Definitive Report - Report No 256, June 1988

Case No 1430 (Canada) - Complaint date: 13-OCT-87 - Closed

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INTRODUCTION
A. The complainant's allegations
B. The Government's reply
C. The Committee's conclusions
The Committee's recommendations
Extracts of legislative provisions examined in relation to Case No. 1430

131. The Canadian Labour Congress (CLC) submitted a complaint concerning infringements of trade union rights in Canada (British Columbia) in a communication dated 13 October 1987. On 15 February 1988, the Federal Government of Canada sent the reply from the Government of British Columbia in a communication dated 18 January 1988.
132. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); however, it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

133. In its communication of 13 October 1987, the Canadian Labour Congress (CLC) states that it is lodging a complaint concerning infringements of ILO Conventions on freedom of association on its own behalf and on behalf of its affiliates in the province of British Columbia, and more particularly on behalf of its affiliate, the Canadian Union of Public Employees. The infringements arise from the adoption by the British Columbia Legislature of Bill 19/1987 on the reform of industrial relations, amending the British Columbia Labour Code and renaming it the "Industrial Relations Act" (hereinafter referred to as Bill 19 or Industrial Relations Act).
134. The complainant explains that Bill 19 has been proclaimed by the Government of British Columbia, with the exception of sections 137.97, 137.98 and 137.99, which however can be proclaimed any time at the will and discretion of the Government.
135. According to the complainant, Bill 19 is incompatible with the fundamental principles on which the ILO is founded. What is more, the British Columbia Federation of Labour, which is affiliated to the CLC, considers that this Bill is tantamount to "a declaration of war on the working men and women of this province" and recommends that the Industrial Relations Council established by the legislation in question should be boycotted.
136. The complainant draws particular attention to the aspects of the new legislation which, in its opinion, are the most incompatible with ILO principles. It points out that in Part 8.1 of the Bill, one of the major changes to the previous Labour Code is section 60 of the Bill, which adds an entirely new section 137, entitled, "Part 8.1: Disputes Resolution". Part 8.1 creates a new body known as the Disputes Resolution Division, whose duties are set out in section 137.2.
137. According to the complainant, under new Part 8.1, free collective bargaining is to be respected and preserved only to the extent that it causes minimal disruption to interests of the public and the economy as perceived by the Government and its agents. It therefore sets out a number of compulsory procedures permitting third party, and particularly government, intervention in private sector collective bargaining. It also comprises a scheme which permits incursions into the private sector bargaining concerns of the parties, and the collective bargaining process, and which permits broad administrative and governmental control of the use of traditional economic weapons by parties to collective bargaining disputes.
138. The complainant continues that under the Act, the Commissioner, his agents, or, at a higher level, the Cabinet, are authorised to monitor and control all collective bargaining and to intervene in it virtually any time through a combination of elements drawn from the old Labour Code, the Essential Service Disputes Act, and the Compensation Stablisation Act, some of which were the object of a complaint submitted to the ILO in September 1983. The new Act combines principles and some language from each of these Acts, restructured with some new notions to implement government philosophy as regards controlling collective bargaining.
139. The complainant quotes in particular the subsections of section 137 of Part 8.1, which deal with the establishment of public interest inquiry boards and the appointments of mediators and fact-finders.
140. Furthermore, section 137.93 allows the Commissioner to appoint a public interest advocate who, according to the CLC, will almost certainly express views and take positions which are insensitive to the needs and aspirations of trade unions and their members.
141. Under section 137.97, government intervention to end a dispute can be launched for any reason not only by resolution of the Legislature, but also by the Lieutentant-Governor in Council, when he considers that the dispute poses "a threat to the economy of the province or to the health, safety or welfare of its residents". According to the complainant, the wording of this text is wide and the process for bringing disputes to the Legislature so unrestricted that the Legislature, and more alarmingly, the Cabinet effectively becomes an actor in the collective bargaining process.
142. As regards the public sector, the provisions of sections 137.95 and 137.96 and all references under Part 8.1 to public sector employees, indicate clearly that all compulsory settlements are made subject to the guiding principle of "ability to pay". However, according to the complainant, the definition of ability to pay allows so little leeway that an arbitration board will be forced to accept the Government's assessment of monies available. Thus the government-employer can effectively dictate its terms of settlement to public sector employees and the unions representing them.
143. The entire Part 8.1 is based on the premise that all services, either public or private, are essential to some degree. The complainant is of the opinion that under this concept, the right to strike of many workers will be largely illusory.
144. Sections 137.98 and 137.99 provide the Legislature and the Cabinet with the power to consider any matter "essential" and hence have a collective agreement imposed under the processes available to the Commissioner. In the complainant's opinion, this is entirely inconsistent with the basic premises of international principles on free collective bargaining.
145. Under sections 137.8 and 137.9, strikes or lock-outs may be prohibited even before they have started and the statute also imposes an unfair and severe system of punishment on employees not obeying back-to-work orders. Under sections 137.9(7) and 137.97(8), such an employee would be at the mercy of the employer regarding discipline. An arbitrator can hear the case, but has no power to alter the employer's penalty if cause exists. If a bargaining unit, for example, failed to bring down a picket line as instructed, the employer could carefully select and discharge any or all union supporters, without recourse by the union.
146. Amongst the other sections of Bill 19 which, according to the complainant, flagrantly infringe international labour Conventions, is section 6 which eliminates the right to include secondary boycott clauses in collective agreements and prohibits trade unionists from thus giving effective assistance to their fellow workers.
147. Furthermore, section 29 of Bill 19 (which amends section 53 of the Labour Code) severely restricts successor rights and permits employers to manipulate the structure of a transfer of business to reduce the likelihood of a "successor" declaration. As retention of the same employees is one indication of succession, the new provision is also a powerful incentive to employers not to employ the predecessor's employees.
148. The complainant adds that under section 81(3) of the Industrial Relations Act, any strike must start within three months of the strike vote or a new vote is necessary. The complainant considers that this section removes control over a union's strategy and tactics from the union and places it in the hands of the Government or the employers. (In some circumstances, an agreement could be imposed without a union ever having been able to take a strike vote.)
149. Section 43(b) of Bill 19 severely restricts the options of a union that wishes to exercise its right to strike. When this section is read with the new Part 8.1, it appears there may be circumstances where the right to strike is completely taken away from unions in both the private and public sector.
150. The complainant considers that section 47 of Bill 19 severely restricts the places or sites at which a union may lawfully picket and that, in certain circumstances, lawful picketing could be prohibited entirely.
151. In concluding, the complainant hopes that the ILO will deal fairly and speedily with this matter.

B. The Government's reply

152. In its reply of 18 January 1988, sent through the Federal Government of Canada, the Government of British Columbia points out that the legislative amendments to labour legislation introduced in the spring of 1987 were made against a difficult economic and social background requiring major change in labour law.
153. It states that in 1986, the year preceding the Industrial Relations Reform Act, virtually all components of British Columbia society would have agreed that the system of labour relations was undergoing a particularly traumatic time. The number of strikes and lock-outs had risen dramatically and this was imposing an unacceptable economic and social hardship on communities throughout the province. In 1986, the total number of work-days lost due to labour disputes reached nearly 3 million and this unrest culminated in a six-month disruption in the province's forest industry. This dispute alone directly involved 28,000 workers and accounted for 2,100,000 days of lost production at an estimated cost of two billion Canadian dollars to the provincial economy. The Government therefore considered that the labour relations unrest was a serious concern to the province, that it was undoubtedly discouraging investment opportunities and was contributing to the high provincial level of unemployment, averaging 12.6 per cent during 1986. In addition, given British Columbia's long-term dependence on international markets, the Government felt it was essential not to jeopardise its reputation as a supplier of primary products after recovery from the serious recession of the early 1980s.
154. As a result of the emerging consensus among a broad spectrum of British Columbia's society that some major changes to the process of collective bargaining were not only desirable, but were essential to their long-term interests, the Government decided to initiate a comprehensive review of its existing legislative framework for labour-management relations which, in its basic elements, had not been changed significantly since the early 1970s. This intensive and consultative review was undertaken during the early months of 1987.
155. The Government continues by explaining that public hearings were held in nine major centres around the province, and the general public and interested parties were requested and encouraged to make their views known through written briefs as well as oral submissions. In all, more than 700 briefs were received by the Ministry of Labour and these played an important role in the consultative development of the ideas and specific elements that were ultimately incorporated into Bill 19. Of these briefs, 288 came from organisations and the balance from individual citizens.
156. The Government states that it should be noted that labour organisations played an active role in participating in this legislative review process. In fact, of the 288 briefs received from organisations, 76 were received from labour organisations. The Government considers that trade union viewpoints were given equal consideration with those of employer positions and with those representing a variety of other interest groups in the province. In the final analysis, however, the Government was required to make certain choices and decisions which it determined to be in the best long-term interests of the province taken as a whole.
157. With respect to the specific concerns raised in the complaint, the Government of British Columbia replied to each of the points raised by the complainant.
158. As regards Part 8.1 of Bill 19 which, according to the CLC, sets out a number of compulsory procedures permitting third party and particularly government intervention in private sector bargaining, the Government states that it has two comments to make: first, it considers that the ability of a trade union to strike or of an employer to lock-out its employees is not an unlimited right and that it has already played a role in the past in labour disputes, by instigating conciliation procedures before the declaration of a strike and by determining which essential services should be maintained in the case of a strike, to protect public health, safety or welfare; secondly, according to the Government, the compulsory procedures outlined in Part 8.1 of the Act existed in one form or another in previous legislation or practice apparently without causing major difficulty to parties involved in labour negotiations.
