Definitive Report - Report No 214, March 1982

Case No 1070 (Canada) - Complaint date: 06-JUL-81 - Closed

1. 221. The complaint of the Canadian Labour Congress (CLC) is contained in a communication dated 6 July 1981. The Government sent its observations in a communication dated 25 January 1982.
2. 222. 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. The complainant's allegations

1. 223. In its communication of 6 July 1981, the CLC alleges that the Nova Scotia Civil Service Collective Bargaining Act, 1978, violates Convention No. 87 as it bans strikes, provides inadequate interest arbitration and prohibits negotiation of certain terms and conditions of employment in the provincial civil service. It points out that the Act applies to all persons appointed pursuant to the Civil Service Act, 1967, namely employees of government ministries, the Art Gallery, the Boxing Authority and the Communications and Information Centre.
2. 224. The complainant points out that in the Canadian Federal system most provinces have adopted special legislation to provide for public sector collective bargaining on a basis different from that applicable to the private sector but including the right to strike, except for "essential" employees. Saskatchewan and Manitoba have allowed their public servants to bargain in the same legal framework as private sector employees with no restrictions on strikes. The Nova Scotia Civil Service Collective Bargaining Act established a three-man Civil Service Employee Relations Board (the Board is appointed by the Governor in Council but swears an oath of impartiality) which generally administers the Act and also provides for the appointment of an arbitration board to resolve interest disputes, and for the appointment of an adjudicator or an adjudication board to render decisions on rights disputes.
3. 225. The complainant refers to sections 39 and 40 of the Act which read as follows:
4. "39(1) The employer shall not cause a lockout and an employee shall not strike.
5. 40. The Nova Scotia Government Employees' Association (NSGEA) shall not sanction, encourage, or support, financially or otherwise, a strike by its members or any of them who are governed by the provisions of this Act."
   • It points out that no attempt has been made to distinguish truly essential public sector employees from others in this general ban on strikes. Moreover, section 43 of the Act makes it an offence punishable by fine for an employee or the NSGEA to contravene these provisions.
6. 226. Regarding the inadequate interest arbitration, the complainant refers to sections 23 to 32 of the Act which provide for compulsory interest arbitration which complements the strike prohibition but is an inadequate replacement. According to the CLC, under section 24(1)1 the Board is given considerable discretion in deciding whether or not to establish an arbitration board, a discretion which is not usual in public sector labour legislation. Furthermore, the CLC states that under section 23 only the terms and conditions of employment listed in Schedule B are "arbitral terms", with the result that an arbitration board could not impose a settlement in respect of any term or condition of employment other than those listed in the Act. For example, pensions and travel expenses are excluded.
7. 227. The CLC also alleges that section 13(2) of the Act limits the items which may be the subject of collective bargaining through cross reference to various sections of the Civil Service Act; for example, appointments, promotions, transfers, probation and classification are excluded. As these items are directly linked to the terms and conditions of employment of civil servants, the complainant considers that they should be negotiable.

B. The Government's reply

1. 228. The Government states that the Civil Service Collective Bargaining Act attempts to provide a legislative framework for collective bargaining between civil service employees and the Civil Service Commission, whereas the Trade Union Act applies to any other similar body which is a government agency. For example, the latter Act covers police officers, fire-fighters, most nurses and hospital workers and workers in the supply of light and power who all enjoy the right to strike. Accordingly, it claims that the restriction of the right to strike only applies to those employees directly involved in the administration of the Government.
2. 229. The Government points out that the collective bargaining takes place under the auspices of a board which possesses powers similar to most labour relations boards. When the provisions designed to foster free collective bargaining fail, resort must be had to binding arbitration under section 32(l) and (2) which covers the specific items of Schedule B of the Act, including the mileage rate and allowance payable to employees using their own automobile on employers' business and group life insurance. It claims that the legislation provides certain measures to safeguard the legitimate interests of civil servants who do not enjoy the right to strike. These measures include an impartial board with recourse to full conciliation and mediation procedures together with binding arbitration in respect of conditions of employment and which is accessible to all parties. However, the Government points out that this Provincial Government is aware of the need to constantly assess and reassess its policies and legislation in this area, particularly in view of the difficulty in defining what is truly essential in a complex changing society.

