Rapport définitif - Rapport No. 158, Novembre 1976

Cas no 818 (Canada) - Date de la plainte: 24-JUIN -75 - Clos

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INTRODUCTION
Allegations of the Complainants
D. D. The Committee's conclusions
The Committee's recommendations

172. The complaint, which related to the Province of Quebec, was contained in a communication dated 24 June 1975 addressed to the Director-General by the Canadian Labour Congress. In a communication of the same date the International Confederation of Free Trade Unions expressed its support for the complaint lodged by their affiliate, the Canadian Labour Congress.
173. The complaint was duly transmitted to the Government which, in a communication dated 23 October 1975, transmitted the comments of the Government of Quebec on the allegations made by the complainants.
174. 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).

Allegations of the Complainants

175. The complainants alleged that a number of legislative amendments had been proposed in Quebec, in particular Draft Law No. 24 (and amendments thereto), Bill No. 29 respecting the placing of certain labour unions under trusteeship, and Bill No. 30 to amend the Construction Industry Labour Relations Act, all of which legislation contained provisions which severely limited the right of trade unions to exercise their trade union rights in full freedom and constituted interference in the right of trade unions to organise their administration and activities free from the control of the public authorities. In particular, the complainants drew attention to the following aspects of the draft legislation which, in their view, constituted violations of the principle of freedom of association and the right to organise:
A. Amendments to Draft Law No. 24
"1. Section 19(h) of the draft amendments prohibits any person found guilty of a criminal act in Canada, or abroad, within the previous five years, from being an officer or member of the executive of an association, or from being employed by the association, and if such an unqualified person is elected, the office which he occupies shall immediately become vacant.
This, in our opinion, constitutes a limitation on the right to elect representatives which is too wide in scope, covering any criminal conviction whatsoever.
2. Section 19(d) limits the duration of the term of office of a trade union leader to five years, subject to re-election.
In our view such a limitation, imposed by legislation, constitutes an interference in matters which should be the subject of regulation by the unions themselves.
3. Section 19(f) of the draft amendments provides that the amount of trade union contributions shall be fixed at a secret ballot by the majority vote of the general assembly of the members, and the amount shall be uniform for all the members.
Furthermore, section 19(i) lays down that the affiliation to or disaffiliation from a union by another union, as well as the support given to a political party must be decided by the majority vote of the general assembly of the members.
Both these sections again lay down provisions to regulate internal activities of unions and thus constitute an interference in the right of organisations to act freely in deciding for themselves how their administration and activities are to be organised.
4. Section 50(a) provides for the insertion of a new provision which lays down that a wage earner may lodge a complaint with the court if he considers that his union is exercising discrimination against him either in dealing with a complaint or grievance, or by refusing to do so.
In our view, such matters, namely matters affecting the relationship between unions and their members, are matters for internal regulation by the unions themselves and should not be subject to external legislative control.
5. Section 55(b) of the proposed amendments limits the right to strike and attempts to control the manner in which the strike shall be organised. In particular, the clause obliging unions to submit the employer's latest offer after each successive period of 90 days and to hold a secret ballot thereon places a restriction on the right of unions, and their elected leadership, to organise their activities in full freedom and to take whatever action they may deem necessary in the interests of their members."
B. Bill No. 29 - respecting the Placing of Certain Labour Unions under Trusteeship
176. The complainants made the following comments in connection with this draft legislation:
"Under this legislation, it is proposed to place Locals 144, 791 and 1677 of the Quebec Federation of Labour (Construction Trades) under trusteeship and to prolong the trusteeship of Locals 89 and 101 of that Federation by three years.
The locals mentioned above comprise construction workers (Local No. 144), operators of heavy machinery in Quebec (Local 791) (or the international Union of Operating Engineers), and the International Brotherhood of Electrical Workers (Local 1677).
By virtue of section 2 of the Bill a board of trustees, consisting of a chairman and two other members appointed by the Lieutenant-Governor in Council, is established for each union, and the Lieutenant-Governor in Council may also appoint to the board the personnel he considers necessary.
The management and control of the unions are vested in the board of trustees and their powers include:
(a) amendments to Constitutions or by-laws of the union;
(b) removal or suspension of officers of the union, and appointment of persons to replace them;
(c) general organisation of activities, labour education programmes, training of agents and stewards, supervision of application of decrees or collective agreements, etc. and the preparatory work with a view to elections in the final months of the trusteeship.
In addition, all property belonging to the union shall be vested in the trustees, and all books, registers, etc. of the union shall be delivered to the trustees.