159. According to the Government, the Industrial Relations Council's powers are a continuation of those previously exercised by the Minister and Ministry of Labour. The Government states that it is its intention that the Commissioner's authority to assist actively in private sector bargaining will be exercised judiciously and that significant interventions will only occur when the public interest is in jeopardy. Consequently, it does not agree with the complainant's allegation that the Commissioner's duty would be to control all collective bargaining.
160. As regards certain provisions of section 137 of Part 8.1 dealing with the establishment of public interest boards and the appointment of mediators and fact-finders which, according to the complainant, would express views and take positions which are insensitive to the needs and aspirations of trade unions and their members, the Government states that, on the contrary, the role of these various bodies will be to assist the parties in concluding and settling their differences. In addition, these bodies might on occasion play the role of advocate or protector of the interests of parties not directly involved in the dispute but who nevertheless have a vital concern in the eventual outcome. These features of the Act are designed to delay a work stoppage where the public interest may be adversely affected. However, they are not intended to prevent the parties directly involved from freely negotiating the collective agreement which it might be in their mutual interests to conclude.
161. As regards section 137.97 which enables the Government to intervene to end a dispute not only by resolution of the Legislature but also by the Lieutenant-Governor in Council, which, according to the complainant, is so vaguely worded that it allows the Cabinet broad intervention in the collective bargaining process, the Government replies that this provision is not going to result in the degree of intrusion into the collective bargaining arena that the CLC suggests. According to the Government, the Legislature's or Cabinet's involvement will be limited, as it has been in the past, to only those disputes having major impact on the health, safety and welfare of citizens. The Government adds that, even if this section should be brought into force in the future, it would do no more than speed up, and therefore limit the negative impacts of, intervention into areas where government involvement would likely occur even without change. Finally, the direct intervention of the Legislature or the Cabinet under section 137.97 will be mainly to trigger a response by the Commissioner of the Industrial Relations Council. His response would normally be to provide some assistance to the parties to aid them in concluding a mutually acceptable collective agreement.
162. Concerning section 137.95 and 137.96 and all references under Part 8.1 to public sector employees indicating that all compulsory settlements are made subject to the guiding principle of ability to pay, the Government concedes that although it is understandable that there are some features of the Industrial Relations Act which might be considered undesirable by trade unions and employers because of the possibility that the Commissioner may require the dispute to be settled by compulsory arbitration, previous practice in British Columbia suggests that this is a remote and unlikely occurrence. According to the Government, the underlying focus of the Act is to have the parties mutually determine the terms and conditions of their collective agreement through collective bargaining. The Act contains a variety of features designed to assist the parties in this process rather than to compel them as the CLC suggests.
163. The Government agrees that section 137.96 does make ability to pay an important, and in some instances the paramount, consideration for an arbitrated settlement of a public sector collective agreement. The ability to pay criterion was, however, incorporated into this section because the Government found that a limited number of arbitrators were ignoring or paying insufficient attention to the financial implications of their awards. This was causing problems for some local authorities and was, in effect, substituting an outside arbitrator's view of the proper organisation of resources for that determined by elected local officials. According to the Government, this change does not interfere with the integrity or the neutral position of the arbitrator and his or her ability to arbitrate fairly the issues under dispute. Even before the introduction of this legislative provision, most arbitrators normally considered the financial implication of an awarded wage settlement on the employer in question. Arbitrators will therefore continue to ensure that the real and true financial situation of the employer is carefully examined and that the economic facts are not manipulated to distort the arbitrator's award.
164. As regards sections 137.98 and 137.99 which, according to the complainant, enable the Legislature and the Cabinet to deem any matter essential and have a collective agreement imposed under the processes available to the Commissioner, the Government states that these two sections refer to the possible role of a special mediator who may be appointed to provide mediation assistance to the parties involved in a dispute seen as having particularly significant impact on the health, safety and welfare of the general public. Should this mediation role not be successful, the special mediator would be empowered to establish the terms of the collective agreement which are in dispute. The Government points out that these two sections have not yet been proclaimed and therefore have not become law. In any case, it adds, even if it finds it necessary to proclaim these sections in the future, this would merely codify a process which has already long existed in British Columbia and which is both rarely used and is largely acceptable to the parties based on previous experience. By way of example, the Government mentions the Metro Transit Collective Bargaining Assistance Act of 1984 which, at the time, ended a long stoppage of the public transport system in Vancouver and Victoria. It explains that the Act in question enabled a special mediator to be appointed, who had the responsibility of concluding a collective agreement to meet the longer-term interests of the parties while, at the same time, ensuring the resumption of this necessary service to the public after several months of disruption. The Government adds that these parties have since concluded a renewal agreement without the need for any outside involvement or interference.
165. Concerning sections 137.8 and 137.9 which, according to the complainant, make it possible to prohibit strikes or lock-outs even before they have started, the Government retorts that these two sections deal with labour disputes in the essential services. It agrees that the definition of essential services might be considered to be too broad, in that it includes reference to "poses a threat to the economy of the province" or "to the provision of educational services". However, it maintains that the scope of essential services as defined is consistent with the context of collective bargaining and previous experience in the province. In fact, according to the Government, these sections are carried over from previous legislation, in particular section 73 of the former Labour Code and section 8 of the Essential Service Disputes Act. It explains that section 137.8 covers two aspects of labour disputes, i.e. the designation of services to be maintained during a dispute and the possibility of imposing a short-term "cooling-off" period of up to 40 days. The "cooling-off" provision was introduced into legislation in 1975 and in the majority of cases of past usage has been accepted by the parties concerned. In fact, the new Act reduces the allowable period from the 90 days (plus an optional 14-day extension), that had been permissible under the Essential Service Disputes Act, to 40 days.
166. As regards section 137.9, the Government accepts that this authorises back-to-work orders, but explains that it merely codifies a practice which has been developed over the years. In this respect the Government affirms that its intention is only to intervene in the most serious situations.
167. Concerning sections 137.9(7) and 137.97(8) which, according to the complainant, would place an employee at the mercy of the employer regarding discipline, the Government explains that the purpose of these two subsections is to make clear to all concerned in a labour dispute that a back-to-work requirement is an order of priority to those affected. Consequently, according to the Government, employees are not placed at the mercy of the employer. They continue to have access to grievance and arbitration procedures available under their collective agreement for dealing with matters arising from some form of discipline. Similarly, the unfair labour practice provisions of the Industrial Relations Act will continue to apply and provide a broader protection for any employee that might be affected by an unjustified employer decision involving the sections about which the CLC has expressed concern.
168. As regards section 6 of Bill 19 (section 4.1 of the Industrial Relations Act) which abolishes the right to include secondary boycott clauses in collective agreements and prohibits trade unionists from thus giving effective assistance to their fellow workers, the Government replies that ILO Conventions do not provide for a "right" to conduct and engage in secondary boycott activities. It points out that it has decided to bring this practice more in line with that contained in the legislation of other Canadian provinces. In its view, the change in question does not prohibit declarations of support or boycott movements but only prevents an employer from agreeing to be a party to them as part of signing a collective agreement. It explains that individual union members, for example, could decide that they wanted to exert economic pressure on an employer by refusing to shop at a particular store. This type of activity would not be prohibited by section 4.1 of the Industrial Relations Act.
169. Concerning section 29 of Bill 19 (amending section 53 of the previous Act), which would allegedly severely restrict successor rights and enable employers to manipulate the structure of a transfer of business to reduce the likelihood of a successor declaration, the Government points out that the changes introduced by section 29 of Bill 19, amending section 53 of the Act, do not eliminate or significantly erode the successor provisions available under the Act. Section 53(1) still makes it clear that upon the sale, transfer or other disposal of a business, or a substantial part of it, a successorship and continuation of the existing collective agreement will occur. No "declaration" is required or ever has been required for a trade union to acquire successor status. Under the Labour Code (now the Industrial Relations Act), the Labour Relations Board/Industrial Relations Council is provided with jurisdiction to decide questions arising from a successorship issue pursuant to sections 53(3) and 34. According to the Government, section 53 simply clarifies the existing legislation respecting some specific issues that were surfacing as potential problems for the interpretation of this section. The amendment is therefore designed to provide guidance for the Industrial Relations Council.
170. In the Government's view, the interpretation previously given to section 53 was too narrow and worked to the detriment of investment opportunities. The addition of subsections 1.1, 1.2 and 1.3, dealing with individual skills, business location and bankruptcy cases, respectively, attempts to define better the relationship of these factors to a successorship.
171. As regards section 43 of Bill 19 (amending section 81(3) of the Labour Code), which stipulates that any strike must start within three months of the strike vote failing which a new vote is necessary, and section 43 b)(amending section 81(3) b)of the Code) which severely restricts the options of a union that wishes to exercise its right to strike, the Government considers that these aspects of the Act are almost exactly the same as those which existed under the previous Labour Code. They have only, to a great extent, been carried over from previous legislation (see section 81(3) a)of the Labour Code). The Government also adds that parallel provisions exist for employers who bargain as part of a multi-employer bargaining association who may wish to lock-out their employees. According to the Government, the statutory limitation on an unused strike mandate and the advance notice requirements, which are part of sections 81 and 82, are both appropriate and acceptable limitations which do not unduly hinder or restrict freedoms to use a strike weapon.
