Rapport définitif - Rapport No. 241, Novembre 1985

Cas no 1260 (Canada) - Date de la plainte: 03-FÉVR.-84 - Clos

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INTRODUCTION
A. The Committee's conclusions on Case No. 1172/Ontario
B. The Committee's conclusions on Case No. 1234/Alberta
C. The Committee's conclusions on Case No. 1247/Alberta
D. The Committee's conclusions on Case No. 1260/Newfoundland
ANNEX

97. The complaint (Case No. 1172) of the Canadian Labour Congress (CLC), on behalf of its affiliated organisations the National Union of Provincial Government Employees (NUPGE), the Ontario Public Service Employees Union (OPSEU) and the Canadian Union of Public Employees (CUPE), is contained in a communication dated 15 November 1982. The CLC supplied additional information in communications dated 15 December 1982, 16 February and 28 October 1983 and 10 January 1984. The World Confederation of Organisations of the Teaching Profession (WCOTP), presented its complaint, on behalf of its affiliates the Canadian Teachers Federation and the Ontario Teachers Federation, in a letter of 8 February 1983 and further information in a communication of 7 March 1983. The Service Employees International Union (SEIU) presented its complaint in a letter dated 6 April 1984. The Government sent its observations in communications dated 25 April 1983 and 7 June and 16 October 1984.
98. The Confederation of Alberta Faculty Associations (CAFA) presented a complaint (Case No. 1234) of violations of trade union rights against the Government of Canada/Alberta in a communication dated 19 September 1983. The Government supplied its observations in a communication dated 21 February 1984.
99. The Canadian Labour Congress (CLC) presented a complaint (Case No. 1247) of infringements of trade union rights in Alberta in a communication dated 1 November 1983 on behalf of the Alberta Union of Provincial Employees (AUPE), a component of the National Union of Provincial Government Employees (NUPGE) which is the CLC's second largest affiliate. The Government transmitted its observations in a communication dated 3 May 1984.
100. The Canadian Labour Congress (CLC) presented a complaint (Case No. 1260) of infringements of trade union rights in Newfoundland in a communication dated 3 February 1984 on behalf of the Newfoundland Association of Public Employees (NAPE), a component of the National Union of Provincial Government Employees (NUPGE) which is affiliated to the CLC. The Government transmitted its observations in a communication dated 29 May 1984.
101. The Governing Body Committee on Freedom of Association, at its meeting in November 1984 (236th Report, para. 7, approved by the Governing Body at its 228th Session, November 1984), decided to postpone its examination of the cases concerning Ontario, Alberta and Newfoundland since it was of the view that, before reaching conclusions in these cases, it would be necessary to obtain additional information, particularly through a study and information mission, which could assist in clarifying aspects of the laws and practices involved. The Committee accordingly requested the Government to indicate its consent to such a procedure.
102. In a letter dated 1 February 1985 the Government indicated that, after consultation with the various provincial governments concerned, it had no objection to such a mission taking place.
103. In its 238th Report, para. 10 (approved by the Governing Body at its 229th Session, February-March 1985), the Committee explained that the study and information mission would take place within the context of its examination of the cases. It emphasised that its proposal for such a mission stemmed from a desire on its part to reach conclusions in as full a knowledge and understanding as possible of the complex issues involved. It said that it was convinced that its work would be greatly facilitated by an on-the-spot appreciation of the day-to-day practical operation, in local conditions, of the legislation that was the subject of the complaints.
104. Arrangements were accordingly made for a study and information mission to take place in Canada - in particular, the Provinces of Ontario, Alberta and Newfoundland - from 12 to 25 September 1985. The Director-General of the ILO appointed Sir John Wood, CBE, LLM, as his representative to carry out the mission; he was accompanied during the mission by Mr. William R. Simpson, Chief of the Freedom of Association Branch of the International Labour Standards Department and Mrs. Jane Hodges, an official of the Freedom of Association Branch. The report of the representative of the Director-General is annexed to this paper.
105. 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) or the Labour Relations (Public Service) Convention, 1978 (No. 151).
106. The Committee wishes first to express its deep appreciation to Sir John Wood for having undertaken this study and information mission as representative of the Director-General. It is thanks to his detailed report on all the cases examined that the Committee has been able to reach its conclusions in a fuller knowledge and with a greater understanding of the complex issues involved in these cases. In the view of the Committee, the report of the representative of the Director-General clearly demonstrates the usefulness of missions of this kind especially in difficult cases where, despite the voluminous documentation submitted by the parties, on-the-spot discussions can throw much additional light on the problems involved.
107. The Committee also wishes to express its thanks to the Government of Canada and to the Governments of the Provinces of Alberta, Ontario and Newfoundland for their co-operation with the mission. It also thanks the representatives of the Canadian Labour Congress, the National Union of Provincial Government Employees and those of the many other international, national or provincial unions who assisted the representative of the Director-General in carrying out his mandate.
108. Since the complaints and the replies of the various governments, as well as the information obtained during the mission, have all been fully analysed in the report of the representative of the Director-General, it only remains for the Committee to proceed to the formulation of its conclusions in the cases which it has now fully examined.

A. The Committee's conclusions on Case No. 1172/Ontario

109. The Committee has taken note of all the information contained in the various complaints submitted in this case, the reply transmitted by the Government of the Province of Ontario and the detailed information obtained by the representative of the Director-General during the study and information mission.
110. The allegations in this case concern the enactment, in 1982, of the Inflation Restraint Act (or Bill 179) which came into effect on 21 September of that year. Since September 1983 Bill 179 is no longer in force, having been replaced by a further enactment, on 10 October 1983, known as the Public Sector Prices and Compensation Review Act (or Bill 111). No formal complaint has been submitted regarding this latter enactment. Since, however, as the representative of the Director-General has pointed out in his report, it is directly relevant to the issues raised in the complaint and is the latest act by the Government in the area of public sector collective bargaining, the Committee considers it appropriate to express its views on this legislation which, it notes, was also due to expire at the end of September 1985. The Committee further observes that the representative of the Director-General was able, during his mission, to obtain the views both of the unions and of the Government on the content and effects of Bill 111.
111. Bill 179 was enacted in the face of what the Government considerd as an emergency situation requiring action to counter rising inflation. It placed restrictions on collective bargaining for provincial public servants and employees of semi-public provincial institutions. The provisions of the Act have the effect of extending for a period of 12 months compensation plans that were in the process of negotiation or due to expire during the period from 1 October 1982 to 30 September 1983.
112. The complainants have alleged that, although they were consulted about future government action, their observations and opinions went unheeded. In their opinion the economic situation at that time did not warrant emergency legislative measures being taken to restrain public service incomes.
113. On this first point, the Committee notes from the report of the representative of the Director-General that there has been a lively debate as to the depth or even the existence of economic problems, but that, particularly in the present case, the Government was convinced that the economic situation in the province demanded urgent attention. Whatever the situation, there were, in the Government's view, obvious economic problems which it decided to tackle through the application of wage restraint legislation in the public sector. It is not for the Committee to question the economic arguments that formed the basis of that view or of the action that the Government took.
114. It is, however, for the Committee to express its views on the question whether, in taking such action, the Government went beyond what the Committee has considered to be acceptable limits that might be placed temporarily on free collective bargaining.
115. In the first place, the immediate effect of the legislation (Bill 179) was to limit public sector wage increases, for a period which did not exceed one year, to 5 per cent (in some cases 9 per cent). In this respect, the Committee recalls that it had acknowledged that stabilisation measures restricting the right to collective bargaining are acceptable on condition that they are of an exceptional nature, and only to the extent that they are necessary, without exceeding a reasonable period, and that they are accompanied by adequate safeguards to protect workers' living standards. The Committee considers, on the basis of all the information now at its disposal, that, in the present case, all these criteria were met or at least serious efforts were made by the Government to respect these criteria.
116. Another immediate effect of Bill 179 was to reduce increases negotiated in compensation plans prior to the date on which the legislation became applicable where such increases exceeded those provided for in the Act. While the Committee appreciates that the introduction of wage restraint measures must be timed in order to obtain the maximum impact on the economic situation, it nevertheless considers that the interruption of already negotiated contracts is not in conformity with the principles of free collective bargaining because such contracts should be respected.
117. As regards the complainants' original allegations that Bill 179 not only imposed financial restrictions but also interrupted all trade union activity, including the right to bargain on non-monetary items and the right to change bargaining agents, the Committee notes that, from a strictly legal point of view, these arguments were proved to be unfounded by the Ontario Court of Appeal in the Broadway Manor case. This decision, however, was handed down too late to be of any practical assistance to the parties during the control period and it is clear that, despite the Court's ruling, much difficulty and tension were caused as a result of the problems that arose on these matters. It is clear that bargaining on non-monetary items was obstructed during the course of the legislation so as not to undermine the intended financial control. It is also clear that it was the Government's intention to prevent any change in the bargaining agent during the restraint period in order, according to the representative of the Director-General, to secure as much industrial relations tranquility as possible during that period. The Committee is of the view that, where wage restraint measures are taken by a Government to impose financial controls, care should be taken to ensure that collective bargaining on non-monetary matters can be pursued and that unions and their members can fully exercise their normal trade union activity.
118. The Committee further notes that forceful arguments were submitted by the unions that the regular industrial relations machinery had been adversely affected by Bill 179 and subsequently by Bill 111. The fixed norm imposed by Bill 179 in effect constituted a substitute for arbitration. Under Bill 111 the unions argue, the freedom to bargain as well as the freedom of interest arbitrators is severely curtailed by the necessity to take account of the ability of the employer to pay as well as government fiscal policy. Questions were also raised concerning the independence of arbitrators.
119. Bill 111, the Committee observes, was introduced as a substitute for Bill 179 and removed many of the restrictions on wage bargaining that Bill 179 had been designed to cover. Bill 111, however, it seems clear, did constitute - although in a much less rigid manner - a continuation of the policy of restraint by the introduction of such concepts as "the employer's ability to pay" and "government fiscal policy" as criteria for consideration in arriving at wage settlements. There was much controversy, even amongst arbitrators, as to the extent to which these criteria actually influenced bargaining and arbitration awards or whether they were indeed at all times taken into account.
120. The Committee would emphasise, in this connection, that restrictions on the right to strike in the public service or in essential services should be compensated by adequate, impartial and speedy conciliation and arbitration proceedings. The Committee would also emphasise that the independence and impartiality of the arbitration system are paramount. If, however, as in the present case, arbitrators are directly appointed by a government which lays down in legislation certain criteria which arbitrators are bound to follow in the determination of awards it is inevitable that confidence in the system will diminish.
121. In the view of the Committee, the expiry of Bill 111 now renders possible a return to a normal situation in which collective bargaining can take place freely with recourse being available, when appropriate, to arbitration. The loss of confidence of the unions and other residual negative effects on industrial relations that have resulted from the recent wage restraint legislation could, at least to some extent, be offset by consideration being given by the Government, in consultation with the unions, to ensuring that the arbitration system, including the selection of arbitrators, enjoys the fullest possible confidence of all the parties.
- The Committee's recommendations
122. The Committee recommends the Governing Body to approve this part of the report and in particular the following conclusions:
- (a) The Committee is of the view that, in general, the Inflation Restraint Act (Bill 179) did not go beyond what the Committee has previously considered to be normally acceptable limits that might be placed temporarily on collective bargaining;
- (b) The Committee, however, considers that the interruption, by Bill 179, of contracts that had been already negotiated is not in conformity with the principles of free collective bargaining because such contracts should be respected;
- (c) The Committee would emphasise that, where wage restraint measures are taken by a government to impose financial controls, care should be taken to ensure that collective bargaining on non-monetary matters can be pursued and that unions and their members can fully exercise their normal trade union activity;
- (d) The Committee stresses that restrictions on the right to strike in public or essential services should be compensated by adequate, speedy and impartial conciliation and arbitration proceedings;
- (e) The Committee would express the hope that, since the legislation which was the subject of complaint has now expired, the Government, in consultation with the unions, will endeavour to overcome any residual negative effects of that legislation on industrial relations; more particularly, the Committee hopes that the arbitration system, and the procedures for the selection of arbitrators, will be revised in such a manner as to ensure that they enjoy the fullest confidence possible of all the parties.

B. The Committee's conclusions on Case No. 1234/Alberta

123. The Committee notes that this case concerns allegations that amendments to the Universities Act deny freedom of association to faculty staff by empowering the employers (the Boards of Governors) to determine the membership of academic staff associations. The complainant cites the negative effect of the amendments on staff association membership at Athabasca University.
124. The Committee observes that this situation arises from the combined effect of two provisions of the Act, namely section 21.2(2) which defines "academic staff association" as a body consisting of "academic staff members", and section 17(1)(d.1) which empowers the Boards of Governors to designate "academic staff members". Although the Government's written reply stresses that the university environment requires a special approach to the employer-employee relationship because of the involvement of faculty staff in all levels of university management, it acknowledges that the employer at Athabasca University - after consultation with the faculty association - altered its restrictive designation of "academic staff members".
125. It appears from the report of the representative of the Director-General that only at Athabasca University did the employer's use of its designation power lead to problems. In the three other universities of the Province, designations of "academic staff members" were arrived at without difficulty in consultation with the faculty associations. Moreover, it appears that the peculiar circumstances at Athabasca University (namely, that it is an open university and was recently transferred from the provincial capital to a town in the north of Alberta) might have led to misunderstandings regarding the employer's restrictive designation of academic staff at that particular point in time. In any event, the Committee notes that designations have now been made in all four provincial universities to the satisfaction of both sides.
126. What remains is the fear that future designations could be made to exclude faculty members and non-management administrative or planning personnel from membership of the staff associations whose purpose is to protect and defend the interests of these categories of workers. If designated as non-academic, these workers - who are specifically excluded from the Labour Relations Act and the Public Service Employee Relations Act - would have no possibility of forming or joining an association to further their interests. In these circumstances the Committee draws the Government's attention to the terms of Article 2 of Convention No. 87, ratified by Canada, which guarantee the right of all workers, without distinction whatsoever, to join or establish organisations of their own choosing. The particular circumstances of university decision-making in Alberta do not appear to the Committee to justify any restriction on this right through the vesting of wide designation powers in the employer body. The Committee recalls that it already came to this conclusion in its examination of past cases concerning the Provincial Government of Alberta to which the complainant refers in its written complaint.
127. The Committee accordingly considers that, in order to ensure full compliance with the principle of Article 2 of Convention No. 87, measures should be taken to repeal section 17(1)(d.1) and introduce an independent system of designation where agreement cannot be reached (for example, as suggested during the study and information mission, third party arbitration machinery). The Committee stresses this latter point because although the report of the representative of the Director-General indicates that consultations between the parties have led to satisfactory designations, the Provincial Government pointed out during the mission that it could not envisage any major change in policy regarding the Universities Act. The Committee is of the opinion that some independent machinery should be available, if necessary, to assist in the designation of "academic staff members" for the purpose of joining an academic staff association. Machinery such as that referred to in the report of the representative of the Director-General could alleviate the complainant's fear of abuse of section 17(1)(d.1).
- Recommendations of the Committee
128. In these circumstances, the Committee recommends the Governing Body to approve this part of the report and, in particular, to request the Government to take measures to repeal the provision in the Universities Act which empowers the employer body to determine the membership of academic staff associations. The Committee also recommends that consideration be given to the possibility of introducing an independent system for the designation, where necessary, of academic staff members, either through third party arbitration or some form of informal machinery as referred to in the report of the representative of the Director-General.

C. The Committee's conclusions on Case No. 1247/Alberta

129. The Committee notes that this case concerns allegations that 1983 amendments (contained in Bill 44) to the Labour Relations Act and the Public Service Employee Relations Act of Alberta, on the one hand, restrict freedom of association by excluding numerous employees from bargaining units, and, on the other hand, interfere with the right of workers' organisations to organise their activities in full freedom by restricting the collective bargaining process and rendering the previously impartial arbitration system subject to government fiscal policy.
130. First, the Committee notes that, although not referred to in the written complaint, section 93 of the Public Service Employee Relations Act which bans the right to strike of provincial government employees was brought to the attention of the study and information mission. The Committee considers that an examination of this provision is important since it sets the background against which the formal allegations must be viewed. The AUPE claims that the Government's main justifications for this total ban on provincial public service strikes is that the employees concerned were so closely linked to those providing essential services as to make it reasonable to treat them in the same way and that there is no alternative supply for these services. AUPE made the point that section 93 does not apply to public servants employed by municipalities and school boards and it told the representative of the Director-General that there was no evidence of close links between essential and non-essential persons such that a strike by the latter would hinder the provision of essential services. Nor was there any evidence that there was no alternative source of supply for the services provided by the employees affected.
131. The Committee recalls that it has been called to examine the strike ban in a previous case submitted against the Government of Canada/Alberta (Case No. 893, most recently examined in the 204th Report, paras. 121 to 134, approved by the Governing Body at its 214th Session (November 1980).). In that case the Committee recalled that the right to strike, recognised as deriving from Article 3 of the Convention, is an essential means by which workers may defend their occupational interests. It also recalled that, if limitations on strike action are to be applied by legislation, a distinction should be made between publicly-owned undertakings which are genuinely essential, i.e. those which supply services whose interruption would endanger the life, personal safety or health of the whole or part of the population, and those which are not essential in the strict sense of the term. The Governing Body, on the Committee's recommendation, drew the attention of the Government to this principle and suggested to the Government that it consider the possibility of introducing an amendment to the Public Service Employee Relations Act in order to confine the prohibition of strikes to services which are essential in the strict sense of the term. In the present case, the Committee would again draw attention to its previous conclusions on section 93 of the Act.
132. Linked to this question of restrictions on the right to strike is one of the specific written allegations, namely that an amendment contained in Bill 44 to section 117.1 of the Labour Relations Act prohibits the right to strike of all hospital employees. The Committee notes that this broad exclusion covers kitchen help, janitors, gardeners, etc. but that the Government told the representative of the Director-General that only small groups were affected by section 117.1 and that this question was, in any event, being challenged in the Alberta Court of Appeal and the Canadian Supreme Court. Given that this provision is not sufficiently specific as regards the important qualification of "essential employee", the Committee refers to the principle set out in the above paragraph concerning circumstances in which recourse to strike action may be prohibited. It requests the Government to re-examine section 117.1 so as to confine the prohibition of strikes to services which are essential in the strict sense of the term.
133. As regards the exclusion from the collective bargaining process of disbursement control officers, hearing officers and employees performing substantially similar duties, as well as employees in the Legislative Assembly Office, Auditor General's, Electoral Office and Ombudsman's Office (section 21(1)(g) and (h) of the Public Service Employee Relations Act), the Committee notes from the Government's written reply that the previous situation has not been altered, but has been "further refined". It also notes from the information contained in the report of the representative of the Director-General that these amendments to section 21(1) were a legislative reversal of several decisions of the Public Service Employee Relations Board. Moreover, during the study and information mission, the AUPE expressed concern over a 1985 amendment to section 21(1)(l) which allows exclusion "for any other reason". Although disputes over subsection (1) exclusions may be referred to the Board for decision under section 21(2), the AUPE remained suspicious of the wide ambit of possible exclusions; they stated that, in practice, over 400 employees had been denied access to the collective bargaining process by these amendments to section 21. The Government, on the other hand, told the mission that only 260 employees had been affected, all being mainly involved in the managerial/personnel policy area.
134. In the light of the voluminous information provided to the mission as to the non-managerial nature of some of these employees' tasks, the Committee would draw the Government's attention to the principle that only civil servants engaged in the administration of the State (i.e. employed in various capacities in government ministries or comparable bodies) and not other persons employed by the Government, by public undertakings or by independent public corporations, can be excluded from the guarantees of collective bargaining. Under this criterion, the Committee cannot accept that all the public employees now listed in section 21(1) should be excluded from representation in the collective bargaining process. It accordingly requests the Government to reconsider this section in the light of this principle.
135. Although not referred to in the written complaint, much information was given to the mission on section 48(2) of the Public Service Employee Relations Act which limits the subject-matters which may be referred to arbitration. According to the AUPE, although the Board may determine disputes as to whether certain items are non-arbitral, the unions have lost all confidence in the Board because of its recent decisions in this area which, the union claims, regard all matters as part of the managerial prerogative of the employer and thus not appropriate for arbitration. Moreover, the AUPE claimed that the Board often delayed or prevented reference of whole bargaining disputes to arbitration. The Committee takes note of the information on this question reflected in the report of the representative of the Director-General since it forms part of the background to the second main allegation in the present case, namely that Bill 44 has damaged, if not destroyed, the arbitration system. More specifically, it is claimed by the union that the arbitration system has been weakened by the use of a procedural body (the Public Service Employee Relations Board) to screen issues before they reach arbitration. The Committee also notes the examples that were given to the misson of matters that had been considered by the Board as not being appropriate for submission to arbitration (e.g. hours of work, certain leave periods, transfer, promotion, etc.). The Committee has emphasised that restrictions on the right to strike in the public service or in essential services should be accompanied by adequate, impartial and speedy conciliation and arbitration in which the parties can take part at every stage and on which the awards, once made, are binding on both parties. The Committee is of the view that the existing system, under which the Public Service Employee Relations Board can prevent the referral to arbitration of matters which have formed the basis of a dispute, is not fully in accordance with ILO principles and is one which has led to considerable tension between the parties and to a loss of confidence by the unions in the arbitration machinery.
136. As regards the alleged interference in the arbitration process itself by the listing of factors - including government fiscal policies - to be taken into account by arbitrators in reaching awards (section 117.8 of the Labour Relations Act and section 55 of the Public Service Employee Relations Act), the Committee notes the Government's written reply that various factors are merely listed in the legislation without indications as to the importance which the arbitration boards should give them. The Committee observes from the report of the representative of the Director-General that, in practice, arbitration boards were not giving overriding predominance to government fiscal policy and in some cases did not find it useful at all. Nevertheless, the complainant still fears potential abuse. It is this lack of confidence that obliges the Committee to recall again the principle that adequate, impartial and speedy conciliation and arbitration procedures should be available in the event of the right to strike being subject to limitations in the public or essential services.
137. In the present case, it appears to the Committee that the independence of the arbitration boards set up to compensate public employees for the loss of their right to strike (being composed of a representative of each of the parties to the dispute plus a chairman jointly appointed by the representatives) is not called into question by the listing in legislation of factors to be taken into account.
138. As regards the eight other amendments to the Labour Relations Act (one of which was copied in the Public Service Employee Relations Act) contained in Bill 44, the Committee notes from the report of the representative of the Director-General that many of these have not given rise to problems in practice and that some have not even been utilised. In particular, the Committee sees no threat to freedom of association with the following sections:
- - Section 1(w.1), introducing a new concept of "trade union organisation", was never adopted;
- - Section 74(1), requiring a duly authorised representative for collective bargaining to be resident in Alberta, may cause minor inconvenience to the union but is in fact clearly intended to avoid delays in the final settlement and signing of agreements. It does not fetter a trade union's right to seek assistance in bargaining from persons outside the province;
- - Section 87, allowing only one Board-supervised strike or lock-out vote, restricts certain union tactics but does not prevent the polling of members to determine the position prior to calling for a vote;
- - Section 49(1), requiring a 90-day moratorium before applying for a further certification order, again affects union tactics but was clearly intended to remove uncertainty as to a union's real strength in the bargaining unit and to avoid abuses of certification proceedings;
- - Section 132, allowing application to the Board to determine successor rights, only regulates and expedites normal past practice and is not unreasonable;
- - Section 102.2, empowering the recommendations of a Disputes Inquiry Board to be put to the employees concerned, may raise the question of the role of a union executive but does not deprive individual workers of their trade union rights.
