Rapport intérimaire - Rapport No. 56, 1961

Cas no 211 (Canada) - Date de la plainte: 02-NOV. -59 - Clos

1. 141. This case has already been examined by the Committee at its meetings in February a and November 1960. At its meeting in November 1960 it submitted to the Governing Body the recommendations contained in paragraph 253 of its 49th Report, which was approved by the Governing Body at its 147th Session (15-18 November 1960). Paragraph 253 of the Committee's 49th Report reads as follows:
2. 253. In all circumstances the Committee recommends the Governing Body:
   • (a) to note that the statements contained in the letter from the Government of Canada dated 13 May 1960 contain nothing to cause the Committee to modify the conclusion expressed in its 45th Report that the Government responsible for furnishing observations in the case, as a Member of the International Labour Organisation, is the Government of Canada, or to preclude the Committee from proceeding, on the grounds indicated in paragraph 101 of its 45th Report, to examine the allegations made in the light of the generally accepted principles relating to freedom of association, taking the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as a standard of comparison, with a view to ascertaining the facts and reporting them to the Governing Body;
   • (b) to take note of the explanation given by the Government of Canada, in its letter dated 13 May 1960, as to why it was not considered appropriate, from the Constitutional point of view, to entertain the Petition addressed to the Governor-General in Council for the disallowance of the Newfoundland Trade Union (Emergency Provisions) Act, 1959, and the Newfoundland Labour Relations (Amendment) Act of 6 March 1959;
   • (c) to decide, with respect to the allegations relating to the Labour Relations (Amendment) Act of 6 March 1959:
   • (i) to note that the Labour Relations (Amendment) Act, 1959, has been further amended by the Labour Relations (Amendment) Act of 5 July 1960, which has repealed or amended a number of the provisions complained against in the allegations-notably, section 52 A of the Labour Relations Act, which restricted the extent of trade union immunity from actions in respect of torts, and subsections (1) (a) (iii), (1) (e), (2) and (3) of section 11 relating to the certification and revocation of certification of bargaining agents have been repealed, while section 6 A has been amended so as no longer to permit of the dissolution of trade unions by administrative authority;
   • (ii) to decide, therefore, that no useful purpose would be served by pursuing further the examination of the allegations relating to sections 11 and 52 A of the Labour Relations Act, as amended;
   • (iii) to draw the attention of the Canadian Government, and request it to draw the attention of the Newfoundland government, to the fact that certain other provisions of the Act do not appear to be fully compatible with the generally accepted principles concerning freedom of association and, in particular:
3. (1) to draw attention to the importance which the Governing Body has always attached to the principles that workers should have the right to form and join organisations of their own choosing, that workers' organisations should have the right to elect their representatives in full freedom, that workers' organisations should have the right to establish and join federations and Confederations of their own choosing and that such organisations, federations and Confederations should have the right to affiliate with international organisations of workers and that the law of the land should not be such as to impair, nor should it be so applied as to impair, the exercise of the foregoing rights;
4. (2) to express its view that, for the reasons indicated in paragraphs 229 and 234 above, the provisions of section 6 A (1) of the Newfoundland Labour Relations Act, as amended, appear to be incompatible with the principles set forth in subparagraph (1) above;
5. (3) to draw attention to the importance which the Governing Body has always attached to the principle that when an organisation is dissolved its assets should temporarily be sequestrated and finally distributed among its members or transferred to its successor organisation;
6. (4) to express its view that the provisions of section 6 A (5) of the said Act do not appear to be compatible with the principles set forth in subparagraph (3) above;
   • (iv) to request the Government to furnish its observations on the allegations made with respect to the effects of section 43 A (1) (a) of the Newfoundland Labour Relations Act, as amended, which are analysed in paragraph 240 above;
   • (d) to request the Government to be good enough to furnish observations, in respect of the allegations relating to acts stated to have been committed by or at the instigation of the Premier of Newfoundland, on the specific points referred to in paragraph 243 above;
   • (e) to request the Government to be good enough to furnish, in the light of the observations made in paragraphs 247, 250 and 251 above, observations with regard to the allegations, set forth in detail in the complaint and in the Petition of the Canadian Labour Congress and other accompanying documents, relating to the effects of the Trade Union (Emergency Provisions) Act, 1959.
7. 142. The above conclusions and requests for observations were brought to the notice of the Government of Canada by a letter dated 23 November 1960. At its meeting in February 1961 the Committee, as indicated in paragraph 8 of its 52nd Report, adjourned its further examination of the case, as the observations in question had not been received from the Government. By a letter dated 21 March 1961 the Government of Canada forwarded a copy of a communication, dated 28 February 1961, which it had received from the government of Newfoundland.
8. 143. In the communication from the government of Newfoundland, regret is expressed at the failure of the I.L.O to accept the invitation of the Premier of Newfoundland to send a delegation to Newfoundland to investigate the matters which are the subject of the complaints. The government of Newfoundland goes on to express the view that the amendments already made to the legislation of Newfoundland had gone a considerable distance towards removal of the points at issue and to confirm that " it is the intention of the government" of Newfoundland, " at a later appropriate date, to introduce legislation still further to modify the already amended legislation in question ". The reply makes no reference to the specific matters indicated in paragraph 253 (c) (iv), (d) and (e) of the Committee's 49th Report, concerning which the Governing Body requested the Government of Canada to furnish observations.
9. 144. The Committee observes that the amendments already made to the legislation referred to in the communication dated 28 February 1961 from the government of Newfoundland were examined in detail by the Committee at its meeting in November 1960 and that full account was taken of them by the Committee when submitting to the Governing Body the recommendations contained in paragraph 253 of the 49th Report. The Committee considers, therefore, that there is nothing in the latest communication from the Government to give grounds for any modification of those recommendations.

The Committee's recommendations

1. 145. In these circumstances the Committee recommends the Governing Body:
   • (a) to take note of the statement by the government of Newfoundland that it is intended, at a later appropriate date, to introduce legislation to modify further the legislation which was examined by the Committee in its 49th Report;
   • (b) to express the hope that the government of Newfoundland will find it possible to introduce such new amending legislation at an early date and will take account therein of the observations contained in paragraph 253 (c) (iii) of the Committee's 49th Report, and to request the Government of Canada to be good enough to keep the Governing Body informed of further developments in this connection;
   • (c) to request the Government of Canada once again to furnish observations on the matters referred to in paragraph 253 (c) (iv), (d) and (e) of the Committee's 49th Report.