172. Concerning section 47 of Bill 19 (section 85 of the Industrial Relations Act) which allegedly places severe restrictions on the places and sites at which a union may lawfully picket, the Government states that it does not intend restricting the right of striking or locked out workers to express their opinions through picketing. In its view, the purpose of the changes is to eliminate, as far as possible, the unnecessary impact and disruption of picketing activity on third parties that do not have a direct involvement in the primary dispute. The Government adds that the Canadian Charter of Rights and Freedoms provides fundamental protection to individuals on grounds such as the right of freedom of expression. It points out for instance that if trade unions or their membership feel that fundamental freedoms have been infringed in this area, legal avenues are available to rectify that situation. In the Government's view, however, any limited restrictions on picketing introduced through Bill 19 are warranted, given the beneficial impacts on neutral third parties.

C. The Committee's conclusions

173. In the present case, the complainant criticises Bill 19 on industrial relations, amending the Labour Code of British Columbia, most of which entered into effect in July 1987, with the exception of sections 137.9, 137.98 and 137.99 which can however be proclaimed at any time at the discretion of the said Government.
174. According to the complainant, the new Act establishes a number of compulsory procedures in private and public collective bargaining and places administrative restrictions on the means which should be available to workers to put forward their economic claims.
175. The Committee has noted the detailed allegations submitted by the complainants and the specific replies communicated by the Government on each of these allegations. It has also taken note of the legislation criticised by the complainant, the relevant extracts of which are annexed to the present report. The question is to determine whether the disputes settlement procedures concerning workers in the public and private sectors, which have been introduced by the new Act in British Columbia, are in accordance with the principles of freedom of association upheld by the Committee on Freedom of Association.
176. The Committee notes the Government's explanation that it initiated a comprehensive review of legislation on labour-management relations as a result of a broad consensus among society in the province in 1986 after a number of difficult labour disputes. The Government claims that the workers' organisations were consulted but acknowledges that it was required to make certain choices and decisions which it considered to be in the best long-term interests of the province taken as a whole.
177. With respect to the allegations concerning Part 8.1 of Bill No. 19 on the reform of industrial relations, amending the Labour Code, which sets out a number of compulsory procedures permitting third party, and particularly government intervention, in private sector bargaining, the Committee notes the Government's assurances that it is its intention that the Commissioner's authority to assist actively in private sector negotiations will be exercised judiciously and only when the public interest is in jeopardy.
178. In the Committee's opinion, however, as the Committee of Experts on the Application of Conventions and Recommendations has already indicated, certain rules and practices can facilitate negotiations and help to promote collective bargaining and various arrangements may facilitate the parties' access to certain information concerning, for example, the economic position of their bargaining unit, wages and working conditions in closely related units, or the general economic situation; however, all legislation establishing machinery and procedures for arbitration and conciliation designed to facilitate bargaining between both sides of industry must guarantee the autonomy of parties to collective bargaining (see General Survey on Freedom of Association and Collective Bargaining, 1983, paragraph 302).
179. Consequently, the Committee considers that instead of entrusting the public authorities with powers to assist actively, even to intervene, in order to put forward their point of view, it would be better to convince the parties to collective bargaining to have regard voluntarily in their negotiations to the major reasons put forward by the Government for their economic and social policies of general interest.
180. In the present case, the Committee notes that the Commissioner may, when he considers it necessary, establish a public interest inquiry board (section 137.92 of Bill 19) which tries to assist the parties in reaching agreement and puts forward recommendations that each of the parties might accept or reject within ten days (section 137.94(1) to (7)). Nevertheless, it would seem that if one of the bargaining parties neglects or refuses to participate in the preparation of a collective agreement in accordance with the public interest board's recommendation, the other party may prepare an agreement giving effect to the recommendation and submit it to the public interest board for certification, following which it is binding on both parties (section 137.94(10) and (11)). In other words, under the new legislation, one of the parties alone can have recourse to compulsory arbitration to put an end to a labour dispute.
181. In this respect, the Committee feels bound to draw the Government's attention to the fact that compulsory arbitration to end a collective labour dispute is acceptable if it is at the request of both parties involved in the dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving civil servants acting on behalf of the public authorities or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population.
182. The Committee therefore requests the Government to amend its legislation to limit the public authorities' powers of intervention in settling a labour dispute to the above-mentioned conditions and circumstances.
183. As regards sections 137.95 and 137.96 concerning the "ability to pay" criterion of employers in the public sector and the obligation of arbitrators to abide by this criterion, the Committee notes that it has already been called upon to examine Case No. 1329 concerning Canada (British Columbia) on this matter. The Committee therefore feels bound to refer to the conclusions it reached on this issue in that Case (see 243rd Report, paras. 183 to 188), where it is stressed that the requirement of prior approval before a collective agreement can come into force is not in conformity with the principles of voluntary collective bargaining laid down in Convention No. 98. The Committee had already suggested to the Government to envisage a procedure whereby the attention of the parties could be drawn to the considerations of general interest which might require further examination of the terms of the agreement on their part. However, it pointed out that persuasion was always to be preferred to constraint.
184. As regards sections 137.87, 137.98 and 137.99 which authorise the public authorities (i.e. the Lieutenant-Governor in Council or the Legislature) to refer a collective dispute - which, in their view, constitutes a threat to the economy of the province, to the health, safety and welfare of its residents or to the provision of educational services in the province - to a special mediator appointed by the Commissioner, who is empowered to establish the terms of a collective agreement between the parties, the Committee notes that for the moment the provisions in question have not entered into effect. The Committee notes, however, that the Government considers that these provisions merely codify an existing process which is rarely used but largely acceptable to the parties - based on previous experience.
185. For its part, the Committee can only express its firm hope that the Government will not implement these provisions, which are tantamount to providing the public authorities with the power of submitting a dispute to the compulsory arbitration of a special mediator. The Committee therefore requests the Government to ensure that the public authorities' powers of intervention remain restricted to the extremely limited conditions described above, i.e., to cases when the authorities may end a strike in the civil service or essential services, in the strict sense of the term. The Committee also recalls that teachers should also be able to enjoy the right to negotiate freely their working conditions and have recourse to strike action as a legitimate means of defending their economic and social interests.
186. Concerning section 137.8 which deals with essential services and allows a cooling-off period to be imposed for up to 40 days before a strike is declared, the Committee considers that the laying down of such a clause to defer a strike, in so far as it is designed to provide the parties with a period of reflection, is not contrary to the principles of freedom of association. Indeed, the Committee has already pointed out in the past that legislation imposing recourse to compulsory conciliation and arbitration procedures in industrial disputes before calling a strike cannot be regarded as an infringement of freedom of association (see, for instance, paragraph 378 of the Digest of Decisions and Principles of the Committee on Freedom of Association, 1985). The Committee feels that this clause which defers action may enable both parties to come once again to the bargaining table, and, possibly, to reach an agreement without having recourse to a strike.
187. As regards section 137.9, also on essential services, which makes it possible to ask the public interest board to determine the minimum service it considers necessary or essential to prevent an immediate and serious threat to the economy of the province, to the health, safety or welfare of its residents or to the provision of educational services, the Committee recalls that it has always admitted that a certain minimum service may be requested in the event of strikes whose scope and duration could cause an acute national crisis, but that in this case, the trade union organisations should be able to participate, along with the employers and the public authorities, in defining the minimum service (see Case No. 1356 concerning Canada (Quebec), 248th Report, paragraph 144).
188. The Committee therefore invites the Government to ensure that the occupational organisations in question are consulted when the necessary minimum service is being defined.
189. As regard sections 137.9(7) and 137.97(8) on return to work and the employer's right to discipline employees not obeying back-to-work orders, the Committee feels bound to recall that although Article 8 of Convention No. 87 calls upon workers and employers to respect the law of the land, this law should not impair upon the guarantees provided for in the Convention. In the Committee's opinion, whenever a total and prolonged strike in a vital sector of the economy might cause a situation in which the life, health or personal safety of the population might be endangered, a back-to-work order might be lawful if applied to a specific category of staff in the event of a strike, whose scope and duration could cause such a situation. However, a back-to-work requirement outside such cases is contrary to the principles of freedom of association.
190. The Committee therefore requests the Government to ensure that the back-to-work orders are limited to the specific cases mentioned above and to amend its legislation to provide that employers are not authorised to discipline workers as they themselves feel fit.
191. Concerning the obligation to hold a second strike vote if a strike has not taken place within three months of the first vote (section 43 of Bill No. 19 amending section 81.3 of the Labour Code), the Committee considers that the parties might change their minds during a three-month period. Consequently, this provision does not constitute an infringement of freedom of association, provided that it sets out to enable the parties concerned to put forward their point of view democratically in a new vote.
192. As regards the restrictions on the places or sites at which a trade union may lawfully picket (section 47 of Bill No. 19 amending section 85 of the Labour Code) and the requirement that strike pickets cannot be set up near an enterprise where the workers are lawfully on strike, the Committee considers that this provision does not infringe the principles of freedom of association, in so far as these strikes have been legally declared in accordance with the principles of the ILO in this field.
193. As regards the elimination of the right to include secondary boycott clauses in collective agreements (section 6 of Bill No. 19), the Committee, while noting the Government's explanations on this point, considers that it is not in accordance with free and voluntary collective bargaining to include in legislation restrictions on types of clauses which could be included in collective agreements. Consequently, the Committee requests the Government to review the legislation on this point.
