Report in which the committee requests to be kept informed of development - Report No 330, March 2003

Case No 2166 (Canada) - Complaint date: 18-DEC-01 - Closed

239. The complaint in Case No. 2166 is contained in a communication dated 18 December 2001 from the Canadian Labour Congress (CLC), the National Union of Public and General Employees (NUPGE) and the Health Sciences Association of British Columbia (HSA). It was supported by the International Confederation of Free Trade Unions (ICFTU) and Public Services International (PSI) in communications both dated 19 December 2001. This complaint concerns Bills Nos. 2 and 15.

1. 239. The complaint in Case No. 2166 is contained in a communication dated 18 December 2001 from the Canadian Labour Congress (CLC), the National Union of Public and General Employees (NUPGE) and the Health Sciences Association of British Columbia (HSA). It was supported by the International Confederation of Free Trade Unions (ICFTU) and Public Services International (PSI) in communications both dated 19 December 2001. This complaint concerns Bills Nos. 2 and 15.
2. 240. The complaint in Case No. 2173 is contained in a communication dated 7 February 2002 from the Canadian Labour Congress (CLC), the British Columbia Nurses Union (BCNU), the British Columbia Teachers Federation (BCTF), the Canadian Teachers Federation (CTF) and the Canadian Union of Public Employees, British Columbia Division (CUPE). It was supported by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 18 February 2002. It was complemented by Education International (EI) in communications dated 15 March and 4 July 2002. This complaint concerns Bills Nos. 15, 18, 27 and 28.
3. 241. The complaint in Case No. 2180 is contained in a communication dated 1 March 2002 from the Canadian Labour Congress (CLC), the National Union of Public and General Employees (NUPGE), the British Columbia Government and Service Employees Union (BCGSEU) and the Health Sciences Association of British Columbia (HSA). It was supported by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 4 March 2002, and by Public Services International (PSI) in a communication dated 14 March 2002. This complaint concerns Bills Nos. 27, 28 and 29.
4. 242. The complaint in Case No. 2196 is contained in a communication dated 14 May 2002 from the Canadian Association of University Teachers (CAUT). This complaint concerns Bill No. 28.
5. 243. The Government of Canada transmitted the replies of the Government of British Columbia for these cases in communications dated 10 October 2002 and 31 January 2003.
6. 244. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), nor the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

• Case No. 2166 (Bills Nos. 2 and 15)
  245. 245 The complaint in this case is filed by the Canadian Labour Congress (CLC) and the National Union of Public and General Employees (NUPGE) on behalf of the Health Sciences Association of British Columbia (HSA). The HSA regroups some 10,800 health science professionals and its bargaining agent is the Paramedical Professional Bargaining Association (PPBA). The bargaining agent for the various employers involved is the Health Employers’ Association of British Columbia (HEABC). Historically, the working conditions of health science professionals and nurses have been relatively comparable.
  246. 246 On 29 January 2001, the parties began to negotiate the renewal of their collective agreement, which was to expire 31 March 2001. Negotiations progressed in some matters but no agreement could be reached. On 20 April, union members voted at 90 per cent in favour of strike action; the parties agreed upon the appointment of a mediator. On 3 May, the employer tabled a wage offer ranging from 5.5 per cent to 14 per cent over three years, depending on the categories of employees, which the union refused, considering that this was a divisive tactic. The mediator withdrew from the dispute and the union served strike notice. Between 18 May and 18 June 2001, it engaged in rotating withdrawals of services, but maintained essential services at all times (at no time, did HEABC apply to the Labour Relations Board to obtain increases in staff levels, as allowed under the essential services legislation). On 19 June, the Government appointed a special mediator.
  247. 247 The dispute was about to escalate when the legislative assembly was called into an emergency session and, on 20 June 2001, passed the Health Care Services Continuation Act (Bill No. 2), which ordered HSA members to cease their lawful strike during a “cooling off period” and ordered the parties to resume bargaining. All workers returned to work on 21 June 2001 and PPBA returned to the bargaining tables. The employers’ offer remaining unchanged, HSA went back on strike on 23 and 24 July 2001, despite Bill No. 2 and in spite of an order to cease strike action issued on 20 July 2001 by the Labour Relations Board. The complainants maintained essential services, despite the employers’ refusal to supply the traditional infrastructure to ensure that essential services were met.
  248. 248 On 9 August 2001, the Government enacted the Health Care Service Collective Agreements Act (Bill No. 15) which, according to the complainants, imposed essentially the conditions of work contained in the employers’ last offer. The legislation imposed a collective agreement whereby, over a period of three years, 40 per cent of the paramedical professionals would receive a 5.5 per cent increase, the other 60 per cent would get a 14 per cent increase, and the nurses a 23 per cent increase. The complainants submit that the legislation not only created an internal differential within PPBA, it also eroded the comparability with other groups of employees.
  249. 249 The complainants further allege that the Government did not consult the workers’ organizations adequately before imposing a legislative settlement. While there had been contacts and discussions throughout the dispute, the union was not informed until five minutes before the legislation was introduced, in spite of earlier government commitments that it would be informed in advance of the course of action chosen. The Government ignored the most appropriate approach, which would have been to secure recommendations from an independent third party, and impose them if necessary. Instead, it simply forced the employers’ last offer upon HSA members. The complainants allege that Bills Nos. 2 and 15 violate the rights to organize and bargain collectively in the public sector, as set out in ILO Conventions and recognized by freedom of association principles.
