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- 375. The complaint by the Canadian Labour Congress (CLC), contained in a
- communication dated 15 February 1988, is presented on behalf of the nine
- member unions of the Associated Railways Unions (ARU). The Government sent its
- observations by a letter received on 29 November 1988. On 31 January 1989, the
- CLC requested an adjournment in order to submit a response to the Government's
- reply. However, in a further communication dated 5 May 1989, the complainant
- indicated it would not file a response and asked that the case be examined by
- the Committee.
- 376. Canada has ratified the Freedom of Association and Protection of the
- Right to Organise Convention, 1948 (No. 87); it has not ratified the Right to
- Organise and Collective Bargaining Convention, 1949 (No. 98).
A. The complainant's allegations
A. The complainant's allegations
- 377. In its complaint, the CLC alleges that the Government breached
- Convention No. 87 by enacting the Maintenance of Railway Operations Act, 1987
- to put an end to a legal strike of the ARU member unions in a non-essential
- service sector that was not endangering the life, personal safety or health of
- the whole or part of the Canadian population, declared in complete conformity
- with the Canada Labour Code. The CLC submits that the Government's
- intervention was an unnecessary and unjustified intrusion into free collective
- bargaining, that deprived the railway unions of their only lawful economic
- lever. Attached to the CLC complaint is a document giving background
- information on the situation and describing the chronology of events leading
- to the adoption of the Maintenance of Railway Operations Act, 1987.
- B. The Government's reply
- 378. In its elaborate reply the Government begins by stressing the
- historical, social, economic and political importance of railways in Canada,
- mainly because of geographical and demographic factors (huge distances, low
- population density, diverse topography and severe climatic conditions). The
- history of Canada is to a great extent the history of its railway service
- according to the Government, which states: "without railways there would be
- and there could be no Canada".
- 379. The Government then describes the federal labour legislation which,
- under the Constitution, applies to railway operations. The legal process
- leading to the renewal of collective agreements is set out in the Canada
- Labour Code. Within three months preceding the expiry of an agreement, either
- party may serve notice that it wishes to commence collective bargaining. After
- a period of direct bargaining (where, on average, 25-35 per cent of agreements
- are settled) either party may file a notice of dispute with the Minister of
- Labour, who then has a number of options, but usually appoints a conciliation
- officer to assist the parties. If the parties cannot conclude an agreement at
- this stage, the Minister may extend the conciliation phase by appointing a
- conciliation commissioner or a conciliation board, or terminate conciliation
- thus placing the parties in a legal strike/lock-out position. The parties have
- the right to strike or lock out seven days after the end of conciliation. The
- Minister also has the discretion to appoint a mediator at any time to assist
- the parties, which he normally does when they indicate that mediation would
- help in their negotiations.
- 380. The vast majority of disputes are resolved during the conciliation
- phase through free collective bargaining and governmental intervention with a
- view to imposing settlements is relatively rare. According to the Government,
- it is only when every avenue of dispute resolution has been exhausted and the
- continuation of a particular dispute would have severe consequences for the
- national interest that Parliament gives consideration to ad hoc emergency
- legislation. When a circumstance of this nature arises, the objective of the
- legislation is not only to terminate the work stoppage, but to provide a
- mechanism to achieve a final settlement of all outstanding differences.
- 381. The Government stresses the unique circumstances which make Canadian
- economy highly dependent on rail transportation: large size of the country;
- patterns of economic development and industrialisation; geographic dispersion
- of resources; low population density; severe climatic conditions; and, in many
- instances, virtual absence of viable economic alternatives to rail
- transportation. The Government argues that all these factors make the economy
- of Canada more dependent than most industrialised nations on its extensive
- transportation infrastructure, of which railways are an intrinsic and key
- component. A railway work stoppage has an almost immediate impact for the
- continuing operations of a broad range of industries and employers.