194. With regard to the provision which would restrict successor rights and permit employers to manipulate the way in which enterprises are transferred so that there will be no more obligation for successorship (section 29 of Bill No. 19 amending section 53 of the Labour Code which provides the Industrial Relations Council with jurisdiction to rule on the matter), the Committee notes that it has already been called upon to examine similar legislation in Case No. 1247 concerning Canada (Alberta). At the time, the Committee noted that the legislation in Alberta only codified and speeded up the previous normal practices and that it was not unreasonable (241st Report, para. 138). In the present case the Committee notes the Government's statement that the provision in question merely clarifies the legislation and is designed to provide guidance to the Industrial Relations Council. In the Committee's opinion, since the complainant merely makes a criticism of a general nature, without specifying in which way the principles of freedom of association are infringed, and that section 25 only specifies successorship rights and obligations by defining them more clearly - without however undermining successorship obligations - this provision does not seem to constitute a threat to freedom of association.

The Committee's recommendations

195. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
- a) The Committee considers that several provisions contained in Bill No. 19 on industrial relations are not in conformity with the principles of freedom of association.
- b) The Committee therefore requests the Federal Canadian Government to invite the Government of British Columbia to amend its legislation.
- c) As regards recourse to compulsory arbitration to put an end to a strike, the Committee draws the Government's attention to the need to limit the right of public authorities to have recourse to arbitration to cases and circumstances in which strikes may be limited, or even prohibited, i.e., in the public service involving civil servants acting on behalf of the public authorities and in essential services, whether public or private, in so far as an interruption of these services might endanger the life, personal safety or health of the population.
- d) With respect to the obligation on arbitrators to take account of ability to pay criteria when making awards, the Committee requests the Federal Government to invite the Provincial Government to amend its legislation to encourage and promote the development and use of voluntary collective bargaining procedures between employers or employers' organisations, on the one hand, and workers' organisations, on the other hand, to ensure that working conditions of workers protected by the principles contained in Convention No. 98 are settled by these means.
- e) As regards the determination of minimum services to be maintained in the essential services, the Committee requests the Federal Government to invite the Provincial Government to amend its legislation to restrict such services to operations that are strictly necessary and to guarantee that workers' organisations are consulted along with employers and public authorities in determining the number of workers required to carry out such minimum services.
- f) Concerning the right of employers to discipline any worker refusing to obey a back-to-work order, the Committee requests the Federal Government to invite the Provincial Government to amend its legislation so that employers may in no case discipline workers as they wish and to limit back-to-work orders to the specific cases mentioned above, i.e. in the event of a strike in the civil service and essential services, in the strict sense of the term.
- g) As regards the legislative ban on including secondary boycott clauses in collective agreements, the Committee requests the Federal Government to invite the Government of British Columbia not to include in its legislation restrictions on clauses which could be included in collective agreements.
- h) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the effects of this legislation on the application of Convention No. 87, ratified by Canada.

Extracts of legislative provisions examined in relation to Case No. 1430

BILL NO. 19-1987 INDUSTRIAL RELATIONS REFORM ACT, 1987
Labour Code
1. The Labour Code, R.S.B.C. 1979, c.212 is amended by repealing the title and
substituting the title "Industrial Relations Act".
......................................................... ..............
6. The following section is added:
Secondary boycott agreements prohibited
4.1
(1) An express or implied provision of an agreement between an employer and
a trade union by which the employer ceases or refrains, or agrees to cease or
refrain from handling, using, buying, selling, transporting or otherwise
dealing in the products of another employer or to cease doing business with
another person is void.
(2) No employer and no trade union shall include in any agreement a
provision that is, under subsection (1), void.
(3) A provision of an agreement is not void by reason only that it
recognises the right to refuse to cross a picket line.
.......................................................... .............
29. Section 53 is amended:
a) in subsection (1) by striking out "where a business or part of it or a
substantial part of its entire assets are" and substituting "where a business
or a substantial part of it is"; and
b) by adding the following subsections:
(1.1) For the purposes of this section, the skills or abilities of an
individual do not of themselves constitute a business.
(1.2) For the purposes of this section there is not a sale, lease, transfer
or other disposition of a business by a person (referred to in this subsection
as the "former business entity") by reason only of the fact that another
person performs similar functions at the location previously occupied by the
former business entity.
(1.3) This section does not apply where a business or a substantial part of
it is sold, leased, transferred or otherwise disposed of by a trustee in
bankruptcy under the Bankruptcy Act (Canada), unless the council is satisfied
that there has been an attempt to evade collective bargaining obligations
under this Act.
..........
(Section 53 of the Labour Code (previous text) read as follows:
Successor rights and obligations
53.
(1) Where a business or part of it or a substantial part of its entire
assets are sold, leased, transferred or otherwise disposed of, the purchaser,
lessee or transferee is bound by all proceedings under this Act before the
date of the disposition, and the proceedings shall continue as if no change
had occurred; and where a collective agreement is in force, it continues to
bind the purchaser, lessee or transferee to the same extent as if it had been
signed by him.
(2) Where a question arises under this section, the board, on application by
any person, shall determine what rights, privileges and duties have been
acquired or are retained, and for this purpose the board may make inquiries or
direct that representation votes be taken as it considers necessary or
advisable.
(3) The board, having made an inquiry or directed a vote pursuant to this
section, may
a) determine whether the employees constitute one or more units
appropriate for collective bargaining;
b) determine which trade union shall be bargaining agent for the employees
in each unit;
c) amend, to the extent it considers necessary or advisable, a certificate
issued to a trade union or the description of a unit contained in a collective
agreement;
d) modify or restrict the operation or effect of a provision of a
collective agreement in order to define the seniority rights under it of
employees affected by the sale, lease, transfer or other disposition; and
e) give directions the board considers necessary or advisable, as to the
interpretation and application of a collective agreement affecting the
employees in a unit determined under this section to be appropriate for
collective bargaining.)
.......................................................... .............
42. Section 80 is repealed and the following substituted:
Votes on strikes and lock-outs prohibited before bargaining
80. A person shall not take a vote under section 81 or 82 on the question of
whether to strike or on the question of whether to lock-out until the trade
union and the employer, or their authorised representatives have bargained
collectively in accordance with this Act.
.......................................................... .............
43. Section 81 is amended:
a) by repealing subsection (1) and substituting the following:
(1) A person shall not declare or authorise a strike and an employee shall
not strike until a vote has been taken, in accordance with the regulations, of
the employees in the unit affected as to whether to strike, and the majority
of those employees who vote have voted for a strike; and
b) in subsection (3) by repealing paragraph (b) and substituting the
following:
b) an employee shall not strike unless:
i) the employer has been given written notice by the trade union that the
employees are going on strike;
(ii) the written notice has been filed with the chairman of the Disputes
Resolution Division;
(iii) 72 hours, or a longer period directed under this section, has elapsed
from the time the written notice was filed with the chairman of the Disputes
Resolution Division;
(iv) where a mediation officer has been appointed, 48 hours have elapsed
from the time the trade union is informed by the chairman that the mediation
officer has reported to him, or from the time required under subparagraph
(iii), whichever is longer;
v) where a fact finder has been appointed, 48 hours have elapsed from the
time the fact finder's report has been given to the parties by the chairman,
or from the time required under subparagraph (iii), whichever is longer; and
(vi) the trade union which has given written notice is not subject to an
order made under Part 8.1 preventing the strike.
..........
(Section 81 (previous text) read as follows:
Pre-strike voting and notice
81.
(1) A person shall not declare or authorise a strike, and an employee shall
not strike, until a vote has been taken, by secret ballot and in accordance
with the regulations, of the employees in the unit affected, as to whether to
strike, and the majority of those employees who vote have voted for a strike.
(2) Where, on application by a person directly affected by a strike vote or
an impending strike, or on its own behalf, the board is satisfied that a vote
has not been held in accordance with subsection (1) or the regulations, it may
make an order declaring the vote of no force or effect, and directing that, if
another vote is conducted, it shall be taken on the terms it considers
necessary or advisable.
(3) Except as otherwise agreed in writing between the employer or employers'
organisation authorised by the employer and the trade union representing the
unit affected, where the vote favours a strike
a) a person shall not declare or authorise a strike, and an employee shall
not strike, except in the three months immediately following the date of the
vote; and
b) an employee shall not strike until:
(i) the employer has been given written notice by the trade union that the
employees are going to strike;
(ii) seventy-two hours, or a longer period directed under this section, has
elapsed from the time notice was given; and
(iii) where a mediation officer has been appointed under section 69, until the
trade union is advised by the minister that the mediation officer has reported
to the minister.
(4) Notwithstanding subsection (3)(b), the board may, on application or on
its own motion, for the protection of:
a) perishable property; or
b) other property or persons affected by perishable property, direct a
trade union to give more than 72 hours' notice of a strike.
(5) Where the board makes a direction under subsection (4), the board:
a) shall specify the length of the written notice required; and
b) may specify terms it considers necessary or advisable.
(6) In subsections (4) and (5) of this section and section 82(4) and (5)
"perishable property" includes property which,
a) is imminently subject to spoilage; or
b) may imminently become dangerous to life, health or other property.)
.......................................................... .............
