Report in which the committee requests to be kept informed of development - Report No 214, March 1982

Case No 1055 (Canada) - Complaint date: 18-JUN-81 - Closed

1. 332. The complaint of the Alberta Association of College Faculties (AACF) is contained in a communication dated 18 June 1981. The Government sent its observations in a communication dated 25 January 1982.
2. 333. 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).

A. The complainant's allegations

1. 334. The AACF alleges that certain Alberta legislation continues to deny to academic staff of public colleges the rights bestowed by Articles 2 and 8 of Convention No. 87 and Article 2 of Convention No. 98. In this connection it refers to a similar complaint, Case No. 893, lodged by the Canadian Labour Congress and the Canadian Association of University Teachers and last examined by the Committee in November 1980.1 It explains that while case No. 893 focused on the Public Service Employee Relations Act with its implications for the Universities Act, the present complaint relates to the Colleges Act, 1970, in particular section 47 which sets out the collective bargaining rights of academic staff of public colleges. According to the complainant, for many years it has been arguing with the Provincial Government for meaningful changes to the Colleges Act. On 20 May 1981, the Colleges Amendment Act, 1981, was introduced in Parliament as Bill 50 which, while remedying to some extent the deficient statute, fails to grant Alberta college faculty members freedom of association or full collective bargaining rights.
2. 335. More specifically, the complainant firstly alleges that the question of membership in the faculty association is still left to be decided by the employer - the college's board of governors rather than by a neutral third party or tribunal (such as the Board of Industrial relations). The proposed amendments also fail to provide any means to resolve a collective bargaining impasse between a faculty association and its board of governors: there exists an arbitration clause applicable to specific grievances but no "interest" arbitration. In any case, the AACF states that it does not sleek the statutory imposition of compulsory binding arbitration, especially in view of the unavailability of qualified and acceptable arbitrators. Lastly, there is no mention of the right to strike, which, in the complainant's view, amounts to a denial of this right.
3. 336. As regards the first point, the complainant cites the Colleges Amendment. Act additions to sections 2 and 26 which read as follows:
4. 2(a). "Academic staff association" means an academic staff association established under s.47.1. or continued under s.47.2. ;
   • (b). "Academic staff member" means an employee of the board who [...] has been designated as an academic staff member by the board;
5. 26(a.1). A college board may ... after consultation with the academic staff association, designate categories of employees as academic staff members, designate individual employees as academic staff members and change the designation.
6. 337. It notes that while the proposed amendment to section 2 removes the boards' previous right to grant or deny recognition to a faculty association, it still leaves the boards with the right to determine who could belong to such an association. It adds that the amendment of section 26 only introduces the notion of consultation, not negotiation, with the staff associations and that this notion is only permissive, not mandatory. The complainant refers to a recent arbitration award (Re Keyano College Faculty Association v. Board of Governors of Keyano College 7/4/81) which held that under the present Act even the terms of a collective agreement cannot guarantee the integrity of a faculty association's membership. It further points out that neutral boards or tribunals have been established by the labour Relations Act or the Public Service Employee Relations Act for other types of employees. Lastly, the complainant alleges that the Provincial Government has ignored its own legislation, namely the Alberta Bill of Fights, 1972, which states:
7. 1. It is hereby recognised and declared that in Alberta there exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms ...
   • (e) freedom of assembly and association...
8. 2. Every law of Alberta shall, unless it is expressly declared by an Act of the legislature that it operates notwithstanding (this) Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorise the abrogation, abridgement or infringement of any of the rights or freedoms herein recognised and declared.
9. 338. Secondly, as regards the alleged inequality in the bargaining relationship, the AACF cites the proposed changes to section 47 which read as follows:
10. 47(3). A board may, subject to an agreement,
    • (a) determine the salaries or remuneration of academic staff members;
    • (b) prescribe the duties of academic staff members; and
    • (c) prescribe the term of employment and terms and conditions of employment of academic staff members and
11. 47. 4(2). An agreement shall with respect to the employment of academic staff members contain provisions respecting at least the following matters:
    • (a) procedures for determining and the methods of assigning teaching responsibilities and related duties;
    • (b) the establishment of salary rate and wage rate schedules for the purpose of setting the salaries or wages payable;
    • (c) procedures for fixing sick leave, vacation leave, leave of absence, or other leave to be allowed;
    • (d) procedures for determining conditions governing probation, terms of employment, performance review, promotions, reassignment of duties, suspension or dismissal;
    • (e) procedures respecting the settlement of:
    • (i) differences between the parties, and
    • (ii) grievances,
      • arising from the interpretation, application or operation of the agreement;...
    • (g) procedures respecting negotiations for future agreements.
12. 339. The complainant alleges that this wording does not oblige the parties "to bargain collectively in good faith" as do other major Alberta Statutes such as the Labour Relations Act (section 73(4)). In addition, it points out that the usual phrase "terms and conditions of employment" is used in an unusual way in section 47(a)(c) as it is qualified by verbs which define a very one-sided bargaining relationship. The AACF is concerned over how the boards of governors and the courts will interpret these sections and their intent. As regards the absence both in the Act and the Bill of provisions for impasse resolution, the complainant describes a situation in 1977 where the first collective agreements between the faculty associations and boards of governors at four of Alberta's ten public colleges were imposed by the minister of Advanced Education and Manpower. It states that, historically, the lack of a comprehensive bargaining framework in the Act has meant that most faculty associations either accept the board's preferred form of impasse resolution: (usually compulsory binding arbitration) or have nothing. In the documentation attached to the complaint, the AACF states that the academic councils of colleges (established under the Act, with staff association membership, to look at questions of general interest) are little more than appendages to their respective boards of governors.
13. 340. As regards the lack of any mention of the right to strike, the complainant points out that under the Labour Relations Act elementary and secondary-school teachers now exercise that right and that only one collective agreement relating to a public college specifically recognises that right.

