La discrimination en milieu de travail et le devoir juridique de représentation syndicale : une analyse socio-juridique

This project is a socio-juridical study of the discrimination in the workplace, and its impact on the juridical duty of fair union representation, or more precisely, about the union responsability in a context of diversity. Beginning with a sociometric approach, completed with another one more socio-juridical, discrimination in the workplace is deemed to have a lot of repercussions even in unionized environments where immigration seems to shake up the established order. The literature survey exposes two main axis of interrogations : the first is related to the forums : in the actual state of the law, it is the Human Rights Tribunals that show the way in terms of the standards applicable to the juridical duty of fair union representation in alleged cases of discrimination, the Labour Relations Commissions abiding, but slowly, or else with reluctance, to the new deal ; the second is related specifically to the Union : it balances out the effect of the new standards in accordance with their own strategical interests, as well as to the member expectations, and in view of the prejudices and stereotypes presents in the workplace. The global analysis is based on 689 decisions from four Labour Relations Commissions — Quebec, Federal, Ontario and British-Columbia — along with their corresponding Human Rights Tribunals, within a period of ten years, extending from January 1st, 2000 to December 31st, 2009. With respect to the forums, the findings are that, for the above-mentionned period, none of the institution prevails over the other, in connection with the prohibited grounds of discrimination, the two contributing, as they see fit, to the extensive developpement of the human rights in the workplace, without clashes, nor overlaping. With respect to harassment, the Commissions prevail, and on the accommodation side, the Tribunals do. As to the union party specifically, the findings are that it has always acted, for historical reasons, in accordance with their own strategical interests, the member expectations, and the prejudices and stereotypes present in the workplace, but what has changed — from yesterday to this day — is the general application climate surrounding the juridical duty of fair union representation, as well as the analytical context in the evaluation of situations. Therefore, what is the impact of the discrimination in the workplace on the juridical duty of fair union representation ? Taking into account that the analytical context in the evaluation of situations is how the different agents construe the general application climate, along with all the changes they contribute therein in conjonction with their own strategical interests, then, at the union party level, there is three major impacts : first, (1) the union party has to fiddle around with more factors than ever before ; second, (2) with respect to the employees of a barginning unit, the room for manoeuver is much more restricted in all cases involving discrimination; and finally, this is the mere point, (3) the general economy of the human rights legislations has the effect of introducing a hierarchy to the applicable standards, hence forcing the union party, on a continuous basis, to adapt itself accordingly to the ever changing general application climate to which every agent contributes, including itself.

Keyphrases: Duty to act fairly, Juridical duty of fair union representation, Discrimination, Discrimination, Human rights, Harassment, Accommodation, Prohibited ground of discrimination, Union representation