- 382. Perhaps no sector better illustrates these far-reaching consequences
- than the grain industry, which generates $3.9 billion in export revenue. Grain
- sales depend upon an integrated transportation and grain-handling system -
- rail, trucks, country grain elevators, port operations, terminal elevators and
- shipping including the St. Lawrence Seaway in the east. Disruption in one
- sector affects the operation, economic efficiency and hence viability and
- employment status of other transport modes. The thousands of grain farmers in
- the prairie provinces, and also in Ontario and Quebec engaged in the
- production of grains for domestic and export purposes are affected by a
- shutdown of the rail transportation network. The major grain elevator
- terminals involved in grain exports at Prince Rupert and Vancouver on the west
- coast, and at Thunder Bay which comprises one of the largest grain-handling
- facilities in the western world, rely exclusively on rail transport, as do
- some 2,000 primary elevators throughout the prairie provinces. Numerous
- transfer elevators along the St. Lawrence Seaway and in the Atlantic provinces
- are also part of the grain export process. Some 7,000 rail cars of grain a
- week are employed to transport prairie grain; in a recent crop year bulk
- exports of grains and cereals totalled 30.2 million tonnes.
- 383. The grain industry is only one example of the railway's importance for
- the Canadian economy. Bulk commodities, a major component of foreign trade,
- account for some 50 per cent of all railway traffic in tonnage terms; rail
- exports represent 20 per cent of exports in value terms. Ultimately at stake
- in a railway work stoppage are its consequences for the reliability of Canada
- as a supplier of resources and goods and the continued economic viability of
- the railway industry itself and whether it will be able to continue to fulfil
- its vital role on which so much of the Canadian economy depends. A work
- stoppage in the industry results in job losses and a significant loss of
- revenue, and the industry's already diminished market share can be seriously
- undermined as users of rail service seek alternative means to move goods and
- products, a traffic loss that is at times irreversible.
- 384. Dealing more specifically with the 1986-87 negotiations, the Government
- emphasises the particularly complex bargaining structure then prevailing. On
- the employer side, the two major companies, Canadian National (CN) and
- Canadian Pacific (CP), agreed to come jointly to the bargaining table, but
- they also bargained on behalf of eight subsidiary companies. On the union
- side, the ARU grouped a number of interests from the running trades
- (engineers, conductors and trainmen), non-operating employees (office, stores,
- maintenance of way and signal employees) and two of the shopcraft unions
- (carmen and electricians). To further complicate matters, only seven of the
- nine member unions bargained with both railways through ARU; the two other
- unions bargained at the ARU table with one railway, and at a separate table
- with the other railway. According to the Government, this fragmentation on the
- union side created obvious difficulties at the bargaining table. The
- Conciliation Officer appointed by the Minister of Labour found the bargaining
- situation even more complex than usual, partly due to the bargaining structure
- and partly to the parties' widely opposed bargaining positions.
- 385. The conciliation officer being unable to assist the parties in reaching
- agreement, the Minister, bearing in mind the importance of the railway
- industry to the Canadian economy, appointed a conciliation commissioner, who
- concurred that the bargaining structure compounded the substantial issues at
- the bargaining table. In his report, released on 10 August 1987, he dealt with
- all the major items in dispute, recommending a two-year agreement with annual
- increases of 3 per cent each year. During this period, as concern mounted
- throughout the country, the media were full of reports on an impending strike,
- a situation aggravated by the imminent release of the Conciliation
- Commissioner's report on disputes with other railway bargaining units, and
- their subsequent acquisition of the right to strike.
- 386. At the request of the parties, the Minister appointed a mediator on 14
- August 1987. Picketing began in some locations on 18 August, with ARU calling
- a national strike on 23 August, after negotiations broke down despite the
- mediator's assistance. The first day of the strike, the Minister sent a
- telegram to the parties, advising them that the Government could not and would
- not tolerate a shutdown of the nation's major transportation system, and
- summoning the negotiating committees to resume bargaining with the assistance
- of his Associate Deputy Minister, in a final attempt at mediation.