• Case No. 2173 (Bills Nos. 15, 18, 27 and 28)
  250. 250 The complaint in this case was filed on 7 February 2002 by the Canadian Labour Congress (CLC) on behalf of the British Columbia Nurses’ Union (BCNU) which regroups 23,000 nurses, the British Columbia Teachers’ Federation (BCTF) which regroups 45,000 teachers of the public education sector from kindergarten to high school, and the Canadian Union of Public Employees (CUPE).
  251. 251 In addition to Bill No. 15 (described above in connection with Case No. 2166), this complaint concerns the Skills Development and Labour Statutes Amendment Act (Bill No. 18), the Education Services Collective Agreement Act (Bill No. 27) and the Public Education Flexibility and Choice Act (Bill No. 28). Taken together, these laws have affected over 100,000 workers in the health and education sectors by legislatively: (i) imposing a collective agreement; (ii) depriving workers of the right to freely negotiate terms and conditions of employment; and (iii) restricting arbitrarily the right to strike. The complainants allege that Bills Nos. 15, 18, 27 and 28 constitute a clear violation of Canada’s obligations under ILO Conventions and of its other international commitments.
  252. 252 As regards the health sector, the Nurses’ Bargaining Association commenced negotiations with HEABC to renew the collective agreement which covered nurses working in hospitals and other publicly funded health-care facilities. As they had not reached agreement, the nurses engaged in a limited strike on 13 April 2001; they maintained all essential services at the required level and withdrew services that amounted to overtime. This limited strike was forced to cease with the adoption of Bill No. 2 on 19 June 2001, which ordered nurses back to work and their agent to resume bargaining. Bill No. 15 was adopted on 9 August 2001, before a facilitator appointed by the Industrial Inquiry Commissioner could make any recommendations. The complainants’ allegations regarding Bill No. 15 are essentially the same as those submitted in Case No. 2166.
  253. 253 As regards the education sector, the first group of complainants (BCNU, BCTF, CUPE) explain that teachers have only had collective bargaining rights since 1987 (after a successful complaint to the Freedom of Association Committee, Case No. 1350). In 1993, the law concerning essential services was amended to provide that the right to strike, in conformity with internationally recognized standards, would be restricted only in cases involving serious danger to the health, safety and welfare of the population (section 72 of the British Columbia Labour Relations Code). In March 2001, negotiations began to renew the collective agreement covering the provincial teachers’ unit, which was due to expire on 30 June 2001. According to the complainants, the employer had brought major concession demands to the table, and there was virtually no progress in the negotiations. No industrial action had yet been taken when Bill No. 18 became law on 16 August 2001.
  254. 254 The complainants allege that Bill No. 18, which amends section 72 of the Labour Relations Code seriously restricts, and in practice prohibits, the right to strike for workers in the public education system, for the following reasons:
• – the legislator extended the concept of “essential services” to both teaching and non?teaching employees in the public school system;
• – the legislation restricted the right to strike by legislating that, before a strike or lockout has commenced, the parties must not strike or lockout until the designation of essential services is made by the Board (section 72(6));
• – the legislator abrogated the right to strike by imposing on the concerned workers the obligation to supply, provide or maintain its facilities in full function, production and service (section 72(8));
• – section 158 of the Labour Relations Code reinforced the application of section 72(6) and (8) by providing significant sanctions for individuals and unions who do not comply with the law.
  255. 255 After the adoption of Bill No. 18, the negotiations came to an impasse and, in October 2001, the teachers considered commencing a gradual job action, which would involve only the withdrawal of minor administrative and reporting functions, while ensuring that all instruction would continue for all students in all programmes. The employers applied to the British Columbia Labour Relations Board, under the newly amended section 72, requesting the Board to designate which actions (among those contained in the union’s proposals) would be considered as “essential services”. The Board ruled that most of the minor services to be withheld under the initial phase of the proposal were not “essential”, even under the new wording. The complainants point out that the Government rejected the Board’s decision and indicated that the legislature might be recalled to end the dispute.
  256. 256 In their communication of 4 July 2002, the other group of complainants (Education International (EI), British Columbia Teachers’ Federation (BCTF), Canadian Teachers’ Federation (CTF)) allege that the Government has enacted yet further legislation (the Education Services Collective Agreement Act (Bill No. 27) and the Public Education Flexibility and Choice Act (Bill No. 28) which violates the most fundamental principles of freedom of association and free collective bargaining.
  257. 257 From 1987 to 1994, collective agreements had been freely negotiated in all 75 local school boards. In 1994, the Government changed the bargaining structure and a province-wide agreement, carrying forward the previous local agreements, was signed in 1996. In January 2002, the parties were in negotiation for the renewal of the second provincial agreement. The union requested a 23 per cent wage increase over three years (similar to that of nurses) and the employer offered 7.6 per cent. The parties agreed upon the appointment of a neutral facilitator. On 22 January 2002, the employer submitted a revised proposal and further negotiations took place, during all of which teachers did not withdraw any instructional services, since they were prevented from doing so by Bill No. 18. The Government then decided to introduce Bills Nos. 27 and 28.
  258. 258 Taken together, the Education Services Collective Agreement Act (Bill No. 27) and the Public Education Flexibility and Choice Act (Bill No. 28) cancelled the limited right to strike still retained by teachers, as it “deemed” a collective agreement to exist. They unilaterally imposed unfavourable terms and conditions of employment to teachers for a period of three years. They removed previously agreed collective agreement provisions, e.g. section 2(1)(a)(iv) of Bill No. 27 which provides that ten local agreements “are void and cease to have any effect”; according to the complainants, this means that the Government has eliminated in ten areas of the province all the local terms and conditions of employment on such matters as seniority rights, leaves of absence, hours of work, etc. Bill No. 27 also eliminated the possibility for teachers to negotiate provisions dealing with the consequences of the Government’s actions. Bill No. 28 granted school boards the right to change unilaterally the school calendar, and rendered void any negotiated collective agreement provision that would conflict with the changes brought by the employer.
