Le droit de participation des salariés canadiens lors des restructurations d'entreprises : le cadre législatif britannique comme source d'inspiration pour le Canada. Une étude de droit comparé : Québec, cadre juridique fédéral canadien, Union européenne, Royaume-Uni
In the current economic context marked by the growing number of restructuring and the unemployment rate, it seems important to address the employee’s issue of job security and the need to reduce the negative impacts that some restructuring processes have on businesses and employees. One of the solutions in this regard is to ensure that employees are heard during the restructuring process. Since the Canadian legal framework on the subject offers insufficient protections, the goal of this thesis is to find solutions in order to strengthen the existing framework and to find possibilities of adopting other legal information and consultation procedures applicable to company restructuring in general. To this end, the author is interested in whether a process of information and consultation of workers in restructuring matters involving collective redundancies, similar to what exists in the European Union is possible at the federal level in Canada and the province of Quebec in light of the British experience. The United Kingdom’s case is particularly interesting on the subject since this country originally applied a collective laissez-faire approach to company restructuring similar to the North American one. It is only because of mandatory directives of the European Union on the subject that the United Kingdom has set up information and consultation procedures. In terms of methodology, we used the comparative law approach to perform this study. In addition, as a theoretical framework we have applied the «capability for a voice», developed by Amartya Sen, which provides a method of assessing the impact and relevance of laws that recognize extended participation rights to employees in regards to company economic decisions. In doing so, the thesis assesses the extent that the European directives, the British legislation and the federal Canadian and Quebec legislation, related to the subject matter under study, meet the four criterias of the «capability for a voice», which are prerequisites to pass from the involvement stage of the employees in company decisions to their real influence on such issues. This study demonstrates that the protections offered by the European directives on the subject are relatively small and that these guidelines have resulted in national legislation that also offer inadequate protection in the UK. In addition, this study shows how the implementation of the information and consultation procedures of employees worked in the UK. By observing the experience in this country, we have reached a better understanding of the complications and potential risks of the legislative imposition of information and consultation procedures in the context of restructuring involving collective redundancies. In addition, we have learned some important lessons in order to strengthen the existing Canadian framework of employee participation rights and consider a new, comprehensive framework that will apply to all types of restructuring and not only to collective redundancies and technological changes. Given that Canada is more interventionist, in regard to the determination of labor standards, than the United Kingdom, it seems that it is possible to have a better legal framework of employees participation in Canada taking into consideration the suggestions that we have made in strengthening the «capability for voice» and the lessons learned by the implementation of the British legislation on the matter. This thesis is the first in-depth study on the right of employees to participate in restructuring, which compares and applies the analytical framework of the «capability for voice» to all European Directives related to the subject, as well as to the applicable British, Quebec and Canadian laws relevant to the subject matter.
Information Canada Directive Company restructuring Information Consultation Employee Act respecting labour standards United Kingdom European Union Canadian labour code Participation Decision Canada Directive Collective redundancy Participation