139. On the other hand, the Committee would express some concern over two other individual amendments to the Labour Relations Act:
- - Sections 105 and 106, prohibiting the threat of an illegal strike, could impede the freedom of workers' organisations to organise their activities in full freedom and place trade union officials in some jeopardy, given the broad definition of "strike" in the Act. The Government told the representative of the Director-General that section 105 had not been used and that it would be up to the Board to highlight any difficulties with its drafting if and when called to apply this provision. The Committee considers that the uncertainty and imprecision of the definition of a "strike" could, as the representative of the Director-General suggested, lead to difficulties for trade unionists who take bona fide action that is subsequently found to be illegal. The Committee would request the Government to take steps to clarify the situation in consultation with the unions and, if necessary, amend the provision accordingly.
- - Section 117.94 (and section 92.2 of the Public Service Employee Relations Act), allowing the employer to suspend check-offs if an illegal strike takes place, have not been used. The precise scope of the provision is, however, uncertain in the sense that it is not clear whether the suspension would apply to a whole bargaining unit or only to the illegal strikers. Discussion should take place with the unions to clarify the manner in which the provision would be applied in practice.
  - The Committee's recommendations
- 140. In these circumstances, the Committe recommends the Governing Body to approve this part of the report and, in particular, the following conclusions:
  - (a) The Committee considers that the provisions of the Public Service Employee Relations Act and the Labour Relations Act prohibiting the right to strike of a broad range of provincial public servants and hospital workers go beyond acceptable limits on the right to strike recognised as deriving from Article 3 of Convention No. 87. The Committee requests the Government to re-examine the provisions in question in order to confine the ban on strikes to services which are essential in the strict sense of the term.
  - (b) As regards the broad range of public servants excluded from the collective bargaining process by section 21(1) of the Public Service Employee Relations Act, the Committee would draw the Government's attention to the principle that only civil servants engaged in the administration of the State may be so excluded. It requests the Government to reconsider this section in the light of this principle.
  - (c) Although the Committee does not consider that the listing of government fiscal policies as a factor to be considered by arbitrators calls into question the principles of freedom of association, it notes with some concern the power given to the Public Service Employee Relations Board (by section 48(2) of the relevant Act) to determine all matters in a collective dispute that may be referred to arbitration. The Committee hopes that provisions such as these which have undermined the union's confidence in the arbitration system - which is meant to compensate the employees concerned for the lack of the right to strike - will be reconsidered in consultation with the parties and appropriate amendments made with a view to enabling arbitrators to examine all matters in dispute.
  - (d) The Committee sees no threat to freedom of association with the various amendments to the Labour Relations Act contained in Bill 44 and outlined in paragraph 138 above, i.e. section 74(1), section 87, section 49(1), section 132 and section 102.2.
  - (e) As regards sections 105 and 106 of the Labour Relations Act, as amended, prohibiting the threat of an illegal strike, the Committee requests the Government to take steps to clarify the precise scope of this provision in consultation with the union and, if necessary, amend the provision accordingly; (f) As regards section 117.94 of the Labour Relations Act and section 92(2) of the Public Service Employee Relations Act, concerning the suspension of check-off in the event of an illegal strike, the Committee recommends that discussion takes place with the unions in order to clarify the manner in which this provision would be applied in practice.

D. The Committee's conclusions on Case No. 1260/Newfoundland

141. The Committee notes all the detailed information supplied by the complainants in this case, the equally detailed information transmitted by the Government and the information contained in the report of the representative of the Director-General.
142. In essence, the complainants had alleged that the Public Service (Collective Bargaining) Act - known as Bill 59 - which came into effect on 1 September 1983, was in contradiction with international standards on freedom of association in three particular areas: the definition of "employee" contained in section 2(1)(i) of the Act; the designation of "essential employees" (section 10) and the limitation on strike action (sections 10, 23 and 24).
143. Before examining these individual aspects, the Committee would first note the information now at its disposal concerning the introduction of the legislation in question. It can only express regret that, in spite of what appears to have been a good relationship between the complainant union and the Government, the process of consultation with the union prior to the introduction of Bill 59 was inadequate. The attitudes of both parties were to an extent the reason for this inadequacy. The Government, for its part, had what it considered to be solid reasons, based on experience, for amending existing legislation, whereas the union was opposed to such a course of action. The result was an enactment which, in the opinion of the union, casts suspicion on the Government's real motives in proclaiming it. It was also an enactment which, had proper consultations taken place, may well have taken a different form and thereby avoided the tension and suspicion that obviously exists between the union and the Government. The Committee, in particular, notes that only two years after the enactment of Bill 59, important amendments were made in 1985.
144. The Committee would emphasise the importance which should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights. It would express the firm hope that the Government and the union will, in the light of the problems which have emerged from the procedure used to introduce Bill 59, engage in systematic and genuine discussions and negotiations with a view to resolving the problems that have arisen in the present case.
145. As regards section 2(1)(i)(xii) of Bill 59 (definition of "employee"), the union's principal concern was the exclusion from the definition of persons employed in an employment opportunity programme administered and financed by the Provincial Government, and/or financed by the federal Government. According to the union, not only did the provisions prevent such persons from joining a union, but the presence of this non-unionised labour in workplaces where the union had members, constituted an obstacle to collective bargaining and a threat to union effectiveness in the event, for example, of a strike.
146. On this question, the Committee notes that there seemed to be a considerable amount of misunderstanding between the parties as to the precise number of persons covered by this subsection. Whatever the case, the Committee cannot accept that persons engaged in an employment opportunity programme should be excluded from the right to belong to a trade union of their choice. The Committee considers that the extension of the right to organise of these persons would not necessarily interfere with the proper functioning of the programme and that, in addition, it would diminish the fear of the union that unionised workers might be replaced by workers engaged under the programme.
147. A further exclusion from the definition of "employee" is the category of workers who advises the employer in relation to the development or administration of policies or programmes (section 2(1)(i)(xv). The Committee notes that the Labour Relations Board, tripartite in character, appears in the past to have exercised its powers fairly restrictively in deciding exclusions from the bargaining unit. It considers that this subsection is not contrary to the principles of freedom of association.
148. In view of the problems and the climate of suspicion to which the above provisions in Bill 59 have given rise, the Committee would urge the Government to reconsider the question of exclusions in full consultation with the union.
149. The Committee notes that the right to strike is available to public service employees in Newfoundland subject to a number of limitations concerning, in particular, employees deemed to be essential. Essential employees are defined in the principal Act as "employees whose duties consist in whole or in part of duties, the performance of which at any particular time or during any specified period of time is, or may be, necessary for the health, safety or security of the public" (section 10.1).
150. In this connection, the Committee would, in the first place, recall that it has accepted that the right to strike may be limited or prohibited as regards public servants acting in their capacity as agents of the public authority or engaged in services whose interruption would endanger the life, personal safety or health of the whole or part of the propulation. Such limitations or prohibitions should, however be offset by adequate, impartial and speedy conciliation and arbitration procedures. In addition, the Committee observes that the 1985 amendments to the legislation exclude a substantial number of bargaining units from the application of section 10 of the Act. The Government had also agreed with the union in writing that no essential services would be sought in some ten bargaining units.
151. The problem in Newfoundland is that, although strikes can take place even in services such as health-care institutions, the strike may be rendered ineffectual as a result of the procedure for the designation of a certain number of "essential workers". In addition, recourse to arbitration may be impeded if the number so designated by the Labour Relations Board falls below 50 per cent of the employees involved. In other words, it would seem in such circumstances that the limitations placed on unions to carry out an effective strike are not adequately compensated by unimpeded access to arbitration machinery.
152. The Committee considers that, while the method of designating essential employees is not inconsistent with the principles of freedom of association, the Government should nevertheless review the relevant provision in such a manner as to facilitate access to independent arbitration in the event of a dispute.
153. Further amendments introduced to the principal Act by Bill 59 affecting the right to strike were also criticised by the union. Section 2 of Bill 59 repealed and substituted section 10 of the principal Act in such a manner as to prevent a bargaining agent from taking a strike vote or going on strike until agreement has been reached on or the Board has determined the number of essential employees in the unit concerned. Moreover, amendments to section 23 and 24 of the Act made it necessary not only to give seven days' notice of a strike but also to indicate the date on which the strike would start. If the strike did not start on the date specified in the notice, no strike could take place for one month, and then only if a further seven days' notice was given with a further proposed date on which the strike would commence. These amendments also prevented strikes on a rotating basis in health service institutions.
154. As regards these amendments and the allegations that were made, the Committee does not consider the modalities that they impose to be an undue hindrance on unions in the exercise of their right to strike and thereby going beyond what is acceptable under international standards and principles on freedom of association. The Committee also notes, in particular, that the further amendments introduced in July 1985, the one-month period referred to above, now only applies to the hospital sector. The Committee, however, notes from the report of the representative of the Director-General that these limitations are seen by the unions as an interference by the Government in the determination of strike tactics and, in particular, that the notice requirement could be used to delay strikes by last-minute bargaining. The Committee observes that there is no evidence that these fears are justified, particularly in view of the Government's statement that the parties could always agree to extend the seven-day notice period by one day if necessary. This is yet another matter which the Committee considers could be jointly discussed between the parties with a view to removing the doubts and suspicions that remain as to the manner in which the legislation will be applied.
- The Committee's recommendations
155. The Committee recommends the Governing Body to approve this part of the report and, in particular, the following conclusions:
- (a) The Committee emphasises the importance which should be attached to full and frank consultations taking place with the trade unions on any questions or proposed legislation affecting trade union rights; it expresses regret that consultation with the complainant union prior to the enactment of Bill 59 was inadequate.
- (b) The Committee considers that persons engaged in employment opportunity programmes should not be excluded from the right to belong to a union of their choice; it urges the Government to reconsider the question of the exclusion of this category in full consultation with the union.
- (c) The Committe emphasises that limitations on strike action in the public service or in essential services should be compensated by adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards should, in all cases, be binding on both parties.
- (d) The Committee requests the Government to review the provisions of the legislation concerning the designation of essential employees in order to facilitate access to independent arbitration in the event of a dispute.
- (e) The Committee does not consider the modalities for strike action imposed by sections 23 and 24 of Bill 59, as amended, to be inconsistent with the principles of freedom of association.
- (f) The Committee expresses the firm hope that the Government and the union will, in the light of the problems which have emerged from the enactment of Bill 59, engage in systematic and genuine discussions and negotiations with a view to resolving the problems that remain concerning the practical application of this legislation.

ANNEX

REPORT ON A STUDY AND INFORMATION MISSION TO CANADA BY SIR JOHN WOOD, CBE,
LLM, REPRESENTATIVE OF THE DIRECTOR-GENERAL OF THE INTERNATIONAL LABOUR
OFFICE, CONCERNING THE FOLLOWING CASES BEFORE THE GOVERNING BODY COMMITTEE ON
FREEDOM OF ASSOCIATION: ONTARIO (CASE NO. 1172), ALBERTA (CASES NOS. 1234 AND
1247) AND NEWFOUNDLAND (CASE NO. 1260)
Table of contents
I. Introduction ....................................... 1-7
II. General remarks .................................... 8-21
(a) Economic and political pressures .............. 9-10
(b) Public sector ................................. 11-13
(c) Collective bargaining machinery ............... 14-15
(d) Legislation ................................... 16-21
III. Case of Alberta - No. 1247 ......................... 22-84
A. Introduction .................................. 22
B. The issues .................................... 23
(i) Exclusion of certain employees from collective bargaining ...............
. 24-25
(ii) The arbitration system ................. 26-28
(iii) Other issues ........................... 29-45
C. Information obtained during the mission ....... 46-75
(a) Collective bargaining and arbitration .... 48-56
(b) Excluded employees ....................... 57-58
(c) The right to strike ...................... 59-67
(d) Other issues ............................. 68-75
D. Concluding remarks ............................ 76
Collective bargaining and arbitration ......... 77-78
Individual items .............................. 79-80
General considerations ........................ 81-84
IV. Case of Alberta - No. 1234 ......................... 85-96
A. Introduction .................................. 85
B. The issues .................................... 86-92
C. Information obtained during the mission ....... 93-94
D. Concluding remarks ............................ 95-96
V. Case of Ontario - No. 1172 ......................... 97-157
A. Introduction .................................. 97
B. The issues .................................... 98-119
C. Information obtained during the mission ....... 120-143
D. Concluding remarks............................. 144-157
VI. Case of Newfoundland - No. 1260 .................... 158-218
A. Introduction .................................. 158
B. The issues .................................... 159-160
(i) Definition of "employee" ............... 161-165
(ii) Designation of "essential" employees ... 166-173
(iii) Limitations on strike action ........... 174-177
C. Information obtained during the mission ....... 178-179
(a) Consultations ............................ 180-181
(b) Definition of employee ................... 182-185
(c) Questions concerning the right to strike . 186-208
D. Concluding remarks ............................ 209-218
VII. Final remarks ...................................... 219-232
1. Inflation control ............................. 222-223
2. Consultation .................................. 224-225
3. Public servants - bargaining and the right to strike .....................
.............. 226
(a) Collective bargaining .................... 227-228
(b) Independent dispute resolution ........... 229-232
ANNEX .................................................... 113
I. Introduction
1. The Governing Body Committee on Freedom of Association, at its meeting in
November 1984, decided to postpone its examination of the cases concerning
Ontario, Alberta and Newfoundland since it was of the view that, before
reaching conclusions in these cases, it would be necessary to obtain
additional information, particularly through a study and information mission,
which could assist in clarifying aspects of the laws and practices involved.
The Committee accordingly requested the Government to indicate its consent to
such a procedure.
2. In a letter dated 1 February 1985 the Government indicated that, after
consultation with the various provincial governments concerned, it had no
objection to such a mission taking place.
3. The Committee explained that the study and information mission would take
place within the context of its examination of the cases. It emphasised that
its proposal for such a mission stemmed from a desire on its part to reach
conclusions in as full a knowledge and understanding as possible of the
complex issues involved. It said that it was convinced that its work would be
greatly facilitated by an on-the-spot appreciation of the day-to-day practical
operation, in local conditions, of the legislation that was the subject of the
complaints.
4. Arrangements were accordingly made for a study and information mission to
take place in Canada - in particular, the provinces of Ontario, Alberta and
Newfoundland - from 12 to 25 September 1985. The Director-General of the ILO
appointed me as his representative to carry out the mission, and I was
accompanied, during the mission, by Mr. William R. Simpson, Chief of the
Freedom of Association Branch of the International Labour Standards
Department, and Mrs. Jane Hodges, an official of the Freedom of Association
Branch.
5. Through the efficient services of the officials of the Canadian Ministry of
Labour responsible for these matters, and the equally efficient services of
the officials of the Canadian Labour Congress, arrangements were made to
establish a programme of meetings with representatives of the federal
Government and those of the provincial governments involved and with the
various national and provincial unions who had been involved in the submission
of the complaints (for a detailed list of the persons involved, see Annex). It
is also thanks to the facilities that were extended to me by the governments
and unions of the provinces of Ontario, Alberta and Newfoundland that I was
able to carry out successfully the mandate that had been entrusted to me.
6. Prior to my departure to Canada I had had the opportunity to examine the
complaints that had been presented in these cases, the various replies of the
respective governments and the very voluminous documentation and legislative
texts which had accompanied the many communications addressed to the ILO. In
preparing this report I found it appropriate in the first place, to describe
in some detail the main issues raised by the complainants in their written
allegations as well as the respective goverments' arguments in rebuttal of
those allegations. The information which I was able to collect during the
mission concerning these matters is then described. I have attempted thus to
provide the Committee on Freedom of Association with a report that gives as
complete a picture as possible of the situation from the time the complaints
were presented until the present time. I am hopeful that, in presenting my
report in this manner, I have been successful in facilitating the work of the
Committee in reaching its conclusions in these cases.
7. I would emphasise that it was at no time my intention or desire - nor
indeed was it part of my mandate - to formulate any conclusions on the various
issues that I was called upon to examine. That responsibility rests
exclusively with the Committee on Freedom of Association itself. I did,
however, carry out this mission having in mind the international standards and
principles concerning freedom of association, the application of which had
been brought into question by the complainant organisations and I have not
hesitated in this report to set forth certain personal opinions or impressions
that I was able to form regarding possible breaches of international
obligations or regarding any remedial steps that might be taken if ILO
standards and principles did not seem to be fully applied. In so doing, my
intention was not to prejudge the conclusions of the Committee, which will no
doubt attach to these opinions or impressions the weight which it considers
appropriate and correct.
II. General remarks
8. It is not necessary for me to emphasise that the individual complaints
arise in three provinces of a federal State. The structure and complexities of
such a constitutional arrangement will be well known to the Committee.
Although each issue has to be assessed in the confines of the individual
provincial context it is instructive to note that the problems have some
common aspects. This is well known to the parties. Indeed, on the trade union
side the influence of trade union centres inevitably leads to attention being
given to the general similarities of the issues. It may be worth while to draw
attention to a few of these general points. The purpose is not to divert
attention from the duty to treat each case indpendently but to illustrate more
clearly the underlying problems.
(a) Economic and political pressures
9. The legislation which lies at the heart of most of the complaints
represents an attempt by the government concerned to tackle perceived economic
problems. These problems have provoked a political response which in turn
lends shape to the objects and scope of the consequent legislation. This is
very clearly the case with Bill 44 in Alberta and Bill 179 in Ontario. Bill 59
in Newfoundland is less obviously concerned with economic problems but the
steps taken appear to flow, however indirectly, from such considerations.
10. There is, of course, a lively debate as to the depth, even as to the
existence, of economic problems. Whatever view is taken on this it is plain
that the governments concerned were clear that the economic problems demanded
urgent attention usually described as an attack on inflation. It is the impact
of these legislative steps on the implementation of ILO principles such as
those enshrined in Conventions Nos. 87 and 98 that lies at the core of these
complaints. The debate on the validity of economic judgements lies elsewhere.
(b) Public sector
11. The complaints are raised by public service trade unions and concern the
impact of legislative measures on the collective bargaining arrangements in
the public sector. One factor in the minds of the complainants is that there
is a lack of even handedness in the treatment of the public as opposed to the
private sector. Such comparisons are not always easy to make and anyway lie
outside the concern of the Committee. None the less it is a feeling that has
to be noted.
12. There is a crucial difficulty which is very obvious. Collective bargaining
involves the concept of two parties, the employer and the trade union,
settling their mutual concern by discussion and negotiation. Where the
employer is the government there is an added difficulty. The Government has
the wider task of managing the economy and this will in particular often
involve the task of seeking to influence the level of settlements in
collective bargaining by fiscal and economic argument. It is extremely
difficult for the Government to separate the two roles so as to equate
bargaining in the public sector with that in the private sector.
13. The usual way in which this separation is attempted is by the
establishment of a sound set of bargaining structures in the public sector.
These can then operate in the normal way and the wider concerns of government,
which need not necessarily be the same in respect of public as opposed to
private employment but generally will be, can be imposed from outside the
collective bargaining machinery, for example by legislation.
(c) Collective bargaining machinery
14. It is difficult and dangerous to generalise about the structure of
collective bargaining which is constructed separately by each province, as
well as by the federal Government. There are obviously so many variations that
cannot be properly assessed in a short study. Consideration of the formal
statutory-based machinery does not necessarily give an accurate picture of
what actually happens in practice. It is even more difficult to assess the
ability of structures to meet pressures which will inevitably be encountered
as a result of, for example, a recession or growth of unemployment.
15. Collective bargaining in Canada has been established at both the national
and provincial level since the 1960s, so does not have a long history. Three
differing aspects of the employer-employee relationship can be distinguished.
Consultation is the process most difficult to assess since it will often be to
a large extent informal. It follows that a study of the processes laid down
may fail to indicate the level of consultations in practice. Bargaining itself
is likely to follow fairly closely the rules laid down in the legislation
setting it up and the practices developed over the years by agreement between
the parties. Finally, and most elusive, it is hard to describe the impact of
the power to legislate. The use of legislation of course lies to the hands of
one of the parties, the employer. The various ways in which it is used raise
difficulties and appear to lead to possible misunderstanding and bad feeling.
(d) Legislation
16. The complaints before the Committee arise from specific pieces of
legislation and their interpretation and application in practice. The next
part of this report will take the form of a more detailed examination of the
specific issues raised against aspects of Bill 59 in Newfoundland, Bill 44 in
Alberta and Bill 179 in Ontario.
17. At this stage it is necessary to refer to a more general point. It seems
important to distinguish the objects of government legislation and its impact.
In the context of this study it has been apparent that two features of
legislation should be given careful attention.
18. The scope of legislation varies. It may be permanent or temporary. It may
affect the employment generally or apply to specific bargaining relationships.
Its genesis may be the regulation of the economy on the one hand or the
control of the structure of bargaining procedures on the other. Often the two
strands will be interwined and the purposes of the legislation difficult to
separate.
19. It appears, secondly, that it is possible to intervene more directly in
the collective bargaining process. Steps can be taken to affect the outcome of
a particular bargain by recourse to one form of the legislative processes.
Whereas the process alluded to in the last paragraph may be regarded as
strategic intervention, what is being described here is more in the nature of
tactical.
20. The standards secured by the Committee on Freedom of Association apply, of
course, with equal rigour to action, whatever its character. Viewed from the
standpoint of trade unions concerned, it may be difficult to appreciate these
distinctions since all actions of the type that leads to a complaint is
obviously notable for its perceived deleterious effect. The concerns that this
Committee have shown in the past, however, indicate that the distinctions have
a bearing on ILO deliberations. Emergency legislation even handedly applied to
collective bargaining overall to meet a perceived economic crisis is of a
markedly different character to legislation aimed at a particular section of
employment or individual collective bargaining process. Here the process of
collective bargaining, it must be stressed, covers the totality of the steps
available, including, it is important to stress, any access given to
independent arbitration.
21. An attempt will be made in the next section to assist the Committee with
indications formulated with these analytical distinctions in mind.
III. Case of Alberta - No. 1247
A. Introduction
22. In this case the Canadian Labour Congress (CLC) presented a complaint of
infringements of trade union rights in a communication dated 1 November 1983.
The complaint was presented on behalf of the Alberta Union of Provincial
Employees (AUPE), a component of the National Union of Provincial Government
Employees (NUPGE) which is the CLC's second largest affiliate. The Government
transmitted its observations in a communication dated 3 May 1984.
B. The issues
23. In its letter of 1 November 1983 the CLC alleged that new legislation in
Alberta violated Conventions Nos. 87, 98 and 151. On 1 June 1983, an Act to
amend various pieces of labour legislation (the Labour Statutes Amendment Act
(known as Bill 44)) had been proclaimed. According to the CLC, Bill 44 was
aimed at attacking in particular public sector workers in Alberta. One
amendment denied the right to strike of thousands of non-essential hospital
workers, and another destroyed any degree of impartiality in the arbitration
system which had been intended to compensate public sector workers for the
loss of their right to strike.
(i) Exclusion of certain employees from collective bargaining
24. The complainant referred specifically to new section 21(1) of the Public
Service Employee Relations Act which reads as follows:
A person employed by an employer in a position classified under the Public
Service Act as a budget officer, a systems analyst, an auditor, a disbursement
control officer or a hearing officer who hears matters under the Summary
Convictions Act, or performing for an employer substantially similar duties to
a person employed in any of those positions, (and) in any of the following:
the Legislative Assembly Office, the Office of the Auditor General, the
Office of the Chief Electoral Officer, or the Office of the Ombudsman or who
in the opinion of the (Public Service Employee Relations) Board should not be
included in a collective bargaining unit by reason of the duties and
responsibilities he has to his employer or for any other reason shall not be
included in a bargaining unit or in any other unit for collective bargaining.