- 387. The meetings began amid what the Government terms "a deluge of
- representations from across the country", of which he gives a few examples. On
- 27 August, shortly after the mediator announced no agreement could be reached,
- the Minister introduced back-to-work legislation in the form of the
- Maintenance of Railway Operations Act, 1987 (Bill C-85), which the House of
- Commons adopted at 2 a.m. on 28 August.
- 388. Bill C-85 provided that on the coming into force of Part I of the Act
- (the only part germane to this complaint) the railway companies were required
- to resume operations, and members of the unions then on strike were obliged to
- resume the duties of their employment. The expired collective agreements were
- extended until 31 December 1988 in order to ensure that the employees would
- continue to be entitled to all the benefits and protections contained therein,
- and an arbitrator was appointed to resolve the issues that were in dispute
- between the parties. The Act further provided that the parties were entitled
- to agree to amend any provision of the collective agreement (other than its
- term), even one prescribed by the arbitrator. Financial penalties, equally
- applicable to the employers and the unions, were provided for contraventions
- of the Act.
- 389. In the aftermath of adoption of Bill C-85, the difficulties which had
- plagued negotiations from the start continued to hamper constructive dialogue
- the end result being that, although the legislation had envisioned that the
- arbitration process should only require 60 days, in all, it took almost 11
- months to resolve the issues which had created the original impasse in
- bargaining. By the time the final award was rendered, the extended collective
- agreement had only another five and a half months to run, and the parties
- would be back in bargaining in less than three months' time. Whether the
- length of time that was required to resolve these six issues is attributable
- to their complexity, or to the parties' failure to make a sincere effort to
- resolve them prior to engaging in strike action, is impossible to determine.
- It is evident, however, that had the Government not intervened, the parties
- were quite prepared to subject the Canadian public to the devastating effects
- of a prolonged work stoppage over their private differences.
- 390. In conclusion, the Government submits that railways have always been
- and continue to be of critical importance for the welfare of the Canadian
- public. Numerous small communities are dependent on the railways for their
- very existence. Producers of a number of key commodities, such as western
- grain farmers, have no reasonable alternative means to get their products to
- markets. Commuters in large urban centres rely on rail passenger services to
- take them to and from their places of work. Because of the inter-relatedness
- of the Canadian transportation network, the employment of workers in a number
- of other industries depends upon the reliable operation of the railways. The
- losses in personal income sustained by these individuals due to a rail strike
- cannot be easily recovered, if at all, once the work stoppage ends. Thus, a
- strike in the railway industry has far-reaching effects on the lives of many
- other Canadians.
- 391. The Government made every effort to promote a negotiated resolution, by
- appointing a conciliation officer, a conciliation commissioner and a mediator.
- In addition, the Minister gave the parties a final opportunity to resolve
- their dispute through bargaining by providing the help of his Associate Deputy
- Minister, but there was no indication that either party would be prepared to
- change its position, no matter how prolonged the work stoppage might be.
- 392. The Government has supported and continues to support free collective
- bargaining process, but was obliged to balance the parties' right to freely
- negotiate their collective agreements against the general welfare of the other
- members of society and their right to pursue their livelihoods. In light of
- the evidence that there was no likelihood that the parties would be capable of
- reaching a negotiated resolution in the foreseeable future, the Government was
- compelled to act in the public interest. The Maintenance of Railway Operations
- Act, 1987, was formulated to be as unintrusive as possible into the parties'
- relationship. The right to strike was only temporarily withdrawn, as the
- collective agreements were extended just until 31 December 1988, a period of
- some 16 months. The parties were entitled to serve notices to bargain for its
- renewal any time after 1 October 1988. An arbitrator was appointed to resolve
- the issues remaining in dispute between the parties, and his awards on the
- various items were issued between February and July 1988. Even during the life
- of the extended collective agreements, the parties were entitled to mutually
- agree to amend any of its provisions.
