relationship with the union majority rule. This has raised an important question about the impact this will have on the union's duty of fair representation. Taking this into consideration, we wanted in the course of our research to shed light both on the impacts of the negotiation of disparity of treatment (two-tier wage plan) clauses have on unionized workplaces and on the contemporary challenges of labour and employment law. While still being specific to our field of research (industrial relations), our work differs from other studies that have been carried out on this matter by focusing on the empirical effects of the implementation of the norm of equality through the analysis of two suggestive cases. More specifically, the main objective of our thesis was to answer the following question: What are the effects of the implementation of the norm of equality in unionized work environments in the province of Québec? In order to achieve this goal, we had to recreate how the trade union actors can fit within the entrenchment of human rights law. We used a qualitative approach, involving a review of historical, theoretical and legal literature, analysis of the existing jurisprudence on this matter and the study of two selected cases involving the negotiation of a "orphan" clause (representing sixty semi-structured interviews in total).  It was in our intention to demonstrate that gained knowledge from previous applications provides a better understanding on the empirical level of possible interactions between actors, institutions and strategies during the implementation of a strategy, as well as important determinants concerning the union action (or inaction). On a practical level, we hope that our thesis can guide any individual (or group of individuals) wishing to implement equality measures, both to avoid some of the pitfalls related to these actions or reactions to the implementation of the right to equality, and to measure the effectiveness of undertaken actions. Additionally, on a more theoretical level, we believe that testing a conceptual model overlapping different strategies and institutions will address these problems both at actor and structural level. The results we obtained provide insights into how and to what extent trade union action can be built in the case of equality norm implementation. The selection of different strategies cannot be disembodied from its economic, sociological and legal contexts, nor from the strategic capacities of the different actors involved.   The main constraints identified could be attributed both to the structures of the union association and to different normative spaces. The tensions experienced in the studied cases were linked to particular perceptions of injustice and lack of knowledge of different legal standards. Subsequently, we must come to the conclusion that the question of iniquity may have some serious repercussions for trade unions far beyond the duty of fair representation. We specially emphasize the weakening of their foundations, mainly in their two poles of action: as economic players (loophole in the traditional ability of action) and political actors (cultivating a climate that is hostile to unionism). Based on the results of our research, we want union actors to be able to mobilize concurrent arguments to rethink union action altogether, something we believe is more relevant than ever. We also believe that the different actors of today's working world could take ownership of the recommendations set forth in our work to foster a more inclusive citizenship at work.

Keyphrases: discrimination, duty of fair representation, orphan clauses, trade union strategy, law effectiveness