44. Section 82 is amended:
a) by repealing subsection (1) and substituting the following:
(1) Where two or more employers are engaged in the same dispute with their
employees, a person shall not declare or authorise a lock-out, and an employer
shall not lock out his employees, until a vote has been taken in accordance
with the regulations, of all emloyers, as to whether to lock-out and a
majority of those employers who vote have voted for a lock-out;
and b) in subsection (3) by repealing paragraph b)and substituting the
following:
b) an employer shall not lock out his employees unless:
i) the trade union has been given written notice by the employer that the
employer is going to lock out his employees;
(ii) the written notice has been filed with the chairman of the Disputes
Resolution Division;
(iii) 72 hours, or a longer period directed under this section, has elapsed
from the time the written notice was filed with the chairman of the Disputes
Resolution Division;
(iv) where a mediation officer has been appointed, 48 hours have elapsed from
the time the employers are informed by the chairman that the mediation officer
has reported to him, or from the time required under subparagraph (iii),
whichever is longer;
(v) where a fact finder has been appointed, 48 hours have elapsed from the
time the fact finder's report has been given to the parties by the chairman,
or from the time required under subparagraph (iii), whichever is longer; and
(vi) the employer who has given written notice is not subject to an order
made under Part 8.1 preventing the lock-out.
..........
(Section 82 (previous text) read as follows:
Pre-lockout vote and notice
82.
(1) Where more than one employer is engaged in the same dispute with their
employees, a person shall not declare or authorise a lock-out, and an employer
shall not lock out his employees, until a vote has been taken by secret ballot
and in accordance with the regulations of all employers, as to whether to lock
out and a majority of those employers who vote have voted for a lock-out.
(2) Where, on application by a person directly affected by a lock-out vote
or an impending lock-out, or on its own behalf, the board is satisfied a vote
has not been held in accordance with subsection (1) or the regulations, it may
make an order declaring the vote of no force or effect, and directing that if
another vote is conducted it shall be taken on the terms it considers
necessary or advisable.
(3) Except as otherwise agreed in writing between the employer and
employers' organisation authorised by the employer and the trade union
representing the unit affected,
a) where a vote is taken under subsection (1) and the vote favours a
lock-out, a person shall not declare or authorise a lock-out and an employer
shall not lock out his employees except during the three months immediately
following the date of the vote; and
b) an employer shall not lock out his employees until,
i) the trade union has been given written notice by the employer that the
employer is going to lock out his employees;
(ii) 72 hours, or a longer period directed under this section, have elapsed
from the time notice was given; and
(iii) where a mediation officer has been appointed under section 69, until the
employer has been advised by the minister that the mediation officer has
reported to the minister.
(4) Notwithstanding subsection (3)(b), the board may, on application or on
its own motion, for the protection of,
a) perishable property; or
b) other property or persons affected by perishable property, direct an
employer to give more than 72 hours' notice of a lock-out.
(5) Where the board makes a direction under subsection (4), the board,
a) shall specify the length of the written notice required; and
b) may specify terms it considers necessary or advisable.)
.......................................................... .............
45. Section 83(3) is repealed and the following substituted:
(3) An act or omission by a trade union or by the employees shall not
constitute a strike where:
a) it is required for the safety or health of those employees, or
b) it is permitted pursuant to a provision of a collective agreement by
which an employer engaged in the performance of construction work on a
construction project agrees that employees within the bargaining unit covered
by the collective agreement and employed on the construction project are not
required to work in association with persons who are not members of:
i) the trade union representing the bargaining unit, or
(ii) another trade union contemplated by the collective agreement.
..........
(Section 83 (previous text) read as follows:
Rights preserved
83.
(1) This Act shall not be construed to prohibit the suspension or
discontinuance by an employer of operations in his establishment, in whole or
in part, for a cause not constituting a lock-out.
(2) The burden of proof that operations in his establishment are or were
suspended or discontinued for a cause not constituting a lock-out is on the
employer.
(3) An act or omission by a trade union or by the employees shall not
constitute a strike where it is required for the safety or health of those
employees or where it is permitted pursuant to a provision of a collective
agreement by which the employer agrees that employees within the bargaining
unit covered by the collective agreement are not required to work in
association with persons who are not members of,
a) the trade union representing the bargaining unit; or
b) another trade union contemplated by the collective agreement.)
.......................................................... .............
46. Section 84 is amended by adding "or the performance of a provision of an
agreement prohibited by section 4.1(1)" after "picketing as defined in this
Act".
..........
(Section 84 (previous text) read as follows:
Information
84. A trade union or other person may, at any time and in a manner that does
not constitute picketing as defined in this Act, communicate information to a
person, or publicly express sympathy or support for a person, as to matters or
things affecting or relating to terms or conditions of employment or work done
or to be done by that person.)
.......................................................... .............
47. Section 85 is amended:
a) in paragraphs a) and b) of subsection (1) by striking out "persons" and
substituting "employers".,
b) in subsection (2) by adding ", for the benefit of a struck employer, or
for the benefit of an employer who has locked out," after "A person who",
c) in subsection (3) by striking out "is locked out or lawfully on strike."
and substituting "performs work under the control or direction of the employer
if the work is an integral and substantial part of the employer's operation
and the site or place is a site or place of the lawful strike or lockout.",
d) in subsection (4) a) by adding "for the employer's own benefit" after
"supply goods or furnish services",
e) by repealing subsection (4) b) and substituting the following:
b) at or near the place where an ally performs work, supplies goods or
furnishes services for the benefit of a struck employer, or for the benefit of
an employer who has locked out,,
f) by adding the following subsection:
(4.1) In subsection (4) "employer" means the person whose operation may be
lawfully picketed under subsection (3).,
g) by repealing subsection (5) and substituting the following:
(5) The council may, on application or on its own motion, make an order
defining the site or place at which picketing that is permitted by subsection
(3), or that is permitted under subsection (4), may take place, and where the
picketing is common site picketing the council shall restrict the picketing in
such a manner that it affects only the operation of the employer causing the
lockout or whose employees are lawfully on strike, or an operation of an ally
of that employer., and
h) by adding the following subsection:
(6) For the purposes of this section, divisions or other parts of a
corporation or firm shall, if they are separate and distinct operations, be
treated as separate employers.)
..........
(Section 85 (previous text) read as follows:
Picketing
85.
(1) In this section "ally" means a person who, in the board's opinion, in
combination, in concert or in accordance with a common understanding with an
employer assists him in a lock-out or in resisting a lawful strike; "common
site picketing" means picketing at or near a site or place where,
a) two or more persons carry on operations, employment or business; and
b) there is a lock-out or lawful strike by or against one of the persons
referred to in paragraph (a), or one of them is an ally of an employer by or
against whom there is a lock-out or lawful strike.
(2) A person who performs work, supplies goods or furnishes services of a
nature or kind that, except for a lock-out or lawful strike, would be
performed, supplied or furnished by the employer, shall be presumed by the
board to be the employer's ally unless he proves the contrary.
(3) A trade union, a member or members of which are lawfully on strike or
locked out, or a person authorised by the trade union, may picket at or near a
site or place where a member of the trade union is locked out or lawfully on
strike.
(4) The board may, on application and after making the inquiries it
requires, permit picketing,
a) at or near another site or place which the employer causing a lock-out
or whose employees are lawfully on strike is using to perform work, supply
goods or furnish services that, except for the lock-out or strike, would be
performed, supplied or furnished at the site or place where picketing is
permitted by subsection (3); or
b) at or near the place of business, operations or employment of an ally,
but the board shall not permit common site picketing unless it also makes an
order under subsection (5) defining the site or place and restricting the
picketing in the manner referred to in that subsection.
(5) The board may, on application or on its own motion, make an order
defining the site or place at which picketing that is permitted by subsection
(3), or that is permitted under subsection (4), may take place, and where the
picketing is common site picketing the board shall by the order reasonably
restrict the picketing to the employer causing the lock-out, or whose
employees are on strike, or to an ally of that employer. 1984-24-16, effective
8 June 1984.)
.......................................................... .............
60. The following is added after section 137:
PART 8.1
Disputes resolution Interpretation
137.1 In this Part,
"arbitration board" includes a single arbitrator, a board of arbitration, a
mediator-arbitrator, a final offer selector and a special mediator;
"chairman" means chairman of the Disputes Resolution Division of the council;
"division" means the Disputes Resolution Division of the council;
"fact finder" means a person appointed to act as a fact finder under this
Part;
"public interest inquiry board" means a public interest inquiry board
established under section 137.92;
"public sector employer" means
a) the government;
b) a corporation or an unincorporated board, commission, council, bureau,
authority or similar body that has -
i) on its board of management or board of directors, a majority of members
who are appointed by an Act, a minister of the Lieutenant Governor in Council,
or
(ii) employees appointed under the Public Service Act.
c) a municipality, including
i) a municipality;
(ii) a regional district; and
(iii) an improvement district as defined in the Municipal Act,
d) a board of school trustees as defined in the School Act;
e) a university as defined in the University Act;
f) an institution as defined in the College and Institute Act;
g) a community care facility as defined in the Community Care Facility Act
which receives funds from another public sector employer;
h) a hospital as defined in the Hospital Act or the Hospital Insurance Act
which receives funds from another public sector employer;
i) a library board within the meaning of the Library Act; and
j) an employer named in the Schedule to this Act.
"special mediator" means a person appointed under section 137.98 and includes
a mediator-arbitrator.