According to the complainant, this amendment had reversed a series of
decisions of the Public Service Employee Relations Board (one of which was
unsuccessfully challenged by the Government before the courts) to the effect
that the Government could not legitimately exclude certain groups of employees
from the right to engage in collective bargaining and be represented by a
trade union.
25. On this point the Government, in its communication of 3 May 1984,
explained that the legislative amendments with respect to section 21(g) and
(h) of the Public Service Employee Relations Act did not represent a
significant change in the policies originally contained in those subsections;
the exclusion of managerial and confidential employees, those involved in the
implementation of personnel-related programmes, those involved in supporting
the collective bargaining function, and those involved in the operations of
the Government financial control system, activities of the Ombudsman, the
courts and the Legislature itself had not been altered, but further refined to
reflect continuing alterations in the structure of Government and the nature
of employment in these cases.
(ii) The arbitration system
26. The complainant stated that the amendments to section 117.8 of the Labour
Relations Act and section 55 of the Public Service Employee Relations Act
contained in Bill 44 showed the Government's lack of faith in the impartial
arbitrators who determine the wages and working conditions of many public
sector employees in Alberta in recent months. According to the complainant,
rather than reassess the adequacy of cases presented to the arbitrators by
government representatives and rather than take direct political
responsibility for the imposition of wage controls, the Government had
fettered the discretion of arbitrators and imposed an informal system of
controls. The amendments, which were identical, read as follows:
To ensure that wages and benefits are fair and reasonable to the employees
and employer and are in the best interest of the public, the arbitration board
(a) shall consider, for the period with respect to which the award will apply,
the following: wages and benefits in private and public and unionised and
non-unionised employment; the continuity and stability of private and public
employment including employment levels and incidences of lay-offs, incidences
of employment at less than normal working hours, and opportunity for
employment; any fiscal policies that may be declared from time to time in
writing by the Provincial Treasurer for the purposes of this Act; and (b) may
consider, for the period with respect to which the award will apply, the
following: the terms and conditions of employment in similar occupations
outside the employer's employment taking into account any geographic,
industrial or other variations that the board considers relevant; the need to
maintain appropriate relationships in terms of conditions of employment
between different classification levels within an occupation and between
occupations in the employer's employment; the need to establish terms and
conditions of employment that are fair and reasonable in relation to the
qualifications required, the work performed, the responsibility assumed and
the nature of the services rendered; any other factor that it considers
relevant to the matter in dispute.
27. According to the complainant, the foregoing provision required that an
arbitrator take into account government fiscal policy and thereby sought to
impose a system of informal wage restraint. The complainant recalled that in
many cases dealing with the rights of employees in the civil service and in
essential services where the right to strike has been withdrawn and a system
of arbitration substituted, the Committee on Freedom of Association had
stressed the importance of impartiality. The complainant claimed that it was
dishonourable for the Government to withdraw the right to strike in these
sectors and then impose a system of binding arbitration which was not even
apparently impartial.
28. To the allegation that section 117.8 of the Labour Relations Act and
section 55 of the Public Service Employee Relations Act unreasonably
restricted the freedom of arbitration boards and in so doing amounted to a
disguised form of wage controls, the Government had replied that amendments
concerning the nature of factors to be considered by a board did not, as
alleged, impose restrictions. The criteria considered relevant to the
decisions were merely listed, including wages and benefits elsewhere in the
provincial labour market and the fiscal policies of the Government. The
Government stated that the legislation did not stipulate how consideration of
these factors was to be employed in the decision-making process. The shifting
relevancy of criteria over time was recognised to the extent that "any other
factor" might be considered, and given whatever weight was deemed appropriate.
The comprehensive result of all listed factors was to give unfettered
discretion to a board as to the weight it would assign to any particular
criterion. According to the Government, the factors listed were evidentiary
rather than substantive in nature.
(iii) Other issues
29. The complainant further alleged that many of the amendments contained in
Bill 44 were designed to undermine the bargaining authority of trade unions
and thereby to impair free collective bargaining. It cited in particular
section 74(1) of the Labour Relations Act which required that every trade
union appoint only persons residing in Alberta with authority to bargaining
collectively, conclude and sign a collective agreement. That section reads as
follows:
On the service of a notice to commence collective bargaining by or on an
employer or trade union, the employer or trade union shall appoint a person
resident in Alberta with authority to bargain collectively, to conclude a
collective agreement, and to sign a collective agreement on its behalf.
According to the complainant this requirement would seriously impair the
operation of those small local unions which relied on out-of-province business
agents associated with the national or international federations to conduct
collective bargaining.
30. In response to this allegation the Government pointed out that section 74
of the Labour Relations Act had been amended to require the parties to
collective bargaining to "appoint a person resident in Alberta". The
Government explained that where trade union locals were part of a national
labour organisation, accessibility to someone with authority to sign and
conclude a collective agreement had been a problem in the past. Under the
amendments to section 74, a small local union might still utilise
out-of-province business agents associated with a national or international
network as part of the bargaining committee and to act as a principal
spokesman, but someone resident in the province must have authority for the
purpose of facilitating the conduct of bargaining, including the conclusion of
a collective agreement.
31. The complainant referred to section 87 of the Labour Relations Act which
provided that only one strike or lock-out vote might be taken with respect to
a dispute. This section reads as follows:
During the open period, a bargaining agent may apply to the board to
supervise a strike vote or an employers' organisation may apply to the board
to supervise a lock-out vote. Only one strike or lock-out vote may take place
with respect to a dispute. According to the complainant this provision would
prevent unions and employers' associations from canvassing the opinions of
their membership as to whether a strike or lock-out should take place in any
given set of circumstances; the pro-strike or pro-lock-out vote would become a
mere formality to be obtained at the commencement of collective bargaining.
The complainant stated there was no sound reason why the members of a
bargaining unit should not be free to change their mind as to whether to
strike as circumstances changed.
32. In relation to section 87 of the Labour Relations Act, the Government
stated that a strike or lock-out was the commencement of the economic contest
and therefore such votes were supervised by the Labour Relations Board of
Alberta. The changes to section 87 did not prohibit a union from conducting
its own vote or canvassing the opinion of its membership as to whether a
strike should take place in any given set of circumstances. Such a vote,
conducted by the union, was part of the internal administration of the trade
union and accordingly the provision did not interfere with a private vote
within the union. The Government explained that such a vote or canvassing was
not in substitution of a vote supervised by the Labour Relations Board which
is a precondition for a lawful strike. Moreover, continued the Government, if
the vote carried whether for strike or lock-out, then one party or the other
had chosen the economic forum as the means of resolving the dispute. The
policy as represented by this provision was that the members were free to
strike, but should do so only when that appeared the only means of resolving
the dispute. The alternative would be to open the door to a series of strike
votes.
33. According to the complainant, section 102.2(2) of the Labour Relations Act
as amended by Bill 44 empowered the Minister of Labour to require that the
members of a bargaining unit affected by the recommendations of a Disputes
Inquiry Board vote whether or not to accept the recommendations. This section
reads as follows:
Unless a party to the dispute notifies the (Labour Relations) Board of its
acceptance of the recommendations of the disputes inquiry board within ten
days after receiving a copy of the recommendations from the Minister, the
(Labour Relations) Board shall supervise a vote on the acceptance or rejection
of the recommendations by the employees or employers affected by the dispute
who are represented by that party. According to the complainant this power
amounted to unwarranted interference in the internal affairs of a trade union
which had the right and responsibility to canvass its own members as to the
acceptability of any particular settlement proposal; it believed that the
conduct of labour relations ought to be left to the parties and not to the
Minister of Labour.
34. With regard to section 102.2(2) the Government stated that the amendments
to this section were aimed at recent situations in which a trade union had
refused to resolve a dispute notwithstanding that a majority of employees in
the unit had wished the dispute to be resolved under certain conditions.
According to the Government, this provision ensured that the wishes of the
majority in the unit might be expressed on the question of acceptance of a
board award.
35. The complainant alleged that sections 105 and 106 of the Labour Relations
Act created a new and dangerous offence by prohibiting persons acting on
behalf of trade unions or employers from threatening a strike or lock-out in
circumstances where a strike or lock-out would not be permitted under the Act.
The sections read as follows:
Section 105(3). No employee, bargaining agent, or person acting on behalf of
a bargaining agent shall threaten to strike or to cause a strike unless the
strike is permitted by this Act.
Section 106(3). No employer shall threaten to lock-out unless the lock-out is
permitted by this Act. The complainant pointed out that the question of
whether a strike or lock-out was illegal was a complicated one and the parties
should not therefore be prohibited from talking about it. The complainant
questioned whether it was the Government's intention to penalise employees
under section 105 who, for example, refused to perform work which they
believed to be unsafe.
36. With regard to the inclusion of "threats" to strike or lock-out in
sections 105 and 106 of the Labour Relations Act, the Government stated that a
strike or lock-out was not permitted where the preconditions as set out in the
Act had not been satisfied. However, if a strike or lock-out with its serious
consequences upon employees and employers might only occur when certain
conditions had been satisfied then neither the trade union, employees or
persons acting on behalf of the trade union or the employer should be able to
threaten an illegal act to achieve other purposes, such as threatening a
strike to force an alteration of a collective agreement during its term
against the will of the other party. In any case, the Government pointed out
that these provisions were being reconsidered primarily because of evidentiary
difficulties. The Government added that it was not the intention of this
section to penalise workers who refused to perform work which they believed
was unsafe. Questions of unsafe work were fully addressed in legislation
concerning health and safety. According to the Government, the essential
element of a strike was that it was a concerted refusal by two or more
employees aimed at compelling an employer to accept terms and conditions of
employment; the Labour Relations Board had never interpreted a strike to
include a refusal to work when conditions were unsafe.
37. The complainant alleged that several provisions in Bill 44 were designed
to make it more difficult for trade unions to obtain and maintain certificates
enabling them to represent workers in collective bargaining. It refered in
particular to section 49(1) of the Labour Relations Act which reads as
follows:
Notwithstanding anything in this Act, if an application for certification as
a bargaining agent, revocation of the certification of a bargaining agent, a
declaration that a bargaining agent is no longer entitled to bargain
collectively, registration of employers' organisation or cancellation of
registration of an employers' organisation, has been refused by the Board or
withdrawn by the applicant, the applicant shall not, without the consent of
the Board, make the same or substantially the same application until after the
expiration of 90 days from the date of the withdrawal or refusal. According to
the complainant this section would prevent trade unions from withdrawing
applications for certification when they realised that there was no majority
support and resubmitting the application when a majority had been obtained.
The only effect of this amendment would be to make organisation campaigns more
difficult and accordingly more expensive.
38. The Government explained that amendments to section 49 of the Labour
Relations Act required an applicant for certification to obtain board
permission to reapply before the expiry of 90 days from the date of withdrawal
or refusal of a previous application. It stated that these amendments had been
implemented in recognition of the administrative effects on the employer,
employees and the Labour Relations Board itself where repeated failed
applications are made.
39. The complainant further stated that before the introduction of section 132
of the Labour Relations Act, a trade union's certificate remained in full
force notwithstanding the sale or disposition of the business of an employer
and that the previous situation had aimed at preventing the employer from
selling or transferring his business to an allied operator in order to get rid
of a certified trade union. According to the complainant, the new situation
(whereby the Labour Relations Board may, upon application by any employer,
trade union or person affected, determine what rights, privileges and duties
have been acquired or retained) provided an opportunity to successor employers
to frustrate the desires of employees who might wish to continue being
represented in collective bargaining by their previously certified bargaining
agents.
40. As regards the amendments to section 132, the Government stated that these
were designed to prevent incongruous results. Before the introduction of these
changes, if the Labour Relations Board had concluded that there had been a
sale, lease or transfer of a business or part of it, then automatically the
certificate and the collective agreement to which the vendor was party applied
to the purchaser. The Government stated that the intention of the provision as
amended remained to that effect; however if a question arose under section
132, the Labour Relations Board might declare the certificates, collective
agreement or proceedings to be binding on the purchaser in contrast to the
former provision where the Board was required to so declare. The new provision
allowed for conflicts to be resolved by the Labour Relations Board by allowing
the Board to amend the certificate or collective agreement in question or even
revoke it. The Government stressed that the Board had only been given power
permissibly to resolve conflicts.
41. The complainant further alleged that new section 1(w.1) of the Labour
Statutes Amendment Act, creating the concept of a "trade union organisation",
would create a situation in which the national or provincial organisation
which had authority to bargain on behalf of local unions would be subjected to
the penalties prescribed in the Act for trade unions. The Government pointed
out that the amendments proposed in section 1(w.1) had never been adopted and
did not form part of the Labour Relations Act.
42. The complainant referred to section 117.94 of the Labour Relations Act -
which was identical to new section 92.2 of the Public Service Employee
Relations Act - as the most pernicious example of anti-union legislation in
Bill 44. According to the complainant, the clear intention of this section was
to cripple a union financially if its members went on a strike. The section
reads as follows:
(1) If a strike of employees to which this Division applies (i.e. public
employees who are prohibited from striking) commences, the employer,
notwithstanding any collective agreement or any other provision of this Act,
may serve the bargaining agent that represents those employees with a notice
of intention to suspend the deduction and remittance of union dues,
assessments and other fees payable to the bargaining agent.
(2) A notice of intention shall specify the bargaining unit or part of the
bargaining unit with respect to which the employer intends to suspend the
deduction and remittance of union dues or other fees and a time period of not
less than one month and not more than six months with respect to which the
employer intends the suspension to be in effect.
(3) A bargaining agent affected by the notice may apply to the board within
72 hours of service ... for a determination as to whether or not a strike has
occurred.
43. As regards section 117.94 of the Labour Relations Act and section 92.2 of
the Public Service Employee Relations Act as amended by Bill 44, the
Government stated that, unless the union committed an illegal act, the
forwarding of union dues continued. It added that, if the employer served
notice that union dues were to be withheld, an expeditious and inexpensive
appeal to the appropriate quasi-judicial Board was available and the Board
would decide whether a break in collection and remittance should occur based
on evidence that the union had or had not contravened the Act in question and
illegally interrupted the employer's operations. Adequate and appropriate
appeal provisions existed to protect the interests of all parties.
44. With regard to the withdrawal of the right to strike from hospital workers
contained in section 117.1 of the Labour Relations Act, the complainant
alleged that all hospital workers, including kitchen help, janitors,
gardeners, registered nurses, health service technicians and clerical staff,
were covered by this new section.
45. The Government stated its position as regards the international standards
relevant to the question, namely that freedom to associate was protected but
specific association objectives and dispute resolution mechanisms were not. It
pointed out that the evolutionary nature of labour relations precluded
commitment to a single universal approach to dispute resolution. The objects
of association within the context of labour relations, principally the
protection of the interests of the workers, could be and were achieved without
utilisation of the strike mechanism. According to the Government, public
sector collective bargaining must be approached within the larger framework of
the governing process itself of which it was but one part. A number of
extremely important characteristics had to be recognised in the design of the
collective bargaining system intended to be compatible with it: the governing
process in Canada was one in which decisions were reached by compromise and
response to pressures brought to bear; those interests which influenced the
distribution of scarce resources were involved in a political process and must
therefore be subject to the contraints normally associated with such
participation; in order to maintain the essential and delicate balance within
this process, particularly with respect to essential administrative
decision-making outside the normal review and evaluation associated with the
electoral process, no single interest could be allowed to place other
interests at a disadvantage. The Government also pointed out that while the
nature of the work performed by public service employees was often unique in
most ways, the unique nature of the employer remained constant, in that the
Government was subject to scrutiny. Lastly, the Government stated that
continuance of the right to withhold services by health care workers would
place these interests at an unacceptable advantage and priority over those
whose legitimate health care needs must be met by the system, for which there
was no acceptable alternative, and as such would compromise the
decision-making process relating to the provision of health care. This
situation had been altered only to the extent that an alternative to the
withdrawal of services had been provided and the Government considered that
this was an effective compromise which would permit proper representation of
employee interests within a framework that complied with international
standards.
C. Information obtained during the mission
46. In the course of the mission I had the opportunity of discussing the
various issues involved in this case; first, in Ottawa, with representatives
of the Canadian Labour Congress (CLC) and the National Union of Provincial
Government Employees (NUPGE), and secondly, in Edmonton, with representatives
of the Alberta Union of Public Employees (AUPE) and its component divisions.
Discussions were also held with the Assistant Deputy Minister of Labour and
other provincial government officials. In addition to the oral submissions
that were made by the parties, voluminous documentary evidence was
communicated to me in support of the arguments put forward by them.
47. From all these discussions it was clear that the three main issues causing
concern to the unions as a result of the enactment of Bill 44, which amended
both the Public Service Employee Relations Act of 1980 and the Labour
Relations Act, were the curtailment of collective bargaining rights for
public-sector employees and the manner in which the arbitration procedures
functioned, the further restrictions that Bill 44 placed on the right to
strike of public employees and the exclusion of certain employees from the
bargaining unit. Several other issues, which also formed part of the
complaint, were also examined in detail and will be dealt with later.
(a) Collective bargaining and arbitration
48. The claim of the unions was that the introduction of Bill 44 had been a
clear and deliberate attempt to place further restrictions on the collective
bargaining rights of provincial government employees. In addition, the result
of Bill 44 had been to destroy any credibility in the fairness and
impartiality of the arbitration system, the only dispute-settlement mechanism
available to this category of workers.
49. Much information was obtained concerning the manner in which collective
bargaining takes place between the Alberta Union of Public Employees, as the
certified bargaining agent covering 12 separate divisions of public employees
(approximately 38,000 employees), and the Crown in the Right of Alberta, as
employer. Under section 50 of the Public Service Employee Relations Act, in
the event of a dispute arising, if the the Public Service Employee Relations
Board is satisfied that the parties to the dispute have failed to make
reasonable efforts to conclude a collective agreement, the Board may direct
the parties to continue collective bargaining. Section 51(1)(c) of the Act
permits the Board to establish an arbitration board if it is satisfied that
not only are there additional items which should be referred to arbitration
but also that it is the appropriate time to refer the matter to an arbitration
board.
50. At the time the mission took place collective agreements had been
concluded in respect of eight out of the 12 divisions of the AUPE; the four
groups in respect of which no agreement had been reached being nurses,
economic staff, social workers and teachers.
51. The chief negotiator for the AUPE explained that Bill 44 had been enacted
following the discontent of the Government at the awards granted by 12
separate arbitration boards in 1983. These arbitrations had been preceded by a
decision of the Public Service Employee Relations Board that there had been a
failure on the part of the employers to bargain in good faith. The current
round of negotiations, commenced in January 1984 for the biennium 1984-85, had
taken place in the context of the new atmosphere created by the enactment of
Bill 44 and the employers demonstrated an aggressive attitude at the
bargaining table. The failure of negotiations led to a request being made in
April 1984 by the union for arbitration but this was rejected by the Board. In
July 1984, following the failure of mediation, the Board referred the main, or
master agreement, to arbitration.
52. Evidence was also submitted concerning the negotiating process which the
unions claimed was frustrating and time-consuming. The Public Service Employee
Relations Board often served to delay or prevent references to arbitration. In
one case involving some 14,000 administrative and clerical workers,
negotiations had commenced in January 1984; the Board had, on no fewer than
three occasions, rejected an application for arbitration on the grounds that
it was "untimely and inappropriate". This was followed by an application to
the court which, in March 1985, upheld the Board's discretionary power to
establish an arbitration board and stated that the Board's decision in the
present case was not "patently unreasonable". It was only after the lapse of
at least 18 months from the commencement of negotiations that arbitration was
obtained and, as the unions pointed out, the question of retroactivity of wage
increases was itself a matter of negotiation.
53. More specifically, as regards the arbitration process, the unions
expressed considerable concern over the practical application of section 48(2)
of the Public Service Employee Relations Act which limits the subject-matters
that may be referred for arbitration. The Public Service Employee Relations
Board has jurisdiction to determine whether any particular claim falls within
the list of non-arbitral items set out in this provision. In the view of the
unions this provision conferred upon the employer the unilateral right to
determine terms and conditions of employment. They claimed that all matters
covered by this provision should fall within the scope of bargaining and
arbitration since they did not entirely concern questions of management
prerogative.
54. Examples of matters that had not been considered arbitral by virtue of
section 48 included the right of an employer to contract out work of the
bargaining unit, questions concerning hours of work and shift work, certain
leave periods and the calculation of overtime (section 48(2a)); questions of
job evaluation, creation of job descriptions, questions of equal pay for work
of equal value (section 48(2b)); selection, transfer, promotion, training, the
provision of training in the safer operation of equipment, etc. (section
48(2c)). In a recent case (December 1984) the Public Service Employee
Relations Board had determined that a union's proposal to protect the
positions of laid-off employees by requiring an employer to give notice of
intended lay-offs was non-arbitral because it limited employer discretion. The
unions, accordingly, claimed that these examples showed that the Board gave a
broad interpretation of section 48(2) in order to protect the managerial
prerogative of the employer.
55. Furthermore, the unions claimed that, even where items in dispute were
referred to arbitration, the discretion of arbitrators was curtailed by the
requirement that they take certain matters into consideration. These criteria
are set out in section 55 of the Act, and in particular, oblige arbitrators to
give special consideration to statements of government fiscal policy. In the
unions' view, these provisions were introduced in 1983 in response to the
series of arbitration awards which the Government had criticised as being too
generous. Some recent statements of fiscal policy issued by the Government
were made available to the mission. According to the unions, arbitrators were
required to promote government fiscal policy and, accordingly, the results of
arbitration were a reflection of that policy. In other words, such control of
arbitral decision-making meant that the Government was, in fact, legislating
results for itself as employer. Arbitrators were thus prevented from
exercising the degree of independence that was necessary to constitute an
adequate substitute for collective bargaining.
56. In this connection, a number of recent arbitration awards were made
available to the mission. From these it was clear that the arbitration boards
involved had given careful considerations to the provisions of section 55(a)
and (b) and had explored at length the conflicting roles of government as the
determiner of provincial labour fiscal policy, and as employer. In some cases,
the board had, in fact, not considered it necessary to take account of the
optional provisions contained in section 55(b) of the Act. In one case, in May
1984, the arbitration board had stated that it did not find the government
fiscal policy useful since, inter alia, it did not prescribe the exact amount
of the increase.
(b) Excluded employees
57. The mission also heard evidence concerning the exclusion, by virtue of
section 21(1) of the Act, of certain categories of employees from the
bargaining unit for the purpose of collective bargaining. The recent
amendments under Bill 44 had broadened the range of persons denied the right
to engage in collective bargaining. Some of these categories had previously
enjoyed this right. It was recalled that section 21 substantially provides
that persons employed who have or exercise management responsibilites or
duties or who are primarily engaged in the administration of personnel
policies or pesonnel programmes, shall not be included in any bargaining unit.
58. In the view of the unions, the exclusion of such employees was not
justified and the amendment, under Bill 44, had removed the right to
collectively bargain from a number of groups of employees who had been granted
that right by the Public Service Employee Relations Board under the previous
statute. The Governmment had used its legislative authority to reverse a
series of decisions of the Board. For example, the Board, in one case, had
held that employees in occupational health and safety programmes and
organisational development programmes and activities were not within the scope
of "personnel policies or programmes" defined in section 21(1)(b) of the Act.