As regards Locals 89 and 101 (International Union of Elevator Constructors), which are already under trusteeship under a law of 1974 (chapter 116), the powers of the boards of trustees are extended to include power to amend the Constitutions or by-laws of the unions and to remove or suspend any director or union officer, as well as to organise general administration of the unions.
In addition, all books, registers or documents shall be delivered to the trustees.
The Bill shall come into effect on the day of its sanction and remain in force until 22 May 1978 or any earlier date which may be fixed by the Lieutenant-Governor in Council.
In our opinion, the placing of unions under trusteeship constitutes an intervention on the part of the authorities which is in no way compatible with the principles on freedom of association established by ILO supervisory bodies, or with the International Labour Conventions on freedom of association and the guarantees contained therein. The draft legislation removes all freedom from unions to elect their representatives in full freedom, to draw up their Constitutions and rules and to organise their administration and activities without any interference by the public authorities (Article 3 of Convention No. 87). It also permits the removal or suspension from office of elected trade union leaders, contrary to Article 3 of Convention No. 87 which protects against any kind of interference by the authorities as regards election of representatives. In general, the boards of trustees, as elected by the administrative authorities, are vested with all the powers which the unions, or their executives, would normally have themselves, a situation which is in complete contradiction with freedom of association and the international instruments which are designed to guarantee this freedom."
C. Bill No. 30, to Amend the Construction Industry Labour Relations Act (1968, cap. 45)
177. The complainants made the following comments in connection with this draft legislation:
"This Bill lays down a wide range of criminal acts, conviction for any one of which bars anyone from holding a management post in a union, or from becoming elected or appointed as shop-site steward, agent, representative, etc., for a period of five years after the term of imprisonment fixed by the sentence, or five years from the date of the conviction in the case of a fine or suspended sentence, or permanently, in the case of certain more serious crimes.
In our view this provision is excessively wide in scope and should be limited to convictions in respect of crimes, the nature of which could render a person so convicted capable of acting in a manner prejudicial to the proper exercise of trade union functions.
Section 2 of the Bill prohibits any lock-out, strike or slowdown of work during the term of a decree and provides also that the proof that he did not order, encourage or support it or that he did not take part therein will devolve on the accused.
The Bill, in addition, enacts provisions governing the function of job-site stewards and provides rules concerning the union label.
Here again, the legislation constitutes, in our view, an encroachment upon the freedom of unions to organise and administer their activities without interference by the authorities and without any legislative control over matters which should be the sole concern of the unions themselves. This Bill is designed to remain in force indefinitely."
178. The complainants alleged that the above draft legislation as a whole was in contradiction with the principles of freedom of association and in violation of the Freedom of Association and Protection of the Right to Organise Convention (No. 87) ratified by Canada.
Reply of the Government
179. The Government of Canada, on 23 October 1975, transmitted the comments of the Government of the Province of Quebec. The Provincial Government dealt separately with the allegations which had been made by the Canadian Labour Congress.
A. Amendments to Draft Law No. 24
180. In this connection, the Government pointed out that what the complainants had referred to as amendments to Draft Law No. 24 merely constituted a working paper, dated 1 April 1975, which was unofficial and even confidential, and which had been deposited by senior officials of the Ministry of Labour on 2 April last with the Advisory Board on Labour and Manpower (CCTM).
181. The Government added that, under the law instituting it, the CCTM is a research and advisory body which has to advise the Minister of Labour and Manpower on all matters which he has referred to it (sections 1 and 2). The Board consists of the following members nominated by the Council of Ministers on the recommendation of the Minister of Labour and Manpower: (a) the president; (b) five persons selected from those recommended by the most representative workers' associations; (c) five persons selected from those recommended by the most representative employers' associations. The Deputy Minister of Labour and manpower, or his delegate, is an ex officio member of the Council, but without voting rights (section 4).
182. These "amendments", continued the Government, were deposited with the CCTM in order to learn its opinions on the matters dealt with therein. Moreover, the Minister of Labour clearly informed the President of the Board that it was merely a working paper prepared by officials in accordance with general instructions which he had given them and that no decision had been taken regarding the scope and text of these provisions because he wished first of all to learn the Board's views regarding them. In addition, the President of the Board expressly notified the members of the Board of the Minister's remarks during the meeting of 17 April 1975 for which this working paper constituted the first agenda item, as can be seen from the minutes of the meeting.
183. Consequently, the Government stated, this was merely an unofficial document deposited with the Board for its comments and in no way constituted amendments to a bill or draft bill. Moreover, the documents thus deposited with the Ministry were confidential and no follow-up action had been taken.
184. The Government concluded that the provisions criticised by the CLC under this heading could not be considered as infringing freedom of association, as they constituted merely a working paper submitted to an advisory board on which the unions are represented, precisely to obtain their views.