C. The Committee's conclusions

1. 230. The Committee notes that this case concerns alleged violation of Convention No. 87 by the Provincial Government through its civil service legislation which bans strikes in the sector, is alleged to provide inadequate interest arbitration and prohibits negotiation of certain terms and conditions of employment of civil servants.
2. 231. Firstly, the Committee would point out that this case is similar to an earlier Canadian case (No. 893), examined in November 1978, concerning public service anti-strike legislation in a different province. Accordingly the Committee would recall its reasoning in that case: that while recognising that freedom of association does not necessarily imply the right to strike in the case of all public officials, whenever that right is denied adequate guarantees to safeguard fully the interests of the workers thus deprived of an essential means of defending their occupational interests must be provided. These guarantees include speedy and impartial 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 they have been made, should be fully and promptly implemented.
3. 232. In the present case, the Committee notes the Government's statement that the prohibition on the right to strike only applies to these civil service employees directly involved in the administration of government and that procedures exist which adequately compensate for their loss of that right. In this connection, it must recall that the right to strike could be restricted in the civil service or in essential services in the strict sense of the term, i.e. services whose interruption would endanger the existence or well-being of the whole or part of the population. The ban on strike activity for employees of the Nova Scotia Art Gallery, Boxing Authority and communications and Information Centre appears to the Committee to go far beyond this criterion. It accordingly would suggest that the Government consider the possibility of introducing an amendment to the legislation so that strikes are prohibited only in undertakings which provide essential services in the strict sense of the term. As for the employees to whom the right to strike justifiably does not apply, the Committee notes that the Act in question provides for mediation and conciliation procedures, together with binding arbitration, before an impartial civil Service Employee Relations Board and an arbitration board, respectively. According to the complainant, this disputes settlement machinery is inadequate as it is not a guaranteed procedure, but may be set up or not at the discretion of the Board. In, view of this, it appears to the Committee that the interests of the workers in question would be more adequately safeguarded if the Government could see its way to introducing an amendment to the legislation so that the setting up of binding arbitration procedure is no longer at the discretion of the Civil Service Employee Relations Board.
4. 233. The complainant's second criticism of the arbitration procedure - that the list of arbitral items in the legislation is too restrictive - is linked to the allegation that the Act limits the items which may be the subject of collective bargaining. The Committee notes that the combined effect of section 23 and Schedule B of the Act is such as to exclude from arbitration important items such as pensions which relate directly to conditions of employment of public employees. Section 13(2) of the Act equally limits negotiable items. The Committee understands that the Government may decide unilaterally on these matters so that the employees covered by the Act, who are also deprived of the right to strike, are unable to seek to have such matters determined by negotiation or arbitration. In this connection, the Committee would point out that there are certain matters which clearly appertain primarily or essentially to the management and operation of government business; these can reasonably be regarded as outside the scope of negotiation. It is equally clear that certain other matters are primarily or essentially questions relating to conditions of employment and that such matters should not be regarded as outside the scope of collective bargaining conducted in an atmosphere of mutual faith and trust. It would accordingly request the Government, in the light of the foregoing principles and considerations, to consider the possibility of extending the scope of matters that may be referred to arbitration or negotiation so as to include those matters which relate directly to conditions of employment of public employees.

The Committee's recommendations

• The recommendations of the Committee
  234. 234 In these circumstances, the Committee recommends the Governing Body to approve this report, and in particular the following conclusions:
       • (a) As regards the ban on strikes contained in the Civil Service Collective Bargaining Act, the Committee, while recognising that freedom of association does net necessarily imply the right to strike in the case of all civil service employees, would stress that the prohibition of this right should extend only to essential services in the strict sense of the term and must be accompanied by adequate compensatory measures for the settlement of disputes. It would accordingly suggest that the Government consider the possibility of introducing an amendment to the Act so that strikes are prohibited only in the case of employees who provide essential services in the strict sense.
       • (b) As for the disputes settlement procedure where there is no right to strike, it appears to the Committee that the interests of the workers in question would be more adequately safeguarded if the Government could see its way to introducing an amendment to the Act so that the setting up of binding arbitration procedures is no longer at the discretion of the Civil Service Employee Relations Board.
       • (c) As regards the prohibition contained in the Act on negotiation or arbitration of certain terms and conditions of employment, the Committee, while recognising that there are certain matters which appertain essentially to the management of government business, would point out that certain other matters relate to conditions of employment and should not be regarded as outside the scope of collective bargaining or arbitration. It would request the Government to consider the possibility of amending the provisions in question so as to extend the scope of matters that may be negotiated or referred to arbitration to include those matters which relate directly to conditions of employment of public employees.