B. The Government's reply

1. 341. In its communication of 25 January 1982, the Government transmits the reply of the provincial Government which stress that the collective bargaining environment of pest-secondary education institutions, such as colleges, is unique. It states that the amendments to the Colleges Act reflect the need for development of an employer-employee relationship reflecting the specific needs of the parties, given the institutional size and function variations, while ensuring that prerogatives and obligations are understood and protected. In particular, it points out that academic staff are represented on the governing body of an institution and therefore participate on both sides of the employer-employee relationship, having access to the information and plans of each. According to the Government, the managerial role of academic staff is also an important consideration showing that the clarity of roles associated with private sector industrial relations is not present in college. Therefore, Article 2 of Convention No. 87 and section 1(e) of the Alberta Bill of Rights must be interpreted with regard to the imperative of viable and functional collective bargaining structures.
2. 342. The Government points out that extensive consultation occurred with all parties affected by the proposed changes, both prior to presentation in the legislature and before final approval. It observes that when the complaint was filed the proposals were not in statute form, that the option of further consultation still existed, that further consultation did occur and that amendments were made before the proposals became law but after the complaint had been filed.
3. 343. In referring to the specific allegations, the Government points out that it has not ratified Convention No. 98 and will therefore not refer to it in its reply. According to the Government, college employees do not face the possibility of being unrepresented: whether an individual is an academic or non-academic staff member, he is a member of a bargaining unit and his right to bargain and participate in union affairs is protected. It states that these measures preserve the strength and integrity of bargaining units and guard against the possibility of excessive fragmentation.
4. 344. As regards good faith bargaining, the Government points out that in Canadian national practice this has proven difficult to define and enforce although it is mentioned in Labour Relations Statutes. Therefore no attempt has been made to impose this concept on the collegial environment where the very style of organisation structure is based on mutual respect and shared decision making. It concludes that the legislation requires the parties to meet and conclude an agreement, an approach consistent with evolving national practice.
5. 345. As regards disputes resolution, the Government states that the legislation preserves such machinery extant in collective agreements, while allowing the parties to alter or redesign it in accordance with their own circumstances. The legislation simply requires that some mutually binding dispute resolution mechanism be outlined in the collective agreement. Therefore, according to the Government, any existing dispute resolution machinery involving strikes or lock-outs can be maintained; no restrictions are imposed regarding the particular method chosen by the parties.