  259. 259 The complainants add that they fully support the parallel complaints filed by other workers’ organizations in the health and education sectors and, in light of the nature and degree of the violation of international standards, request the ILO to send a study and information mission to British Columbia to investigate the complaint.
• Case No. 2180 (Bills Nos. 27, 28 and 29)
  260. 260 The complaint in this case is filed by the Canadian Labour Congress (CLC) and the National Union of Public and General Employees (NUPGE) on behalf of the British Columbia Government and Service Employees’ Union (BCGSEU), which regroups over 60,000 employees of the provincial Government, and of the Health Sciences Association of British Columbia (HSA).
  261. 261 In addition to Bills Nos. 27 and 28 (described above in connection with Case No. 2173) this complaint concerns the Health and Social Services Delivery Improvement Act (Bill No. 29). The complainants’ allegations regarding Bills Nos. 27 and 28 are essentially the same as those submitted in Case No. 2173. Bill No. 27 was introduced and adopted without any consultation with teachers’ unions; the legislation imposed for a period of three years, pay and working conditions reflecting the employer’s position; there was no reference to independent impartial arbitration; and strikes were prohibited. As regards Bill No. 28, the complainants add that, over the years, teachers and non-teaching staff had negotiated and won collective agreement provisions on several aspects, e.g. size of class, courses they should teach, number of hours of instruction. To achieve these terms, they had to make compromises on other issues. In the name of “flexibility and choice” the Government now gives employers the right to override these negotiated provisions, without compensation, consultation, arbitration or agreement; and Bill No. 28 operates retroactively (section 4(2)). The Bill also overrides provisions protecting the job security of employees and permits “contracting out”, allowing employers in the education sector to use non-union staff or services, notwithstanding previously negotiated collective agreement provisions. Finally, the legislation is not temporary, as it contains no “sunset” clause.
  262. 262 Regarding the Health and Social Services Delivery Improvement Act (Bill No. 29), the complainants indicate that, before the adoption of that legislation, virtually all employers in the health sector and social services sector were covered by collective agreements. These employees had achieved significant progress through difficult strikes and compromises on several matters, including job security, mobility of jobs and wages. The complainants allege that Bill No. 29 wipes out this progress: it imposed unfavourable and unacceptable terms reflecting the employers’ position, giving Bill No. 29 priority over the Labour Relations Code of British Columbia; it permits the employer to override collective agreements and to “contract out” to non-union employers; it allows government interference in the future choice of bargaining agents by employees; it interrupts already negotiated contracts.
  263. 263 The complainants request that all these Acts be repealed, that affected employees receive compensation, and that the Government comply with ILO Conventions in future. In view of the complexity and degree of these violations, the complainants request that an ILO study and information mission be established to look into these complaints.
• Case No. 2196 (Bill No. 28)
  264. 264 The complaint in this case is filed by the Canadian Association of University Teachers (CAUT) on behalf of the College Institute Educators’ Association (CIEA), which is made up of 7,000 faculty and staff members employed in colleges, universities and institutes in the post-secondary education sector.
  265. 265 The complaint concerns the Public Education Flexibility and Choice Act, Bill No. 28 (described above in connection with Cases Nos. 2173 and 2180). The complainant organization points out that Bill No. 28 also applies to faculty members in post-secondary colleges, universities and institutes. It voids key working conditions that were once freely negotiated, and deprives workers of the right to freely negotiate these terms and conditions. The complainant alleges that this legislation violates Conventions Nos. 87, 98, 151 and 154, essentially for the same reasons as those submitted in Case No. 2173. Without consulting trade unions, the Government has removed critical working conditions from the scope of collective bargaining, and has handed these issues to the sole prerogative of employers. The complainant also refers to the other Bills mentioned in the above complaints.
• General conclusions
  266. 266 The complainants in each of the abovementioned cases allege that Bills Nos. 2, 15, 18, 27, 28 and 29 violate ILO Conventions and freedom of association principles, and created a situation where employers are not inclined to utilize collective bargaining procedures, but rather refuse to bargain and await the legislated imposition of their concession demands, in both the public health and educational sectors. The complainants add that this discourages the use of voluntary bargaining between employers and workers for the settlement of conditions of employment. The complainants in Cases Nos. 2166, 2173 and 2180 request that the ILO send a study and information mission to British Columbia to investigate the complaints, in light of the nature and degree of the violation of international standards.

B. The Government’s reply

• General
  267. 267 In its communication of 26 July 2002, the Government explains in respect of all the complaints the economic and fiscal background that prevailed at the time, and states that it was faced with the rising cost of debt servicing and an increasing deficit:
• – changes in the global economy and public sector expenditure commitments have lead to unsustainable pressures on the budget that needed to be addressed;
• – budget estimates for 2002-03 predicted that the debt level would increase from $36.4 billion to $43.9 billion over the next three years;
• – overall taxpayer supported debt, as a percentage of provincial GDP was expected to increase to 25 per cent in fiscal year 2003-04;
• – the present fiscal plan prepared by the Government calls for a reduction of the deficit to $1.8 billion in 2003-04 and its complete elimination in 2004-05;
• – health and education expenditures by the province represented 64.4 per cent of the total expenditure in 2001-02, a figure that would reach 66.5 per cent by fiscal year 2002; wage costs account for significant percentages of the total expenditure (76 per cent in the education sector; from 62.3 per cent to 80 per cent in the health sector).