Duties and functions of division
137.2
(1) It is the duty of the division,
a) to monitor collective bargaining between employers and bargaining
agents;
b) to provide assistance to employers and bargaining agents to facilitate
the making or renewing of collective agreements;
c) to gather and publish information and statistics respecting labour
relations, employment and collective bargaining in the Province;
d) to administer mediation services provided under this Part; and
e) to carry out the functions imposed on it by this Part and other
functions the council considers necessary to effect the purposes of this Part.
(2) The chairman may authorise a special mediator, a public interest inquiry
board, a fact finder or an arbitration board to employ consultants.
Mediation services
137.3
(1) Where,
a) notice has been given to commence collective bargaining between a trade
union and an employer;
b) either party makes a written request to the chairman to appoint a
mediation officer to confer with the parties to assist them to conclude a
collective agreement or a renewal or revision of it; and
c) the request is accompanied by a statement of the matters the parties
have or have not agreed on in the course of collective bargaining, the
chairman may appoint a mediation officer.
(2) A person appointed as a mediation officer need not be an employee of the
council.
(3) The chairman may at any time during the course of collective bargaining
between an employer and a trade union, where he believes that the appointment
is likely to facilitate the making of a collective agreement, appoint a
mediation officer to confer with the parties.
(4) Where a mediation officer is appointed to confer with the parties he
shall, within ten days after his first meeting with the parties or within 20
days after his appointment, whichever is sooner, or where the parties consent,
within a longer period of time that the chairman directs, report to the
chairman setting out the matters on which the parties have or have not agreed
and such other information as the mediation officer considers relevant to the
collective bargaining between the parties.
(5) Where either party so requests of the chairman, or where the chairman so
directs, the mediation officer shall provide to the chairman and the parties a
report concerning the collective bargaining dispute which report may include
recommended terms of settlement.
(6) Parties conferring with a mediation officer under this section shall
provide such information concerning their collective bargaining as the
mediation officer requests.
Strike or lock-out
137.4
(1) Where a strike or lock-out has commenced, the trade union or employer
commencing the strike or lock-out shall immediately inform the chairman in
writing specifying the date the strike or lock-out commenced.
(2) It is the duty of the commissioner to keep the minister informed
respecting strikes and lock-outs that occur or are threatened.
First collective agreement
137.5
(1) Where a trade union certified as bargaining agent and an employer have
been engaged in collective bargaining to conclude their first collective
agreement and have failed to do so, the commissioner may, at the request of
either party and after any investigation he considers necessary or advisable,
constitute a panel of the council to inquire into the dispute and, if the
commissioner considers it advisable, to settle the terms and conditions for
the first collective agreement.
(2) The panel constituted under subsection (1) shall consist of three
persons designated by the commissioner.
(3) Notwithstanding the reference in subsection (1) to the panel as a panel
of the council, the commissioner may designate as panel members two persons
who are not members of the council, and those persons shall, while they are
members of the panel, be deemed for all purposes of the panel to be members of
the council.
(4) Where the panel settles the terms and conditions for the first
collective agreement they shall be deemed to constitute the collective
agreement between the trade union and the employer and shall be binding on
them and the employees except to the extent the parties agree in writing to
vary those terms and conditions.
(5) Where a party to a dispute referred to in this section is a public
sector employer and the dispute is referred to a panel under this section,
section 137.96 applies.
Terms and conditions
137.6
(1) In settling terms and conditions under section 137.5, a panel shall give
the parties an opportunity to present evidence and make representations, and
may take into account, among other things,
a) the extent to which the parties have or have not bargained in good
faith in an effort to conclude a first collective agreement; and
b) terms and conditions of employment negotiated through collective
bargaining for comparable employees performing the same or similar functions
in the same or related circumstances.
(2) A collective agreement settled by the panel under section 137.5 expires
one year from the date that the panel settles the terms and conditions of the
agreement, or on an earlier date the panel specifies.
Intervention by the commissioner
137.7
(1) Where an employer and a trade union have commenced collective
bargaining, the chairman or a person appointed by him may inquire into the
progress of the collective bargaining between the parties, and the parties
shall, where requested by the chairman or person appointed, supply to the
chairman or his appointee such information as he requests.
(2) Where a strike or lock-out notice has been served, or where a strike or
lock-out has commenced or where the chairman considers that a dispute exists
between parties, he shall report the matter to the commissioner.
(3) On receipt of the report of the chairman, the commissioner may do any or
all of the following as he considers necessary or advisable to facilitate the
making of a collective agreement between the parties:
a) refer the matter to the chairman for appointment of a mediation officer
to confer with the parties;
b) appoint a fact finder to act pursuant to section 137.91;
c) confer with the parties and make recommendations to them as to how
their dispute may be resolved;
d) refer the matter to a public interest inquiry board.
(4) Before the commencement of a strike or lock-out, the employer of the
employees in the affected bargaining unit may request that a vote of those
employees be taken as to the acceptance or rejection of the offer of the
employer last received by the trade union in respect of all matters remaining
in dispute between the parties, and where the employer requests that a vote be
taken, the commissioner shall direct that a vote of those employees to accept
or reject the offer be held in a manner he directs.
(5) Before the commencement of a strike or lock-out, the trade union that is
certified as the bargaining agent of the employees in the affected bargaining
unit may, where more than one employer is represented in the dispute by an
employers' organisation, request that a vote of those employers be taken as to
the acceptance or rejection of the offer of the trade union last received by
the employers' organisation in respect of all matters remaining in dispute
between the parties, and where the trade union requests that a vote be taken,
the commissioner shall direct that a vote of those employers to accept or
reject the offer be held in a manner he directs.
(6) Where pursuant to this section a vote favours the acceptance of a final
offer, an agreement is thereby constituted between the parties.
(7) The holding of a vote or a request for the taking of a vote under
subsection (4) or (5) does not extend any time-limits or periods provided for
in section 81 or 82.
(8) Not more than one vote in respect of the same dispute shall be held
under subsection (4) and not more than one vote in respect of the same dispute
shall be held under subsection (5).
(9) Where, during a strike or lock-out, the commissioner considers that it
is in the public interest that the employees in the affected bargaining unit
be given the opportunity to accept or reject the offer of the employer last
received by the trade union in respect of all matters remaining in dispute
between the parties, the commissioner may direct that a vote of the employees
in the bargaining unit to accept or reject the offer be held forthwith in a
manner he directs.
(10) Where, during a strike or lock-out, more than one employer is
represented in the dispute by an employers' organisation and the commissioner
considers that it is in the public interest that the employers comprising the
employers' organisation be given the opportunity to accept or reject the offer
of the bargaining agent for the employees last received by the employers'
organisation in respect of all matters remaining in dispute between the
parties, the commissioner may direct that a vote of the employers comprising
the employers' organisation to accept or reject the offer be held forthwith in
a manner he directs.
Essential services
137.8
(1) Where the minister, after receiving a report of the commissioner
respecting a dispute, considers that the dispute poses a threat to the economy
of the Province or to the health, safety or welfare of its residents or to the
provision of educational services in the Province, the minister may do either
or both of the following:
a) order a cooling-off period not exceeding 40 days;
b) direct the council to designate those facilities, productions and
services that the council considers necessary or essential to prevent
immediate and serious danger to the economy of the Province or to the health,
safety or welfare of its residents or to the provision of educational services
in the Province.
(2) Where a cooling-off period is ordered under this section, no employee or
trade union that is a party to the dispute shall strike, and no employer who
is a party to the dispute shall lock out his employees, and any existing
strike or lock-out by a party to the dispute is suspended.
(3) Where the council designates facilities, productions or services under
subsection (1)(b), the employer and the trade union shall supply, provide or
maintain in full measure those facilities, productions and services and shall
not restrict or limit a facility, production or service so designated.
(4) Any order, direction or designation made or given under this section may
be amended, varied or revoked and another made in its place, but the minister
may not in respect of one dispute order a second cooling-off period.
Return to work
137.9
(1) Where the minister makes an order or gives a direction under section
137.8(1) or the council makes a designation under section 137.8(1)(b), the
commissioner shall give notice of the order, direction or designation to the
parties, and at the time and in the manner and to the extent ordered by the
commissioner,
a) the employer shall resume the operations of his undertaking, plant,
industry or business;
b) the employer shall call back to work those of his employees who are
locked out;
c) the employer shall not declare, authorise, acquiesce in or engage in a
lock-out of employees;
d) every employee shall resume the duties of his employment with his
employer; and
e) neither a trade union nor any person on its behalf, nor any employee of
the employer on whose behalf the trade union is entitled to bargain, shall
declare, authorise, acquiesce in or engage in a strike or picketing of the
operations of the undertaking, plant, industry or business of the employer.
(2) Where an order, direction or designation referred to in subsection (1)
is made or given, the relationship between the employer and his employees
shall, while the order, direction or designation remains in effect, be
governed by the terms and conditions of the collective agreement last in force
between the employer and the trade union.
(3) The council may under section 137.8(1)b) designate facilities,
productions and services operated or provided by employees of the employer who
are represented by another trade union that is not involved in a collective
bargaining dispute with the employer.
(4) Nothing in this section affects the right of an employer to suspend,
transfer, lay off, discharge or discipline an employee for just and reasonable
cause in accordance with a collective agreement referred to in subsection (2).
