Definitive Report - Report No 139, 1974

Case No 746 (Canada) - Complaint date: 19-JAN-73 - Closed

1. 336. The complaints are contained in communications sent direct to the ILO: two of them, dated 19 January and 17 February 1973, were submitted by the International Federation of Free Teachers' Unions (IFFTU) and the third, dated 10 April 1973, was submitted by the World Confederation of Labour (WCL). In a communication dated 18 April 1973 the WCL submitted additional information. The text of these communications was transmitted to the Government, which, in a communication dated 24 May 1973, submitted the observations of the Government of Quebec.
2. 337. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) but not the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 338. The present case refers to developments in a situation which the Committee has already had occasion to examine when dealing with a case previously submitted to it. On that occasion the Committee submitted its final recommendations on the case to the Governing Body in paragraph 196 of its 133rd Report. The complainants refer to new factors which, according to them, should be taken into consideration within the same context.
2. 339. The Committee recalls that the case in question related to a strike in the public sector in the Province of Quebec. A judge of the Superior Court granted an injunction to put an end to the strike in some fifty hospitals. Subsequently, Act No. 19 was passed ordering resumption of work throughout the public sector and ordering the Government, if no agreement were reached, to determine the conditions of employment in the sector by order in council. The Committee recommended the Governing Body to express the opinion that in this particular case the proceedings by way of injunction did not constitute a violation of trade union rights but pointed out that prohibition or restriction of the right to strike within the framework of the above-mentioned Act No. 19 should be accompanied by appropriate conciliation and arbitration procedures, and that this was not the case.
3. 340. The IFFTU alleges that the position which the Government of Quebec defended before the Committee with reference to the abovementioned case did not correspond to the facts, as, contrary to assertions, the Government is alleged to have issued a first order in council on 15 October 1972 to regulate working conditions by virtue of Act No. 19; moreover, neither this order nor the subsequent Order of 15 December 1972 provided for a procedure to replace the loss of the right to strike, contrary to what had been recommended by the Committee.
4. 341. In its communication of 10 April 1973 the WCL alleges that on the strength of Act No. 19 of the Province of Quebec an ever-increasing number of prosecutions is taking place against trade unions and trade union leaders; the WCL also makes other allegations, which are taken up in greater detail in a note annexed to its communication of 18 April 1973.
5. 342. In this memorandum the WCL explains that during the period that their present sentence was suspended the three presidents of the central federations, Marcel Pépin, Louis Laberge and Yvon Charbonneau, led the negotiations which were resumed between the whole of the civil service and teachers, on the one hand, and the Government of Quebec, on the other. These negotiations resulted in a collective agreement covering about 140,000 workers in the public service and satisfied their claims. Yet, in spite of this fact, the appeals submitted by the three presidents were rejected and they were once more imprisoned on 2 February 1973 to serve the rest of their sentence, which is approximately 11 1/2 months.
6. 343. Contrary to the hope expressed by the Committee in the above-mentioned case, the WCL continues, the teachers (about 40,000) were unable to reach a collective agreement and their conditions of work were determined by order-in-council under Act No. 19, with reference to which the WCL once more expresses its reservations and criticisms.
7. 344. The WCL maintains that the Government of Quebec not only retained and applied Act No. 19 in its entirety, but that it placed before Parliament Bill No. 89, which in fact would make it possible for the Government to prohibit the exercise of the right to strike in the public sector and in teaching and which would in effect render meaningless the freedom and right to bargain collectively of workers in these two sectors.
8. 345. The WCL adds that the exorbitant fines imposed on the public service and teachers' trade union organisations have been confirmed. For the Confederation of National Trade Unions (CNTU) alone, these amount altogether to $232,100 and, if the other court decisions that are pending follow the same pattern, these fines will reach a total of $507,850. As for the Federation of Teachers of Quebec and affiliated unions, legal proceedings have been instituted against them, calling for fines amounting altogether to nearly $1.5 million.
9. 346. According to the WCL, all these measures constitute under a skilful disguise a body of repressive action against trade unions which seeks to attack the organisations concerned at their very core; they are entirely out of proportion to the events of April 1972 and take no account of the fact that the dispute itself was solved largely by means of a negotiated solution. The WCL again states that appropriate measures have been taken by the unions to ensure the maintenance of essential services regardless of whether or not agreement has been reached in this respect with the management of services and hospitals; it points out that the sentences imposed in previous strikes that had taken place in similar circumstances - in the case of doctors and of police - were immediately quashed and that the penalties imposed were out of all proportion to those imposed in the case of other strikes.