B. Bill respecting the Placing of Certain Labour Unions under Trusteeship (Bill No. 29)
Placing under Trusteeship by Legislative Action
185. In this connection, the Government pointed out that Article 4 of Convention No. 87 prohibits the dissolution or suspension of workers' organisations "by administrative authority". In a system based on the separation of powers, legislative action is the opposite of executive or administrative action and these two functions cannot be equated in law.
186. The Government added that, when applying Convention No. 87 to Canada or Quebec, this basic difference in domestic law must not be overlooked and temporary suspension by legislative action, which was the only legal solution possible, must not be considered as being the same as suspension by executive or administrative authority. According to the Government, the latter was impossible because there is no law authorising the administration to order such a suspension; neither must the situation in Quebec be placed on an equal footing with that in countries where there is no true separation of state powers.
187. In the Government's view, in a democratic political system, in which the public law of British origin is based on effective separation of powers, there is no justification under international law for interpreting Convention No. 87 as meaning that suspension by legislative action is the same as suspension by administrative decision. Under such a system, the legislative function is the antithesis of the personal power and arbitrary action which the Convention is designed precisely to prevent.
Commission of Inquiry on the Exercise of Freedom of Association on Building Sites and the Behaviour Certain Persons on These Sites
188. The Government explained that, in March 1974, acts of violence took place on the James Bay building sites, causing considerable damage and resulting in stoppages which put several hundred workers out of work for several months and considerably affected costs. As similar events or incidents with similar consequences had occurred on Quebec building sites on various occasions in previous years, the Government set up a Commission of Inquiry to investigate the exercise of freedom of association on building sites and the behaviour of certain persons working on these sites. This Commission was set up under the chairmanship of the deputy chief judge of the Provincial Court. A lawyer from Montreal representing employers and the vice-president of the Quebec Teachers' Confederation were appointed commissioners.
189. The Government pointed out that this inquiry showed amongst other things, as could be seen from the unanimous report of the commissioners, that:
1 - Corruption and gangsterism existed at the highest level of the Quebec Federation of Labour (QFL) (construction trades) and of certain of its local unions: those of the plumbers, electricians and operators of heavy machinery. The same was true of the International Union of Elevator Constructors, a local union recently detached from the QFL (construction trades).
2 - Most of the managers or agents and job-site stewards of these local unions had previous convictions, were "shylocks", swindlers or toughs from the underworld.
3 - Not only were the members of these local unions never consulted, but force was used to make them vote in favour of illegal strikes or even to obtain the resignation of properly elected officers.
4 - There was no further respect for democracy in these local unions. The job-site stewards were nominated without any consultation and even kept in office against the wishes of the members.
5 - Two of these local unions imposed heavy sanctions on some of their members, ranging from fines to suspension. The latter action made the union member unemployed, so that he was deprived of the right to work becau closed shop. These sanctions were imposed on members "who did not toe the union line". The members had no right to disagree and even less to belong freely to the union of their choice.
190. The Government explained that, under the public law of Quebec, as in all countries where the law is of British origin, the fundamental principle is the rule of law. If the courts have no law on which to base their decisions, they cannot act. This also applies to the executive, which can act only if there is a legal provision giving it powers. There is only one function, the legislative function exercised by the National Assembly, composed of persons elected by popular vote, which is not bound either materially nor formally, and which is original and completely independent. The first principle, that of rule of law, implies the absolute supremacy or predominance of the law and precludes arbitrary action because there are no exceptional standards not foreseen by the law.
191. The Government added that, when the four local unions were placed under trusteeship by Act No. 29 in accordance with the recommendation of the Commission of Inquiry, there was no legal provision in Quebec enabling the courts to remove from office a trade union leader in cases where it was established that the law or by-laws of the union in question had been violated, to suspend the powers of the union and designate temporary administrators. Pursuant to a general law, the Government therefore set up an impartial Commission of Inquiry to study the situation. This Commission found that some local unions systematically violated the law and that democratic procedures were no longer followed in those unions.
192. According to the Government, there was only one possible solution under Quebec law and that was the temporary suspension by legislative action of the powers of the local unions in which it had been proved that democracy no longer existed. Taking as a basis the federal Act on the placing under trusteeship of the sea transport unions (12 Eliz. II, Part 17), Quebec used the only means at its disposal, i.e. the placing under trusteeship by legislative action.
193. Such trusteeship, the Government stated, is merely temporary, lasting a maximum of three years and under the law may even be cancelled before that. The trustees are responsible merely for re-establishing democratic practices in these unions and this is expressly stated in the Act. Section 5(2) of the Act stipulates that the trustees may, amongst other things:
(a) after approval by the Lieutenant-Governor in Council, make any amendments to the Constitution or to the administrative by-laws of the union of such a nature as to provide the union with more efficient management or to promote the general welfare of the union, while satisfying themselves that the workers participate;
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(d) establish labour union education programmes for the benefit of the union members;
(e) employ any necessary means to promote the development of a true spirit of unionism in the internal operations of the union;
(f) ensure that the new business agents and job-site stewards are trained and that those who continue in office receive further training;
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(h) facilitate the return of a democratically-elected administration;
(i) for such purpose, prepare for the election, in the final months of the trusteeship, by secret ballot under the board's supervision, of new members to manage the union, and arrange for such persons to take over at the expiration of the trusteeship;
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(k) appoint Committees to consult the members of the union on their demands and forward the results of such consultations to the negotiating Committees.
194. Thus, stated the Government, this was merely a provisional measure, necessary to protect the union members, enable them to express themselves again and ensure the return of a democratically elected administration.
195. According to the Government, it is difficult to reconcile the need to end serious abuses with the principle of trade union independence with regard to the government. However, no right or freedom is absolute. There are always reasonable limits which cannot be exceeded in a democratic society. If the exercise of freedom of association conflicts with the general interests and the interests of union members of which the State is the guardian, or conflicts with those values the protection of which must take precedence over every other consideration, then, in the opinion of the Government, Convention No. 87 cannot be interpreted as depriving the State of its latitude to suspend this freedom.
196. In Quebec, added the Government, where the entire system is based on a true separation of powers and on the rule of law, the temporary placing of a local trade union under trusteeship by legislative action was justified when its leaders had not respected the law, had committed serious abuses and had eliminated all democracy, because ordinary court action was impossible.
197. International regulations, continued the Government, are based on democratic concepts and in the exercise of their recognised rights under Convention No. 87, workers and their organisations have an obligation to respect legality.
198. The Government stated that in view of the facts demonstrated to the Commission of Inquiry, the legal requirements in Quebec and the fact that no international Convention nor any national Constitution or statute of any nature can provide an adequate text covering all practical situations, the temporary placing of the local unions concerned under trusteeship by legislative action appears to be compatible with the true spirit of the Convention.
C. Act to Amend the Construction Industry Labour Relations Act
Prohibition against the Holding of Trade Union Office by Certain Criminals
199. In this connection, the Government pointed out that, following the serious abuses which took place, and on the recommendation of the Commission of Inquiry to which it was proved that several criminals were holding leading positions in the building unions, persons who had been convicted for certain criminal acts were prohibited from holding trade union office in the construction industry.
200. The Government explained that at the request of certain trade union leaders who wished to uphold this viewpoint, Quebec first of all sought to avoid a general ban which in any case would not have been compatible with the Convention. The Government preferred to follow the recommendation of the Commission of Inquiry by listing a series of acts prejudicial to the proper exercise of trade union functions. Quebec, therefore, of necessity, established a criterion of judgment, but this judgment took into account anomalies established by the Commission of Inquiry. Moreover, added the Government, incapacity to exercise trade union functions because of conviction for one of the serious offences listed in the Act leads to the destitution procedure provided for in the Code of Civil Procedure, before the ordinary courts.
Limitations on the Right to Strike
201. As regards the prohibition of lock-outs, strikes and slow-downs, the Government pointed out that this is merely temporary for the period of validity of a decree. Such restrictions, continued the Government, exist in several countries and, as was pointed out in the Report by the Committee of Experts on the Application of Conventions and Recommendations (p. 45), "they had usually been accepted by the Committee on Freedom of Association".
202. Moreover, added the Government, in the case of illegal lock-outs, strikes or slow-downs, i.e. whilst the decree is in force, it is up to the person charged to prove that he has not ordered, encouraged or supported it nor participated in it. The Commission of Inquiry recommended this modification because of the almost insoluble difficulty in obtaining proof, resulting from the atmosphere of terror on 13 job-sites. Consequently, stated the Government, the sole aim of this measure was to make the law applicable in the building industry where the special atmosphere affected the efficiency of penal action and made law enforcement impossible.
203. The Government pointed out that a similar transfer of the onus of proof already exists in the Labour Code in the case of dismissal for trade union activities. Here also, a measure of this type was necessary to overcome the difficulties in obtaining proof inherent in such action. Section 16 provides that "if it is shown to the satisfaction of the Board that the employee exercises a right accorded to him by this Code, there shall be a presumption in his favour that he was dismissed, suspended or transferred because he exercised such a right, and the burden of proof that the employee was dismissed, suspended or transferred for another good and sufficient reason shall be upon the employer".
Provisions Governing the Function of Job-Site Stewards
204. According to the Government, the provisions governing the function of job-site steward are designed to ensure the democratic participation of members in his election; and define the functions of the job-site steward in order to prevent a recurrence of the abuses already encountered and prevent frequent and unjustified absences.
205. The Government added that the law provides for recognition of the job-site steward by the employer, grants the latter employment preference under certain conditions, allows him to be absent for a period of vocational training and obliges the employer to give him notice of laying-off.
206. The Government pointed out that these are but minimum legal provisions which do not constitute undue government interference since they in no way handicap the administration of unions or the taking of decisions by them. On the contrary, the provisions are designed to ensure the democratic participation of members in the election of job-site stewards and to prevent the latter acting contrary to their mandate without control by the members.
Provisions concerning the Union Label
207. The Government stated that the Commission of Inquiry had also been shown evidence that several local unions systematically violated section 16.01 of the Building Industries Decree (Order in Council No. 3984-73 of 31 October 1973, published in the Quebec official Gazette of 14 November 1973, on page 5837), relating to the installation of materials, by refusing to install on the work sites materials manufactured by non-unionised workers or workers belonging to another union. This section, therefore, existed in the agreement negotiated by the QFL (building trades), on which the present decree was based.
208. Referring to what the Government calls one example of the many violations of the decree, whose provisions are public under the law, the Government stated that many employers were obliged, under threat of go-slows and sabotage, to pay almost half a million dollars to the unions which refused to install piping manufactured by members of other unions.
209. The Government pointed out that Convention No. 87 formally provides that workers and their organisations shall respect the law of the land it cannot be claimed, added the Government, that a provision which already existed in the decree and which bad been accepted by the parties without change constitutes government interference merely because it has been repeated word for word in the law. This was recommended by the Commission of Inquiry to remove the question of the union label from negotiations and ban all bargaining to which it might give rise.
210. In conclusion, the Government submitted that the allegations made by the Canadian Labour Congress were unfounded in fact and in law and that the legislative texts on which the allegations were based did not prejudice freedom of association nor constitute improper government interference in the administration of the unions.

D. D. The Committee's conclusions

Conclusions of the Committee
1. 211 The Committee is called upon to examine a complaint which essentially contains three main allegations. The first of these concerns amendments to a Draft Law (No. 24) which the complainants consider are incompatible with the principles of freedom of association; the second concerns Bill No. 29 by virtue of which four trade union organisations in the construction industry have been placed under government trusteeship; and the third concerns Bill No. 30 under which certain amendments to the Construction Industry Labour Relations Act were introduced. Since the complaint was presented, Bill No. 29 and Bill No. 30 have become law.
Allegations concerning Proposed Amendments to Draft Law No. 24
1. 212 The complainants have drawn attention to a number of aspects of what they have alleged to be proposed amendments to a Draft Law (No. 24). These amendments, they stated, were in violation of the principle of freedom of association and the right to organise. The amendments related to restrictions on eligibility for trade union office because of conviction far certain criminal offences, the limitation of the term of office of trade union leaders, the affiliation of one union to another and support given to a political party by a union, complaints by union members against discrimination by their unions in connection with the handling of their grievances and control over the manner in which strikes are organised. In reply to this aspect of the complaint, the Government has stated that the document to which the complainants refer is no more than a confidential working paper which was submitted to the Consultative Council for Labour and Manpower on 2 April 1975 for opinion. The Government has also pointed out that no formal action was taken on this document and that it was not used as a basis for legislation.
2. 213 In the past, when the Committee has had to deal with precise and detailed allegations regarding a proposed enactment, it has taken the view that the fact that such allegations relate to a text that does not have the force of law should not itself prevent it from expressing its opinion on the merits of the allegations made. The Committee has considered it desirable that in such cases the government and the complainant should be made aware of the Committee's point of view with regard to the proposed bill before it is enacted, in view of the fact that it is open to the government o whose initiative such a matter depends, to make any amendments that may seem desirable.
3. 214 In the present case, in the light of the explanations given by the Government as to the nature of the document which gave rise to this aspect of the case and, in particular, having regard to the fact that the document constitutes neither a law nor a bill, nor has any action been taken on it, the Committee, while reserving its opinion on the substance of the document as described by the complainants, considers that no useful purpose would be served in pursuing its examination of the allegations in this connection.
Allegations concerning Bill No. 29
1. 215 Draft Bill No. 29, to which reference has been made by the complainants, has since become law in Quebec as indicated above. Its Rain purpose is to place under the trusteeship of the provincial government, for a maximum period of three years, four locals of construction unions affiliated to the Quebec Federation of Labour (i.e. Local No. 1677 (electricians); Local No. 144 (plumbers); Local No. 791 (operating engineers); and Local No. 89 (elevator constructors)). By virtue of this law, all powers of management and control of the unions, as well as all union property, are vested in trustees appointed directly by the Lieutenant-Governor in Council.
2. 216 With regard to the submissions of the Government, referred to in paragraphs 185 and 187 above, concerning dissolution and suspension of trade union organisations by legislative authority, the Committee would draw attention to Article 8 of Convention No. 87 which provides that the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention. On a number of occasions the Committee has taken the view that, in cases of dissolution or suspension, only normal judicial procedure, which the Committee considers essential, can guarantee the right of defence. Moreover, the Committee recalls that in a number of cases it has had to examine the problem of government intervention in the affairs of trade unions, including in particular the placing of these organisations under control. In these cases, the Committee has called attention to the importance which it attaches to the principle explicitly set forth in Article 3 of Convention No. 87 that the public authorities should refrain from any interference which would restrict the right of workers' organisations to elect their representatives in full freedom and to organise their administration and activities. In one case the Committee indicated that the appointment by the Government of persons to administer a central national trade union on the grounds that such a measure was rendered necessary by the corrupt administration of the unions would be incompatible with freedom of association in a normal period.
3. 217 The principles established in the Convention do not prevent an outside control of the internal acts of an organisation, if it is alleged that such acts violate the law or the union rules. Nevertheless, the Committee has considered that in order to guarantee an impartial and objective procedure, this control should be exercised by the relevant judicial authority. More particularly, the Committee has expressed the opinions that it is of paramount importance that measures for the dismissal, suspension or disqualification of trade union officials as a penalty provided by law should not become enforceable except on the basis of a firm sentence on the part of the competent judicial authority, or, in any case, after the period allowed for the submission of an appeal has elapsed without such an appeal having been made.
4. 218 Having stated these general principles, the Committee would point out that it has recognised in the past that events of an exceptional nature may warrant direct intervention by a Government in internal trade union matters in order to re-establish a situation where trade union rights are fully respected.
5. 219 The Committee notes the Government's argument that the special circumstances which obtained in the construction industry in Quebec and the events of a particularly grave nature which gave rise to the establishment of a commission of inquiry, together with the findings of that inquiry, taken as a whole, were sufficient to warrant steps being taken to eliminate those elements in the trade unions which were responsible for the situation, and to assist in the restoration of a situation of normalcy in which freedom to elect trade union leaders and engage in normal trade union activities could be carried out without fear or coercion and in a normal manner.
6. 220 Three main aspects should be considered in this connection. Firstly, an investigation, carried out by an independent commission of inquiry, revealed that widespread corruption existed in certain locals of the construction industry, many of whose managers or agents and job-site stewards had previous criminal records. The object of these persons was to achieve, by any manner, a trade union monopoly position in that industry and they did not hesitate to resort to criminal acts in the achievement of this object. Violence, blackmail, extortion and other criminal acts appear to have been carried out on a large scale, virtually eliminating the possibility of exercising any true freedom in belonging to a union of one's choice. There was no respect for democracy in these locals and not only were the members never consulted, but force was sometimes used to obtain the resignation of elected officers. Secondly, the investigation which revealed these facts was carried out by a commission composed of an employers' and a workers' representative under the chairmanship of a high judicial authority. Thirdly, there is no legal provision in Quebec enabling the courts to remove from office a trade union leader in cases where it was established that the law or the rules of a union had been violated and to designate temporary administrators.
7. 221 The Committee takes the view that it would have been desirable for the Government, in the circumstances, to take more stringent measures under the ordinary criminal law to restore to normal a situation rendered serious essentially by the presence and actions of criminal elements. In this connection, however, the Committee notes that the report of the Commission of Inquiry indicates clearly the difficulties in obtaining evidence on the basis of which convictions could be obtained through the courts owing to the climate of terror which prevailed on construction sites and the practice of intimidation of witnesses.
8. 222 In the present circumstances, the unions in question having legally been placed under government trusteeship, the Committee would point out that, in previous cases concerning the taking over of a trade union, it has considered that such intervention should be temporary and aimed solely at permitting the organisation of free elections.
9. 223 The Act imposing trusteeship on the four locals provides, in fact, that one of the tasks of the trustees is to facilitate the return of a democratically elected administration by secret ballet. However, it establishes the trusteeship for a period which can extend to three years and among other things authorises the trustees to make amendments to the Constitution or to the administrative by-laws of the union, with the approval of the Lieutenant-Governor in Council. In this connection the Committee considers that any amendments of the trade union rules should be debated and adopted by the union members themselves.
10. 224 With regard to this aspect of the case the Committee, in drawing attention to the principles and considerations set forth in paragraphs 216 to 223 above, would request the Government to take urgent steps to restore, within the shortest possible time, a situation in which free and democratic elections can take place in the locals concerned, thus terminating the trusteeship. More generally, the Committee would suggest, in accordance with the principles set out in paragraphs 216 and 217 above, that the Government should envisage the possibility of taking such steps as may be necessary to ensure that any form of control over the internal activities of a trade union is exercised by the judicial authorities.
Allegations concerning Bill No. 30
- (a) Provisions concerning the Holding of Trade Union Office
  1. 225 The third main allegation concerned an amendment to the Construction Industry Labour Relations Act (1968, chapter 45), by virtue of which any person found guilty, in Canada or elsewhere, of common assault, mischief, assault causing bodily harm, theft, intimidation, trafficking in drugs or conspiracy to commit any such acts cannot hold a management post in an association of employees nor ho elected or appointed as job-site steward, business agent or union representative of such an association nor hold any of such functions. Except where the person found guilty is granted a pardon, the disqualification shall subsist for five years after the term of imprisonment fixed by the sentence, and in the case of a sentence to a fine only or a suspended sentence, the disqualification shall subsist for five years from the date of the conviction. Any person found guilty in Canada or elsewhere of murder, attempted murder, manslaughter, robbery, extortion, arson, breaking and entering, fraudulent misuse of funds, kidnapping, intentionally causing bodily harm with intent to wound, maim or disfigure a person or endanger the life of any person, or of conspiracy to commit any of such acts cannot hold a management post in an association of employees nor be elected or appointed job-site steward, business agent or union representative of such an association nor hold any of such functions unless such person has been granted a pardon under the Criminal Records Act.
  2. 226 In previous cases, the Committee has taken the view that conviction on account of offences the nature of which is not such as to be prejudicial to the proper exercise of official trade union functions should not constitute grounds for disqualification from holding trade union office. In emphasising the importance which it attaches to the right of workers to elect their representatives in full freedom - a right which should be subject to as few restrictions as possible - the Committee has pointed out that a ban based in general terms on the penal record of a person may be inconsistent with this right.
  3. 227 The Committee notes that under the present legislation, the ban on the holding of trade union office by persons found guilty of some specified offences is limited to a maximum period of five years after the term of imprisonment fixed by the sentence. The ban is, however, of a permanent nature in the case of serious crimes in respect of which there has been a conviction. The Committee considers that, included in the list of criminal acts in the provisions in question, are acts the commission of which would not necessarily be prejudicial to the proper exercise of official trade union functions. Accordingly, the law is such as to impair, or is capable of being applied in such a manner as to impair the guarantee, provided in Article 3 of Convention No. 87, that workers should have the right to elect their representatives in full freedom. The Committee considers that the Government should re-examine the legislative provisions in question in the light of the above-mentioned principles with a view to excluding therefrom such offences the commission of which would not necessarily be prejudicial to the proper exercise of trade union functions.
- (b) Limitation of the Right to Strike
  1. 228 The complainants have attacked the provision contained in the amendment to the Construction Industry Labour Relations Act by virtue of which no association of employees, business agent or representative of such an association, and no employee shall order, encourage or support a strike or a slowdown of work during the term of a decree, or take part therein. Furthermore, at proceedings following a strike or slowdown of work, the proof shall devolve on the accused that he did not order, encourage or support it or that he did not take part therein.
  2. 229 The Committee has, on many occasions in the past, expressed the view that the right to strike is one of the essential means through which workers and their organisations may promote and defend their occupational interests. The Committee has, on the other hand, recognised that the right to strike may be subject to certain prerequisites or restrictions provided that the conditions which require to be fulfilled under the law in order to render a strike lawful, are reasonable and, in any event, not such as to place a substantial limitation on the means of action open to trade union organisations. In particular, the Committee has accepted as a temporary restriction on strikes, provisions prohibiting strike action in breach of collective agreements.
  3. 230 The Committee notes that, by virtue of the Collective Agreement Decrees Act, 1964 (chapter 143), a decree, issued by the Lieutenant-Governor in Council, may make obligatory, amend, extend or repeal any collective agreement. Under section 8 of this Act, the Lieutenant-Governor in Council may extend, or at any time repeal such a decree. The new amendments to the Construction Industry Labour Relations Act make it illegal to participate in, or support a strike during the term of a decree. The Committee understands from these provisions that it would appear possible for the Lieutenant-Governor in Council, at his discretion, to extend the term of a decree for long or even indefinite periods, thus effectively nullifying the right to strike for workers in the construction industry until the decree is eventually repealed. The Committee considers that the power granted to the Lieutenant-Governor in Council under the new provisions could be exercised in such a manner as to seriously limit the possibilities of action of organisations in defending and promoting the interests of their members.