The Board, in its decision, had stated that personnel, in the sense described,
encompassed policies or programmes concerning the recruitment of candidates,
the hiring, the appointment and promotion of employees, or the classification,
evaluation, discipline or discharge of employees. The unions submitted further
examples of cases in which the amendments of Bill 44 denied the right to
belong to a bargainging unit to groups of workers, or individual officers, to
whom that right had been recognised by the Board. According to the unions,
over 400 persons had been denied the right to collective bargaining by the
amendments to section 21.
(c) The right to strike
59. The mission also heard submissions from the unions concerning the overall
denial of the right to strike imposed by section 93 of the Public Service
Employee Relations Act on those employees to whom the Act applies. According
to the unions, the Government had sought to justify this denial by stating
that, although all the employees concerned did not provide essential services,
they were so closely linked to those providing essential services as to make
it reasonable that they should be treated in the same way; that there was no
alternative supply for these services; and that these employees were in a
special position to place more pressure on the Government than other citizens.
60. The unions claimed that there was no evidence of close links between
essential and non-essential persons and, more importantly, that the withdrawal
of labour by non-essential persons would not adversely affect the provision of
essential services. Nor was there any evidence that there was no alternative
source of supply for the services provided by the employees affected.
Moreover, the unions stated, the same rationale had not been applied in the
private sector in cases where no alternative source of supply for many
services was available.
61. At meetings with representatives of the provincial Government of Alberta,
the issues that had been brought to the attention of the ILO and discussed
with the mission, were explained in detail. The government representatives
explained to the mission that the response by the private sector to the
dramatic decline in the economy had been constructive, and the claims of the
public-sector unions that they were being selected for special, unfavourable
treatment were unique to that category of workers.
62. As regards the collective bargaining process, the government
representatives explained that either party had the right to veto matters that
were suggested for reference to arbitration. Those which the Public Service
Employee Relations Board had excluded from those parts of the master agreement
with AUPE in respect of which arbitration had been sought concerned
exclusively management rights. The Government conceded, however, that the
definition of management rights was a complex question.
63. In this connection, I suggested to the government representatives that the
Public Service Employee Relations Board, by refusing to consider certain
specific issues as arbitral, was itself arbitrating on these issues. Where
arbitration was fundamental in a non-strike situation, it seemed anomalous
that the Board, which was a procedural body, should be seen itself to be
acting as arbitrator on certain issues. Such a procedure was certain to
destroy the unions' faith and confidence in the Board. I further indicated
that it seemed that the Government's use of the legislative process to deal
with collective bargaining had also led to a loss of confidence by unions in
the bargaining system.
64. As regards arbitration itself, the government representatives indicated
that, from the limited experience that the Government had of arbitration of
interest disputes, there had been no evidence of misuse of the provision
(section 55 of the Act) requiring arbitrators to take account of provincial
fiscal policy. There was no way of knowing what attention arbitrators paid to
the section, but, in any event, the fiscal policy provided wide scope for
arbitrators. Examples of government fiscal policy were given to the mission.
65. On the question of exclusions under section 21(1) of the Act, as amended,
the Government explained that 260 employees in all were affected by the
amendment. These were mainly involved in the personnel policy area and only
about 12 in the field of safety and health had been excluded from the
bargaining unit.
66. Concerning the denial of the right to strike, I informed the Government
generally that the Committee on Freedom of Association was likely to express
some concern about the provisions in the legislation on this matter in the
light of its stated principles. The government representatives took note of
this and informed me that certain issues concerning the right to strike for
public employees were presently before the court.
67. I also brought to the attention of the Government the question, also a
concern of the unions, of the lack of prior consultation with the unions on
legislation concerning matters affecting them or their members. In response,
the government representative informed me that any failure to consult on such
matters would be caused by the emergency of the situation and not from any
systematic policy not to consult. Even on issues that were urgent, public
hearings would take place in Parliament, but normally legislation was the
result of lengthy and constructive discussions with any parties that would be
affected.
(d) Other issues
68. During discusssions with the AUPE, I was informed that, although that
organisation had initially feared that the use of experienced out-of-province
negotiators might have been restricted by section 74(1), the provision as it
stood was not a problem. The provincial government representatives explained
that this provision had been introduced solely to deal with the practical
difficulties which had arisen in the past, when out-of-province negotiators
had not been able to be contacted during negotiations or, even at the time of
settlement, for signature of an agreement. Given that there appeared to be no
serious problem with section 74(1) in practice, I expressed my hope that the
parties would be able to discuss its application if, in the future, any
problems might arise in this respect.
69. It was explained to the mission that section 87 of the Labour Relations
Act (providing for only one strike or lock-out vote with respect to a dispute)
had been introduced in reaction to a strike in 1982 by nurses at the Banff
Mineral Springs Hospital during which one of the trade unions involved had
disputed the results of a pro-strike vote. The Government also pointed out
that, under this provision, the unions could meet and discuss possible strike
action as often as they wished, but could only apply for one strike vote
supervised by the Labour Relations Board. Both sides agreed that there
appeared to be no problem with the present situation in practice.
70. It was explained to the mission, in relation to section 102.2(2)
(providing for a Labour Relations Board supervised vote on the acceptance by
employees of a settlement in a dispute) that the Disputes Inquiry Board was a
form of binding mediation set up to examine particular disputes. The provision
addressed the question as to whether union executives were free to accept
awards or whether individual union members should decide this at a vote and it
has not been used as yet.
71. During discussions with the union representatives, it was made clear to
the mission that the effect of section 105(3)'s introduction of an offence for
the mere threat of illegal strike action had added to their fears as to the
real purpose behind Bill 44. They stressed that the danger of this provision
was compounded by the fact that the strike action had been broadly defined in
the legislation. The Government, on the other hand, pointed out that there
were many Labour Relations Board decisions which clarified the definition of
strikes. It also stressed that this provision stemmed from the principle of
fair collective bargaining in that the threat of illegal action did not
contribute to the resolution of a particular bargaining issue or negotiations
in general. I pointed out that "persons acting on behalf of the bargaining
agent" were also covered by this broad provision. The Government explained
that section 105(3) had not been used and that it would be up to the Labour
Relations Board, when faced with the application of this provision, to
highlight any drafting difficulties regarding the position of union agents.
72. As regards the allegation relating to section 49 (introducing a 90-day
delay before the filing of further certification applications) of the Labour
Relations Act, it was explained to the mission that, under the Labour
Relations Act, the Labour Relations Board was empowered to grant a collective
bargaining certificate in three sets of circumstances: firstly, when satisfied
that a majority of employees in the unit were paid-up union members having
selected the trade union to be their bargaining agent; or secondly, when
satisfied that a majority of employees in the unit had applied for union
membership and paid a fee (or "deposit") not longer than 90 days before the
date of the application for certification, or thirdly, after conducting a
vote. Before the amendment only 30 days had applied to fee-paying employees.
The union representatives felt that this time extension was yet another
example of the real intent of Bill 44. The Government explained that section
49 was aimed at situations where there was not a constant organising drive by
trade unions for the purposes of collective bargaining certification. This
amendment had been introduced to remove any uncertainty as to a union's real
strength in the bargaining unit and to avoid the possible abuse of
certification proceedings as, for example, a defence to organising drives by
other unions in the same bargaining unit. The Govenment pointed out that since
this amendment there had been no evidence of its impact on a trade union's
ability to organise and apply for certification. Since a union's own
constitution would set out the time limit for the lapse of fee-paying
applicants' membership, any procedural problem that section 49 might raise for
unions could possibly be avoided by simple amendment of their constitutions.
In addition, it was pointed out that the Labour Relations Board had the
discretion to conduct a vote even if a majority (51 per cent) of employees in
the bargaining unit had indicated its selection of a trade union as its
bargaining agent.
73. The union representatives told me that the amendment to section 132
concerning successor rights had no labour relations rationale. The Government
explained that the amendment was a reaction to a court decision which had
interpreted the previous provision too broadly, thus enabling successor rights
to bind employees in "other related activities"; the position on successor
rights was now clarified in the Act and the Labour Relations Board only had a
discretion, not an obligation, to determine what rights, privileges and duties
carried on where a question arose under the provision.
74. From information obtained during the mission concerning section 117.94 of
the Labour Relations Act and section 92.2 of the Public Service Employee
Relations Act concerning withdrawal of the check-off, it was clear that the
complainant's initial allegations related to a draft provision which had not
provided for notice and the right to appeal to the appropriate board. The
union representatives acknowledged that there was no problem at the moment
with sections 117.94 and 92.2 as drafted and currently in force since they had
not been utilised. The Government stressed the fairness of the notice, appeal
and time limit aspects of the present section; it nevertheless acknowledged
that the possibility existed for an employer to suspend all employee check
offs in a situation where only one employee had withdrawn his services. It
considered that in such cases the appropriate board would have to decide
whether an illegal strike had taken place and, if not, order the employer not
to go ahead with suspension of the check-off.
75. During discussions on the withdrawal of the right to strike from hospital
workers (section 117.1 of the Labour Relations Act), the AUPE representatives
emphasised their concern over the indiscriminate nature of section 117.1 in
that non-essential staff were covered by the strike ban. This has been
discussed in a more general context in some detail above. Evidence was put
forward from hospital clerical staff to the effect that their job description
and duties did not differ from clerical work carried on outside the hospital
system and could not be described as essential. The Government pointed out
that there was much uncertainty, both at the national and international
levels, as to what was an "essential service". It was explained that the
Provincial Government decided to clarify the situation through legislation
rather than through Labour Relations Board decisions or arbitration decisions.
The Government stressed that only small groups were affected by section 117.1.
After it was pointed out to the Government that in some specific cases the
international bodies had been very clear in defining the concept of essential
services, the question of possible abuse was raised. The Government explained
that this question was before the courts in two jurisdictions, namely the
appeal of an Alberta Court of Appeal decision to the Canadian Supreme Court
(challenging Bill 44 on grounds of violation of the Canadian Charter of Rights
and Freedoms - to be heard in October 1985) and an AUPE appeal to the Alberta
Court of Appeal which has been stayed pending the afore-mentioned Supreme
Court decision.
D. Concluding remarks
76. The complaints lodged against the Government of Alberta fall into two
groups. A number of them appeared to indicate that recent legislative changes,
in particular Bill 44 had changed the process of collective bargaining and
submission to arbitration. This it was alleged was in clear breach of ILO
principles applying to a structure where limitation on the right to strike is
balanced by free access to binding arbitration. Others were individual points
of detail. These taken together it was suggested presented serious obstacles
to freedom of association and free collective bargaining. Together the two
groups of complaints were felt - and the feeling was strong and genuinely held
- to form a coherent policy aimed at weakening the public service trade union.
I feel it would be helpful to the Committee on Freedom of Association if I
summarised the position as I saw it treating each of the groups separately and
then assessing the overall position.
Collective bargaining and arbitration
77. Bill 44 has made several changes to the structure of bargaining, and
recent practice has led to the feeling that major limitations have been
imposed and damage done. The system as it is now working raises these issues
to which the Committee's attention is specially drawn:
(a) the system denies public service employees who are covered the right to
strike. It offers in its place access to binding arbitration;
(b) the access to arbitration is limited by a jurisdictional clause (section
48(2)). That clause is in effect the equivalent of a management rights clause
commonly found in a collective agreement. Two questions were raised:
(i) the drafting of the statute enables the adjudicating body to take a wide
view of management rights. In such instances there will be a strong counter
argument raised by the trade union since the exercise of such rights will
undoubtedly, on many occasions, raise the issue that a trade union feels
properly falls within the ambit of bargaining;
(ii) the procedural methods adopted put the jurisdictional issue in the hands
of the Public Service Employee Relations Board. This has the effect of taking
from the arbitrator, seized with problems arising from the break down of
negotiations, some of the issues in dispute. The trade unions do seem to be
hampered by this duality.
A study of arbitration awards indicates that the application of these
provisions has produced results that narrow considerably the arbitrator's
jurisdiction. It appears that the system, which it will be recalled is aimed
at balancing the lack of the right to strike, is narrowing the issues that are
deemed arbitrable. It is a matter that calls for careful attention.
(c) The addition within the statutory rules governing the work of the
arbitrator set out in section 55 of the duty to consider "any fiscal policies
that may be declared from time to time in writing by the Provincial
Treasurer". It appears from what I was told that it is the potential impact of
this clause that is feared. It is difficult to see the effect of the clause,
taken at face value, on the practice of arbitration. It cannot be seriously
contended that such fiscal policy would not be considered by an arbitrator
without such direction. The dangers are, however, there:
(i) an arbitrator aware of the precariousness of the profession may give
paramountcy to this one provision. Although it has to be said that this
realistically is a theoretical danger, such a problem exists whether the
position is statutory or not;
(ii) the Government may issue its fiscal policy in such a form, for example,
as a pay increase norm. That would undoubtedly raise the impact of the
particular criterion that is being considered. It would seriously fetter the
freedom of the arbitrator. Indeed it would prove to change the concept of
independent arbitration. Such intervention should be directly, rather than
indirectly, statutory. The fiscal policies I was shown show no sign of such
interference. They state clearly and succintly general economic factors of
concern to the Government. Awards studied cannot be said to show any misuse of
this section to destroy independence.
(d) exclusions from the process of the Act have been recently extended. This
increases the number of public servants who lack the protection of the system.
The facts are clearly set out in the evidence given by the parties and
summarised above. The numbers under the Public Service Employee Relations Act
are not excessive. Whilst it would be possible to argue about the validity,
under ILO standards, of a few categories there is no flagrant neglect of the
appropriate principles.
78. Attention must be given, however, to the exclusion of health care workers
from the parallel bargaining structures secured by the Labour Relations Act.
That exclusion is widely drawn and gives too little attention to the important
qualification of "essential worker". Its width gives real cause for concern.
Individual items
79. These have been set out in detail above and the views of the parties
recorded. They can be partially grouped: Four involve statutory changes to
legal structures. Undoubtedly these changes make the trade unions' position
less favourable, hence the reason for the complaints. They do not appear,
however, to involve significant fetters on trade union rights. The Committee
will be able to judge them from the views expressed; I found little to add.
(a) s. 74(1) - Labour Relations Act
Requires a duly authorised representative for collective bargaining to be
resident in Alberta. It was made clear that the legislation does not debar the
trade unions seeking assistance in bargaining from persons resident outside
the Province.
(b) s. 87 - Labour Relations Act
Allows only one strike or lock-out vote. This restricts certain previously
allowable trade union tactics but does not prevent sufficient polling to
determine the position prior to calling for a vote.
(c) s. 49(1) - Labour Relations Act
Where a certification ballot is lost there is provision now for a 90-day
moratorium. This affects the current practice of signing members on a short
(30 day) basis. No doubt it will lead to a change of tactics.
(d) s. 132 - Labour Relations Act
Where a business or enterprise changes hands there has been automatic
transfer to the new employer of the collective bargaining rights and duties.
This provision now allows the Board to intervene. Since it is only likely to
do so where difficulties are anticipated the provision appears merely to
regulate and expedite normal practice. There was no indication that this
provision would be used to change previous grounds for intervention.
(e) s. 1(W. 1) of the Labour Relations Act was never promulgated.
80. Three issues require separate comment.
(a) s. 102.2 - Labour Relations Act
This provides the power to put the recommendations of a Disputes Inquiry
Board to the workers concerned after 10 days of issue. Calling for such a vote
is seen as a denial of the right of the trade union officials to manage their
own union. It does not, however, deprive individual workers of their rights.
(b) s. 105 and s. 106 - Labour Relations Act
The crime of threatening an illegal strike created by these provisions needs
careful consideration. It appears to put employees and trade union officials
in some jeopardy. Two problems arise:
(i) the definition of a strike is by no means certain and precise. In many
instances it is possible that the matter could only be determined by a court.
An employee or trade union official either has his conduct widely fettered
(fearing possible but not certain transgression) or acts in good faith,
believing the strike to be lawful and subsequently finding that it is not. It
seems essential that an individual who has no subjective guilt (i.e. knowledge
or belief in the illegality) should be protected;
(ii) the question of the authority of individuals to act on behalf of the
trade union also may arise. Again it is to be hoped that clarification will be
undertaken to avoid uncertainty.
(c) s. 117.94 - Labour Relations Act and s. 92.2 - Public Service Employee
Relations Act
These provisions provide that where illegal strike action takes place the
employer may suspend the deduction of union dues from employees' pay and their
remission to the trade union. This is an instance of fear that the provisions
may be used unfairly. The statute appears to allow the stopping of all dues in
the unit consequent upon the action of one individual. We were told that such
response was most unlikely, except in the instance of specially selected key
workers. Again, it is important to note that there may be circumstances where
the trade union itself is trying to prevent or end the illegal action.
Retaliatory measures in these circumstances would not appear to be fair. Again
it is a matter, once aired, that can be dealt with by clarification of the
exact scope of the provision.
General considerations
81. Consultation: The complaints relate to a period when the perceptions of
the Government and the public service trade union were markedly divergent.
Routine consultation on matters such as health and safety appeared to have
continued unaffected. However, the Government's determination to act quickly
as a result of the major downturn in economic activity meant that consultation
on the legislative changes in Bill 44 were almost entirely restricted to a
public hearing before a committee of the whole legislature. Since the
legislation affected procedures in which the Government and the trade union
played a joint part, it is unfortunate that more time was not found for
consultation. It would appear that now the urgency of the economic pressures
has abated, the process of consultation can be re-established. At the very
least this will enable misconceptions to be ironed out before changes are
promulgated.
82. Attitudes: It was clear that the trade union believed that it had been
singled out for a concerted attack on its position and rights. The steps taken
by the Government, both in their obvious intent to restrict monetary rises and
the individual changes, viewed in the worst light, gave a basis for the
formation of such a view. Whether these fears and the harshest reading of the
legislative changes reflect what were intended is not easy to determine. I saw
little objective evidence to support this pessimistic view although I accept
that the fear was genuine.
83. Two aspects of the underlying problem should be mentioned.
1. It is important and practically sensible to review the questions raised as
to fears of ways in which the legislation may be used to seriously impede the
trade union in carrying out its bargaining role. Many of these, it seemed,
could be resolved by an internal understanding secured, for example, by an
exchange of letters.
2. The second is somewhat more complicated. The procedures appear to have
changed the perceived independence of both the Public Service Employee
Relations Board and the process of arbitration. The reasons for this are set
out at the beginning of this section. It is vital that consideration be given
to ensuring that the independence of arbitration is maintained and seen to be
valued.
84. The establishment of better relationships between the parties is desirable
and even possible given the present, less alarming economic position and the
increased awareness of both unions and Government of their respective
responsibilities and obligations. It will not be easy to build mutual trust
quickly, but if attention is jointly given to the problems that were disclosed
to me better relationships should be attainable. It is clearly in the
interests of both parties to make efforts to this end and to eliminate the
fears that exist at present of a disregard of ILO principles.
IV. Case of Alberta - No. 1234
A. Introduction
85. It was in a communication of 19 September 1983 that the Confederation of
Alberta Faculty Associations (CAFA) presented a complaint of alleged
violations of trade union rights in Alberta. The observations of the
Government of Alberta were contained in a communication dated 21 February
1984.
B. The issues
86. In its communication of 19 September 1983 the CAFA alleged that a November
1981 amendment to the Universities Act denied the academic staff of the
universities of the Province of Alberta the rights bestowed by Convention No.
87, ratified by Canada. The complainant explained that a new section 17(1)
(d.1) empowered the Board of Governors at each university to designate those
employees who shall be "academic staff members" and therefore eligible to join
the faculty staff associations at each university. The provision reads as
follows:
After consultation with the academic staff association, (The Board of
Governors is entitled) to do one or more of the following: (i) designate
categories of employees as academic staff members at the university; (ii)
designate individual employees as academic staff members at the university;
(iii) change the designation made under the subclauses above.
According to the complainant, this provision gave the right to the employer to
determine who should belong to a faculty association, contrary to Article 2 of
Convention No. 87.
87. The CAFA explained that the present complaint was similar to previous
complaints brought by various Canadian workers' associations against the
Government, in particular, in 1977, the Canadian Labour Congress and the
Canadian Association of University Teachers' complaint (Case No. 893, last
examined in detail by the Committee in its 194th Report, paragraphs 92 to 118)
and the 1981 complaint of the Alberta Association of College Faculties (Case
No. 1055, examined by the Committee in its 214th Report, paras. 332-350).
88. The CAFA pointed out that it had delayed presenting a complaint to the ILO
concerning the Universities Amendment Act of 1981 in order to observe what
would actually occur in the initial determination by the Board of Governors of
who should be designated as academic staff, and hence members of an
association under the new legislation. It cited an example of such a
determination: the governing authority of Athabasca University declared its
intention to designate as "academic staff members" fewer than one-third of the
persons who had formerly been members of the Athabasca University Faculty
Association by an arbitrary declaration of who were to be excluded on the
basis that they were involved in senior management or that their activities
did not meet the governing authority's definition of "academic". According to
the complainant, the Athabasca University Faculty Association was able to
persuade the governing authority concerned that the original definitions were
unwarranted, and eventually an agreement on designation was reached. However,
according to the complainant, given that the Act continued to give governing
authorities the right to revoke designation at will, following consultation,
the legislative threat to freedom of association continued.
89. In its communication of 21 February 1984, the Government explained that
universities in Alberta were created and structured in accordance with the
principle of academic freedom, the right of each individual member of the
faculty of the institution to enjoy the freedom to study, to inquire, and to
communicate ideas. The Government added that the principle of academic freedom
must be safeguarded through appropriate institutional structures and the role
of academic professionals in the management of universities had long been
recognised.
90. According to the Government, from the complexity of the academic and
administrative functions undertaken by such institutions stemmed the
recognition that university management is the joint responsibility of the
various major elements of the academic community, including faculty,
administrators, governing boards and students. In particular, the faculty must
play a major role in determining curriculum, subject-matter and method of
instruction, research, requirement for degrees, academic appointments and
granting of tenure and dismissals, since only the faculty had the competence
needed for making and forming judgements on such matters. The Government cited
the example of the structure at the University of Alberta where faculty
members played a substantial role in administration and in setting the overall
university policy; "staff members" are defined in the faculty association
collective agreement as all persons who have been appointed to full-time
teaching and research positions which includes all senior academics and
administrators, such as the president, vice-president and deans. The Board of
Governors there consists of, amongst others, the president of the university
and two members of the academic staff. The General Faculties Council, which is
responsible for the academic affairs of the university subject to the
authority of the university, consists of, inter alia, the president, the
vice-president, the deans of all the faculties, the directors of each school,
the chief librarian, the registrar and elected members from all faculties and
schools. The Government explained that all these persons are "academic staff"
yet they are active and influential members of the very body that acts as the
university board's instrument for internal college management, which includes
dealing with questions of tenure, salaries and promotions and the hearing of
appeals and disciplinary matters.
91. The Government, therefore, concluded that within the university
environment traditional employer/employee or managerial/non-managerial
distinctions did not apply. All interest groups active within the institution
played a role in its management, including the designation of "academic
staff", because the Board of Governors comprised significant staff
representation. The Government stressed that the Universities Amendment Act
attempted to create a framework within which dialogue regarding more
traditional conditions of work issues could take place, while at the same time
recognising the unique nature of the universities. In particular, the Act
designated the Board of Governors as the final authority and, secondly, the
Act required "consultation" which the Government interpreted as including full
consultation enabling the persons involved to have reasonable, ample and
sufficient opportunity to express their views.