  268. 268 In addition, recent labour market trends indicate that:
• – public sector wage settlements have surpassed private sector increases (2.3 per cent in 2001 and 2.44 per cent in 2002, as compared to 1.65 per cent and 1.80 per cent for the same years);
• – effective wage adjustment in base rates for British Columbia shows that public settlements (2.8 per cent) exceeded those in the provincial private sector (1.7 per cent);
• – the provincial rate of unemployment has exceeded the national average since 1998;
• – the average number of employees in key public sector areas (education, health, social services and public administration) has increased significantly in the last three years, to 22.1 per cent of the total provincial employment.
  269. 269 The Government adds that it was recently elected with a wide mandate to improve fiscal accountability and reduce the public deficit and the debt. The measures it took through Bills Nos. 2, 15, 18, 27, 28 and 29 were not adopted arbitrarily but rather to respond to a preoccupying situation in the public health and education sectors. Any restrictions on collective bargaining or on the right to strike were exceptional measures, enacted in view of the difficult economic and fiscal situation, in the context of protracted and difficult labour disputes, which could have serious consequences in the health and education sectors.
  270. 270 In its communication of 8 August 2002, the Government considers that the complaints are fundamentally frivolous, vexatious, mostly driven by political motivation, and completely without merit. It adds that it would not be appropriate to discuss the issues raised in connection with Bills Nos. 27, 28 and 29, since several complainants have filed proceedings in this respect in the Supreme Court of British Columbia.
• Case No. 2166 (Bills Nos. 2 and 15)
  271. 271 In its communication of 26 July 2002, the Government submits that neither the Health Care Services Continuation Act (Bill No. 2), nor the Health Care Service Collective Agreements Act (Bill No. 15) infringe on the substantive provisions of Convention No. 87. The Government had to act as it felt that there was a significant threat on the health and safety of citizens, and that the health-care system was in danger.
  272. 272 Negotiations between HEABC and the bargaining associations of the nurses and the paramedical professionals had been going on since January 2001, and the nurses’ collective agreement was to expire on 31 March 2001. The negotiations had reached an impasse and the nurses were heading towards a full strike. As a result of the job action by nurses and other health-care professionals, 6,300 surgeries had been cancelled during that period, dozens of British Columbians had to leave the province for urgent medical treatment. Prior to introducing the legislation, the Government attempted to resolve the impasse. The Ministers of Finance, Health Planning and Health Services met with the leaders of the British Columbia Nurses’ Union on 11 June 2001 and, while stressing that they were not there to negotiate a collective agreement, which was the responsibility of the employers’ bargaining agent (HEABC), they offered the union a “partnership” to discuss the fundamental issues. The union rejected that offer the following day. Nevertheless, the Ministers of Finance and Health Services met again with the leaders of the nurses’ union on 15 June 2001.
  273. 273 During the seven months leading up to the introduction of the legislation, the HEABC had made an offer (based on directions from the Ministry of Finance as to what was reasonable and affordable given the province’s economic and fiscal position) to the nurses’ bargaining agent. According to the Government, the offer was very generous by the standards then prevailing in the public sector. The offer was rejected by 96 per cent of the members who had voted. On 14 June 2001, the Ministers of Health Planning and Health Services met again with representatives of HSA and reiterated their offer of partnership to discuss the issues. The offer was rejected.
  274. 274 Considering that the situation had reached a crisis level that required emergency and definitive action, the Government introduced Bill No. 2, which came into force on 20 June 2001. Bill No. 2 provided for the possibility of a “cooling off” period, to give the parties time to resolve their differences and find short-term and long-term solutions; it also required both bargaining agents to resume or commence collective bargaining and to make every reasonable effort to conclude a collective agreement. Pursuant to the Act, on 20 June the Minister of Labour imposed a 50-day cooling off period, during which no agreements were concluded. The Minister imposed a further ten-day cooling off period on 9 August 2001, the day when Bill No. 15 was passed.
  275. 275 Bill No. 15 ended the cooling off period prescribed under Bill No. 2. As regards nurses, section 2(1) of Bill No. 15 provided that the collective agreement between the parties would be comprised of: the terms and conditions of the previous agreement; the provisions agreed upon during the negotiations; and the provisions of the settlement package tabled on 16 July 2001 by the employers’ bargaining agent (HEABC). Section 3(1) of Bill No. 15 provided similar provisions as regards paramedical professionals. These settlements are to expire on 31 March 2004.
  276. 276 The Government submits that this legislation was introduced as a last option, which was necessary to end the dispute and to ensure that patients would receive the health care they needed. According to the Government, the settlement provided a fair compensation package, with competitive rates. Nurses received a 23.5 per cent wage increase over three years, which brought them to parity with nurses in neighbouring Alberta and the highest total compensation package in Canada. Paramedical professionals received increases from 5.5 per cent to 14.25 per cent over three years. All of which at a time when public sector increases were in the 2 per cent to 3 per cent range.
• Case No. 2173 (Bills Nos. 15, 18, 27 and 28)
  277. 277 In its communication of 26 July 2002, the Government submits that neither of these Acts infringes the substantive provisions of Convention No. 87. As regards the Health Care Service Collective Agreements Act (Bill No. 15) the Government refers to its arguments in Case No. 2166.