(5) On the giving of a notice under subsection (1),
a) every person who is authorised on behalf of the trade union to bargain
collectively with the employer for a collective agreement shall,
i) immediately give notice to the employees on whose behalf he is authorised
to bargain that,
a) a notice, declaration, authorisation or direction to go on strike,
declared, authorised or given to them before or after the time the order,
direction or designation referred to in subsection (1) is made or given, is
suspended to the extent and for the period specified in the order, direction
or designation, and
b) any strike and picketing that is, to the extent specified in the order,
direction or designation referred to in subsection (1), prohibited, and
(ii) inform those employees of their obligations under subsection (1), and
b) every employer, trade union or employee affected by an order, direction
or designation made under this Act with respect to the dispute shall comply
with the order, direction or designation.
(6) No employer or person acting on behalf of the employer shall,
a) refuse to permit, authorise or direct another person to refuse to
permit, an employee to resume the duties of his ordinary employment as
required by this Part, or
b) suspend, discharge or in any manner discipline or authorise or direct
another person to suspend, discharge or in any manner discipline such an
employee by reason of his having been on strike, but nothing in this
subsection affects the right of the employer to suspend, discharge or
discipline an employee for just and reasonable cause.
(7) For the purposes of this Act, failure or refusal by an employee, without
reasonable excuse, to continue or to resume the duties of his employment as
required by or under this section shall be deemed to be just and reasonable
cause for disciplinary action.
Fact finding
137.91
(1) The commissioner may appoint a fact finder in respect of a collective
bargaining dispute, and he shall give written notice of the appointment to
each of the parties to the dispute.
(2) Within seven days after the receipt of the notice of the appointment of
the fact finder, each party shall give written notice to the fact finder and
the other party setting out all matters the parties have agreed on for
inclusion in a collective agreement and all matters remaining in dispute
between the parties.
(3) Where a party fails to comply with subsection (2), the fact finder may
make a determination of the matters mentioned in subsection (2).
(4) It is the duty of a fact finder to confer with the parties and to
inquire into, ascertain and make a report to the chairman setting out the
matters agreed on by the parties for inclusion in an agreement and the matters
remaining in dispute between the parties.
(5) The fact finder may include in his report his findings in respect of any
matter that he considers relevant to the making of a collective agreement
between the parties.
(6) Where the parties to the dispute are a public sector employer and a
trade union, the fact finder shall, in his report, make findings based on the
interest arbitration criteria established by section 137.96 to the extent that
the criteria relate to matters remaining in dispute between the parties.
(7) The fact finder shall determine his own procedure under guide-lines
established by the chairman and, where the fact finder requests information
from a party, the party shall provide the fact finder with the information
requested.
(8) The fact finder has the power and authority of a commissioner under
sections 12, 15 and 16 of the Inquiry Act.
(9) The fact finder shall submit his report to the chairman within 20 days
after the date of his appointment or after a longer period the chairman
approves, and on receipt of the report the chairman shall give a copy of it to
the parties.
(10) The report of the fact finder is not binding on the parties, and on
receipt of the report by the parties they shall endeavour in good faith to
make a collective agreement, or to renew a collective agreement as the case
may be.
(11) The chairman is not obliged to make public the report of the fact
finder, but may make it public if he considers it desirable to do so.
Public interest inquiry board
137.92
(1) Where the commissioner considers it appropriate to establish a public
interest inquiry board, he shall give notice to the parties to the dispute
either,
a) that he has established a public interest inquiry board, or
b) that he intends to establish a public interest inquiry board.
(2) The commissioner shall establish a public interest inquiry board before
or within 48 hours after giving a notice to the parties under subsection (1)
by,
a) appointing one or more persons as members of the board, and
b) if more than one member is appointed, designating one member as
chairman of the board.
(3) The commissioner may refer more than one dispute to the same public
interest inquiry board.
(4) No person shall be appointed or act as a member of a public interest
inquiry board who is directly affected by the dispute in respect of which the
board is appointed.
(5) A public interest inquiry board may determine its own procedure and is
not bound by the laws of evidence applicable to judicial proceedings in
respect of the evidence or submissions it may accept, and a public interest
inquiry board may hear evidence and receive submissions from persons other
than the employer and the trade union.
(6) A public interest inquiry board has the power and authority of a
commissioner under sections 12, 15 and 16 of the Inquiry Act.
(7) Where more than one member is appointed to a public interest inquiry
board, the recommendations of the majority of the members of the board are the
recommendations of the board, but if there is no majority the recommendations
of the chairman shall be deemed to be the recommendations of the board.
Public interest advocate
137.93 Where pursuant to this Part, a public interest inquiry board conducts
any hearing or inquiry, the commissioner may appoint a person as a public
interest advocate to represent the public interest at the hearing or inquiry.
Duties and procedure of public interest inquiry board
137.94
(1) A public interest inquiry board shall inquire into the dispute between
the parties and shall endeavour to effect a settlement.
(2) If a public interest inquiry board is unable to effect a settlement of a
dispute within 30 days of the date it is established or such longer time as
may be agreed by the parties or fixed by the commissioner, the board shall
make recommendations with respect to the dispute in accordance with this
section and send them to the commissioner who shall forthwith notify each
party to the dispute of the recommendations.
(3) The recommendations of a public interest inquiry board shall have due
regard to such interests of the public as it considers are or are likely to be
affected by the dispute between the parties and the board's recommendations,
and where a party to the dispute is a public sector employer the board shall
in its recommendations and report have due regard to the interest arbitration
criteria established by section 137.96.
(4) A public interest inquiry board may report what, in its opinion, ought
to be done by each of the parties to the dispute to facilitate the making of a
collective agreement.
(5) Where the commissioner receives the recommendations of a public interest
inquiry board on the matters in dispute pursuant to subsection (2), he shall
serve a copy of the recommendations on the parties to the dispute and may
publish the recommendations received by him in any manner he thinks fit.
(6) If the parties to a dispute accept the recommendations of the public
interest inquiry board, the recommendations are binding on the parties and
shall be included in the terms of a collective agreement between them.
(7) Unless a party to the dispute notifies the commissioner and the public
interest inquiry board of its acceptance or rejection of the recommendations
of the board within 10 days after being served with a copy of the
recommendations from the commissioner, the commissioner may at his discretion
direct that a vote be conducted on the acceptance or rejection of the
recommendations by,
a) the employees affected by the dispute;
b) the employers affected by the dispute, or
c) both the employees and employers affected by the dispute.
(8) A vote under subsection (7) shall be supervised by the Disputes
Resolution Division and the parties shall be notified of the results of the
vote upon its conclusion.
(9) Where,
a) the trade union that is a party to the dispute or the employees who
vote under this section is or are in favour of the recommendations of the
public interest inquiry board; and
b) the employer that is a party to the dispute or the employers who vote
under this section is or are in favour of the recommendations of the public
interest inquiry board, the recommendations are binding on the parties and
shall be included in the terms of a collective agreement between them.
(10) If either party to the dispute neglects or refuses to participate in
the preparation of a collective agreement as required by subsection (6) or (9), the other party may prepare an agreement giving effect to,
a) the recommendations of the public interest inquiry board; and
b) any other matters that are agreed upon by the parties,and shall submit
the agreement to the public interest inquiry board for certification that the
agreement accurately incorporates its recommendations. (11) Where the public
interest inquiry board has certified a collective agreement pursuant to
subsection (10), the collective agreement is binding on,
a) the trade union that is the bargaining agent and every employee in the
bargaining unit or units on whose behalf the collective agreement was
bargained collectively; and
b) the employer or employers' organisation and each employer on whose
behalf the collective agreement was bargained collectively.
(12) If a question arises concerning the recommendations of a public
interest inquiry board the commissioner, at the request of the parties, may
request the board to reconvene the inquiry for the purpose of expressing an
opinion on the question, and where the board is reconvened, the reconvening
has the same effect as the establishment of the board under section 137.92.
(13) Where the commissioner considers that the public interest inquiry board
has not, in an inquiry involving a public sector employer, had regard to the
interest arbitration criteria established by section 137.96 he shall direct
the board to reconvene the inquiry on such terms and with such directions as
the commissioner considers appropriate, and where the board is reconvened, the
reconvening has the same effect as the establishment of the board under
section 137.92.
Interest arbitration
137.95
(1) Where a public sector employer and a trade union have agreed to settle a
dispute between them by binding arbitration, or are required pursuant to
section 137.97 to resolve a dispute by binding arbitration, the parties shall
make mutually agreeable arrangements for arbitration to resolve the dispute by
settling the terms and conditions of a collective agreement.
(2) Where a public sector employer and a trade union have agreed to resolve
their dispute by arbitration, they shall so notify the chairman.
(3) Where parties referred to in subsection (1) or any other parties bound
by an order under section 137.97(3)(b)(iv) fail, within the time allowed by
subsection (4), to agree on the constitution of an arbitration board, the
chairman shall constitute an arbitration board to hear the dispute and to
resolve it by settling the terms and conditions of a collective agreement.
(4) The time allowed for parties to agree on the constitution of an
arbitration board is,
a) a period of ten days after the notification of the chairman in a case
where subsection (2) applies, or
b) in any other case, a period of ten days after the parties referred to
in subsection (1) or other parties bound by the order under section
137.97(3)(b)(iv) have been notified of the order.
(5) Where an arbitration is to settle the terms and conditions of a
collective agreement, an arbitration board shall not, without the consent of
the parties, impose a term of the collective agreement that requires
arbitration to be used to settle future collective agreements, and any such
term imposed is void.
