Definitive Report - Report No 286, March 1993

Case No 1681 (Canada) - Complaint date: 03-NOV-92 - Closed

1. 153. The Canadian Labour Congress (CLC), on behalf of its affiliate, the Transportation-Communications Union (TCU), presented a complaint against the Government of Canada, dated 3 November 1992, alleging violations of the principles of freedom of association.
2. 154. The Government of Canada sent its reply on 24 December 1992.
3. 155. Canada has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87). It has not ratified the Right to Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), or the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant's allegations

1. 156. In its communication of 3 November 1992, CLC alleges that the Government of Canada violated the principles of freedom of association by adopting on 11 October 1992 back-to-work legislation known as the Thunder Bay Grain Handling Operations Act, Bill C-37.
2. 157. A collective agreement between TCU and the six-member Lakehead Terminal Elevator Association (LTEA) covering approximately 900 workers at Thunder Bay, Ontario expired on 31 January 1991. Contract negotiations took place for a total of 18 days between January and August 1991, breaking down on 22 August over the issues of job security, pensions, training and wages. The Federal Minister of Labour issued a "no board report" on 24 September, meaning that he had decided not to appoint a conciliation commissioner or a conciliation board and that grain workers would in one week receive the authority to strike. Meanwhile, a legal strike by federal employees belonging to the Public Service Alliance of Canada (PSAC), which had shut down all of Thunder Bay's grain operations during September and early October, was ended by a government back-to-work order on 2 October. TCU began its strike the following day, on 3 October.
3. 158. On the evening of 8 October, the Minister of Labour contacted TCU Grain Division Executive Vice President Herbert Daniher to inform the union that there had been a breakthrough in negotiations and that LTEA was ready to discuss all outstanding issues. Instead, the Government's chief conciliator arrived in Thunder Bay to tell Mr. Daniher the next morning that the parties had to agree to a settlement that evening or the Minister of Labour would introduce back-to-work legislation. In addition, the Grains and Oil Seeds Minister announced that day to a rally of several thousand farmers in Manitoba that back-to-work legislation was being introduced immediately. CLC alleges that any opportunity of reaching a collective agreement was destroyed by the Grains Minister's announcement. The Government did introduce legislation on the evening of 9 October. It passed the House on 10 October after debates and commentary that included testimony in opposition by Mr. Daniher. Royal Assent was granted on 11 October. The grain handlers went back to work on 12 October.
4. 159. In supporting documents, CLC points out that prior negotiations between the unions and LTEA had always resulted in settlements without government intervention, with a total of three strikes occurring in the past 25 years. Issues central to this dispute were termination of senior employees and inadequate pension payments by the companies. Thunder Bay grain handlers had seen employment drop from 1,800 to 900 over the prior seven years, with half of that total working just a half-year schedule. In testimony before the Senate, Mr. Daniher of TCU pointed out that the strike was not against the Government but against LTEA, and should not have been stopped by the Government.

B. The Government's reply

1. 160. In its communication of 24 December 1992, the Government states that it provided "every opportunity" for the grain handlers and employers to resolve their differences without an imposed settlement, and that it violated no collective bargaining rights. The Government provided mediation and conciliation assistance to the parties early in the negotiations and offered such services again when the strike began. By 8 October, in an effort to convey to the parties the urgency with which the Government viewed the situation, the Director-General of the Mediation and Conciliation Branch was dispatched to Thunder Bay. In the absence of a settlement, the Government introduced the back-to-work Bill. By virtue of a mediation-arbitration formula in the legislation, the parties ultimately reached settlement on numerous issues, including the term of agreement, health and welfare, sickness and accident insurance, dental insurance, group insurance, long-term disability, shift premiums and meal allowance.
2. 161. The Government moved quickly to end the TCU strike because the Thunder Bay elevators were essential to getting area grain to domestic and international markets. Moreover, the prior month's strike by federal employees threatened the economic health of the local and regional economies as well as Canada's reputation as a reliable supplier of export grain. Canada is the second largest grain exporter in the world and Thunder Bay is the largest grain-handling port in the world.

C. The Committee's conclusions

1. 162. The Committee notes that this case concerns restrictions on collective bargaining imposed by the Government on 900 employees of the Lakehead Terminal Elevator Association (LTEA) through back-to-work legislation. The Canadian Labour Congress (CLC) asserts that the Government violated principles of freedom of association by forcing an end to the nine-day-old strike. The Government maintains that the measures it took responded to a crisis caused by the prolonged shutdown of a harbour essential to Canada's economy and that the measures complied with basic ILO principles.
2. 163. The Committee regrets that the Government has not given priority to collective bargaining as a means of regulating the conditions of employment of these employees, but rather that it felt compelled to adopt the Thunder Bay Grain Handling Operations Act, Bill C-37.
3. 164. The Committee further notes that the Government's reply suggests that its actions may be justified on the theory of grain handling as an essential service. The Government repeatedly refers to "essential" features of the harbour - that the elevators "are essential to getting Prairie grain to domestic and international markets" and that resumption of operations was "essential" to Canada's reputation as a grain supplier. Indeed, the Government's reply echoes Parliamentary debate over the back-to-work Bill in which proponents of the Bill argued that grain handling was an essential service. (See comments of Hon. H.A. Olson, Debates of the Senate, 11 October 1991 at p. 418.)
4. 165. The Committee recalls that essential services are those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. Grain handling is not an essential service in the strict sense of the term. (See Digest, paras. 400-410.)
5. 166. In view of the recurrent use by the Government of back-to-work legislation in recent times, the Committee strongly urges that the Government refrain from using such measures in the future in services which are not essential.
   • The Committee's recommendations

The Committee's recommendations

1. 167. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee regrets that the Government has not given priority to collective bargaining as a means of regulating the conditions of employment of these workers, but rather that it felt compelled to adopt the Thunder Bay Grain Handling Operations Act, Bill C-37.
   • (b) Noting that the Government has had recurrent recourse to back-to-work legislation in the recent past, the Committee strongly urges that the Government refrain from the use of such measures in the future in services which are not essential.