  278. 278 As regard the Skill Development and Labour Statutes Amendment Act (Bill No. 18), the Government submits that this piece of legislation, by amending the Labour Relations Code and the Pension Benefits Standard Act, delivers four specific commitments made during the election campaign: restore education as an essential service; restore the workers’ right to secret ballots; eliminate sector bargaining in the construction industry; and restore pensions to workers where those have been withheld. On the issue of essential services, the Government indicates that over 4 million days had been lost in strikes by teachers during the last ten years. Bill No. 18 restores education as an essential service as it was until 1993; it gives the Labour Relations Board the authority to designate services that need to be maintained if their disruption would pose an immediate and serious threat to the delivery of educational programmes. According to the Government, Bill No. 18 does not take away the teachers’ right to strike or their right to bargain collectively, but recognizes that the right to education must take precedence over the right to strike. It provides that while teachers and support staff still have the right to strike, they will have to maintain in schools a level of services as determined by the Labour Relations Board, on a case-by-case basis. The legislation brings a balance between the rights of workers to put pressure on employers through industrial action and the right of students to receive an education. The Government adds that the consultation process was very extensive in that the voters were consulted, since these legislative objectives were clearly enunciated in the election platform.
  279. 279 As regards the Education Services Collective Agreement Act (Bill No. 27) and the Public Education Flexibility and Choice Act (Bill No. 28), the Government states that it is not appropriate to discuss these laws in the ILO context, since they are currently challenged before the Supreme Court of British Columbia by various unions of the health and education sectors. It nevertheless provides the following observations.
  280. 280 Bill No. 27, which came into force on 27 January 2002, ended a lengthy teachers’ dispute and provided for a collective agreement giving teachers a 7.5 per cent increase over three years, expiring on 30 June 2004. That settlement makes British Columbia teachers some of the highest paid in Canada. The Government felt compelled to take some action to review the bargaining process in the education sector as the dispute had lasted ten months and the disruption was causing great harm to students; in addition, no settlement had been achieved in this sector since 1994. Section 5 of the Act also provides for the appointment of a commission to review the structure and procedure of collective bargaining in the education sector.
  281. 281 The Government states that Bill No. 28, which came into force on 28 January 2002, was enacted to provide a more flexible, more responsive and better managed education system by returning decision-making to parents and locally elected school boards regarding issues such as class size, the structure of the school day and school year; the legislation gives school boards some flexibility on class size, within certain limits established in the Act. For non-classroom educators (librarians, counsellors, etc.), Bill No. 28 allows these decisions to be driven by student needs, parent concerns and local priorities, and not by rigid, provincially imposed, ratios, negotiated at the bargaining table. Collective bargaining continues as regards teachers’ wages and benefits.
• Case No. 2180 (Bills Nos. 27, 28 and 29)
  282. 282 In its communication of 26 July 2002, the Government submits, as regards Bills Nos. 27 and 28, the same observations as in Case No. 2173, and reiterates it would not be appropriate to discuss these issues in the ILO context until these court cases are concluded.
  283. 283 Regarding the Health and Social Services Delivery Improvement Act (Bill No. 29), which came into force on 28 January 2002, the Government states that it was enacted to restructure the health-care system and to reduce the escalating costs of health services. The Act simplifies notice and lay-off provisions, eliminates inflexible job security provisions, allows health authorities to transfer functions and staff with greater flexibility, and to determine the most efficient and cost effective way of providing administrative support services. The Government also denies the complainants’ allegation that the Act empowers it to intervene in the employees’ choice of bargaining agent. The Government adds that, prior to its election, wide dialogue and consultations were held on the health-care issue throughout the province, with 350 witnesses heard and 700 written submissions received. According to the Government, there was a huge problem of sustainability with the health?care system: it represented 38.9 per cent of the 2001 budget and costs $26 million a day to operate; its costs have grown three times faster than the British Columbia economy; labour costs are by far the largest factor in health care and British Columbia has the highest labour costs of any province in Canada. The existing system would collapse if the situation were not addressed.
• Case No. 2196 (Bill No. 28)
  284. 284 In its communication of 26 July 2002, the Government submits, as regards Bill No. 28, the same observations as those submitted in Case No. 2173, including that the case should not be discussed as it is sub judice.
  285. 285 In its supplementary observations of 20 January 2003, the Government states that the purpose and effect of the impugned Acts is, in essence, to remove certain matters from the scope of collective bargaining in order to ensure that health and education management has the ability to provide flexible, efficient and cost-effective service delivery. The matters which have been removed from the scope of collective bargaining include: in the area of education, class size, method of instruction and the setting of the school calendar; and, in the health sector, the ability to transfer functions and services from one health-care facility to another. By ensuring that health care and education management has the unfettered ability to make and implement decisions in this area, the statutes increase their accountability to the public in respect of efficient and cost-effective delivery of crucial public services.
  286. 286 The Government submits that Convention No. 87 does not mandate that trade unions are able to bargain collectively on each and every issue which arises in the context of employment. If it did, signatory governments could not legislate to protect minimum wages or hours of work standards, or make mandatory health and safety rules regardless of the desire of an employer and the trade union representing its workers to bargain some different, lesser standards. The trade unions affected by these statutes are powerful social and political entities in the province; they are engaged in collective bargaining in the public sector and provide essential services to the population. The Government cannot and must not concern itself solely with the interests of trade unions in maximizing the scope of collective bargaining and the control of trade unions in the workplace; rather, the Government must weigh those interests against the public interest in ensuring that the public delivery of health and education services remains universal and sustainable. Convention No. 87 was not intended to interfere with the ability of signatory governments to balance competing social interests in a manner which best serves the public interest. Nor is it for the ILO to second guess the Legislature’s decision as to the relative value and importance of competing social policy choices in health and education; so long as these choices are made through a democratic political process and do not undermine the fundamental rights of workers to organize, to select their bargaining agent and to engage in collective bargaining, there is no violation of Convention No. 87.

