Definitive Report - Report No 204, November 1980

Case No 893 (Canada) - Complaint date: 04-NOV-77 - Closed

1. 121. The Committee last examined this case at its May 1979 Session when it submitted definitive conclusions in paragraphs 114 to 118 of its 194th Report. The Canadian Labour Congress (CLC) has since transmitted a communication dated 25 July 1980. The Government's reply
2. 122. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), or the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. Previous examination of the case

1. 123. In its previous examination of the case, the Committee noted that the allegations concerned, inter alia, new Alberta legislation - the Public Service Employee Relations Act, 1977 which placed a general prohibition on the right to strike by public employees.
2. 124. In its conclusions, the Committee referred to the right to strike, generally recognised as deriving from Article 3 of Convention No. 87, and the circumstances in which this right can be limited, concluding that it was inappropriate in this case to place all public establishments covered by the Act on the same footing as regards the prohibition of the right to strike.
3. 125. In these circumstances, on the recommendation of the Committee, the Governing Body:
   • - drew attention to the principles concerning the right to strike in the public service and suggested that the Government consider the possibility of introducing an amendment to the Public Service Employee Relations Act in order to confine the prohibition on strikes to services which are essential in the strict sense of the term.

B. Recent developments

1. 126. On 25 July 1980, the CLC sent a communication to the Office stating that the Government of Alberta has ignored the recommendation of the Committee to amend the Act in order to confine prohibition of strikes to services which are essential in the strict sense of the term and has not amended the Act in question. The complainant states that the Alberta Union of Provincial Employees has gone on strike against the Government of Alberta to protest against the general prohibition of strikes by provincial civil servants and that several strikers have been arrested and have received severe fines.
2. 127. In a letter dated 4 September 1980, the Government transmitted the comments of the Provincial Government on this new allegation. The Government of Alberta states that the allegation that "several strikers have been arrested and have received severe fines" is incorrect. It attaches a copy of the Oral Judgement and Sentencing banded down, by the Chief Justice of the Queen's Bench of Alberta in the matter of civil contempt proceedings brought against certain employees of the Provincial Government who were employed at various correctional institutions for disobedience of a court order.
3. 128. From this judgement it appears that the fines mentioned by the complainant were imposed by the Court pursuant to Rule 704(1)(c) of the Court as penalties on individuals for civil contempt. The background to the proceedings is as follows: on 9 July 1980 the Court granted the Provincial Government an injunction "enjoining and restraining" striking and picketing members of the Alberta Union of Provincial Employees from engaging in slow down, stoppage of work or unlawful strike, these being acts prohibited under the Public Service Employee Relations Act; on 15 July the Government filed contempt proceedings alleging that notwithstanding the injunction a number of employees had acted as picketers and had been engaged in an unlawful strike; the employees argued that they had a lawful excuse to disobey because the Act was a nullity (they were challenging it in a contemporaneous action); the Court held that the employees had failed to obey without lawful excuse because the injunction itself remained in force until varied or reversed on appeal. No arrests were made, but fines of $1,000 were imposed.
4. 129. The Government also supplies a copy of the judgement of the Court of Queen's Bench of Alberta concerning the contemporaneous challenge to the validity of the Public Service Employee Relations Act on the grounds that it was a violation of Canada's international legal obligations or that it was ultra vires the legislature of the Province. The judgement is dated 25 July 1980. The Chief Justice, after examining the international instruments involved and the problems of a federated state, held that Alberta was not bound by the Committee's recommendations made in the previous examination of this case which, he stated, do not and have never formed part of the law of Alberta. He concluded that the Act did not violate Canada's international obligations, nor was it ultra vires.

C. Conclusions of the Committee

1. 130. This case concerns allegations that the Government has ignored the Committee's recommendation regarding the Alberta Public Service Employee Relations Act, namely, that the Government consider the possibility of introducing an amendment to it so that, in cases where strikes are prohibited in certain undertakings, the latter should be confined to these services which are essential in the strict sense of the term. It is also alleged that certain striking public employees were arrested while protesting this Act and received severe fines.
2. 131. From the copies of the judgements supplied by the Government it appears that there were in fact no arrests of striking public employees, and that the fines were imposed by the Alberta Court of Queen's Bench for non-observance of a lawfully issued injunction, as penalties for civil contempt. The Committee therefore considers that this aspect of the case does not call for further examination.
3. 132. On the other hand, regarding the allegation that the Government has ignored the Committee's recommendation, the Committee, while noting the result of the provincial union's challenge to the Act in the Court of Queen's Bench of Alberta, feels that it must recall that Canada, in ratifying Convention No. 87, undertook to give effect to its provisions and gave this undertaking with the unanimous consent of the provincial governments.
4. 133. The Committee would therefore recall the fundamental principles it expounded in its original examination of this case which are based on the provisions of Convention No. 87. In particular, it would recall that the right to strike, recognised as deriving from Article 3 of the Convention, is an essential means by which workers may develop their occupational interests. It would also recall that if limitations on the right to strike are to be applied by legislation, a distinction should be made between publicly-owned undertakings which are genuinely essential, i.e. those which supply services whose interruption would endanger the existence or well-being of the whole or part of the population, and those which are not essential in the strict sense of the term.

The Committee's recommendations

1. 134. In these circumstances, the Committee recommends the Governing Body:
   • (a) regarding the alleged arrests and fining of trade unionists, for the reasons set out in paragraph 131 above, to decide that this aspect of the case does not call for further examination; find
   • (b) regarding the assertion that the Government of Alberta was not bound by the Committee's recommendation concerning the Alberta Public Service Employee Relations Act, to recall that Canada, in ratifying Convention No. 87, undertook to respect its provisions and gave this undertaking with the unanimous consent of the provincial governments, to draw once again the attention of the Government to the principles which it has previously expounded and which are repeated in paragraph 133 above, on the right to strike in the public service and in essential services and to suggest once more to the Government that it consider the possibility of introducing an amendment to the Public Service Employee Relations Act it order to confine the prohibition of strikes to services which are essential in the strict sense of the term.