Factors to be considered
137.96
(1) In an arbitration between a public sector employer and a trade union
pursuant to this Part, the arbitration board shall, in settling the terms and
conditions of a collective agreement, have regard to the respective merits of
the positions of the parties and to,
a) a comparison of overall terms and conditions of employment with similar
occupations in the relevant community in the Province outside the employer's
employment;
b) the need to maintain an appropriate relationship between occupations or
classifications within the employer's employment;
c) the skill, effort and responsibility required of the employees and the
nature of the work performed;
d) the cost and impact of the parties' proposals including increments
where appropriate; and
e) such other factors not inconsistent with this subsection as the
arbitration board considers relevant to the dispute between the parties,
having allowed the parties adequate opportunity to make submissions in that
regard.
(2) Where the ability to pay of the public sector employer is in issue,
then, notwithstanding subsection (1), the ability of the public sector
employer to pay shall be the paramount factor.
(3) An arbitration board shall not,
a) to the extent that the employee compensation and benefits under the
collective agreement are subject to the regulations and guide-lines under the
Compensation Stabilisation Act, make an award inconsistent with the
requirements of those regulations and guide-lines, or
b) otherwise make an award inconsistent with the employer's ability to
pay.
(4) For the purposes of this Part "ability to pay" means the current ability
of a public sector employer to pay based on existing revenues, requirements of
any fiscal policies to which the public sector employer is subject and the
impact of increased costs on the maintenance of existing levels of public
service.
(5) Where arbitration is ordered under section 137.97, the arbitration board
may, with the approval of the commissioner or shall, when so directed by the
commissioner, apply the dispute resolution method known as final offer
selection or mediation arbitration in respect of any or all of the terms of
the collective agreement that is in dispute between the parties.
(6) Where arbitration has been preceded by the recommendations from a public
interest inquiry board and final offer selection is applied, the
recommendations of the public interest inquiry board to settle matters in
dispute between the parties shall be considered for final selection by the
arbitration board in addition to the positions proposed for selection by
either party, but the arbitration board shall consider for final selection the
recommendations of a mediator only where no public interest inquiry board has
been appointed.
(7) The Commerical Arbitration Act does not apply to an arbitration under
this Act.
(8) Sections 99(1), 101, 102, 105 and 107 apply to an arbitration under this
Part.
(9) Where it is shown to the satisfaction of the arbitration board that the
arbitration board has failed to deal with any matter in dispute or that an
error is apparent on the face of the decision, the arbitration board may, on
application by either party to the dispute within ten days after the effective
date of the decision or award of the arbitration board and after giving the
parties an opportunity to make representations, amend, alter or vary the
decision or award.
(10) On application to the commissioner by a party to the dispute within
seven days after it receives an arbitration award, the commissioner may review
the arbitration award on the ground that,
a) the decision or award of the arbitration board is inconsistent with the
principles expressed or implied in subsections (1), (2) and (3), or
b) a party to the arbitration has been or is likely to be denied a fair
hearing.
(11) On receipt of an application pursuant to subsection (10), the
commissioner may order that the arbitration award not be implemented in whole
or in part pending his review of the arbitration award.
(12) The commissioner shall review the award and render his decision within
30 days after receipt of an application under subsection (10) or within such
longer period as the parties to the arbitration award agree.
(13) Where the commissioner considers that the arbitration award does not
comply with subsections (1), (2) and (3) or that subsection (10)(b) applies,
the commissioner shall notify the parties to the arbitration and the
arbitration board in writing of his decision, and notwithstanding any other
enactment, law or agreement to the contrary, the commissioner may direct the
arbitration board to reconsider and redetermine either its award generally or
in respect of a specific matter, and may give specific directions to the
arbitration board and the parties, which in his opinion are necessary or
appropriate to achieve compliance with subsections (1), (2) and (3) or to
afford a fair hearing.
(14) In giving a direction under subsection (13) the commissioner shall
inform the arbitration board and the parties of his reasons for giving such
direction.
(15) No appeal lies from a decision of the commissioner made under this
section.
Intervention by legislature or by Lieutenant Governor in Council
137.97
(1) Where a dispute arises, the commissioner shall, where so directed by,
a) resolution of the Legislative Assembly, or
b) order of the Lieutenant Governor in Council, resolve the dispute by
exercising his powers under this section.
(2) The power of the Lieutenant Governor in Council to give a direction
under subsection (1) applies where the Legislative Assembly is not in session
and the Lieutenant Governor in Council considers that the dispute poses a
threat to the economy of the Province, or to the health, safety or welfare of
its residents or to the provision of educational services in the Province.
(3) Where a direction is given under subsection (1), the commissioner shall,
for the purpose of resolving the dispute,
a) where a strike or lock-out is occurring or occurs with respect to the
dispute, give notice to the parties that their strike or lock-out is to cease
and their operations and employment are to be resumed, or where no strike or
lock-out has occurred, make such orders as are necessary and appropriate to
prohibit a strike or lock-out; and
b) exercise or cause to be exercised such of the following powers as the
commissioner considers necessary to the resolution of the dispute:
i) direct the chairman to appoint a mediation officer under this Part;
(ii) appoint a fact finder under this Part;
(iii) refer the matter to a public interest inquiry board;
(iv) order without the consent of the parties that the dispute be settled by
arbitration under this Part and direct the method of arbitration to be used;
v) appoint a special mediator under this Part.
(4) Where arbitration has been ordered under subsection (3) and the employer
is a public sector employer, the arbitration board shall comply with the
arbitration requirements of this Part applicable to public sector employers.
(5) Where the commissioner gives a notice under subsection (3)(a), then,
within 48 hours after the giving of the notice,
a) the employer shall resume the operations of his undertaking, plant,
industry or business;
b) the employer shall call back to work those of his employees who are
locked out;
c) the employer shall not declare, authorise, acquiesce in or engage in a
lock-out of employees;
d) every employee shall resume the duties of his employment with his
employer in accordance with the terms and conditions of the collective
agreement last in force between his employer and trade union before the giving
of the notice; and
e) neither a trade union nor any person on its behalf nor any employee of
the employer on whose behalf the trade union is entitled to bargain, shall
declare, authorise, acquiesce in or engage in a strike or picketing of the
operations of the undertaking, plant, industry or business of the employer.
(6) On the giving of a notice by the commissioner under subsection (3)(a),
a) every person who is authorised on behalf of the trade union to bargain
collectively with the employer for a collective agreement shall immediately
inform the employees on whose behalf he is authorised to bargain of their
obligations under subsection (5), and that
i) a notice, declaration, authorisation or direction to go on strike,
declared, authorised or given to them before or after the time the order is
made, is suspended, and (ii) any strike and picketing is prohibited, and
b) every employer, trade union or employee affected by an order, direction
or designation made under this Act with respect to the dispute shall comply
with the order, direction or designation.
(7) No employer or person acting on behalf of the employer shall
a) refuse to permit or authorise or direct another person to refuse to
permit an employee to resume the duties of his ordinary employment as required
by this Part, or
b) suspend, discharge or in any manner discipline or authorise or direct
another person to suspend, discharge or in any manner discipline such an
employee by reason of his having been on strike, but nothing in this section
affects the right of the employer to suspend, transfer, lay off, discharge or
discipline an employee for just and reasonable cause in accordance with a
collective agreement referred to in subsection (5)(d).
(8) For the purposes of this Act, failure or refusal by an employee, without
reasonable excuse, to continue or to resume the duties of his employment as
required by or under this section shall be deemed to be just and reasonable
cause for disciplinary action.
(9) Where under this section the commissioner has been directed to resolve a
dispute, the minister shall, as soon as practicable, lay before the
Legislative Assembly a copy of the collective agreement arrived at or
determined pursusant to
a) section 137.94(9),
b) section 137.95, or
c) sections 137.98 and 137.99.
(10) Where a copy of a collective agreement is laid before the Legislative
Assembly as required by subsection (9), the Legislative Assembly may by
resolution
a) approve and confirm the collective agreement, or
b) disallow the collective agreement, and where the Legislative Assembly
disallows the collective agreement, it ceases to have effect on the day it is
disallowed.
(11) Subsection (10) does not apply where the dispute is resolved by mutual
agreement made by the parties.
Special mediator
137.98
(1) Where the commissioner has been directed under section 137.97 to resolve
a dispute, the commissioner may appoint a special mediator to assist the
parties in settling the terms and conditions of a collective agreement or a
renewal of a collective agreement, as the case may be.
(2) Where a special mediator has been appointed by the commissioner, the
commissioner may specify terms of reference for the special mediator and may
change the terms of reference.
(3) The commissioner may terminate the appointment of a special mediator.
(4) The special mediator shall keep the commissioner informed as to the
progress of the mediation.
(5) The special mediator, in carrying out his duties under this Act, has the
protection, privileges and powers of a commissioner under sections 12, 15 and
16 of the Inquiry Act.
(6) The special mediator shall be reimbursed for reasonable and actual
travelling and out-of-pocket expenses incurred by him and may be paid
remuneration the minister determines.
Term and report of the special mediator
137.99
(1) The special mediator shall, within the time specified in his appointment
where no collective agreement has been entered into or renewed by the parties,
submit his report to the commissioner and the parties in the form of a
collective agreement between the parties.
(2) The special mediator may request and the commissioner may approve one
extension of the time specified in the appointment.
(3) On the submission of the report under subsection (1), it shall be deemed
to be a collective agreement between the parties except to the extent to which
the parties agree to vary its terms.
(4) Where a party subject to the report of a special mediator is a public
sector employer, the report of the special mediator under subsection (1) shall
be subject to a review by the commissioner pursuant to section 137.96 (10) and
section 137.96 applies.