C. The Committee's conclusions

1. 346. This case concerns allegations that recent amendments to the Alberta Colleges Act deny freedom of association to faculty staff by leaving it to the employer to determine membership of a staff association, and restrict collective bargaining rights by omitting the obligation to bargain in good faith, by not providing sufficient impasse resolution procedure and by not mentioning the right to strike. The Committee notes the Government's statement that it will make no mention of Convention No. 98 as it has not ratified this Convention. It would, however, point out that every member State, upon admission to the ILO, accepts to abide by the principles of freedom of association outlined in the Constitution of the ILO and it is in virtue of this obligation that the procedure in force allows examination of cases alleging violation of these principles where member States have not ratified the pertinent Convention.
2. 347. As regards the alleged denial of freedom of association, the Committee notes the Government's statement that no college employees face the possibility of being unrepresented, since all employees are members of a bargaining unit. However, the Committee observes that the combined effect of new section 47.1 of the Colleges Act - which states that each academic staff association consists of the academic staff members of the colleges - and new section 26(a.1) - which allows college boards to designate who is an academic staff member - appears to give the boards wide power to exclude or include individual or categories of employees from staff associations by refusing or agreeing to designate them as academic staff members. The Committee would therefore draw the Government's attention to the fundamental importance of Article 2 of Convention No. 87, ratified by Canada, which sets out the right of all workers without distinction whatsoever to join or establish organisations of their own choosing. This implies that if undesignated college employees wish to take a more active role in determining their social and economic conditions and are not content to remain simple members of a bargaining unit, they should have the right, if they so wish, to join or set up their own association. The peculiar circumstances of the college environment put forward by the Government do not appear to the Committee to justify any restriction of this right through the vesting of such wide powers in the employer. As it appears that Bill No. 50 has now become law, the Committee would draw this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
3. 348. As regards the alleged restriction on collective bargaining rights by the omission to include in the new legislation the obligation to bargain in good faith, the Committee notes the Government's statement that this concept was not imposed on the collegial environment because of difficulties elsewhere in defining and enforcing it. The Committee has, in the past, stressed the importance of the principle that both employers and trade unions should bargain in good faith making every effort to come to an agreement. It has not, however, commented on whether that obligation should feature in the relevant legislation. Noting the Government's assurance that the bargaining environment is based on mutual respect and shared decision making, it would appear to the Committee that this aspect of the present case does not call far further examination.
4. 349. Regarding the alleged lack of impasse resolution procedures, the Committee notes that the legislation as it stands simply requires that some mutually binding dispute resolution machinery be outlined in any collective agreement signed by the staff associations and the boards. It further notes that, according to the Government, an agreement which already contains a disputes procedure involving strikes will continue in force until changed by a free decision between the parties to the agreement. However, the Committee considers that the absence of procedures for the settlement of disputes in cases where negotiations fail to result in a collective agreement may create confusion among the parties as to how to go about settling the impasse. It hopes that the Government will take appropriate action to close this gap, in line with the requirement in Article 4 of Convention No. 98 that measures appropriate to national conditions shall be taken, where necessary, to encourage and develop the full utilisation of machinery for voluntary negotiation between employers and workers' organisations with regard to terms and conditions of employment by means of collective agreements. It asks the Government to inform it of any action envisaged to this end.

The Committee's recommendations

• The recommendations of the Committee
  350. 350 In these circumstances, the Committee recommends the Governing Body to approve this report, and in particular the following conclusions:
       • (a) as regards the legislative amendment setting out the right of college boards to designate members of an academic staff association, the Committee would recall the importance of Article 2 of Convention No. 87, ratified by Canada, and would draw this aspect of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations;
       • (b) as regards the alleged restriction on collective bargaining rights by the omission from the legislative amendments of the obligation to bargain in good faith, the Committee is of the opinion that this aspect of the case does not call for further examination;
       • (c) as regards the lack of disputes resolution procedures and mention of the right to strike in the legislation in question, the Committee, while noting the Government's statement that such procedures already existing under collective agreements can be maintained, would point out that the absence of procedures for the settlement of disputes in cases where negotiations fail to result in a collective agreement may create confusion among the parties. It hopes that the Government will take appropriate action to close this gap and asks the Government to inform it of any action envisaged to this end.