C. The Committee’s conclusions

1. 287. The Committee notes that these complaints concern six Acts adopted by the Government of British Columbia in connection with labour relations, and in particular the right to strike and collective bargaining in the health and education sectors, namely:
   • – the Health Care Services Continuation Act (entitled “Bill No. 2” before its adoption);
   • – the Health Care Services Collective Agreements Act (entitled “Bill No. 15” before its adoption);
   • – the Skills Development and Labour Statutes Amendment Act (entitled “Bill No. 18” before its adoption);
   • – the Education Services Collective Agreement Act (entitled “Bill No. 27” before its adoption);
   • – the Public Education Flexibility and Choice Act (entitled “Bill No. 28” before its adoption); and
   • – the Health and Social Services Delivery Improvement Act (entitled “Bill No. 29” before its adoption).
   • General
2. 288. As regards the Government’s submission, in its communication of 8 August 2002, that the complaints are fundamentally frivolous, vexatious, driven by political motivation, without any merit, and only serve to trivialize the important role of the Committee on Freedom of Association, the Committee notes that the impugned Acts affected large numbers of employees in the health and education sectors, and imposed terms and working conditions for an extended period of time, i.e. three years. Furthermore, they do constitute, prima facie, an interference by the authorities in the regular bargaining process, since the Government intervened legislatively to put an end to a legal strike (Bill No. 2) and to impose the contents of collective agreements (Bills Nos. 15 and 27). Whether, and to what extent, these Bills and the other pieces of legislation (Bills Nos. 18, 28 and 29) amounted to violations of freedom of association principles is for the Committee to determine. The Committee recalls in this respect that when a State decides to become a Member of the ILO, it accepts the fundamental principles embodied in the Constitution and Declaration of Philadelphia, including the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 10] and all governments are obliged to respect fully the commitments undertaken by ratification of ILO Conventions [see Digest, op. cit., para. 11].
3. 289. Regarding the Government’s argument that it would not be proper to comment on Bills Nos. 27, 28 and 29 while they are challenged in the Supreme Court of British Columbia, the Committee recalls that governments should recognize the importance for their own reputation of formulating detailed replies to the allegations brought by complainant organizations, so as to allow the Committee to undertake an objective examination [see Digest, op. cit., para. 20]. The Committee also points out that, although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, it has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures [see Digest, op. cit., Annex I, para. 33]. The Committee trusts that the competent provincial tribunal will take freedom of association principles into account in its ruling on these issues, as was done by the Supreme Court of Canada in the Dunmore Case (2001 CSC 94).
4. 290. The Committee also notes the Government’s detailed observations on the province economic climate, the budget constraints, the fiscal objectives and the pressures in the public sector which, according to the Government, obliged it to intervene legislatively in order to avoid a national crisis in the health and education sectors. The Committee is aware that collective bargaining in the public sector calls for verification of the available resources in public bodies, that such resources are dependent on state budgets and that the period of duration of collective agreements in the public sector does not always coincide with the duration of the budgetary laws – a situation which can give rise to difficulties. In so far as the income of public bodies depends on state budgets, it would not be objectionable – after wide discussion and consultation between the concerned employers’ and employees’ organizations in a system having the confidence of the parties – for wage ceilings to be fixed in state budgetary laws, and neither would it be a matter for criticism that the Ministry of Finance prepare a report prior to the commencement of collective bargaining with a view to ensuring respect of such ceilings. Irrespective of any opinion expressed by the financial authorities, the bargaining parties should, however, be free to reach an agreement; if this is not possible, any exercise by the public authorities of their prerogatives in financial matters which hampers the free negotiation of collective agreements is incompatible with the principle of freedom of collective bargaining. In the light of the above, provision should be made for a mechanism which ensures that both trade unions and employers are adequately consulted and may express their points of view to the financial authority responsible for the wage policy [see Digest, op. cit., para. 898]. Therefore, while taking fully account of the financial and budgetary difficulties facing governments, the Committee considers that the authorities should give preference as far as possible to collective bargaining in determining the conditions of employment of public servants. Where circumstances rule this out, measures of this kind should be limited in time and protect the standard of living of the most affected workers. In other words, a fair and reasonable compromise should be sought between the need to preserve as far as possible the autonomy of the bargaining parties, on the one hand, and measures which must be taken by the Government to overcome their budgetary difficulties, on the other hand [see Digest, op. cit., para. 899].
   • Case No. 2166 (Bills Nos. 2 and 15)
5. 291. The Committee notes that the complainants in this case alleges that Bill No. 2 forced them to cease the strike action they had engaged in (while maintaining essential services) to support the renegotiation of their collective agreement, that the working conditions ultimately imposed through Bill No. 15 essentially reflected the employers’ last offer, that the differentiated wage increases were inadequate and divisive, and that there was no adequate consultation with workers’ organizations. The Government submits for its part that the negotiations with nurses and paramedical professionals had reached an impasse, that the situation was rapidly deteriorating as many surgeries and medical procedures had to be cancelled, and that the nurses were heading towards a full strike. The Government adds that the legislative settlement was imposed as a last option as the health and safety of the population was threatened, that took into account the province budgetary and fiscal situation and, in any event, that the settlement provided a fair compensation package, when compared both with the remuneration of the same categories of workers in neighbouring provinces and with the increases granted in other branches of the public sector in British Columbia.