10. 347. The WCL declares that apparently the Government of Canada has allowed the situation to develop in Quebec without intervening with sufficient authority and that all the steps taken by the WCL, the IFFTU and the IFFTU (all three of which are directly concerned with this dispute) with a view to negotiating and reaching a peaceful solution have met with the intransigence of the Quebec Government and the inertia of the Canadian Government.
11. 348. In conclusion, the WCL requests the Committee on Freedom of Association to make a formal proposal to the Government of Quebec and the Government of Canada that they take the necessary action so that: (1) the prison sentences of the three presidents of the Quebec trade union organisations, Messrs. Pépin, Laberge and Charbonneau, shall be quashed; (2) the heavy fines imposed on the trade union organisations concerned shall be cancelled; (3) Act No. 19 and Bill No. 89 shall, as soon as possible, be the subject of negotiations between the Government of Quebec and the trade union organisations concerned; (4) the Government of Quebec and the Government of Canada shall, in good faith, and in common agreement with the trade union organisations concerned, seek means of guaranteeing the exercise of freedom of association and respect for democratic rights with regard to collective bargaining and labour disputes.
12. 349. The Government has sent its reply to the allegations in a communication dated 24 May 1973 to which is annexed the text of two letters from the Government of Quebec containing relevant information.
13. 350. With reference to the first allegation of the IFFTU relating to the adoption of the Order in Council of 15 October 1972 for determining conditions of work by virtue of Act No. 19, the Government recalls the terms of its communication of 30 October 1972 quoted in paragraph 182 of the 133rd Report of the Committee referred to above: although the order in council could have been in force since 15 October 1972, it was not intended to publish it before the beginning of December, thus giving the parties the opportunity to reach agreement by negotiation and avoiding the necessity of issuing an order. The Government adds that the possibility of delaying the entry into force of the above-mentioned order until December 1972 (and even of abandoning it completely in favour of a negotiated agreement) was based on section 10, paragraph 7, of Act No. 19, amended by section 2 of Act No. 53 (assented to on 30 June 1972): "the Lieutenant-Governor-in-Council may thus proceed by order at any date he thinks appropriate but not before 3 August 1972 nor subsequent to 15 September 1972 unless the parties competent to negotiate and agree on a collective agreement decide to continue their negotiations until a subsequent date which they shall determine with the approval of the Minister ...". The Government concludes that, taking into account the dates mentioned above, the possibility of adopting an order on 15 December 1972 to take the place of a collective agreement was known at the time of the 188th Session of the Governing Body of the ILO.
14. 351. As to the second point in the complaint of the IFFTU, i.e. the absence of procedures to replace the right to strike, the Government declares that the Order of 15 December 1972 is merely a logical consequence of the Order of 15 October 1972 (dealing particularly with working conditions, which were not dealt with by the latter Order), that the Order of 15 October 1972 had been adopted before the recommendations of the Committee on Case No. 699 mentioned above and that it was therefore "physically impossible, both in time and in the framework of the 15 October and 15 December 1972 Orders in Council, for the December 1972 Order to include machinery compensating for the loss of the right to strike".
15. 352. Moreover, the Government wishes to recall that one principle of labour law, sanctioned in the national labour legislation of various governments and more specifically in section 95 of the Labour Code, makes it unlawful to strike during a collective agreement, that the above-mentioned orders replace a collective agreement and that the Government does not, in fact, have to concern itself with creating machinery as a compensatory replacement for a right to strike which has been lost, since at present and until such time as the said agreement or orders in lieu thereof shall have expired, the right to strike does not exist.
16. 353. The Government adds that the legal means of providing replacement machinery could not be formulated in the order in Council of 15 December 1972, the scope of which had already been defined in the Order of 15 October 1972; such machinery would have been ultra vires the settlement powers accorded under Act No. 19, which the Committee on Freedom of Association had acknowledged as not running counter to trade union rights.
17. 354. The Government concludes on the complaint of the IFFTU as a whole that the facts alleged are not new and that the interpretation submitted by the complainant "does not stand confrontation with an analysis either of the law in effect in Quebec at that time or of the events which occurred there".
18. 355. Regarding the allegations of the WCL relating to the imprisonment of Messrs. Pépin, Laberge and Charbonneau beginning on 2 February 1973, the Government declares that the Committee has already decided on this point. The Government adds, dwelling at length on this point, that the situation in psychiatric hospitals and hospitals for the chronically ill was very serious, that it is not true that appropriate provisions had been made by the unions to run essential services, that most of the union members had refused to resume work at the instigation of the three trade union leaders and that the court had found under the circumstances that the one year prison sentence was not excessive.
19. 356. This being a judicial decision, the Government continues, it was not for the Government to intervene. It could have exercised its royal prerogative of mercy but there was nothing to justify this and, besides, the prisoners had publicly declared that they would not request a pardon; they enjoy, however, temporary absences beginning on 15 May 1973.
20. 357. With respect to the fines imposed on the unions for contravening a judiciary injunction, the Government refers to its earlier points regarding the union leaders and states that the total of the fines does, in fact, amount to approximately half-a-million dollars but that when the judges determined these fines they took into account the number of employees belonging to the unions concerned and that, as an average, the fines represented $60 per union member.
21. 358. As for the actions brought by the Government of Quebec for breach of Act No. 19 against those who had not resumed work, the Government declares that the Committee recognised that the mere enactment by the Government of Act No. 19 does not in itself constitute a violation of union rights and that this is therefore res judicata. The Government adds that sections 2 and 16 of the Act did not allow it to turn a blind eye to these breaches and invokes Article 8, paragraph 1, of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), according to which workers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land.
22. 359. However, the Government continues, the Attorney-General announced his intention to withdraw the action against the trade unionists in order to act against the unions themselves, so that if the actions were successful, the minimum fine would be $85,000 and the maximum $850,000 (if this decision had not been taken, the fines could have amounted to between $295,000 and $2,950,000).
23. 360. With respect to Bill No. 89 submitted to the Quebec National Assembly, the Government maintains that this is still a Bill and not law and that legally it does not constitute an act for, which it is responsible and consequently this does not constitute a derogation of Convention No. 87 and that the complaint is premature.
24. 361. The Government continues by stating that this Bill is aimed precisely at avoiding having to resort to injunctions in future disputes and that it will be discussed by a parliamentary Committee where all the parties concerned, including the trade unions, will be able to "make representations and suggestions" but that there can be no question of the Government's negotiating a Bill with the trade union federations or other organisations.
25. 362. When examining Case No. 699 in its 133rd Report, the Committee noted that the injunction issued on 1 April 1972 by a judge of the Superior Court putting an end to the strike affected only about 14,500 workers employed in some fifty hospitals for the chronically and mentally ill and enjoining the workers concerned from striking before 9 June 1972. According to the judgement of the Superior Court, nearly all the hospital workers involved refused to obey the terms of the injunction and, as a result of the deterioration in hospital services caused by the strike, the Attorney-General decided to institute contempt proceedings against certain trade union leaders and against the unions themselves, as a result of which certain trade unionists were arrested and, after trial, imprisoned.
26. 363. The Committee recommended the Governing Body, with respect to the allegations relating to the Government's recourse to the injunction procedure, to express the view that the action taken by the Government in obtaining a court injunction to put a temporary end to the strike in the public sector did not constitute an infringement of trade union rights, and with regard to the allegations relating to the arrest and imprisonment of the trade union leaders, Messrs. Marcel Pépin, Louis Laberge and Yvon Charbonneau, to decide that this aspect of the case called for no further examination.
27. 364. The Committee considers that the allegations of the complainants relating to the imprisonment of the above-mentioned trade union leaders and the fines imposed for disobeying a court injunction do not contain any new factors liable to induce the Committee to change its conclusions on these points.
28. 365. From information communicated by the Government concerning the other allegations, it appears that two orders (dated 15 October and 15 December 1972) adopted by virtue of Act No. 19 to ensure the resumption of services in the public sector and amended by Act No. 53 have, in fact, come into force and take the place of collective agreements. It also appears that Bill No. 89 was submitted to the Quebec National Assembly and that its purpose is to avoid recourse to injunctions in future disputes.

B. B. The Committee's conclusions

1. 366. When it examined Case No. 699 mentioned above, the Committee first of all noted that, following the adoption of Act No. 19, workers in the public sector were prevented from striking until 30 June 1972 and that if the parties failed to settle the dispute and reach an agreement concerning the teachers, the Government would not later than 30 June 1972 lay down statutory conditions of work.
2. 367. The Committee recalled that, as regards public officials, recognition of the principle of freedom of association did not necessarily imply also the right to strike. The Committee re-emphasised, however, the importance which it attaches, whenever strikes in essential services or in the civil service are forbidden or subject to restriction, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests; it also pointed out that such restrictions should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards are binding in all cases on both parties; these awards, once made, should be fully and promptly implemented.
3. 368. The Committee took the view, however, that since by virtue of Act No. 19 the right to strike was restricted or prohibited, if trade union rights were not to be violated such restriction or prohibition should be accompanied by adequate guarantees and, in particular, special and impartial arbitration and conciliation machinery to safeguard to the full the interests of the workers. The Committee added that in the case in point no recourse had been made to the statutory arbitration procedure, which was, in any event, voluntary, and that no provision had been made in Act No. 19 for the settlement of the dispute by an impartial arbitration and conciliation procedure. The Committee recommended the Governing Body to note that this Act had not yet been applied and to draw the attention of the Government to the foregoing considerations.
4. 369. The Committee notes that Act No. 53 assented to on 30 June 1972 modified Act No. 19 mentioned above. The amendments refer to the following points: the date of 30 June 1972 limiting the prohibition of the right to strike was cancelled; the Government would not be empowered to act by order in council before 3 August 1972 or after 15 September 1972 unless the parties agree to continue negotiations until a new date with the approval of the Minister. In that case, it was at that latter date that the Government would be able to issue an order in council. On the basis of these two Acts, two orders were issued on 15 October and 15 December 1972 in lieu of collective agreements and enacting the statutory regulation of working conditions in the sector concerned.
5. 370. The Committee notes, moreover, that Bill No. 89 safeguarding the welfare of the population in case of labour disputes was submitted to the Quebec National Assembly. This Bill would give the Government the right to cut short a strike in the public service and set up a Committee of three members nominated by the Government to examine whether the dispute jeopardised or was likely to jeopardise the health, safety or welfare of the public or the education of a group of pupils. In that case the Government would be able to prohibit the strike and to refer the dispute to a parliamentary commission which would hear the parties and report to the Government. Failing settlement of the dispute, a secret ballot should be held among the wage earners who would have to give their opinion on the latest offer of the employer. This ballot would be held by an official permanently appointed by the National Assembly by two-thirds of the votes of its members. If the employers' offers were refused as a result of this secret ballot, the dispute could be submitted to the National Assembly which would decide it by resolution. The same procedure could be followed if the number of striking employees was such that the population or the employer no longer had its usual access to the services of such employees.
6. 371. The Bill contains stringent provisions and provides for fines of from $5,000 to $50,000 on trade unions and trade unionists for each day or part of a day during which a person has infringed the relevant sections; these fines may be imposed by summary procedure and any trade union member is presumed to have infringed the prohibition to strike in the course of a day "once it has been proved prima facie" that the union member concerned did not perform his duties in the course of that day.
7. 372. With regard to this Bill it has been stated in paragraph 360 of the present report that the Government pointed out that it was not yet law. On this point the Committee feels it should recall that it has, in the past, considered that whenever it has before it precise and detailed allegations concerning a Bill, the fact that these allegations refer to a text which has not yet the force of law should not in itself prevent the Committee from giving its opinion on the substance of the allegations concerned. The Committee has been of the opinion that it is useful in such cases for the Government and the complainant to know the Committee's point of view with regard to a Bill before it is adopted in view of the fact that the Government, which has the initiative in the matter, is competent to make changes in the text concerned.
8. 373. The Committee notes that by virtue of Bill No. 89, and of Act No. 19 (amended by Act No. 53), the right to strike in public services is prohibited or restricted. It wishes to emphasise once more that this prohibition or restriction should be accompanied by adequate guarantees and, in particular, by appropriate impartial and speedy conciliation and arbitration procedures in which the parties concerned should be able to participate at all stages and that the awards in every case should be binding on both parties.

The Committee's recommendations

1. 374. In these circumstances the Committee recommends the Governing Body:
   • (a) to recall once more the importance it attaches to the principle that the prohibition or restriction of the right to strike in the public service or essential services should be accompanied by adequate guarantees and, in particular, by appropriate, impartial and speedy conciliation and arbitration procedures in which the parties concerned should be able to participate at all stages and that the awards in every case should be binding on both parties;
   • (b) to take note of the fact that in Quebec the manner in which the dispute of the teachers was settled in the past and the manner in which disputes in the public services would be settled if Bill No. 89 were adopted as it stands, do not fully correspond to the requirements resulting from the application of the principle to which the previous sub-paragraph refers;
   • (c) to express the hope that a satisfactory solution will be found in the near future to the problems raised in the complaint and to request the Government to be good enough to keep the Committee informed of any measures that may be taken or considered with this end in view.