92. Referring to the example cited by the complainant, the Government
explained that in early 1983 the Athabasca University Governing Council
declared its intention to designate as "academic staff members" fewer than
one-third of those persons who were formerly members of the Athabasca
University Faculty Association. The Governing Council had felt that many
professional staff were involved in senior management positions and their
activities did not fall in the Governing Council's definition of "academic";
as a result of consultation between the Governing Council and the Faculty
Association, an altered scope of designation had been reached, with the result
that many of the persons involved - whose designations had been changed - had
been redesignated as "academic staff members". According to the Government,
this example proved the effectiveness of consultation as required under the
Universities Amendment Act, in particular in view of the fact that the
Governing Council had recognised that fragmentation of the professional staff
into small bargaining units was not an advantage to the University.
C. Information obtained during the mission
93. During discussions with representatives of CAFA, two points were
emphasised. First, the union was trying to have consultations, in good faith,
with the employers (the Boards of Governors) in an effort to overcome the
restrictive nature of s. 17(1)(d.1); such informal consultations had, in fact,
worked in the Athabasca situation referred to in the written complaint.
Secondly, CAFA stressed its concern that there was no right to appeal a
designation of academic staff made by the Boards of Governors under s.
17(1)(d.1). CAFA considered that a possible solution to the situation would be
to include provisions in the legislation for third party arbitration on the
question of designation, such as exists for collective bargaining deadlocks. I
noted that this was a useful suggestion since, in most cases, the job
descriptions indicated those members of the university staff who were involved
in teaching and research and those who were employed in managerial tasks.
94. The Government pointed out that the Athabasca situation had been
particularly tense since the campus had, at the time of the complaint, just
been transferred from Edmonton to the northern town of Athabasca (after which
the university had been named) to continue its "open university" curriculae.
According to the Government none of the three other Alberta universities had
had problems, and the employees of the University of Alberta (in Edmonton) had
indeed been surprised at the complaint because they had no trouble in
negotiating with their Board of Governors the question of academic staff.
Nevertheless, the Government recognised that the legislation did not address
the radical differences in the four universities of the Province. I pointed
out that, although no problems were occurring at present with the legislation,
CAFA wanted some form of machinery to protect against situations such as had
occurred in Athabasca. To this the Government replied that since the other
universities had managed to arrive at designations, no major change in policy
could be envisaged. I indicated that informal machinery such as a letter of
understanding would perhaps suffice.
D. Concluding remarks
95. The issue here is a simple one. The power given to the employer to
designate staff as academic or not gave a high degree of control over the
nature and size of the bargaining unit. Industrial relations in universities,
which have a large degree of participation and consultation, is of an
individual nature. Relationships have been excellent but the designation power
led to a serious problem in Athabasca University, a body which because it
concentrated upon "distance learning", that is to say students not on campus,
has a special staff structure. That problem has been satisfactorily resolved
but the Staff Association has been alerted to a weakness in the law.
96. There is no doubt that a unilateral power to designate does potentially
put the trade union at a serious disadvantage. All that is being sought is
access to independent arbitration of disputed designation. This appears to be
a necessary safeguard to protect the integrity of the bargaining unit. It
seems most unlikely that the machinery will often be used for the relationship
appears to be good. Consideration could, accordingly, be given to the
introduction of the simple safeguard that is being sought by the union.
V. Case of Ontario - No. 1172
A. Introduction
97. The complaint of the Canadian Labour Congress (CLC), on behalf of its
affiliated organisations the National Union of Provincial Government Employees
(NUPGE), the Ontario Public Service Employees Union (OPSEU) and the Canadian
Union of Public Employees (CUPE), was contained in a communication dated 15
November 1982. The CLC supplied additional information in communications dated
15 December 1982, 16 February and 28 October 1983 and 10 January 1984. The
World Confederation of Organisations of the Teaching Profession (WCOTP)
presented its complaint, on behalf of its affiliates the Canadian Teachers'
Federation and the Ontario Teachers' Federation, in a letter of 8 February
1983 and further information in a communication of 7 March 1983. The Service
Employees International Union (SEIU) presented its complaint in a letter dated
6 April 1984. The Government sent its observations in communications dated 25
April 1983 and 7 June and 16 October 1984.
B. The issues
98. In its initial communications the CLC alleged that new Ontario
legislation, "the Act respecting the restraint of compensation in the public
sector of Ontario and the monitoring of inflationary conditions in the economy
of the province" (known as Bill 179), violated Articles 3 and 4 of Convention
No. 87 and Article 4 of Convention No. 98. The Act came into force in late
1982 and covered employees of the Ontario Public Service, all Ontario
municipalities, municipal and provincial corporations, commissions, boards and
agencies including universities, colleges, hospitals and health boards. In
particular, the CLC alleged that of the Act took away the right of the workers
covered to organise and bargain collectively because it allowed the Provincial
Government to extend, arbitrarily, collective agreements for a 12-month period
during which it could unilaterally determine employees' wage increases. In
addition, according to the CLC, the Inflation Restraint Board established
under the Act had been given sweeping powers to resolve disputes without
reference to the unions or employees concerned.
99. The WCOTP, in its communication of 8 February 1983, stated that Bill 179
constituted an unjustifiable interference with bargaining rights. It pointed
out that Bill 179 overrode the usual collective bargaining process prescribed
in various specific Provincial Acts by imposing legislated limits on the wages
of public sector employees, including teachers, because it took effect
"notwithstanding any other Act, except the Human Rights Code, 1981 ...". The
WCOTP further stated that no grave national emergency existed in Ontario such
as to justify this substantial restriction on the fundamental right to
collective bargaining, the Government's professed commitment to the reduction
of inflation not being a sufficient reason for this suspension by legislative
action.
100. According to the additional information provided by the CLC on 16
February 1983 the Act in fact had become law on 15 December 1982 with
retroactive operation as from 21 September 1982 and applied also to privately
owned, para-public sector companies contracted to or funded by the Provincial
Government, for example, nursing homes, ambulance services, garbage
contractors as well as to certain private charitable organisations and
non-government agencies such as the Art Gallery of Ontario and the Botanical
Gardens (section 6). The complainant stated that the coverage of the Act might
further be extended by regulation by the Lieutenant Governor in Council,
without legislative discussion (section 25).
101. The CLC explained its dissatisfaction with the Act as follows: the Act
imposed a 5 per cent increase on the compensation received by employees
concerned for at least a one-year period (called "the control year"),
regardless of the rate of inflation and the value of wage and benefit
settlements in the private sector (section 12); it "rolled back" or
expropriated, without compensation, the existing contractual rights of
employees under collective agreements which extended beyond 1 October 1983 and
limited the increase in compensation and monetary benefits payable to such
employees under such agreements (sections 8, 9, 10, 11 and 12); it removed the
right to strike or to binding arbitration in so far as such activities related
to efforts to obtain monetary benefits in excess of those dictated by the Act
(section 13); it appeared to allow the parties to a collective agreement to
amend non-monetary issues of that agreement without providing a mechanism for
such amendment because the right to strike and the right to binding
arbitration were removed (section 15); it prevented a union from negotiating a
first agreement with an employer where the certification of the bargaining
unit had occurred after 21 September 1982 because employees could only strike
or obtain binding arbitration on non-monetary issues (section 13, in
conjunction with Ontario Regulation 57 of 21 January 1983 made under the Act
whereby first agreements made after 21 September must comply with the 5 per
cent increase in compensation laid down in the Act); it discriminated against
public sector employees by subjecting them to the above restrictions whereas
private sector employees were not so restricted. The complainant pointed out,
in addition, that even if the parties to a collective agreement had agreed to
an increase in wages or monetary benefits in excess of that permitted by the
Act, the Inflation Restraint Board - consisting of appointed officials of the
Ontario Government - could issue an order preventing the parties from
implementing their agreement (section 21 of the Act). In addition, the orders
of the Board might be filed with the Supreme Court of Ontario so that they had
the force of a judgement, thus allowing the Government to enforce them through
any of the judicial methods of enforcement, such as imprisonment and fines.
102. According to the CLC, such restrictions on collective bargaining as
listed above violated Article 4 of Convention No. 98 and Article 7 of
Convention No. 151, and the lack of disputes settlement machinery infringed
Article 8 of Convention No. 151. Moreover, the CLC considered that Article 3
of Convention No. 87 was violated because of the alteration, by legislation,
of the conditions of work over a certain period of time and the removal of the
unions' possibility to act through negotiation. The CLC pointed out that under
section 2(d) of the Canadian Charter of Rights and Freedoms, incorporated as
part of the Federal Constitution in 1981, all persons had the right to freedom
of association in Canada; in view of the new legislation, public servants and
other individuals covered by the Act in Ontario were now denied freedom of
association.
103. The WCOTP, in its communication of 7 March 1983, recalled that, under the
Ontario School Boards and Teachers Collective Negotiations Act 1975, a
collective bargaining process had been established according to which - if
initial negotiations between teachers and their employing boards failed - the
following action could be taken: initial fact-finding, mediation, voluntary
binding arbitration, final offer selection, strike or lock-out. According to
the complainant, free collective bargaining under this process had not
resulted in inflationary wage pressures; in fact, in every quarter since 1978,
the rate of teachers' salaries had fallen below the rate of inflation
producing a cumulative decline in purchasing power of more than 7 per cent.
104. In addition, the WCOTP listed its principal criticisms of the new
legislation as follows: in cases where negotiations relating to the 1981-82
contract period were continuing, Bill 179 terminated negotiations, declared
the previous agreement to be still in force until the first anniversary
following 1 October 1982 (called "the transition period") and imposed a wage
increase not to exceed 9 per cent. Agreements already in effect and expiring
before 30 September 1983, were deemed to be extended for a period of 12 months
(again, "the control year"), with a wage increase of 5 per cent. According to
the WCOTP, Bill 179 also forbade the payment of any merit award,
service-related increment, long-service bonus or allowance in respect of
successful completion of a training programme or course of education,
regardless of whether such payments were provided for in collective
agreements, if the effect would be to increase total remuneration to a level
above $35,000 per annum. This extension by legislation of collective
agreements eliminated the possibility of negotiation even on non-monetary
items, such as conditions of work, and, since strikes were not permitted
during the life of a contract, Bill 179 amounted to denial of the right to
strike; thus, affected employees would have no way to make any changes to
their working conditions.
105. Lastly, the WCOTP criticised the membership and procedures of the
Inflation Restraint Board set up under Bill 179 - in particular the lack of
appeal of its decisions - as well as the wide powers conferred on the
Lieutenant Governor in Council. The WCOTP stated that where the right to
strike was removed, it was imperative to replace it with an adequate dispute
resolution mechanism - Bill 179 left affected employees with no such
mechanism.
106. In its communication of 28 October 1983, the CLC referred to a recent
decision of the Supreme Court of Ontario (Broadway Manor case) and the
Government's public announcement of its intention to extend the duration of
its control programme by legislation at the beginning of November 1983. The
decision, dated 24 October 1983, ruled that section 13(b) of Bill 179 was
invalid because it infringed the right to freedom of association - which
included the right to change bargaining agents, to bargain collectively and to
strike - which was guaranteed under the Canadian Constitution. Only this
section of the legislation was held to be unconstitutional because it
restricted collective bargaining over non-compensation matters which,
according to the Court, could not be justified as being reasonably necessary
to control wage increases. On 10 January 1984, the CLC sent certain
documentation referring to the replacement of Bill 179 by new draft
legislation (known as Bill 111) which, if enacted, would take effect as of 1
October 1983.
107. On 6 April 1984 the Service Employees International Union presented its
submissions against Bill 179 reiterating the above-mentioned points for
dissatisfaction with the legislation (it removed the right to change
bargaining agents, to bargain collectively on non-monetary as well as monetary
matters and the right to strike or resort to interest arbitration for a
broadly defined public sector) and adding that the legislation is not in
harmony with Convention No. 154.
108. Referring to the importance of the independence and autonomy of parties
to the collective bargaining process and the voluntary negotiation of
collective agreements recognised by the Committee on Freedom of Association as
fundamental aspects of Convention No. 98, the SEIU claimed that Bill 179, by
interfering with existing provisions of freely negotiated collective
agreements, constituted an unnecessary and unacceptable interference in the
results of free collective bargaining and contravened Convention No. 154. It
cited the example of the Sensenbrenner Hospital employees who were awarded an
11 per cent overall pay increase in the summer of 1982 by a three-man interest
arbitration board and some of whom - since they were among the lowest paid
workers in the hospital sector - were awarded a supplementary award in October
1982. On 2 November 1983 the Inflation Restraint Board ruled that the special
wage increases contained in the supplementary award were null and void to the
extent that they exceeded the 5 per cent limit prescribed by the Act, and
ordered that any wages received by the 72 employees concerned in excesss of
the prescribed increase were to be repaid to the hospital. In January 1984 the
Board had refused a request made by the SEIU that it recommend, under section
17(5) of the Act, that the employees of the Sensenbrenner Hospital be exempt
from its application. According to the SEIU, there had not been any
recommendations or exemptions granted to workers under these provisions of the
Act.
109. Lastly, the SEIU criticised the Government's statements that conditions
of work other than compensation were not disrupted by Bill 179, that
non-monetary aspects of a compensation plan might be made under section 15 of
that Act, that the right to select a bargaining agent was only delayed for at
most one year and, most importantly according to the complainant, that
although the scope of collective bargaining had been temporarily narrowed it
still covered trade-offs between wages and benefits and the determination of
non-monetary terms and conditions of employment. The SEIU alleged that this
last justification was entirely inaccurate and unfounded especially in view of
the Act's suspension of the obligation to bargain in good faith as required
under the Labour Relations Act.
110. Responding to the complaints in its communication of 25 April 1983, the
Government stated that its adoption of the new legislation was a responsible
and necessary action, taken only after consideration of a wide range of
restraint options to overcome the worst recession since the Great Depression.
According to the Government, in 1981 and the first half of 1982 public sector
wage increases were higher than private sector settlements in Ontario and
there was evidence that administered prices - prices set or directly
authorised by ministries or public agencies - were a major factor perpetuating
inflation.
111. The Government pointed out that the compensation restraint programme
provided for a temporary (in most cases, only one year) constraint on wage
increases of up to 5 per cent or 9 per cent, allowing conditions of work other
than compensation to be changed by mutual agreement (section 15 of the Act).
It stated that special provision was made for workers with low incomes
(section 12) and emphasised that the Lieutenant Governor in Council could
exempt compensation plans from the Act (section 25). According to the
Government, trade-offs between wages and benefits could be made with the
permission of the Inflation Restraint Board under section 14, and it listed
examples of such trade-offs.
112. As regards the alleged infringement of Convention No. 87, the Government
emphasised that the legislation in fact favoured worker organisations in one
way because workers with collective agreements were automatically entitled to
a 5 per cent wage increase whereas other workers could receive less (section
12(1)(d)). For workers already represented wishing to change certified
representatives, the Government admitted that the extension of collective
agreements under the Act would delay this for, at most, one year, but pointed
out that under the normal collective bargaining system such a change was in
any case also subject to a time-limit - of 90 to 120 days, for example under
the Labour Relations Act. As for the alleged limitation on the unions' freedom
of action, the Government stated that this was incorrect: while the scope of
negotiations had been temporarily restricted, the collective bargaining system
remained in place and unions were free to organise their activities, the right
to strike and to binding arbitration only being delayed temporarily. An
example of this freedom of action was the case of groups which had been
certified before 21 September 1982 but which had not attained their first
collective agreement. Under Regulation 57/83 made under the Act, such groups
could use all of the normal collective bargaining procedures - including
strike action - to arrive at first collective agreements on condition that the
agreement provided for a compensation increase of 5 per cent for a 12-month
period commencing between 1 October 1982 and 1 October 1983 and that the
provisions of the whole agreement were substantially comparable to those of
employees in related labour markets.
113. As regards the alleged infringement of Conventions Nos. 98 and 151, the
Government stated that the Act did not discontinue the voluntary negotiation
machinery but merely prolonged collective agreements, with specified
provisions for wage increases, for the period stipulated. It stressed that
non-monetary terms and conditions could be altered by mutual agreement and the
parties were free to agree to use mediators and arbitrators in this
connection. According to the Government, there had been quite a few instances
of collective bargaining resulting in the full 9 per cent being granted for
the 12-month period prior to the control year under section 10 of the Act. As
for the limitation on disputes settlement procedures, the Government stated
that, under section 14 of the Act, the Inflation Restraint Board could
arbitrate, giving decisions which were binding on the parties and also
indicating its reasons although the Act did not require it to do so. Moreover,
the Government pointed out that under sections 17 and 25 of the Act groups of
employees could be exempted from the application of Part II of the Act; it
recognised that these provisions had not yet been utilised.
114. In its communication of 7 June 1984, the Government referred to the
appeal lodged against the decision of the Divisional Court of the Supreme
Court of Ontario dated 24 October 1983 which held section 13(b) of the
Inflation Restraint Act to be invalid. The Government enclosed extracts from
Hansard containing statements made by the Attorney General of Ontario which
reflected the Government's concern over "the implications of the very broad
interpretation given by the Court to freedom of association".
115. In its communication of 16 October 1984, the Government again referred to
the economic crisis of 1981 which had led all Canadian provinces except
Manitoba to introduce public sector restraint programmes. According to the
Government, 71 per cent of all agreements and 69 per cent of all employees
affected by the Inflation Restraint Act had been subject to controls for 12
months only. It also presented statistics to show that after the Act had been
introduced there had been a dramatic decrease in the rate of inflation.
116. As regards the negotiation of non-monetary issues under section 15 of the
Act, the Government pointed out that the Ontario Ministry of Labour had
continued to offer and provide mediation services to parties covered by the
Act who agreed to bargain non-compensatory issues, and negotiations had taken
place on such items as grievance procedures, pupil-teacher ratios and job
security. The Inflation Restraint Board had made 655 decisions and orders
between 1 December 1982 and December 1983, a number of which resulted from
issues which had arisen in negotiation. The Government contended that such
mediation fulfilled the requirements of Convention No. 151.
117. The Government also pointed out that the Lieutenant Governor's power
under the Act to terminate the application of the controls to any compensation
plan had been used with respect to certain municipal employees' retirement
plan (Regulation 92/83) and to exclude certain handicapped people, persons not
covered by minimum wage legislation and persons who received less than 50 per
cent of their expenses from a government employer (Regulations 819/82 and
844/82). Moreover, the Act required the Inflation Restraint Board to
investigate price increases in government services called "administered
services" referred to it by the Minister. For example, in 1982, the Board had
investigated a price increase for Northern and Central Gas which had been
approved by the Ontario Energy Board, and had concluded that the price
increase did not comply with the Minister's criteria; the proposed price was
subsequently reduced to bring it into compliance. Moreover, the Cabinet
Committee on Administered Prices had maintained an increase of only 5 per cent
in over half the cases submitted to it, e.g. for legal aid fees, beer prices,
school-bus tariffs, tuition fees for Canadian students, provincial park fees,
resident fishing licence fees and Northern Telephone Ltd. charges. Thus 92 per
cent of the adminstered prices had kept within the 5 per cent increase
guide-line.
118. The Government explained that the legislation which replaced Bill 179 as
of October 1983 - the Public Sector Prices and Compensation Review Act (known
as Bill 111) - provided for full collective bargaining of both compensation
and non-compensation issues and allowed the normal strike or arbitration
procedures when the parties were unable to conclude a collective agreement.
119. Lastly, the Government referred to the SEIU's allegations, stating that
at no time during the operation of the Inflation Restraint Act had the right
of employees to establish, join and participate fully in organisations of
their own choosing been withheld. Only situations such as that which had
arisen in the Broadway Manor case had been affected by the Act; in that case
only certification had been delayed and certification under Ontario law was
not a prerequisite to the lawful establishment of or participation in a "new"
union. The Government stated that its appeal to the Ontario Court of Appeal
against the Divisional Supreme Court decision in the Broadway Manor case had
been heard on 4 June 1984 but the decision had not, at the time of the
Government's reply to the ILO, been rendered. As for the situation in the
Sensenbrenner Hospital, the Government denied that the Inflation Restraint
Board had ordered a recovery of the excess payments that had already been
made, but merely referred the matter back to the parties.
C. Information obtained during the mission
120. During the mission's stay in Toronto I had the opportunity to meet
representatives of the following organisations: Service Employees
International Union (local 204), the Ontario Public Service Employees' Union,
the Canadian Union of Public Employees and the Ontario Teachers' Federation.
These meetings were followed by a meeting with a number of Government
officials representing the Province of Ontario. In the course of my meetings
with the trade union organisations I obtained information in the form of oral
presentations and written submissions. Written submissions and documentation
were also supplied on behalf of the provincial government.
121. At my initial meetings with the Canadian Labour Congress in Ottawa the
problems referred to in the complaint resulting from the coming into force, on
21 September 1982, of the Inflation Restraint Act (Bill 179), had already been
mentioned.
122. Since the main thrust of the arguments advanced by all the trade unions
was virtually identical as regards what they considered to be a violation of
their trade union rights consequent upon the enactment of Bill 179, and to
some extent, the later enactment, on 10 October 1983, of the Public Sector
Prices and Compensation Review Act (Bill 111), it will suffice here to
summarise these arguments and the information supplied in substantiation of
them.
123. I should, at this point, state that I emphasised to all the parties that
no formal allegations concerning Bill 111 had been submitted to the ILO and
that, strictly speaking, this legislation fell outside my terms of reference.
However, since Bill 111 is directly relevant to the issues raised in the
formal complaints and is the latest act by the Government in the area of
public sector collective bargaining, I felt that it was appropriate to record
the unions', as well as the Government's views on this later enactment and its
effect on public sector bargaining. Indeed, at the time of the mission, Bill
111, itself a temporary enactment, was due to expire.
124. The principal claim of all the unions was that the enactment of Bill 179
in September 1982 not only put an end to collective bargaining, and indeed to
trade union activity, for a period of almost two years, but also prevented the
coming into force of collective agreements freely concluded prior to the Act.
Generally, agreements that were due to expire on or after 10 October 1981
would be extended for a period of 12 months provided that compensation rates
did not exceed 9 per cent. These agreements on their expiry and every other
agreement would be deemed to include a provision increasing compensation rates
by 5 per cent for the ensuing 12-month period. The unions argued that it was
questionable that the economic situation in the country, and more specifically
in the province, justified these measures and even if there were economic
difficulties there was no justification for what amounted to a virtual ban on
trade union activity for the period during which the Act was to remain in
force. In effect, since collective bargaining was excluded, even on
non-monetary issues, there could be no arbitration, which was an accepted
substitute for the denial of the right to strike in the public service.
125. The SEIU, the majority of whose 33,000 members were employed in the
hospital and nursing home sector said that it had always accepted the
substitution of the right to strike for the right of independent and binding
third party arbitration. Bill 179, and subsequently Bill 111, showed that the
Government supported neither the right to strike nor truly independent and
impartial arbitration. Similar arguments were advanced by OPSEU, representing
80,000 members, who added that the 5 per cent limit on wage increases had
widened the gap between lower-paid and higher-paid employees. Some 15,000 of
their members employed in part-time employment, for whom protracted
negotiations had resulted in a two-year agreement for a 9 per cent and 11 per
cent increase in increment, had been denied the 11 per cent increase on the
enactment of Bill 179. Other categories of workers had been similarly
affected. OPSEU also introduced witnesses who described the effects of Bill
179 on laboratory workers and on the support staff of community colleges
(approx. 5,000) who had been guaranteed, during the 1981 bargaining operation,
that their wages would be increased by 20 per cent over the following three
years. All of these categories had suffered under the wage controls imposed by
Bill 179.
126. The CUPE emphasised that Bill 179 not only restrained compensation but
eliminated the right to bargain effectively with employers over non-monetary
provisions in a collective agreement. This, they added, had been criticised by
the Ontario Court of Appeal (Broadway Manor case) in a decision issued on 22
October 1984, a decision that was of little practical relevance since Bill 179
had then, for all practical purposes, been replaced by other legislation (Bill
111). CUPE also emphasised that during the existence of Bill 179, workers
governed by the Labour Relations Act were effectively deprived of the right to
strike. In addition, the possibility of resorting to arbitration by workers
governed by the provisions of either the Hospital Labour Disputes Arbitration
Act or the Crown Employees Collective Bargaining Act was effectively
eliminated.
127. Another point made by CUPE was that, as a result of Bill 179, they had
originally claimed that the right to organise was infringed since workers
could not change bargaining agents during the control period. This was another
matter which has been settled by the Court of Appeal of Ontario in the
Broadway Manor case. The Court held that the effect of Bill 179 was not to
extend collective agreements themselves, but only to extend the terms and
conditions of such agreements. Bill 179 did not, therefore, curtail the right
to change bargaining agents. As stated above, however, the decision in the
Broadway Manor case was only handed down on the expiry of Bill 179.
128. CUPE provided a number of examples of some 100 agreements, concluded
prior to the enactment of Bill 179, that had been "rolled back" by the Act,
and explained that many low-paid workers were affected by this measure. This
union also mentioned that, in the hospital sector, a close wage relationship
had always existed between workers represented by CUPE and those represented
by SEIU. However, the SEIU hospital members, who do exactly the same work as
CUPE members, were awarded 11 per cent in a one-year contract arbitrated just
prior to the institution of Bill 179, whereas CUPE members received a maximum
of 9 per cent in the first year of their agreement, pursuant to the provisions
of Bill 179. As a result CUPE members were adversely treated in comparison
with SEIU members simply because of the luck of different termination dates of
collective agreements.
129. The Ontario Teachers' Federation, which represents over 104,000 teachers
employed in the publicly supported elementary and secondary schools in
Ontario, also complained that Bill 179, and later Bill 111, had the effect of
overriding the negotiating process established under the School Boards and
Teachers' Collective Negotiations Act, 1975, as amended in 1983. In its view
no economic emergency existed in Ontario to justify the enactment of Bill 179.
In addition, the right to strike which teachers have in Ontario, was suspended
during the control period imposed by the Act. Detailed information was
supplied by the Federation showing the impact of Bill 179 on the wages of
teachers in the province.
130. The Public Sector Prices and Compensation Review Act, 1983 (known as Bill
111), which replaced Bill 179 did not, according to the unions, restore free
collective bargaining but imposed, in a more subtle manner, a further period
of restrictions on collective bargaining. In effect, Bill 111 provided that,
during a "restraint period" of 12 months, the Inflation Restraint Board was
empowered to fix and monitor all changes in compensation in the same broadly
defined public sector as Bill 179, in order to determine whether compensation
changes complied with the fiscal policy of the province as determined by the
Treasurer of Ontario. The Treasurer had announced that increases in average
compensation should not exceed 5 per cent during this restraint period.
Furthermore, the Government had announced that government grants and transfers
to publicly funded institutions covered by Bill 111, as well as allocations to
its own civil servants would provide for average compensation increases of up
to 5 per cent. While compensation increases in excess of 5 per cent were
possible, the Inflation Restraint Board, the Government and leaders of
municipalities had made it clear that any attempt to exceed the 5 per cent
guide-line would result in lower transfer payments from the province.
131. In submitting these comments on Bill 111, both CUPE and SEIU also
referred to the requirement, under section 10 of the Bill, that arbitrators
take into account the "employers' ability to pay (...) in the light of
existing provincial fiscal policy". According to the unions, the Government,
using this device, could unilaterally determine the funding of public-sector
institutions, and the reliance on the employer's ability to pay effectively
meant that the Government could also unilaterally establish wage rates. Any
claim of independence and impartiality of the arbitration process was also
undermined. The Canadian Teachers' Federation submitted similar comments in
connection with Bill 111.
132. In addition, all the unions referred to the fact that a number of a
well-known interest arbitrators had rejected the criterion of "ability to pay"
for public-sector wage determination. Statements made by some leading
arbitrators were produced in which they referred to the "atmosphere of
intimidation" which the legislation engendered and to the public statements
made by the Treasurer indicating that, unless the economic policy of the
Government was followed, restrictive legislation of a long-term nature would
be introduced.
133. With the representatives of the Government of the Province of Ontario I
raised all the issues that had been brought to my attention during my meetings
with the various public sector unions. The Government representatives claimed
that compelling reasons of national and provincial economic interest had led
the Government to conclude that it should control wage rates in the public
sector. In 1982, they explained, Ontario was experiencing recession,
double-digit inflation (11-12 per cent), loss of international competitiveness
and loss of jobs in the private sector (approximately 164,000 jobs in Ontario
alone). The restrictions on public-sector wages contained in Bill 179 were
imposed as an exceptional measure. The Bill was not intended to restructure
labour legislation in the province, nor was it intended to be permanent. Bill
179 imposed wage controls for only 12 months for the majority of the
employees, and only 31 per cent of the employees affected were subject to the
transition period which could extend controls for two years. No employees were
now affected by Bill 179.
134. The subsequent legislation (the Public Sector Prices and Compensation
Review Act, 1983 - Bill 111), established a guide-line for public-sector
increases for a one-year period. In the case of public-sector employees whose
agreements were determined by interest arbitration, the new legislation
required interest arbitrators to cost any change in the terms of collective
agreements and to consider the employer's ability to pay. In the case of
public-sector employees who negotiated agreements (including those who had the
right to strike) the legislation required the filing of information with
respect to any changes in the compensation plan. If an arbitrator determined,
or the parties agreed to wage increases in excess of the 5 per cent
guide-line, the legislation had no mechanism to "roll back" the wage increases
thus determined or negotiated. The Government representatives added that,
since Bill 111 was now at an end, no wage restraint legislation was presently
in force in Ontario.
135. The Government representatives further explained that, in considering the
economic situation in 1982 a number of options for action had been considered,
including a national programme of wage and price controls. Because a consensus
with the other provinces could not be reached on this, and because of the
difficulties encountered by reason of the nature of the Province of Ontario
itself as regards a possible programme covering public and private-sector
workers, a programme controlling prices and wages in the public sector alone
was decided.
136. The Government emphasised that safeguards were provided to protect
workers' living standards. In addition to controlling prices, the rate of
inflation was lowered (to less than 11 per cent during the third quarter of
1982). Since Bill 179 was introduced, inflation had continued to drop, and for
the first quarter of 1985, it stood at 3.6 per cent. Public-sector job
security and employment was also maintained at a time when there was much job
loss in the private sector. Fair and reasonable increases were also ensured
for employees covered by the legislation. In this connection, the Government
supplied statistical information showing that increases under the legislation
were comparable to private-sector wage increases and had in fact exceeded
private-sector wage increases since the fourth quarter of 1983. Bill 179 also
made provision for minimum increases, low-income earners and for wage
adjustments. It also permitted newly certified unions, i.e. those certified
prior to the enactment of Bill 179, to freely negotiate compensation increases
for the period leading into the control period in their first agreements. The
ability to change non-compensatory items of a collective agreement by mutual
consent was also maintained by the Act as was eventually shown by the decision
of the Ontario Court of Appeal to this effect in the Broadway Manor case.
137. Referring to the SEIU complaint that Bill 179 had suspended the right to
change bargaining agents, the right to bargain collectively on non-monetary
items and the right to strike or to resort to interest arbitration, the
Government representatives referred to the decision of the Court of Appeal in
the Broadway Manor case which established that the union was wrong in its
allegations. The Court had, however, expressed some doubt that the employees
could strike or resort to arbitration without actually making any decision on
this point.
138. The Government added that a wide range of consultations had taken place
prior to the enactment of Bill 179 and there had been a broad political
consensus for its adoption. The Government had been satisfied with the results
of Bill 179 and had replaced it by Bill 111 which was not an exceptional
measure taken in a period of crisis. Bill 111 was intended as a further step
towards a normal situation and re-established collective bargaining in the
public sector. The continuing existence of the Inflation Restraint Board was
merely for the purpose of ensuring its participation in current litigation.
139. As regards the requirement, under Bill 111, that interest arbitrators
take account of provincial fiscal policy and the ability to pay of the
employer, the Government representatives pointed out that sums transferred to
public institutions had always been decided upon by the Government. Under Bill
111 the amounts were clearly stated. In cases where the 5 per cent norm was
exceeded either by arbitrators or by the needs of a public institution ways
could be found to provide the extra funds required.
140. Regarding the unions' concern that the Government had appeared to be
constantly trying to find ways of reducing flexibility and placing pressures
on arbitrators, which eroded and damaged confidence in the arbitration system,
the Government representatives emphasised that arbitrators were merely asked
in Bill 111 to keep certain criteria in mind. Many did not feel bound by these
criteria and some 200 awards had been made in 1984/85, the majority of these
exceeding negotiated settlements. Under the Labour Relations Act, a panel of
arbitrators had been established for grievance disputes and it was generally
from this panel that arbitrators were selected to deal with interest disputes.
The Government admitted that its information on wage settlements in certain
sectors (e.g. in the municipalities) was inadequate but that efforts were
being made to resolve this problem.
141. On the question of "roll backs", the Government admitted that this had
been seen to be harsh but again stated that they had been dictated by economic
necessity. The Government also pointed out that it could not recall, apart
from one or two cases, that the problem of the absence of negotiations on
non-monetary items to have been a significant one.
142. The Government also admitted that there might be some longer-term effects
of Bill 179, for example on job evaluation and classification programmes, but
it was expected that the return to collective bargaining would resolve any
anomalies that remained. It was also clear that, in some cases, employers had
taken advantage of the legislation by refusing to pay negotiated wage
increases. This was, however, a matter for the courts and one over which the
Government had little control.
143. Referring again to the decision in the Broadway Manor case and the
problem of changing bargaining agents during the one-year period of control
under Bill 179, the Government explained that it had considered this matter
prior to the Bill's adoption. It had been thought that it was inappropriate
for a change in bargaining agent to take place during that period since the
incoming union would not be able to negotiate. The Government had discussed
this question with the unions whose reaction to the problem had been a mixed
one. In any event, according to the Government, since the public service
unions were well-established it was unlikely that any challenge would have
been made during the control period. The Government recalled that newly
certified unions were not affected by what was subsequently proved - by the
decision in the Broadway Manor case - to be a false problem.
D. Concluding remarks
144. An obvious feature of this complaint is that it concerns the provisions
and effects of the Inflation Restraint Act, 1982 (Bill 179) which is no longer
in force. Indeed, that statute was followed by Bill 111, a measure which
itself is due to expire at the end of September 1985. No further legislation
in this area has been proposed at the present time. It is none the less
important to complete the process of assessing Bill 179 against ILO standards.
Even though it is no longer in effect, apart from some residual matters
remaining for technical purposes, there is still a strong divergence of views
in the province as to its nature and effect. In addition, it has been
suggested that some practices introduced by the legislation will continue to
operate as a result of informal administrative action. This point, too, has
to be considered.
145. Bill 179 was enacted to counter rising inflation. Its effect, put
generally, was to impose a fairly rigid control of wages in the public sector.
This was built around a "control year" with a limit of a 5 per cent increase.
This was embedded in less severe controls which could be effective as a 9 per
cent ceiling. The whole exercise could affect a particular bargaining unit
over a two-year period. It was suggested that the Government had failed to
establish that there was in fact an economic crisis. There had been
insufficient research and understanding of the problem. It was also said that
wage increases would have fallen year by year without legislative
interference. Both these beliefs are of course matters of opinion. The basic
data is not seriously in dispute. There is a marked difference of
interpretation between the trade unions who made these points and the
Government. It was suggested that such divergence of view should be resolved
by some independent mechanism, such as the courts. It is difficult to see the
necessity in principle for such a fetter upon the exercise of the political
will. There is every opportunity for the matters concerned to be tested
through debate in the political forum.
146. Since the public sector was being singled out for special control, on the
assumption that wages in the private sector would follow the trend set, it
does seem essential that there should be ample time allowed for consultation.
Failure to do this might indicate that the action was indeed precipitate and
partisan. There was no complaint about lack of consultation. What was said was
that the views of the trade unions had no discernible effect on the attitude
and actions of the Government. That is a different matter.
147. So far, these remarks relate to the political aspects of the concern
expressed. The actions do raise, however, practical and legal considerations.
The most obvious is the impact the legislation had upon existing collective
agreements. They were subject in many cases to amendment in particular a
lesser wage increase being allowed. A lawyer can characterise such action as
the expropriation of rights.
148. Such a result is difficult to avoid where a scheme of restraint is
imposed which it is intended should have a speedy effect. The Government was
aware of the problem and chose to apply what it regarded as "rough justice".
Indeed attention was paid to attempting to mitigate some of the consequences.
Most notable was some degree of protection of the first agreement, that is to
say, the first agreement made after a trade union has secured bargaining
rights. Such agreements often involve substantial improvements in terms and
conditions. This was recognised by the leglisation and the impact of the 5 per
cent delayed to allow the first agreement to operate.
149. Despite these concerns, the legislation appears to have had a greater
impact on free collective bargaining than was intended or anticipated. Three
aspects of this appear to be particularly important: the "chilling effect" on
collective bargaining generally, damage to policies being pursued by the trade
unions from bargain to bargain and the machinery for certification during the
so-called "open" period.
150. Although the legislation applied only to monetary items it seems to have
had an effect on matters not covered by the Act on which the parties were free
to bargain. In part this was made more likely because there had been the
anticipation of a switch of bargaining to non-monetary items. Some steps had
been taken to prevent this being used to undermine the intended financial
control. There can be little doubt that there were items adversely affected,
health and safety issues spring to mind. Now the problem can be seen in the
light of experience; it can be tackled should such a need arise in the future.
Particular attention should be paid to the availability of the disputes
resolution mechanisms so that normal relations can continue hampered only by
the minimum of restrictions needed to secure the objects of the emergency
measures.
151. The general objectives which the trade unions in the public sector were
pursuing and which suffered setbacks are, for example, remedying low pay and
seeking equality for women. Both objectives are legitimate, indeed
praiseworthy. There can be no doubt that Bill 179 constituted a check to their
progress. Most obvious is the use of a norm for pay increases expressed as a
percentage, rather than as a flat increase. The Government accepts that this
consequence occurred and points out that some steps had been taken to mitigate
the result. Some of the provisions did seek to give special advantages to the
lower paid: the highest were to some extent held back. Whether enough was done
is in dispute. Recognition of the need to take into account such
considerations when legislation is being prepared seems to be accepted. This
seems to be an important point.
152. The third example of the wider effects of the legislation concerns the
"closing" of the "open" period which is a feature of the Canadian industrial
relations system. The legislation purported to close the open period of the
control year. This was thought to deny the unions the right to gain
certification. The matter was taken to the courts. Again, it is clear that the
object of the provision was to secure as much industrial relations tranquility
as possible during the restraint period. The question raised is whether such
action was convenient and useful rather than necessary. It would need detailed
knowledge of what the precise effect was during the operation of Bill 179 but
prima facie the limitation appears to seek to avoid disturbance rather than
secure an essential component of the limitation plan.
153. Attention was drawn to the Broadway Manor case and two comments might be
useful. The decision was that the open period was not in fact closed - a
distinction being made between terms and conditions which were continued and
the collective agreement which did not. The decision turned of course on the
precise wording of the provisions of Bill 179. In that it has narrow interest,
but wider considerations arise. The case shows the importance of prior
discussion of all the possible consequences of proposed legislation, that is
to say, of consultation. What is decided then will be effective. On the other
hand, reliance on the courts to clarify or interpret the legislation may bring
changes but these will almost invariably prove ineffective since the decision
is unlikely to be available during the currency of legislation which is short
term. Consultation not only on the wider issues - should a provision be
enacted - may merely lead to reaffirmation of the policy proposed but, on the
practical consequences, what exactly is likely to happen might lead to
sensible modifications being adopted.
154. One of the clearest and most important points put to us by the various
trade unions was the impact the legislation has had on the regular industrial
relations machinery. Various examples were given. It was felt that the
employer, where his financial ability to meet trade union claims was severely
limited by government fiscal policy, was unable to bargain with freedom. The
scope of his flexibility might vary but his attitude was significantly
altered. There were some signs of this in some of the instances put but there
was too little information to enable the position in the Province of Ontario
to be confidently assessed.
155. The problems the legislation and subsequent practice have posed for the
important component of the system, independent arbitration, are much clearer
and were put forward with much greater force. During the period when Bill 179
operated on collective bargaining, of course norms were in effect substituted
for arbitration. Since then, under Bill 111, the idea of a norm, or desirable
maximum increase formulated by the Government has continued. Arbitrators are
given quite specific indications of the Government's view and are expected to
take this into account. There are widely differing views on the effect of this
practice, which appears likely to continue. It must be true that arbitrators
will always have in mind the economic background in which they are operating.
Many independent arbitrators are academics but few live in such ivory towers,
as is commonly supposed, as not to have a clear awareness of these factors. In
the unlikely chance of this being lacking, no doubt the parties will raise the
issue in their statements. On the other hand, the publication to the
arbitrator of a norm may have some effect. Again empirical evidence is less
than clear since, alas, it is not possible to assume that when an arbitrator
says he has "taken into account" such a figure, he is indicating that he has
or has not been greatly influenced by it. There are ample instances of the
arbitrator expressing scepticism. To balance this it appears that several
arbitrators have refused to act feeling that their freedom of action was
fettered.
156. The independence of arbitration is of paramount importance. It is the
feature of the system in the public sector which seeks to balance the
non-existence of the right to strike. That equation is one which not all those
giving evidence accept as fair or proper but that question does not arise at
this time. What is important is that where that system operates, arbitration
must be independent. Confidence in arbitration is easily destroyed so
everything must be done to ensure that doubts as to independence should be
assuaged. It is not a question of testing or challenging their validity. It is
essential to see whether steps can be properly taken to strengthen
independence. One significant point put concerns the appointment of
arbitrators. If at all possible, this should be done by a body independent of
Government, a Labour Relations Board, a court and so on, depending on the
particular structure. It is a matter that would require serious consideration
by the provincial authorities.
157. Finally, it is necessary to note that the way in which these remarks are
to be interpreted depends very much on whether inflation restraint secured by
putting pressure on the public sector in particular is to continue. It has
already been noted that Bill 111 does not appear to have a successor.
Continuation of the policy, if at all, will be through administrative and
practical measures. Experience indicates that they can play an important part
in the Government's policy. If they do, since the method adopted is informal,
greater care will be essential to ensure that the damage to industrial
relations structures, especially the right to seek certification, to bargain
collectively and to enjoy truly independent arbitration, does not occur. The
trade union apprehensions appear to run ahead of what is happening -
justifiably so. Awareness of these fears and discussion of the problems should
help to avoid unwitting damage to the very vital safeguards built into current
Ontario legislation.
VI. Case of Newfoundland: No. 1260
A. Introduction
158. This case has its origin in a formal complaint submitted, on 3 February
1984, by the Canadian Labour Congress on behalf of the Newfoundland
Association of Public Employees (NAPE) which belongs to the National Union of
Provincial Government Employees (NUPGE), an affiliate of the CLC. The
Government's observations in response to the complaint were contained in a
communication of 29 May 1984.
B. The issues
159. On 19 August 1983 an Act (known as Bill 59) was proclaimed the object of
which was to introduce amendments to the the Public Service (Collective
Bargaining) Act, 1973. According to the CLC these amendments are in violation
of ILO Conventions Nos. 87, 98 and 151 in three different areas: the
definition of "employee" contained in section 2(1) of the Bill, the
designation of "essential" employees (section 10), and the limitation placed
on strike action (sections 10(12), 23 and 24). According to the CLC Bill 59
was the latest in a series of restrictive anti-union enactments introduced to
control wages in the public service and limit the possibilities for strike
action.
160. The Government of Newfoundland explained that, between 1973 (when the
Public Service (Collective Bargaining) Act extended bargaining rights to
employees of the Provincial Government) and 1983, it had become obvious that
section 10 of the Act was not effective in that almost every application
before the Labour Relations Board had been found by either the Board or the
courts to be defective in some respect. Section 10 clearly needed to be
amended to provide for the designation of essential employees whose services
were necessary for the health, safety or security of the public. In addition,
unions continued to apply to the Labour Relations Board for inclusion in
bargaining units of management and confidential employees and, although the
Board generally rejected these efforts, it was determined that the Act should
also be amended to remedy an oversight in the legislation and explicitly state
the exclusions. According to the Government, no amendments had been made to
the basic Act prior to Bill 59. Because of preliminary discussions with
various public service unions and concerns expressed regarding three
particular sections, the Act had been made subject to proclamation. The
Minister of Labour had contacted each of the public service unions and had
invited recommendations to be submitted to the Government regarding expressed
concerns. No concrete proposals or written submissions were received by the
Government and, accordingly, on 19 August 1983 the amending Act was proclaimed
to come into force on 1 September 1983.
(i) Exclusions from the definition of "employee"
161. The CLC maintained that the amended definition of "employee" had resulted
in the exclusion of more than 2,000 government employees from membership of
NAPE and prevented them from joining any other union. This group included
justice department solicitors, legislative staff, middle management and
consultants and could exclude a number of employees who currently had union
membership with the bargaining agent that represented provincial government
employees, namely NAPE. The complainant considered as particularly offensive
new section 2(1)(i)(xii) which specifically prohibits people hired for
programmes sponsored by Government grants and working for the provincial
government from joining a union; it suspected that the provincial government
would use this subsection to lay off permanent employees and hire non-union
personnel to do the work of those laid off, work which had traditionally been
done by members of the bargaining unit concerned.
162. In its written response to the complaint, the Government stated that the
amendments to section 2 had been necessary to prevent interference by
employers in trade union activities and to avoid conflicts of interest
involving management staff. It pointed out that the exclusions described in
section 2(l)(i)(viii), (ix), (x) and (xi) concerned high-level employees whose
functions are normally considered as policy-making or managerial, or employees
whose duties are of a highly confidential nature as contemplated in Article
l.2 of Convention No. 151. The Government stated that none of these employees
had been members of bargaining units at the time of enactment of Bill 59, nor
had the union involved ever made application for inclusion in a bargaining
unit of any of these categories of employees. According to the Government, the
exclusions provided for in section 2(1)(i)(xiii), (xiv) and (xv) concern
persons on whom the Labour Relations Board, and not the Government, makes a
determination as to the appropriateness of inclusion in a bargaining unit.
These employees would be those who, in the opinion of the Board, performed
management or supervisory functions, or were employed in a confidential
capacity in matters relating to labour relations. In the past, in utilising
these criteria the Board had taken a fairly restrictive approach to exclusions
from the bargaining unit.
163. The Government stated that section 2(l)(i)(xv) allows for the exclusion
of employees who, in the opinion of the Board, provide advice to the employer
in relation to the development or administration of policies or programmes and
that it was senior consultants who were intended to be excluded from the
bargaining units under this provision. Although these employees might not be
supervisors in the normal sense of the word, or have access to confidential
labour relations information, according to the Government they did form an
essential part of the senior management team in many government organisations
and were therefore clearly inappropriate for inclusion in a bargaining unit.