6. 292. The Committee notes that this case concerns the health sector, which it considers as an essential service in the strict sense of the term, where the right to strike can be restricted or even prohibited [see Digest, op. cit., para. 544]. Therefore, Bill No. 2 cannot be said in itself to violate freedom of association principles. However, where the right to strike is legitimately restricted or prohibited, adequate protection should be given to the workers to compensate them for the limitation thereby placed on their freedom of action with regard to disputes affecting such services. Restrictions on the right to strike should be accompanied by adequate, impartial and speedy compensatory procedures, such as conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Digest, op. cit., paras. 546-547]. Based on the information available, the Committee concludes that the workers in question did not benefit from such impartial and adequate compensatory procedures and that sections 2 and 3 of Bill No. 15 essentially imposed the employers’ last offer.
7. 293. The Committee further notes that the “deemed collective agreement” imposed by virtue of Bill No. 15 does not permit much variation, even if the parties later agreed upon such modifications, and that this imposed agreement expires on 31 March 2004, i.e. approximately three years and nine months from the expiry of the previous agreement, a duration that the Committee has considered excessive when discussing restraints on collective bargaining [see Digest, op. cit., para. 887].
8. 294. The Committee therefore concludes that the Health Care Services Collective Agreements Act (Bill No. 15) violated freedom of association principles inasmuch as it did not respect the autonomy of the bargaining parties and legislatively imposed working terms and conditions, without the workers being able to submit the dispute to mutually and freely chosen independent and impartial arbitration. The Committee firmly requests the Government to avoid in future having recourse to such legislative intervention, and strongly hopes that the next round of negotiations will be held in accordance with the principles mentioned above. The Committee recommends that, to that effect, the Government adopt in the meantime a flexible approach, should the parties agree upon variations of the so-called “deemed agreement” amounting in fact to a legislatively imposed settlement. The Committee requests to be kept informed of developments in this respect.
   • Case No. 2173 (Bills Nos. 15, 18, 27 and 28)
9. 295. The Committee notes that the complainants in this case submit similar allegations as those made in Case No. 2166 as regards Bill No. 15, and that the Government provides essentially the same reply. The Committee thus refers to the conclusions and recommendations made above in this respect (see paragraph 294 above).
10. 296. As regards the other pieces of legislation mentioned in this complaint, the complainants allege that Bills Nos. 18, 27 and 28 have affected large numbers of workers in the education sector by legislatively imposing a collective agreement, depriving workers of the right to negotiate freely their terms and conditions of employment, and restricting arbitrarily their right to strike. The Government submits for its part that: Bill No. 18, inter alia, restored education as an essential service and brings a balance between the right of workers to put pressure on employers and the right of students to receive an education; Bill No. 27 ended a teachers’ dispute that had lasted ten months and caused great harm to students, and that the settlement imposed makes British Columbia teachers among the best paid in Canada; Bill No. 28 was enacted to provide a more flexible education system by returning to local school boards some issues such as class size, structure of school day and school year, etc.
11. 297. The Committee notes that this complaint, by contrast to Case No. 2166, concerns the education sector, which it does not consider as an essential service in the strict sense of the term where the right to strike could be restricted or prohibited [see Digest, op. cit., para. 545]. Recalling that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interest [see Digest, op. cit., para. 475], the Committee concludes that the provisions of Bill No. 18 which make education an essential service are in violation of freedom of association principles and should be repealed. In addition, once Bill No. 27 entered into force, a collective agreement was “deemed” to exist and, given the existing labour relations system in British Columbia (and the other provincial and federal jurisdictions) any strike that might have been ongoing would become illegal. Nevertheless, the Committee recalls that minimum services may be established in this sector, in full consultation with social partners, in cases of strikes of long duration.
12. 298. As regards the collective bargaining process during that dispute, based on the information available, the Committee concludes that there were no adequate consultations, and that Bill No. 27 unilaterally imposed a legislative settlement for a period of three years in the education sector, thereby not respecting the autonomy of the bargaining parties. The Committee reiterates here the comments made in Case No. 2166 concerning both the excessive length of this imposed agreement and the limited possibility of variation even if the parties would later agree upon modifications. The Committee firmly requests the Government to avoid in future having recourse to such legislated settlement, and strongly hopes that the next round of negotiations will be held in accordance with the principles mentioned above. The Committee recommends that, to that effect, the Government adopt in the meantime a flexible approach and consider changes to the legislation on working conditions if the parties concerned agree. The Committee requests to be kept informed of developments in this respect.
13. 299. Noting further that section 5 of Bill No. 27 provides for the appointment of a commission to review the structure and procedure of collective bargaining in the education sector, the Committee requests the Government to indicate whether such a commission has been appointed. Recalling that where a government seeks to alter bargaining process structures in which it acts actually or indirectly as employer, it is particularly important to follow an adequate consultation process, whereby all objectives perceived as being in the overall interest can be discussed by all parties concerned, in keeping with the principles established in the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113), [see Digest, op. cit., para. 856], the Committee recommends that the Government closely associate employers and trade unions in that open and neutral process and requests it to keep it informed of developments in this respect.