- 393. The Government admits that the Maintenance of Railway Operations Act,
- 1987 placed temporary limits on the right of members of the Associated Railway
- Unions to strike. However, it submits that such limitations were and are
- consistent with the general principles embodied in the International Covenant
- on Economic, Social and Cultural Rights and Convention No. 87 concerning
- freedom of association and protection of the right to organise, which Canada
- has ratified. The sole purpose of the Government in promulgating this
- legislation was to protect the welfare of large segments of the Canadian
- population from the serious adverse effects of a dispute which the parties had
- demonstrated themselves incapable of resolving.
C. The Committee's conclusions
C. The Committee's conclusions
- 394. The complainant alleges that the Government has infringed on the right
- to strike of Canadian railway workers by adopting the Maintenance of Railway
- Operations Act, 1987. For its part, the Government stresses the devastating
- effects a long general strike would have had on many crucial sectors of the
- Canadian economy: it submits that its only objective was to protect the
- welfare of large segments of the population and that it was compelled to act
- in the public interest.
- 395. The Committee notes that the complainant and the Government generally
- agree on the description of the events which led to the August 1987 strike and
- to the adoption of back-to-work legislation, although the Government blames
- the parties for their intransigent attitude and their inability to conclude a
- negotiated settlement and, to a lesser extent, the complex bargaining
- structure. The Committee observes that the Government used all the statutory
- means at its disposal to promote a negotiated resolution but to no avail.
- Whatever the immediate and underlying reasons for that dispute, the Committee
- notes that the ARU, in complete conformity with the Canada Labour Code,
- launched on 24 August 1987 a legal strike, which had been under way for five
- days when the Maintenance of Railway Operations Act became law.
- 396. Very early on, the Committee has laid down the principle that the right
- to strike is one of the legitimate and essential means through which workers
- and their organisations may defend their economic and social interests (Digest
- of Decisions and Principles of the Freedom of Association Committee of the
- Governing Body of the ILO, third edition, paras. 362 and 363, and cases
- cited).
- 397. It is also a well-established principle that the substitution by
- legislative means of compulsory arbitration for the right to strike as a means
- of resolving labour disputes can only be justified in a limited number of
- situations: civil servants or workers in essential services in the strict
- sense of the term, i.e. those services whose interruption would endanger the
- life, personal safety or health of the whole or part of the population
- (Digest, loc. cit., para. 387), provided however these workers have access to
- adequate procedures, such as conciliation and arbitration, where the parties
- concerned can participate at all stages and in which the awards are binding on
- both parties and are fully and promptly implemented (202nd Report, Case No.
- 931, para. 210, Canada).
- 398. The Committee has previously been called upon to examine whether or not
- a given activity or enterprise constituted an essential service according to
- the above-mentioned criterion. There is not, and there cannot be, any hard and
- fast rule allowing such a categorisation: what is meant by essential services
- in the strict sense of the term depends to a large extent on the particular
- circumstances prevailing in a country. Moreover, this concept is not absolute,
- in the sense that a non-essential service may become essential if a strike
- lasts beyond a certain time or extends beyond a certain scope, thus
- endangering the life, personal safety or health of the whole or part of the
- population. The Committee has indeed stated in the past that strikes may be
- restricted and even prohibited, in the public service, essential services or a
- key centre of a country's economy because - and to the extent that - a work
- stoppage may cause serious harm to the national community (194th Report, Case
- No. 893, para. 114, Canada, Alberta). More recently, the Committee has
- restated this very principle, in a case concerning British Columbia, in the
- following terms: 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 (Case No. 1430, 256th Report, para. 189). The Committee also
- recalls it has concluded on several occasions that transport, generally
- speaking, does not fall within the category of essential services (Digest,
- para. 407, and cases cited).
- 399. In this case, the Government's arguments are essentially based on
- economic considerations. It readily admits that the Maintenance of Railway
- Operations Act, 1987 temporarily restricted the right to strike recognised to
- members of the Associated Railway Unions, arguing however it was compelled to
- act in the public interest. The Government was undoubtedly under heavy public
- pressure to adopt back-to-work legislation, but the Committee recalls it has
- dismissed similar economic arguments in comparable - though not identical -
- cases (217th Report, Case No. 1099, para. 470; 234th Report, Case No. 1255,
- para. 190, Norway), and in a case concerning the postal service in Canada
- (202nd Report, Case No. 931, para. 211).
- 400. Furthermore, in this instance, the strike was allowed to last only five
- days before the Government decided to introduce back-to-work legislation. That
- Act restricted, with an immediate application to a work stoppage called in
- conformity with the law, the right to strike granted to railway workers by the
- federal legislation. In all the circumstances, and despite the almost 11-month
- period that was necessary after the enactment of the law to settle the issues
- which created the initial impasse, the Maintenance of Railway Operations Act,
- 1987 does not appear to be conducive to sound industrial relations, which
- should be founded on a predictable and stable legislative framework respecting
- the principles of freedom of association.
- 401. The Committee is aware, given the particular situation of the railway
- transport industry in Canada, that a total and prolonged stoppage in railway
- services might lead to a situation of acute national emergency such as to
- endanger the well-being of the population, which may in certain circumstances
- justify the Government to intervene, for instance by establishing a minimum
- service. In that respect, both the Committee and the Committee of Experts have
- considered on previous occasions it would appear legitimate that a minimum
- service be maintained in the event of a strike the extent and duration of
- which might be such as to result in an acute national crisis endangering the
- normal living conditions of the population. Such a minimum service should
- however be confined to operations that are strictly necessary to avoid
- endangering the life, personal safety or health of the whole or part of the
- population; in addition, workers' organisations should be able to participate
- if they so wish in defining such a service in the same way as employers and
- the public authorities (Digest, loc. cit., para. 415;General Survey by the
- Committee of Experts on the Application of Conventions and Recommendations
- "Freedom of Association and Collective Bargaining", ILO, 1983, para. 215). As
- the Committee emphasised in a recent case, the employers' and workers'
- participation in the determination of essential services not only allows a
- careful exchange of viewpoints on what in a given situation can be considered
- as minimum services limited to the absolutely essential, but also contributes
- to guaranteeing that the scope of the minimum services does not result in the
- strike becoming ineffective in practice because of its limited impact, and to
- dissipate possible impressions in the trade union organisations that a strike
- has come to nothing because of over-generous and unilaterally fixed minimum
- services (Case No. 1342, Spain, 244th Report, para. 154).
The Committee's recommendations
The Committee's recommendations
- 402. In the light of its foregoing conclusions, the Committee invites the
- Governing Body to approve the following recommendations:
- a) The Committee notes that the strike of August 1987 in the railway sector
- had been declared in complete conformity with the Canada Labour Code and that
- the Maintenance of Railway Operations Act, 1987 putting an end to this strike
- was adopted, according to the Government, with a view to ordering railway
- workers back to work to prevent severe hardship to the community, since all
- available conciliation and mediation proceedings had failed to bring about a
- negotiated settlement.
- b) The Committee notes that the Maintenance of Railway Operations Act, 1987
- provided for a 16-month extension of the collective agreement and imposed the
- settlement of the complex dispute through a mediation-arbitration procedure,
- and draws the Government's attention to the considerations regarding sound
- industrial relations set out above.
- c) The Committee considers that the provisions of the Maintenance of
- Railway Operations Act, 1987, which ordered the railway employees back to work
- five days after the beginning of a strike and instituted compulsory
- arbitration in circumstances that were not endangering the life, personal
- safety or health of the whole or part of the Canadian population are not in
- conformity with the principles of freedom of association.
- d) The Committee asks the Government to keep it informed of the industrial
- relations situation in the railway transport sector after the enactment of the
- Maintenance of Railways Operation Act, 1987.