The Government emphasised that there had been no decisions by the Labour
Relations Board interpreting this provision to date.
164. As regards section 2(l)(i)(xii) the Government stated that this was an
amendment to deal with a unique situation concerning which there had been a
written agreement with the union concerned, namely that of individuals
receiving social assistance from the Provincial Government, with the aim of
helping them to become self-sufficient by introducing them to the workforce
and of qualifying them for unemployment insurance benefits. The Government
explained that many of these individuals had no work experience or job skills,
thus making it virtually impossible for them to obtain employment in difficult
times; they were placed throughout the province with a variety of employers,
many in the private sector, in order for them to learn a skill or gain some
experience so that they might find a job in the future; they were not
employees in the true sense of the word since they were not required to report
for work, and, if they did not, they simply returned to social assistance; the
Government paid their wages and employment was for a specified period of time.
The Government pointed out that the union had agreed that these individuals
would not be required to pay union dues and would not be covered by collective
agreements. However, in May 1983, the union refused to honour its agreement,
which had led to the introduction of this legislative amendment. The
Government maintained that it was clearly inappropriate for normal union
hiring and recall provisions to apply to this type of unique programme; if
this had been the case, the programme would have been significantly impaired,
if not rendered inoperable, causing hardship for many needy people.
165. The Government's final point concerning the definition of "employee"
under the amended Act was that the excluded employees did enjoy freedom of
association and the right to organise. Neither did Convention No. 87 nor
Convention No. 98 impose an obligation on Government to grant certification
rights for the purpose of collective bargaining. Excluded employees were able
to organise and negotiate their conditions of employment collectively, often
on an informal basis, and often on a formal basis when the Government had
voluntarily recognised certain associations and bargained with them on behalf
of their membership, e.g. Newfoundland and Labrador Association of
Superintendents of Education and the Newfoundland Medical Association.
(ii) Designation of "essential" employees
166. As regards the amendment to section 10 of the Act which defines the
method of designating essential employees, the complainant cited the
restrictions contained in subsections 1, 2, 3, 6, 7 and 8. Subsection 1
empowers the employer of employees in a bargaining unit to provide the
provincial Labour Relations Board with a statement in writing as to the number
of employees whom it considers to be essential. Under subsection 2, where no
objection is made to this statement before the Board the number of employees
specified shall be deemed to be the number of essential employees; where an
objection is made to the written statement before the Board, under subsection
3, the Board after considering the objection and affording the bargaining
agent and employer an opportunity to make representations and to be heard
shall determine the number of employees who are essential. Once this process
is completed the employer, under subsection 7, shall name the employees in the
unit who are essential; under subsection 8 the employer has the right to
substitute names. According to the complainant, subsection 1 allows the
employer to make a statement at any time to the Board on the number of
employees it considers essential, there being no restrictions as to the number
of times that the employer can make that statement. This permits the employer
to participate in strike-breaking activities because, for example, an employer
could designate few employees as essential in the initial stages of a strike
and designate more and more employees as essential as the strike progressed so
as to make strike action pointless. In addition, the combination of
subsections 2, 3 and 7 of section 10 enables employers to determine that only
some employees in a classification are essential while certain other employees
performing exactly the same duties need not be declared essential.
167. The complainant alleged another discriminatory element in the process of
designating essential employees under Bill 59: the Labour Relations Board was
now restricted from operating in an independent manner because, under section
10(3), it could not increase the number of essential employees from the figure
that was contained in the employer's statement. For example, when an employer
designated 49 per cent of bargaining unit members as essential, for all
practical purposes strikes were outlawed, and employees were prevented from
taking their case to arbitration under the Act because a majority was
necessary for such action.
168. According to the complainant section 10(12) also violated the rights of
public sector workers; it provides that a strike vote cannot be taken until
any dispute involving the determination of essential employees is settled.
Thus even the polling of a union's members to get an indication of the
feelings towards strike action is prohibited.
169. The complainant stated that the most repressive feature of the amendment
to the designation of essential services employees was the fact that employees
who had been deemed essential lost all their rights with respect to employment
- they were not covered by a collective agreement and they were not covered by
the basic labour standards legislation. In addition, section 10(11) allows the
employer to terminate immediately the employment of an essential employee who
fails to report to work, without that employee having access to any appeals
procedure. Subsection 11 reads as follows: "Where an employee named by the
employer as an essential employee does not report for work as required under
subsection 10, the employer shall forthwith terminate the employment of that
employee, unless the employer is satisfied that there are reasonable grounds
for the employee not so reporting".
170. In its written observations on the question of essential employees, the
Government stated that the 1973 Act did not take away the right to strike from
any particular group of employees, but only from those individuals in any
given bargaining unit which the Labour Relations Board might determine were
necessary for the health, safety or security of the public. The Government
stated that the 1973 version of section 10 had not achieved its purpose since
the unions effectively thwarted the Government's applications to the Board for
a determination of essential employees. At first, few strikes had taken place
in areas affecting the health, safety or security of the public and those that
had taken place were of relatively short duration; emergency services could be
provided by management employees and, in some cases, the unions had allowed
some bargaining unit members to work in emergency situations. The situation
changed, however, in 1981 when the laboratory and X-ray employees took strike
action. According to the Government, the union provided emergency services but
not essential services, emergency services being provided only in cases where
there was an immediate threat to life. Management employees were able to
provide additional services so that for a period of time hospitals had been
able to cope. The strike continued beyond a month's duration and difficulties
arose, forcing the Government to act by introducing Bill 111 which provided
for the designation of approximately one-third of the bargaining unit to
provide essential services. This Act had been repealed with effect from the
date of signing a new collective agreement to cover laboratory and X-ray
employees and, in any case, on the date of the enactment of Bill 111, the
union had called off the strike. Following the conclusion of this difficult
situation, the Government had decided that the 1973 Act would have to be
amended to provide a workable method of designating essential employees by an
independent tribunal prior to a strike. Therefore Bill 59 introduced new
essential employee provisions; employees could strike but essential services
would have to be maintained. The Government explained that, under the
amendment, the Labour Relations Board determined the number of employees in
any particular classification that was required to provide essential services.
This determination was based on the submission from the employer and provided
for intervention by the bargaining agent. After the union and the employer had
agreed, or the Board had determined the number of employees, the employer
named the individuals and might substitute those names. This was necessary,
stated the Government, so that the employer might choose employees who could
do the required work since employees in the same classification might be
somewhat specialised, e.g. critical-care staff or general day nurses. It also
allowed the employer to substitute names of employees who had resigned,
retired or taken leave of absence.
171. Regarding the allegation that the Labour Relations Board was now
prohibited from operating independently, since it could not increase the
number of essential employees contained in the employer's statement, the
Government stated that it or the employer, and not the Labour Relations Board,
had to determine the level of service which had to be provided to ensure that
the health, safety or security of the public was not jeopardised. It claimed
that there would be a dereliction of public duty if the employer were to seek
a lower number of employees than reasonably necessary to perform the required
level of service. It pointed out that where the number of employees deemed
essential exceeded 50 per cent, the bargaining unit had the right to advise
the employer and the Board that every employee would be deemed essential, and
thus the right to compulsory binding arbitration was available to the
bargaining agent pursuant to section 29 of the Act.
172. The Government stated that, under section 10(12), strikes and strike
votes which led to strikes were not permitted until the number - not the names
- of essential employees had been agreed between the parties or determined by
the Board. The employer could not delay the determination of the number of
essential employees unilaterally since section 10(1) allowed the union to
request the Labour Relations Board to order the employer to make the necessary
submissions. The Government emphasised that section 10(12) did not prohibit
the union in any way from polling its members to ascertain their feelings
towards job action; it merely provided that a strike vote leading to a strike
pursuant to section 23 could not be taken prior to a determination of
essential employees. According to the Government, this was similar to a
provision which stated that a strike vote could not be taken until
conciliation proceedings have been completed.
173. The Government maintained that employees who were named essential and
reported to work did not lose all their rights with respect to employment.
Section 10(10) provided that they must report to work as if a strike were not
taking place, which meant that the provisions of the expired collective
agreement continued to govern essential employees. The essential employees who
worked through a strike were automatically entitled to all benefits that the
striking employees were able to obtain upon settlement of the strike. In
addition, the Government repeated that, if more than 50 per cent of the
employees in a bargaining unit were deemed essential, all employees had the
right to binding arbitration. As regards the allegation that because of the
designation of essential employees, strike action would prove a useless tool,
the Government stated that this was a premature statement in view of the fact
that no orders had yet been issued by the Board. The Government also pointed
out that an essential employee who failed to report to work without reasonable
grounds was subject to termination, but since the expired collective agreement
continued to govern essential employees who were not on strike, the grievance
provisions likewise remained in effect. Employees were always subject to
dismissal for just cause and the legislation merely stated that failure to
report to work without a valid excuse would be just cause. The employer's
action and the employee's reasonable grounds would continue to be subject to
the scrutiny of arbitrators and the courts.
(iii) Limitations on strike action
174. The third amendment introduced by Bill 59 which was the subject of the
complaint concerned section 23, which now provided that employees who opt for
strike action are required by law to give 38 days' (one month plus seven days)
notice before they are legally able to strike. In addition, section 24 of the
Act had been amended so that workers in health care institutions did not have
the right to strike on a rotating basis. According to the complainant,
sections 23 and 24 as they now read served no other purpose than to limit
union members in their freedom to express themselves, as well as the right to
strike to a particular means of striking. It pointed out that the employer,
when drafting the legislation, had decided to attack solely the union since
the legislation did not provide for any reciprocal provisions concerning the
employer, such as lock-out.
175. Concerning the limitation on strike action, the Government pointed out
that, under the 1973 Act, a seven-day notice prior to taking strike action was
required. This provision had not been altered except that where strike action
did not commence on the notified date, a one-month's delay was required before
another notice was permitted. The Government explained that this provision had
been included to prevent a union from closing an institution, such as a
hospital, without actually going on strike. When a hospital was notified that
a strike was to take place, operations had to be significantly curtailed and
the hospital was geared down to providing only essential services whether or
not the employees actually withdrew their services. The new provision required
that the employees give the institution an opportunity to return to
operational status for a reasonable period of time if they did not strike on
the date originally intended.
176. Regarding rotating strikes, the Government stated that such action in
health service institutions had been prohibited so as to avoid a situation
where persons were admitted to hospital and scheduled for surgery and, with no
further notice, employees of that hospital went on strike. Rotating strikes in
health service institutions created life-threatening situations and, stated
the Government, were completely unacceptable. It pointed out, however, that
these two provisions covering the timing and nature of strike action had no
effect on the right to strike or the effectiveness of job action once taken,
but were reasonable limitations taken only in the interests of protecting the
health and safety of the public and did not amount to an infringement of
freedom of association. The Government considered that the allegation that the
amendment did not include an accompanying prohibition on rotating lock-outs is
difficult to understand since such action would never benefit health service
institutions.
177. In conclusion, the Government stated that the amendments under
examination had been made to protect the health, safety and security of the
public and not intended to discriminate or interfere in lawful union
activities. It pointed out that the Committee on Freedom of Association had
recognised that exclusion from trade unions and the collective bargaining
process of public servants occupying managerial or supervisory positions of
trust was justified. The Government maintained that the amendment to section
2(1) had excluded such employees from a bargaining unit but left them free to
join associations to protect their occupational interests; such associations
had been recognised by the Government and bargaining had taken place with
them. As regards the other specific exclusions listed in section 2(1)(i)(viii)
to (xii) the Government stated that it had no control over such exclusions
since applications had to be made to the Labour Relations Board which made
decisions based on established precedent and labour law principles relevant to
exclusions from the bargaining unit. It pointed out that, over the past
several years, most inclusions/exclusions in government departments had been
settled by agreement between the union concerned and the employer with only a
very few disputed positions being taken to the Labour Relations Board for a
determination. As regards the allegation that the new method of designating
essential employees discriminated against union activists, the Government
stated that there had been no interference in union organisation and no
instances of an employee having to join or relinquish membership in a trade
union. According to the Government it was in the employer's interest to have
employees who would perform essential services and it was employer policy not
to designate union executives and officials unless they were the only
individuals in the classification who were able to perform the required work.
It reiterated that the amendments to the legislation concerning the timing or
nature of strike action were not unnecessary interferences in the union's
activities or programmes, but merely laid down preconditions to the
implementation of a strike. It stated that the union was free to poll its
members and conduct ballots to determine the feeling of the membership towards
job action and that only the formal strike vote which culminated in a strike
might not be taken until essential employees had been designated.
C. Information obtained during the mission
178. I had extensive discussions on the issues raised in this case with both
the NAPE and the provincial government representatives, headed by the
Assistant Deputy Minister, on the spot in St. John's, Newfoundland and in
Ottawa where CLC and NUPGE representatives also spoke to me about Bill 59.
Once again, the oral submissions of the parties were supplemented by extensive
written submissions, handed to me in St. John's.
179. The first point that emerged during these discussions was that the
healthy industrial relations climate which had reigned in the Province since
the 1950s had fallen to an adversarial one. According to the union, partly due
to the recession, partly in over-reaction to an increasing radicalism in
certain civil service unions, and perhaps partly due to an aversion on both
sides to seek interest arbitration, the Government interferred in the
collective bargaining process with Bill 59. NAPE's view was that, prior to
Bill 59, responsibility for the decline in labour relations lay as much with
the unions because of their radicalism as with the Goverment because of its
paternalistic approach. The unions, however, could not be blamed for the
"panic" of the Government in enacting Bill 59 which was utterly pro-employer
in character and which would only lead to a further deterioration in labour
relations. The background to the introduction of the legislation in Parliament
evidences the misunderstanding between the parties at present, a point which
will be referred to further on in this report.
(a) Consultations
180. The union stressed during our discussions that it had, in effect, only
been given one day's notice when the draft legislation was tabled. There were
no public hearings on the proposed amendments and NAPE had been under the
impression that Bill 59 as a whole was subject to proclamation whereas only
the three disputed areas (definition of employee, designation of essential
employees and the strike provisions) were held in abeyance and gazetted at a
later date. NAPE claimed that Bill 59 had eroded any previous trust that
existed beween the parties and caused a situation of confrontation. According
to the union, the reason for the introduction of this legislation had been
clearly a growing contempt by the Government for the unions and their
increasing strength as well as a lack of respect for the unions' ability to
represent the interests of their members. The situation prior to Bill 59 had
been satisfactory with 294 contracts having been concluded. The arbitration
system and the selection of arbitrators from a panel established by the Labour
Management Co-operation Committee had also been satisfactory.
181. The Government, on the other hand, explained that copies of the draft
amendments had been given to the union very shortly before they were tabled in
Parliament. The difficulties with the basic collective bargaining Act and with
section 10 in particular had been discussed with NAPE representatives on many
occasions in the past. The Government delayed proclamation of the disputed
parts of Bill 59 and informed the union that it wanted to receive its
suggestions on them. However, according to the Government, no written
submissions were received; only a general tape-recorded description of the
problems was handed in to the Ministry of Labour. This the Government took to
be a lack of interest in face-to-face discussion. The provisions were then
proclaimed and came into force on 1 September 1983. The Government could not
explain why the union backed off at this juncture although it recognised that
it may had been due to the breakdown in the informal, co-operative relations
which the union had had with the Government as employer in the past.
(b) The definition of employee
182. According to NAPE, in the amendment of section 2(1) in Bill 59 the
Government had effectively excluded up to 2,000 workers from union membership
which some had previously enjoyed. NAPE was concerned with the exclusion from
the definition of employee of persons employed in an employment opportunity
programme administered by the provincial Government with its own and/or
federal monies (section 2(1)(i)(xii)). The union pointed out that this
exclusion from coverage of the Act does not apply to similar programmes
administered by other levels of government such as school boards and
municipalities. It claimed that the aim of such programmes was not to train
the unemployed to enter the workforce, but to transfer them from the
provincial payroll to the federal payroll. Since such persons could not join a
union, it was more difficult to negotiate increases in union members'
benefits, and the union felt threatened by this source of scab labour should
strikes occur and the possible reduction in working time of union members.
NAPE was particularly suspicious of this provision given that it has made many
agreements with employers not covered by the Act (municipalities, the College
of Fisheries, private hospitals) allowing employment opportunity programmes in
workplaces where it represents workers. From copies of such agreements handed
to me, it appeared that NAPE's only precondition for accepting non-union
workers in such workplaces was the protection of the job security and benefits
of its members. The union's other concern with this provision - that it denied
these persons the right to join a union - was not related to an earlier
agreement NAPE had had with the Government concerning non-unionisation; that
agreement had only concerned persons on welfare. According to NAPE, when the
Government started using these people in programmes, that understanding fell.
Given that the union was prepared to represent these people on matters not
connected to their rates of pay which were set under the scheme, more or less
in line with the minimum wage, and would not expect them to pay dues, it felt
that the Government ought to have negotiated their situation with NAPE instead
of legislating them out of coverage under the Act.
183. The Government pointed out that the employment opportunity programmes
were designed to enable unemployed persons to accrue the 20 weeks' workforce
experience required for entitlement to federal unemployment benefits. When
NAPE's position on coverage of such persons for non-collective bargaining
items was put to the Government, there appeared to be further
misunderstanding: the Government stated that, in 1984-85, about 600 people had
been involved in the programmes and therefore not entitled to collective
bargaining, whereas the union had claimed that 2,000 had been without
collective agreements. Given the temporary employment of people in these
unique programmes, the Government found it hard to understand why the union
would be interested in recruiting these people for membership per se but did
not express opposition to this possibility.
184. As regards the exclusion contained in section 2(1)(i)(xv) (persons
providing advice to the employer in relation to policies or programmes), NAPE
explained that the past practice of negotiations and Labour Relations Board
decisions had worked well when disputes - which were quite rare - over this
type of employee arose. It feared that this amendment could be stretched to
include such persons as social workers or consultants. It pointed out that the
Labour Relations Board has refused to grant exemptions for the present until
judicial challenges to Bill 59 as a whole are completed. The Government
considered that it had only put into legislative form the criteria of the
Board's past practice, namely the exclusion of managerial, confidential and
policy-making employees. It pointed out that this was an exclusion
specifically recognised in Article 1 of Convention No. 151. I pointed out that
the union's suspicion might have been the result of a lack of communication as
to the intent of this provision.
185. During these discussions on section 2(1), the Government also emphasised
that there was no hidden motive behind subsection (ix) - which excludes
solicitors and legislative counsel from the Act - and pointed out that they do
form associations and bargain collectively with the employer.
(c) Questions concerning the right to strike
186. Section 2 of the Amendment Act of 1983 (Bill 59) repealed section 10 of
the Public Service (Collective Bargaining) Act of 1973 which related to the
designation of essential employees, that is to say "employees whose duties
consist in whole or in part of duties the performance of which, at any
particular time or during any specified period of time, is or may be necessary
for the health, safety or security of the public". While the definition of
essential employees remained the same after the 1983 amendment, a number of
issues arose from the further amendments introduced by Bill 59 to the Act of
1973.
187. NAPE claimed that public-sector unions had always provided essential
services to protect the health, safety and security of the public. It was
NAPE's belief, however, that the legislation was being used to give the
employer, the Government and the Newfoundland Hospital Association, an
advantage in collective bargaining. NAPE representatives insisted that they
were fully conscious of the need to provide essential services during labour
disputes. Bill 59, however, empowered the Labour Relations Board to be final
arbitrator with respect to essential services. The Board would always err on
the side of caution in its decisions on essential services, thus favouring the
employer. It was NAPE's contention that the Board would not appoint more
essential employees than the number requested by the Government. The result
was the prevention of more than half of any bargaining unit being designated
as essential, thereby preventing in turn a resolution of a dispute by
arbitration; it was obviously the Government's intention to eliminate the
right to strike, but also to prevent disputes from being resolved through
arbitration.
188. NAPE argued that it was difficult for the union to agree on the
determination of essential employees since the employer refused to give it
information on the total number of workers in bargaining units and their job
classifications.
189. According to NAPE, the workers in liquor stores who had previously been
considered essential, had had their right to strike restored, whereas the
status of hospital food service workers had not changed, their right to strike
always having remained intact. It was an anomalous situation when health
inspectors employed by the provincial Government were considered essential but
workers not working for the province but who prepared food for a number of
hospitals were not.
190. The Government, according to NAPE, had always been unwilling to settle
questions of essential employees through negotiation or by following
alternative disputes settlement procedures. This question was one which had
been going on for years and the courts and the Labour Relations Board had
decided that the Government's approach had been impractical.
191. If, for example, through negotiations or by decision of the Labour
Relations Board, 33 per cent of hospital support staff were declared
essential, this would mean that out of a bargaining unit of 800, 265 would
remain at work. To this latter figure would be added management and
non-bargaining unit workers and workers of other bargaining units. In other
words, a major hospital, during a strike, could have more workers available
than during the peak annual leave period. It was, in addition, the practice in
Newfoundland to recruit other workers to replace striking workers. Hospital
support staff had, therefore, lost their collective bargaining rights through
this procedure which, in addition, denied them any other disputes settlement
machinery.
192. Under Bill 59, employers could select essential employees as they wished
or otherwise manipulate strikes by making it difficult to deal with a dispute
if a large minority of workers were deemed essential and received full pay and
benefits while those on strike had their regular income interrupted.
193. Another aspect of the matter was the ability, according to NAPE, of the
employer to have a small percentage of the bargaining unit declared essential
and to return periodically to the Board for further increases in that
percentage. Such a practice would have the effect of destroying strikes.
194. NAPE agreed that the legislation had never been used by the employer in
this manner but claimed, nevertheless, that these advantages written into the
legislation had a prejudicial effect on the morale of the workers and on the
collective bargaining process. The belief, shared by NAPE and by the
Government, is that there must be levels below which public services should
not be reduced, should not be used, either by unions or by government, to gain
advantages in collective bargaining.
195. In NAPE's view, the question of essential services should be decided
through negotiation between the Government and the union, or decided by an
expert third party. No one should gain any advantage and essential services
should be shared equally amongst the qualified members of the bargaining unit.
Since the question of essential services destroys the right to strike, any
bargaining unit in which the question arises must have an alternative disputes
settlement procedure at its disposal.
196. NAPE also questioned the need of sections 27-29 of the Act which provide
for a declaration of a state of emergency during a strike where such a strike
would be injurious to the health or safety of persons, or a group or class of
persons, or the security of the province.
197. The union referred to one case concerning a strike in 1981, of laboratory
technologists, X-ray technologists, technicians, etc. following the failure of
the Government to accept the report of a conciliation board. Although a strike
was declared, the union set up an essential employees system and provided
specialist skills, on a permanent basis. A renewed offer by the employer was
refused by the union. The Government introduced legislation (Bill 111)
declaring up to half the bargaining unit as essential, thus putting an end to
the strike. In the view of NAPE, the Government could have referred the issues
in dispute to arbitration or returned to the negotiating table. Instead, by
introducing legislation, it destroyed collective bargaining for the unit
concerned. The union thereafter signed a collective agreement and Bill 111
came to an end.
198. NAPE also argued that section 2(12) of Bill 59 denied union members the
right to vote to take strike action. If the employer made an offer, the only
vote that could be taken would be one to accept it, otherwise it would be
illegal. The designation of essential employees should follow - and not
precede - a decision to strike.
199. Another problem was that posed by section 23 of the Act, as amended by
section 6 of Bill 59. Under the previous legislation of 1973, bargaining units
were required to give seven days' notice of any strike. Under Bill 59, if the
union did not go on strike on the date specified in the notice, 30 days had to
elapse before a further notice of seven days could be given. Again, in the
view of the union, this was an attempt to control collective bargaining to the
advantage of the employer.
200. Section 24 of the 1973 Act was also amended by Bill 59 to prevent
rotating strikes which, in NAPE's view, should not be banned. Here again, this
prohibition gave the employer great influence on the union's negotiating
strategy. In addition, rotating strikes would ensure that only a portion of
the hospitals in the province would be on strike at any given time.
201. In its submissions on the question of strikes, the Government explained
that the 1973 Act granted this right to all workers covered by it, i.e. civil
servants, hospital employees and vocational school instructors, with the
exception of those who might be designated as essential. Prior to Bill 59, the
employer, at the time of certification of the union, made an application to
the Labour Relations Board for designation of a list of named employees.
Almost every such application had been contested by the union and in some way
found wanting by the courts which themselves said that the Act required
substantial modification on this question. Even on one occasion, when the
Board had appointed a panel of experts to designate, the court had found that
this panel did not have jurisdiction to do so.
202. This unsatisfactory situation lasted for almost ten years and it was only
after the strike, in 1981, of laboratory and X-ray workers during which a
threat was made to call out even essential services, that amendments were
introduced in Bill 59. As regards the 1981 strike, the Government added that
arbitration was not provided for in the legislation nor, from an economic
point of view, did the Government consider it appropriate to refer the issues
to arbitration. Although the conciliation results had been rejected by the
Government, it was often the union that rejected such results. In any event,
the emergency legislation was enacted since there was an urgent and grave risk
to the health of patients.
203. The 1973 Act had, accordingly, proved to be unworkable as regards
essential services and Bill 59 had introduced amendments which were procedural
rather than substantial. Instead of asking the Board to designate named
employees, a number was requested. The employer could apply to the Board at
any time and not, as before, only at the time of certification, most unions
being in any event voluntarily recognised. According to the Government, the
union's claim that the employer might make successive requests to the Board in
order to increase the number and thus break a strike was a misunderstanding on
its part. Not only was it not the employer's intention to do this but it was
also practically impossible since there were major difficulties in convening
the Board at short notice.
204. According to the Government, there had been meetings with NAPE concerning
these problems but in spite of all the explanations given to them, the
misunderstanding remained. No such problems, however, existed between the
employer and other bargaining units, e.g. the Canadian Union of Public
Employees, on these matters. Agreements as to the designation of essential
employees had been reached with other unions, but NAPE who had knowledge of
the employer's current proposals, had requested the Board not to proceed with
hearings on them. The Government supplied the mission with detailed
information on the recommendations it had made to the Board as to the
percentage of essential employees that might be fixed by the Board. Since
1983, however, NAPE had steadfastly refused to participate in the process of
negotiating essential employee requirements.
205. It was important to emphasise, continued the Government, that in June
1985, section 10 of the Act was amended and a significant number of Government
employees in nine specific bargaining units were excluded from the designation
of essential requirement. Other government agencies or boards had identified a
minimal or no essentials requirement and, in the overall government sector, it
had been determined that 21 per cent (17.7 per cent including section 10
units) of the employees were essential. This group included 100 per cent of
prison warders (who now had automatic access to arbitration) and others such
as forest-fire suppression crews, social workers, etc. The requirement in the
health-care sector was greater (33 per cent) to ensure a minimum standard of
care for the sick and the aged.
206. The Govermment pointed out that five years ago the union would not have
been prepared to accept arbitration as an alternative to its right to strike.
Now it was the Government which, in the present economic situation, was
reluctant to seek arbitration. Bill 59, the Government insisted, resulted from
court decisions and was precipitated by the 1981 strike. Now, the Government
pointed out, the rules were set and well known and this was preferable to the
adoption - as was the case in 1981 - of emergency legislation in the event of
a strike in an essential service. There had been no strikes in the hospital
sector since 1981.
207. As regards sections 23 and 24 of the Act, as amended by Bill 59, the
amendments introduced in June 1985 had repealed section 23 but had maintained
the seven-day notice period in respect of hospitals and health-care
institutions. If workers in these sectors did not go on strike on the date
specified in the notice, a further 30 days had to elapse before another notice
was given. The reason for this was to deal with the problem of sending
patients home and bringing them back to hospital if the strike did not occur.
The system did not exclude eleventh-hour bargaining and, in the view of the
Government, there was no reason why there could not be an agreement between
the parties to extend by one day the seven-day notice period if a new offer
was made.
208. Concerning rotating strikes, the Government explained that Bill 59 had
amended section 24 of the Act to prohibit such strikes in health service
institutions only. The Act concerned the bargaining unit only, and while part
of that unit could be called out on strike, there could be no question of that
part striking on a rotating basis. This provision had been introduced to avoid
the kind of problem that had been experienced during the 1981 strike of
laboratory and X-ray workers.
D. Concluding remarks
209. Public servants represented by NAPE basically retain the right to strike.
The counter-inflation measures overrode the bargaining system which remained
intact for use once the special legislation had run its course. The complaint,
therefore, relates to limitations which appear to have recently been
introduced into the usual process of bargaining.
210. The first point raised, and it is a very important one, was that the
measures in Bill 59 were never the subject of proper consultation. It is
obvious to an outsider coming to Newfoundland that, although industrial
relations in the public sector are not without their share of problems and
some strife, there has been a good relationship between the trade union and
government. This did not prevent disharmony on Bill 59. It is difficult to
describe accurately the extent of consultation on Bill 59 since perceptions
differed. Such contact as there was took place in an atmosphere where the
Government, having recently reviewed industrial relations was determined to
seek revision built on experience. Whilst the trade union viewed the changes
as a threat to its position, indeed it felt that the position had not been
adequately assessed and felt threatened by the provisions of the Bill, some of
which it found far from clear. It appeared to NAPE that a series of incidents
over the previous few years had led to a somewhat extreme reaction which did
not reflect what was really to be anticipated. The underlying confusion and
suspicion were clear.
211. The Act has been in place now for some two years. Misunderstandings and
hesitancies still exist. It has to be noted that very recently some important
modifications have been made by an amendment Act of June 1985. This serves to
underline the need for a resumption of co-operative consultations. It is still
possible to detect divergent views on the meaning and intent of various
provisions of Bill 59: several practical difficulties can be foreseen and both
sides are looking predominantly at the possiblity of extreme reactions from
the other. This is surely fruitful ground for consultation and it would seem
that there is scope for jointly clarifying, tidying up and more closely
defining the rules and, in the process, re-establishing a better working
relationship.
212. One of the most serious points put by the union relates to the limitation
on collective bargaining by amendments to the definition of employee. This has
two components. Section 1(b)(xii) excludes from the crucial definition of
employee, those employed in an opportunity employment programme. There was
some confusion between the accounts given as to the exact coverage of this
subsection. What is clear is that it excludes workers offered opportunity
placements from bargaining units. This is understandable since the principal
terms and conditions are governed by the terms of the scheme. However two
worries remain. The trade union seeks the right to be consulted on such
workers who are used in work within or connected with the bargaining unit.
There also appears to be no reason why such workers could not be admitted as
members with limited or notional dues so that residual services other than
bargaining could be provided. The second provision to which objection is
raised in that of advisers to the Government in the development or
administration of policies or programmes to be determined by the Labour
Relations Board. This subsection, it was agreed, enshrined what had been the
practice. It is illustrative of the lack of understanding that both agree on
this, yet the trade union has a suspicion that some change was intended. Only
an open dialogue can remove such apparent misunderstandings.
213. Most complicated and central to the complaint are the changes made by
Bill 59 to the concept of essential employee. The bargaining units concerned
include for example, hospitals and air traffic controllers. Although there
have been few strikes the Government has sought in the Bill to give added
protection to essential services. The trade union in almost all cases has
offered "emergency personnel". There is a discrepancy in thinking as to what
this should cover which is epitomised by the use of different words -
"emergency" and "essential". The process of designating a proportion of each
bargaining unit as essential has ground to a halt. The figures suggested by
the Government have been made knowing the Labour Relations Board has power of
decision. Two difficulties arise. The trade union challenges some of the
numbers which, it appears, have been selected with a liberal eye. It fears the
Labour Relations Board will be unable to look at such an issue with rigour
since the decision, possibly affecting safety and health is an onerous one.
That should not be too difficult to resolve.
214. Of much greater concern is the effect designation is likely to have on
strikes and it should be remembered that the right to strike is an important
feature of the relationships being considered. If more than 50 per cent of a
unit are designated as essential then the right to strike is replaced by
independent binding arbitration. Neither the Government nor the trade union
has a great liking for this mechanism. None the less it is clear that if a
substantial proportion of the workers are designated as essential then it
becomes more attractive to the trade union than a weak strike. As with so much
in the complaint the issue cries out for study and compromise. Unless some
relaxation in the rules is made, those sectors where say 33-50 per cent are
designated will fall between the two systems and trade unions rights will be
restricted unacceptably. The relationship between designation of essential
workers and the strike vote is a further point raised. Again there is a
different view of how the system will work in practice. There appears to be a
chance that designation of a proportion outside the context of a strike, i.e.
as a normal procedure, and of individuals after the strike vote might go some
way to alleviating the problem.
215. Two strike tactics have been dealt with by Bill 59. Both have arisen from
isolated examples in the past and the provisions again appear to have a degree
of ambiguity. The prohibition of a strike where the stated date has passed,
for a period of 30 days, and fresh notice could be used to delay a strike by
last-minute bargaining. There is no evidence that that is intended, and a
simple amendment, or even letter of intent, should remove the genuinely held
fear. The provision against so-called rotating strikes does appear to
interfere with the trade union's power to determine how it shall conduct a
strike in the tactical sense. Again the provision gives rise to a justified
fear but unless it is misused cannot be said to be a serious fetter on action.
216. It will be obvious that the Government has looked at past practice and
has decided to prevent practices which were felt to be abuses of trade union
power that caused potentially difficult management problems in key public
sector areas. This has led to a strong reaction and even stronger suspicion.
The trade union has suggested, for example, that provisions which appear at
first sight to be enshrining useful and common practice (such as section 18
allowing the Minister power to defer the statutory process to introduce a
conciliator or mediator) are devices that can be used to defer or delay. There
can be no clearer example of the need to clarify attitudes and intentions. A
relatively small number of agreements or statements of intent on both sides
would ensure that the possible use of the legislation to damage or hamper the
proper use of trade union power would be accepted as not being the intention
of the legislation.
217. The Committee on Freedom of Association will appreciate that the purpose
behind the legislation has been left unclear since it can be used in several
instances with differing results. One interpretation would seriously limit the
right to strike effectively using normal criteria. If this is to be a
possibility the underlying basis of the system could be in jeoparady. It has
to be remembered that the usual formula in the public sector is that if the
right to strike is withdrawn, the alternative protection in these special
cases is access to independent binding arbitration. Where the right to strike
exists but is seriously fettered or put in jeoparady, then the workers
concerned lack effective protection.
218. It is important that the exact meaning and possible uses of the
provisions of Bill 59 are clarified. This will undoubtedly lead to some
adjustments - it was pleasing to hear that the 1985 Bill has already started
that process, albeit unilaterally. Once this process is complete it will be
necessary to see whether the right to strike, with reasonable limitations to
protect the health, welfare and safety of the people, exists. Where it does
not, alternative protection will be required.
VII. Final remarks
219. Three of the complaints arise as a reaction to recently enacted
legislation in Alberta (Case No. 1247) - Bill 44, in Ontario (Case No. 1172) -
Bill 179 and in Newfoundland (Case No. 1260) - Bill 59. The fourth, Alberta
(Case No. 1234), is a much narrower point. Although the industrial relations
system varies from province to province, in some respects markedly so, and
although the three pieces of legislation take differing approaches, there is a
strong underlying similarity of policy and aims. It seems appropriate
therefore in these concluding remarks to draw the Committee on Freedom of
Association's attention to the underlying currents.
220. All three statutes were enacted as a result of the Government's need to
combat inflation. All three applied to the public sector, that is to say,
direct employees of the Government and others employed by independent bodies
largely dependent upon government funding. This special attention had two
prime causes. The Government itself was the employer or had a strong influence
over the employer and it was felt that control of the public sector was both
necessary and would set the level for the private sector. Most of the queries
raised on this belong to the economic debate. What concerned the trade unions
and must concern the Committee is the damage such legislation has done to
industrial relations, in particular of course, in breach of the principles set
out in the ILO freedom of association Conventions (i.e. Conventions Nos. 87,
98 and 151).
221. Several major features merit attention. The Canadian industrial relations
system has a structure that at first sight mirrors that developed in the
United States. That is to say it is fairly closely regulated by legislation.
However there is also a strong tradition of informal contacts which have
enabled the parties to reach voluntary agreements and to determine a not
insignificant part of the relationship. It has been suggested that this
consultative process has been damaged. Certainly the use of legislation has
given that impression. One major problem is that the Government, when it is
using legislation in the public sector is at the same time carrying out two
functions. It is the democratic government acting to protect the economy but
it is also the employer, altering the balance of its relationship with the
trade union. This gives ample opportunity for confusion, misunderstanding and
a serious breakdown in internal relationships. It is easy to overestimate this
since normal relationships tend to carry on in many spheres, but the fear and
suspicion were apparent in all three provinces. Ironically it can be said that
the greatest need is the re-establishment of normal industrial relations
processes - consultation, conciliation and mutual understanding.
1. Inflation control
222. Whereas inflation control is an important task of government, a
distinction has to be made between short-term measures aimed at bringing a
situation under control, and a more permanent structure. Action is taken under
the first head because a particular problem overshadows the system. This was
the position in Alberta where the economic decline was sudden and serious. It
applied with somewhat less force to Ontario and Newfoundland although the
economic problems in those provinces were clear. The legislation in Ontario
had already lapsed. In all three provinces, however, it is the lasting effects
of the legislation, or in the case of Ontario of practices springing from the
period of legislation, which have to be measured.
223. In each case there has no doubt been some lasting effect. This involves
either changes in the structure of collective bargaining or influences on the
independent dispute resolution machinery which is the predominant safeguard in
Alberta and Ontario and plays a small part in Newfoundland. It is an
assessment of this damage which is crucial to these cases.
2. Consultation
224. Although the Canadian system of industrial relations operates legally
regulated bargaining procedures the importance of consultation remains. This
is particularly so where a government introduces proposed legislation to amend
the rules governing that system and to change the relative position of the
parties to the bargaining. It has already been remarked that such consultation
is doubly important where the Government seeks to alter bargaining structures
in which it acts actually or indirectly as employer. Time available for
consultation must be adequate. Obviously it may be limited by the urgency of
action in face of economic problems. Its effectiveness can be reduced by the
attitude taken by the trade unions concerned. But it is a truism that
proposals should be openly discussed, clarified and doubts, fears and
misunderstandings resolved before legislation takes its final form. Otherwise
suspicion grows and attention is diverted to lengthy and often untimely
challenges in the courts.
225. In Alberta the Government took the view that the rapid fall in economic
prosperity called for urgent action. Consultation appears to have been limited
to a formal presentation of views to the legislature. In Ontario there appears
to have been ample opportunity for consultation which does not seem to have
been used constructively. In Newfoundland there has been a long-established
and strong commitment to consultation which had been a valued feature of the
relationship. Unfortunately although there was some consultation the usual
relationship appears to have broken down at least temporarily.
3. Public servants - bargaining
and the right to strike
226. In most Canadian provinces, but not Newfoundland, the right to strike is
withheld and access to independent binding arbitration takes its place. This
only occurs in very limited circumstances in Newfoundland. To ensure the
integrity of the system it is essential that the bargaining procedures are
unfettered and that there is truly independent machinery to settle disputes of
interest that are not agreed in bargaining. Most of the details of the
complaints, from all four cases, relate to one or other aspect of this crucial
balance. If the balance is seriously destroyed, leaving aside short-term
economic intervention in time of emergency, then the ILO principles on freedom
of association are called into question.
(a) Collective bargaining
227. It is not necessary to draw the Committee's attention to every complaint
made of provisions that were felt to destroy the fair balance of collective
bargaining. Equally it is only necessary to underline the common view of
governments that it has become important in times of economic stringency to
introduce into public sector bargaining factors which correspond to the gloomy
information a private employer is able to bring to the bargaining table by way
of declining profits and slim order books.
228. Several examples will suffice. In Alberta a considerable number of
changes to the machinery of bargaining have been promulgated. In Newfoundland
significant limitations in the bargaining units and in the participation of
members of those units in strikes have been enacted. It is not an easy task to
assess the extent of the damage but trade unions point to flexible provisions
which give rise to fear of loss of effectiveness.
(b) Independent dispute resolution
229. This aspect is vital to a proper system. All the provinces have a Labour
Relations Board that acts as an independent regulator and decision maker
within the system. Although some suspicions of bias were mentioned there is
not a great deal of evidence to substantiate this. Of more concern is the
position of binding arbitration. Disliked at times by both sides, it remains
the crucial keystone to the alternative pattern of no strikes - independent
dispute resolution.
230. Arbitrators have a notoriously short professional life, and their
decisions often give one side the view, almost invariably erroneous, that the
arbitrator lacks independence. There is no doubt that in times of economic
stringency the pressures increase. Governments resent a system which passes
control of financial decisions to a third party. They naturally tend to
attempt to influence the arbitrator. Asking that the economic background be
taken into account seems inevitable and sensible. Insisting on conformity to a
norm destroys independence. In practice the pressure tends to lie between
these extremes. It is essential that care be taken to protect independent
arbitration: both the mode of their appointment and their tenure must be
carefully regulated. The system inevitably, however reluctant the parties may
be, insists that arbitrators be trusted to act fairly and sensibly.
231. Finally it has to be stressed that a large number of the grounds on which
these complaints have been raised could be settled, not easily it is true, by
agreement between the governments and the trade unions. Until they are, the
tendency will be to use legislation, powers and practices which damage the
essential balance enshrined in ILO Conventions. How far that has occurred is
not a matter for me: the detailed information above is intended as material on
which the Committee on Freedom of Association reach its decisions.
232. In concluding this report, I wish to express my sincere appreciation to
the Government of Canada and to those of the Provinces of Alberta, Ontario and
Newfoundland for the efficient and courteous manner in which my mission was
received and for the genuine spirit of co-operation in which the discussions
with the representatives of the various governments took place. I also wish to
thank the Canadian Labour Congress, the National Union of Provincial
Government Employees, the Canadian Teachers' Federation and all the provincial
unions of public employees whose representatives were of the greatest
assistance to me throughout the mission. A special word of thanks is due to
Ms. Lucille Caron, of the Federal Ministry of Labour, Mr. Brian Mallon of the
Canadian Labour Congress and Mr. Derek Fudge of the National Union of
Provincial Government Employees, who accompanied me at various stages of the
mission and whose valuable assistance regarding practical arrangements was
much appreciated. Thanks is also due to Mr. John R.W. Whitehouse, Director of
the ILO Office in Ottawa who, along with his efficient staff, facilitated
practical arrangements. Finally, I must express my deep indebtedness to Mr. W.
R. Simpson, Chief of the Freedom of Association Branch of the ILO and Mrs.
Jane Hodges also of that Branch, who accompanied me during my mission to
Canada. Their mastery of ILO principles, deep understanding of industrial
relations, combined with their ability to work at speed, were essential to the
completion of my mission and this report.
John Wood, LLM, CBE.
ANNEX
Meetings in Ottawa (12-13 September 1985)
Mr. M. Dorais, Director-General, Policy and Liaison, Department of Labour of
Canada together with Mrs. L. Caron, Mr. B. de Laat, Mr. A. Torobin, Mr. P.
Sorokan, Ms. C. Racine, Mrs. J. Godon, Mr. J. Lynch, Mr. P. Hewson and Mr.
Beaupré Bérard of the Federal Ministry; from the Alberta Ministry of Labour
and Education Department, respectively: Mr. A. Kennedy (Assistant Deputy
Minister of Labour) and Ms. C. Mead; from the Ontario Ministry of Labor and
Treasury, respectively: Ms. M. Kenny and Ms. J. Bass; from the Newfoundland
Ministry of Labour, Treasury Board and Department of Justice, respectively:
Mr. H. Noseworthy, Mr. L. Powell and Ms. D. Fry. From the Union side, Ms. S.
Carr, Secretary-Treasurer of the Canadian Labor Congress (CLC), Mr. J. Fryer,
President of the National Union of Provincial Government Employees (NUPGE) and
representatives of their affiliated organisations: Mr. F. March, Mr. J.
Shields, Ms. M. Hedley, Mr. A. Kube, Mr. D. Bean, Mr. D. Fudge, Ms. L.
Nicholson, Ms. N. Riche and Mr. F. Moorgen. Meetings were also held with
representatives of the Canadian Teachers' Federation (CTF), namely, President
Mr. F. Garritty, Mr. S. McDowell, Mr. R. Barkar, Ms. E. McMurphy, Mr. D. Yorke
and Mrs. S. Hanley.
In Edmonton (16-17 September 1985)
Assistant Deputy Minister Mr. A. Kennedy, Ms. C. Mead, Mr. R. Maybank, Mr. W.
Sawadsky, Mr. P. Whittaker and Ms. D. Gares; and representatives of the
Alberta Union of Provincial Employees (AUPE), namely President Mr. J. Booth,
Mr. T. Christian, Mr. G. Bourgeois, Mr. F. McRae, Mr. F. Moorgen, Ms. M.
Sykes, Mr. S. Nymchuk, Ms. P. Wocknitz and Ms. K. Lilly as well as several
other witnessess including Mr. B. Olien, Mr. D. Andersen, Mr. W. Leeson,
Professor J. Robb and Mr. D. Werlin. Meetings were also held with
representatives of the Confederation of Alberta Faculty Associations:
Professor R. Heron, Mr. G. Unger, Mr. A. Mandelbaum and Professor M.
Sandilands.
In Toronto (18-20 September 1985)
Mr. D. Gilbert, Director of Policy Branch and Ms. J. Bass, Ms. K. Boney, Ms.
M. Kenny, Mr. R. Peebles, Mr. Q. Silk and Mr. R. Huston; and representatives
of the Service Enployees International Union (SEIU), namely President Mr. T.
Roscoe and Mr. J. van Beek together with legal counsel Mr. J. Sack, Mr. S.
Barrett and Mr. Poskranzer; the Ontario Public Service Employees Union (OPSEU)
, namely President Mr. J. Clancy, Mr. C. Paliare, Mr. A. Todd, Ms. J. Gates,
Ms. S. Vallance, Mr. J. Bernard, Ms. R. Lees and Mr. R. Martin; the Canadian
Union of Public Employees (CUPE), namely President Ms. L. Nicholson, Mr. L.
Kovacsi, Mr. D. Macleod, Mr. G. Williams, Mr. D. Foley; as well as the Ontario
Teachers' Federations, namely, President Mr. G.Matte, Ms. S. Hildreth, Mr. D.
McAndless, Mr. K. Kennedy, Mr. M. Buchanan, Mrs. M. Wilson, Mr. M. Green, Mr.
J. Carey and Mr. D. Halesworth.
In St. Johns (23-24 September 1985)
Assistant Deputy Minister Mr. H. Noseworthy, Ms. D. Fry, Mr. L. Powell, Mr. A.
Andrews and Mr. J. O'Neill; and representatives of the Newfoundland
Association of Public Employees (NAPE), namely President Mr. F. March, Mr. E.
Seward, Ms. M. Fleming, Mr. P. Ivany, Mr. E. Hogan, Ms. E. Price, Mr. D.
Curtis and Mr. D. Harnett.