Les codes de conduite des entreprises multinationales et l'action syndicale internationale

Codes of conduct for multinational companies (MNCs) can be defined as a set of principles which a company voluntarily agrees to adhere to within the context of its activities. These principles may relate to aspects that are as diverse as trade practices, corporate conduct and ethics, environmental standards, working conditions and human rights, and apply to MNCs' subsidiaries and their subcontractors. Many Canadian companies have adopted such codes. These codes of conduct cannot be considered as spaces for the protection of the freedom of association since, according to an ILO study, only 15 percent of the codes contain references to association, organization and collective bargaining rights. However, they can be considered as spaces for the exercise of the freedom of association. Studies by a group of researchers of which we are members show that, in fact, codes of conduct involve collective relations. These collective relations do not correspond to the institutionalized labour relations of collective bargaining but rather bring several actors together, involve several issues, and combine several means of action. The latter are not limited to collective bargaining and strikes, but involve the presentation of shareholders' proposals, the organization of boycott and picketing campaigns, or the adoption of legal strategies that raise doubts about the MNC's respect for its commitments abroad. These means of action make it possible to intervene in areas where the MNC is vulnerable, i.e., its corporate image or the image of its product as well as its finances. State law is not absent from these social dynamics. Rules of law govern shareholders' proposals or the information that the company is required or not required to divulge, the secondary boycott and picketing campaigns, and the MNC's responsibility. This paper briefly sets out these rules and attempts to identify the opportunities that they create and the limits that they impose on actors, in particular trade unions, who wish to act on the MNC's new sources of vulnerability. The rules of corporate law will be examined first. The amendments made in 2001 to the Canada Business Corporations Act regarding the rules governing the shareholders' proposals, the proposals of the Canadian Democracy and Corporate Accountability Commission as well as the creation in Europe of the Statute for a European Company reveal the striking differences between the courses of action favoured in Europe and those proposed in Canada to integrate social concerns into corporate law. While the European model favours one actor—workers—whom it recognizes, regulating their representation and participation within the company, the aim of the Canadian proposals is to ensure that the interests of all stakeholders in the company—and not only those of workers—are taken into account by company managers. The evolving law related to freedom of expression also has an impact on the means of international trade union action. Codes of conduct are often a response to the campaigns led by trade unions and other civil society groups against the behaviour or the effects of the activities of a given company on the living conditions of populations or workers, or on the environment. These campaigns are based on strategies centred on the information about the company or its products and may take the form of a boycott or picketing, traditional union measures, if there ever were. What makes these means novel is that they are used independently of collective bargaining or recourse to a strike. Two recent decisions of the Supreme Court of Canada have cleared up any uncertainties about the legality of the trade unions' means of international action. These decisions must be interpreted alongside other decisions where the Supreme Court of Canada has had to interpret the freedom of expression of consumers or the limits to the freedom of expression established by the legal principles for defamation. This is the legal effect of the fact that trade unions are treated as any other civil society actor.