- (c) Provisions concerning Job-Site Stewards and the Union Label
  1. 231 The complainants have argued generally that the provisions contained in the amendments to the Construction Industry Labour Relations Act, in so far as they concern the functions of job-site stewards and the union label, constitute an encroachment on the freedom of unions to organise and administer their activities without interference by the authorities and without legislative control over matters which should be the sole concern of the unions themselves. For its part, the Government has contended that minimum legal previsions have been adopted so as to ensure the democratic participation of members in the election of stewards and also to prevent a recurrence of the abuses already encountered. Provisions have also been introduced to prevent the refusal by workers to install or handle materials manufactured by non-unionised workers or by workers belonging to another union.
  2. 232 From an examination of the provisions concerning Jobsite stewards, the Committee notes that rules are established as regards the election of such officials by secret ballot and as regards their functions. In addition, the amendments contain provisions guaranteeing recognition of job-site stewards by employers as well as a preference of employment and certain other advantages in connection with time off for vocational training and advance notice of layoff. As regards the union label, the Committee notes from the information supplied by the Government that the provision enacted is a repetition of the clause contained in the Building Industries Decree of 1973 relating to the installation of materials, and is designed basically to prevent the refusal to handle or install materials which an employer orders to be handled or installed.
  3. 233 The Committee has seen from the evidence adduced by the commission of Inquiry that some of the most serious abuses and criminal acts in the construction industry were perpetrated by jobsite stewards, a large number of whom had previous criminal records and no experience in trade union matters. In addition, their appointment did not reflect the wishes of the workers and this conduct was not subject to any form of control. So far as the union label is concerned, the Commission of Inquiry cited a number of cases of grave abuses in which the refusal to handle materials which did not bear the appropriate union label, was overcome by the payment by employers of large sums of money to the unions or their representatives.
  4. 234 Having regard to the circumstances in the present case, and to the nature of the provisions which have been enacted to regulate the position of job-site stewards and the use of the trade union label, the Committee considers that the legislation in question is not such as to limit unduly the right of workers' organisations to organise their administration and activities.

The Committee's recommendations

235. In all these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
- (a) with regard to the allegations concerning the proposed amendments to Draft Law No. 24, to decide that, since these proposed amendments constitute neither a law nor a bill, nor has any action been taken on them, no useful purpose would be served in pursuing its examination of the allegations;
- (b) with regard to the allegations concerning Bill No. 29, which has now been enacted (placing under trusteeship certain locals of the Quebec Federation of Labour), (i) to draw attention to the principles and considerations set out in paragraphs 216 to 223 above concerning, in particular, government intervention in the affairs of trade unions; (ii) to point out that amendments to trade union rules should be debated and adopted by the union members themselves; (iii) to request the Government to take urgent steps to restore, within the shortest possible time, a situation in which free and democratic elections can take place in the locals concerned, thus terminating the trusteeship; (iv) to suggest, in accordance with the principles set out in paragraphs 216 and 217 above, that the Government should envisage the possibility of taking such steps as may be necessary to ensure that any form of control over the internal affairs of a trade union is exercised by the judicial authorities; and (v) to keep the Committee informed of any measures taken in connection with subparagraph (iii) above;
- (c) with regard to the allegations concerning Bill No. 30 (to amend the Construction Industry Labour Relations Act), which has now been enacted (provisions concerning the holding of trade union office), (i) to draw the attention of the Government to the principles and considerations expressed in paragraphs 226 and 227 above, and in particular to the principle that conviction on account of offences the nature of which is not such as to be prejudicial to the proper exercise of official trade union functions should not constitute grounds for disqualification from holding trade union office; (ii) to invite the Government to re-examine the legislative provisions in question in the light of this principle with a view to excluding therefrom such offences the commission of which would not necessarily be prejudicial to the proper exercise of trade union functions;
- (d) with regard to the allegations concerning Bill No. 30 (provisions limiting the right to strike), to draw the attention of the Government to the principles set forth in paragraph 229 above concerning the right to strike and limitations of that right;
- (e) with regard to the allegations concerning Bill No. 30 (provisions relating to job-site stewards and the union label), to decide, for the reasons expressed in paragraph 234 above, that the provisions in question are not such as to limit unduly the right of workers' organisations to organise their administration and activities, and to decide, accordingly, that this aspect of the case does not call for further consideration; and
- (f) to request the Committee of Experts on the Application of Conventions and Recommendations to follow any developments in the situation as regards the points mentioned in subparagraphs (c) and (d) of the present paragraph.