Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Canada (Ratification: 1972)

The Committee notes the Government's detailed report in reply to its previous requests, and in particular, that major labour legislation has been adopted in several jurisdictions: Federal - Parliamentary Employment and Staff Relations Act, which confers collective bargaining rights on Parliament's employees; Alberta - Labour Relations Code (S.A. 1988, c.L-1.2; Bill 22), which repeals and replaces the Labour Relations Act and the Construction Industry Bargaining Act; British Columbia - Industrial Relations Reform Act (S.B.C. 1987, c. 24, Bill 19) and Teaching Profession Act (Bill 20); Quebec - Act to ensure that essential services are maintained in the health and social services sector (Bills 160 and 46). The Committee also notes that the Toronto Economic Summit Construction Act (S.O. 1988, c. 21) removed temporarily to Ontario construction workers the right to strike during the economic summit held in June 1988, but that a clause of this legislation provided for its repeal on 30 June 1988, so that there are currently no special prohibitions on work stoppages in the Ontario construction industry.

Referring to its previous request, the Committee would make the following comments.

1. Article 2 of the Convention: designation by name of one union in the legislation. In its previous request the Committee commented on the legislations of three provinces (Prince Edward Island - Civil Service Act, 1983; Ontario and Nova Scotia - Teaching Profession Acts), which create a trade union monopoly situation. The Committee observes that these provinces have taken note of its comments, that they reiterate their previous replies and point out that, while the pieces of legislation in question do not appear to have had the negative effects mentioned by the Committee, they will keep the situation under review in light of its concerns. The Committee can only repeat once more, as it has done since 1975 in relation to various pieces of provincial legislation establishing a union monopoly situation in favour of one union named in the legislation, that this is contrary to Article 2. Even where the situation appears to be accepted by all the parties at the time, the fact remains that the reference to one union by name discourages the formation of new unions, inhibits a worker's free choice of the union to which he wishes to belong and restricts the activities of other unions which should at least be able, at some time in the future, to apply for the benefits of the legislation in question and, in particular, negotiation rights.

The Committee considers that amendments to the legislation in all three provinces should be enacted to remove the problem of designation of individual unions by name, and asks the Government to keep it informed of legislative developments in that respect.

2. Article 3: Exceptional strike-breaking legislation. In its previous comments, the Committee noted that several legislative texts had been enacted to end strikes in various sectors and jurisdictions: the British Columbia Metro Transit Collective Bargaining Assistance Act and the Railway Dispute Settlement Act; the Ontario Toronto Transit Commission, etc. Disputes Settlement Act, the Wheel-Trans Labour Dispute Settlement Act, the Colleges of Applied Arts and Technology Labour Dispute Settlement Act and the Wellington County Board of Education and Teachers' Dispute Settlement Act; the Quebec Act on the resumption of transport services in certain school commissions; the Saskatchewan S.G.E.U. Dispute Settlement Act.

The Committee notes that its previous comments have been brought to the attention of the provincial governments concerned but cannot fail to observe that the Federal Government itself, in the period under review, has adopted three acts to put an end to strikes in the federal jurisdiction: Maintenance of Railway Operations Act (S.C. 1987, c. 36); Postal Services Continuation Act (S.C. 1987, c. 40); Prince Rupert Grain Handling Operations Act (S.C. 1988, c. 1). The Committee notes the general explanations given by the Government in these three instances but recalls that, while its definition of essential services in which strikes may be restricted or even prohibited is designed to ensure respect for one of the fundamental means of action that should be available to workers, the Committee has always been sensitive to the particular circumstances surrounding the different strike situations brought to its attention. In particular, it has pointed out that where the extent and duration of a strike might result in an acute national crisis endangering the life or well-being of the population, restrictions on the strike would be acceptable, such as the establishment of a minimum service or the use of outside labour. The Committee has observed in such cases that an outright prohibition of the right to strike would not be consistent with the Convention and that where a strike takes place, intervention by the authorities should be limited strictly to circumstances in which there is a clear and imminent danger to the life, personal safety or health of the whole or part of the population as a result of the continuation of the strike action. The Committee accordingly expresses the hope that the Provincial and Federal Governments will take these considerations into account in the future, and requests to be informed of any steps taken to give full effect to the Convention on this question.

3. British Columbia, Case No. 1430. The Committee has taken note of the conclusions of the Committee on Freedom of Association in Case No. 1430 (see 256th Report, approved by the Governing Body at its 240th Session, May-June 1988). Having carefully considered the conclusions and recommendations in that case, and the comments of the Provincial Government, this Committee notes with interest that the provisions of the Industrial Relations Act establishing compulsory arbitration machinery have not been brought into force, and it makes the following specific observations:

(a) Sections 137.95 and 137.96 of the Industrial Relations Act: "Ability to pay" criterion

The Government indicates that the Committee on Freedom of Association, in suggesting that sections 137.95 and 137.96 impose a "requirement of prior approval before a collective agreement can come into force" (paragraph 183, Case No. 1430), has not distinguished between approval of freely negotiated collective agreements and review of arbitration awards by the Commissioner of the Industrial Relations Council. The Government points out that public sector employees have the right to strike (subject to essential services) in support of their bargaining demands, and that sections 137.97, 137.98 and 137.99, which would permit imposition of binding arbitration in certain circumstances, have not been brought into force.

The Committee takes note of the Government's submissions but must emphasise that the question specifically at issue here is not the right to strike but the "ability to pay" criterion which, under section 137.96(2) of Bill 19, constitutes the paramount factor that arbitration boards must consider when settling the terms and conditions of a collective agreement. Should the arbitration board issue an award inconsistent with the "ability to pay" criterion, the Commissioner may, at the request of one party (section 137.96(10)(a)), give the board specific directions as to the modifications which he deems necessary to achieve compliance with the above-mentioned criterion. There is no appeal from the Commissioner's decision.

The Act thus establishes a system whereby the Commissioner may substitute his own decision for the arbitration board's award if, in his opinion, that award must be modified to comply with the "ability to pay" criterion. In practice, this is equivalent to a prior approval procedure.

(b) Section 137.8(1)(b): Essential services

The Committee notes the comments of the Government to the effect that consultation always was and will continue to be its practice in administering essential services provisions. However, the Committee emphasises that, failing agreement of the parties, the Industrial Relations Council may ultimately designate essential services. The Committee recalls its general comments on this subject (General Survey, paragraphs 208-214): the right to strike may become meaningless if essential services are defined too broadly and restrictions thus imposed on employees in such services should be offset by adequate, impartial and speedy conciliation and arbitration procedures, in which the parties can take part at every stage and in which the awards should be binding on both parties.

(c) Sections 137.9(7) and 137.97(8): Disciplinary sanctions for refusing to obey a back-to-work order

The Committee notes the comments of the Government to the effect that in such cases employees have access to an independent arbitral review mechanism. It is true that in this limited sense, disciplinary sanctions are not left totally to the employer's discretion. However, the initial measure giving rise to these sanctions should not itself be incompatible with the principles laid down in the Convention; hence the comments in paragraph 190 of the decision of the Committee on Freedom of Association concerning the types of situations where back-to-work orders would be considered compatible with the Convention.

(d) Section 4(1): Legislative prohibition of secondary boycott clauses

The Committee is mindful that in the Canadian system as it now stands, the prohibition of strikes or lock-outs during the currency of collective agreements is an essential feature, and that secondary boycotts in this context are treated as illegal mid-contract strikes. The Committee has never dealt with the issue of secondary boycotts as such, but on a related question, namely sympathy strikes, it has noted that it would appear that more frequent recourse is being had to this form of action because of the structure or the concentration of industries or the distribution of work centres in different regions of the world. The Committee considers that a general prohibition of sympathy strikes could lead to abuses and that workers should be able to take such action provided the initial strike they are supporting is itself lawful (General Survey, paragraph 217).

In conclusion, the Committee requests the Government to indicate in its next report the measures taken or contemplated to ensure that any restriction on the right to strike is in conformity with the principles of freedom of association.