14. 300. As regards the Public Education Flexibility and Choice Act (Bill No. 28), the Committee notes that the Act removed from collective bargaining some matters previously negotiated (class size, assignment of courses to teachers, structure of school year and school days, etc.) and returned decision-making to teaching institutions in this respect, within certain limits established in the Act. The Committee also notes that the Act operates retroactively since article 4(2) of Bill No. 28 voids collective agreement provisions previously concluded in such matters. The Committee recalls that, while the determination of broad lines of educational policy is not a matter for collective bargaining between the competent authorities and teachers’ organizations, it may be normal to consult these organizations on such matters [see Digest, op. cit., para. 813]. This is particularly important in cases such as the present one, where the issues in question were previously negotiated, with the usual give and take process, which means that the parties probably gave away some demands in return for concessions, which are now being taken away through legislative decision. Such a unilateral action by the authorities cannot but introduce uncertainty in labour relations which, in the long term, can only be prejudicial. The Committee therefore recommends, in the higher interest of sound and stable industrial relations, that the issues raised in connection with Bill No. 28 be made part of the mandate of the commission established under section 5 of Bill No. 27 to re-examine the structure and procedure of collective bargaining in the education sector. The Committee requests the Government to keep it informed of developments in this respect.
    • Case No. 2180 (Bills Nos. 27, 28 and 29)
15. 301. The Committee notes that the complainants in this case submit similar allegations as those raised in Case No. 2173 concerning Bills Nos. 27 and 28, and that the Government provides essentially the same reply. The Committee therefore refers to the conclusions and recommendations made above in these respects (see paragraph 298 above).
16. 302. As regards the Health and Social Services Delivery Improvement Act (Bill No. 29), the Committee notes that this legislation introduced major changes to the existing system of labour relations in the health and social sectors, which affected previously negotiated collective agreement provisions and will have a lasting effect on the collective bargaining regime of employees in these sectors. While taking into account the tax and budget considerations put forward by the Government, the Committee considers it essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the appropriate organizations of workers and employers [see Digest, op. cit., para. 931] which was not the case here. The Committee recommends that such full and detailed consultations be held with representative organizations in the health and social sectors; to be meaningful, these consultations should be held under the auspices of a neutral and independent facilitator that would have the confidence of all parties, in particular trade unions and their members whose rights are mostly affected by Bill No. 29.
    • Case No. 2196 (Bill No. 28)
17. 303. The Committee notes that the complainants in this case submit similar allegations as those raised in Case No. 2173 concerning Bill No. 28, and that the Government provides a similar reply. The Committee therefore refers to the conclusions and recommendations made above in this respect (see paragraph 300 above).
    • Concluding remarks
18. 304. The Committee notes that all the Acts complained of in these cases involve a legislative intervention by the Government in the bargaining process, either to put an end to a legal strike, to impose wage rates and working conditions, to circumscribe the scope of collective bargaining, or to restructure the bargaining process. Recalling that the voluntary negotiation of collective agreements, and therefore the autonomy of bargaining partners, is a fundamental aspect of freedom of association principles [see Digest, op. cit., para. 844] and that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests [see Digest, op. cit., para. 475], the Committee regrets that the Government felt compelled to resort to such measures and trusts that it will avoid doing so in future rounds of negotiations. The Committee also points out that repeated recourse to legislative restrictions on collective bargaining can only, in the long term, prejudice and destabilize the labour relations climate if the legislator frequently intervenes to suspend or terminate the exercise of rights recognized for unions and their members. Moreover, this may have a detrimental effect on workers’ interests in unionization, since members and potential members could consider it useless to join an organization the main objective of which is to represent its members in collective bargaining, if the results of bargaining are constantly cancelled by law [see Digest, op. cit., para. 875]. The Committee also hopes that, in future, full, frank and meaningful consultations will be held with representative organizations in all instances where workers’ rights of freedom of association and collective bargaining are at stake. The Committee brings the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

The Committee's recommendations

1. 305. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the education sector (Bills Nos. 18, 27 and 28):
   • (i) the Committee requests the Government to repeal the provisions of Bill No. 18 which make education an essential service, and to adopt legislative provisions ensuring that workers in this sector may enjoy and exercise the right to strike, in accordance with freedom of association principles;
   • (ii) the Committee nevertheless recalls that minimum services may be established in this sector, in full consultation with social partners in cases of strikes of long duration;
   • (iii) the Committee requests the Government to adopt a flexible approach and to consider amending the relevant provisions of Bill No. 27 so that the bargaining parties may, by agreement, vary the working conditions unilaterally imposed by the impugned legislation;
   • (iv) the Committee recommends that the Government establish, with appropriate safeguards of neutrality and independence, the commission provided for in Bill No. 27 to review the structure and procedures of collective bargaining in the education sector, and that it include in its mandate the issues raised in connection with Bill No. 28.
   • (b) As regards the health and social services sectors (Bills Nos. 2, 15 and 29):
   • (i) the Committee requests the Government to amend its legislation to ensure that workers in this sector enjoy adequate protection measures, to compensate them for the limitation placed on their right to strike, in accordance with freedom of association principles;
   • (ii) the Committee requests the Government to adopt a flexible approach and to consider amending the relevant provisions of Bill No. 15 so that the bargaining parties may, by agreement, vary the working conditions imposed by the impugned legislation;
   • (iii) the Committee recommends that full and detailed consultations be held with representative organizations, under the auspices of a neutral and independent facilitator, to review the collective bargaining issues raised in connection with Bill No. 29.
   • (c) The Committee requests the Government to refrain from having recourse in future to legislatively imposed settlements, and to respect the autonomy of bargaining partners in reaching negotiated agreements.
   • (d) The Committee requests the Government to ensure in future that appropriate and meaningful consultations be held with representative organizations when workers’ rights of freedom of association and collective bargaining may be affected.
   • (e) The Committee requests the Government to provide it with the judicial decisions concerning the current court challenges mentioned in the present complaints.
   • (f) The Committee requests the Government to keep it informed of developments on all the above issues.
   • (g) The Committee draws the legislative aspects of these cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations.