Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 338, Novembre 2005

Cas no 2343 (Canada) - Date de la plainte: 10-MAI -04 - Clos

Allegations: The complainants allege that, without prior consultation with representative workers’ organizations, the Government of Quebec has introduced legislation amending the system of trade union representation and collective bargaining in the health and social affairs sectors, thereby infringing the freedom of association of the employees in question. The new compulsory certification structure involves cancelling certification of existing workers’ organizations, thereby forcing them to re-apply for certification; it either imposes or bans particular employees’ groups, on the basis of criteria that are unfavourable to workers and could lead to a decline in union membership. A ministerial decree suffices to bring any of these measures into effect. The new legislation amends the collective bargaining system by imposing bargaining at the local or regional level for particular matters, and fails to establish an arbitration mechanism offering the requisite conditions of independence and impartiality

536. The complaint in regard to Case No. 2343 is contained in a communication from the Confederation of National Trade Unions (CNS) dated 10 May 2004.

1. 537. The complaint in regard to Case No. 2401 is contained in communications from the Syndicat des professionnelles et professionnels du gouvernement de Québec (SPGQ) dated 20 November and 14 December 2004.
2. 538. The complaint in regard to Case No. 2403 is contained in joint communications by the Centrale des syndicats démocratiques (CSD), Centrale des syndicats de Québec (CSQ) and Federation of Employees of Quebec (FTQ), dated 27 October 2004 and 21 January 2005.
3. 539. The Government of Canada forwarded the observations of the Government of Quebec regarding the three complaints in a communication dated 21 June 2005.
4. 540. 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).

A. The complainants’ allegations

1. The complainants
2. 541. The Health and Social Services Federation of the Confederation of National Trade Unions (CNS), which is the complainant in Case No. 2343, represents more than 98,000 members belonging to over 550 trade unions. The Federation of Employees within the Confederation of National Trade Unions has 4,800 members belonging to the sector, grouped in nine trade unions accredited in 150 workplaces.
3. 542. The Syndicat de professionnelles et professionnels du gouvernement de Québec (SPGQ), which is the complainant in Case No. 2401, is restricted to employees in the civil service or bodies belonging to the Government of Quebec. Currently, the SPGQ represents 18,800 employees of the Quebec civil service and some 130 employees of three establishments in the health sector.
4. 543. Among the complainants involved in Case No. 2403, the Federation of Employees of Quebec (FTQ) is the largest central trade union organization of Quebec, with over half a million members; one-third of its members are engaged in the public and parapublic sectors. The Centrale des syndicats de Québec (CSQ) and the Centrale des syndicats démocratiques (CSD) represent some 170,000 and 65,000 members, respectively, including employees in the health and social services sectors.
5. 544. The complainants impugn the Act respecting bargaining units in the social affairs sector which amends the Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors, L.Q. 2003, C-25 (hereafter termed “the Act”; relevant excerpts are reproduced in Annex 1).
6. The legislative background
7. 545. In Quebec, collective labour relations are governed by the Labour Code. In addition, a series of specific laws govern the parapublic sector. The Code provides that an association which wishes to be accredited to represent a group of workers must submit an application to the Labour Relations Committee (CRT), an independent body responsible for the implementation of the Labour Code, and demonstrate that: (1) the group it intends to represent constitutes an appropriate bargaining unit; (2) the majority of employees in the group belong to the association. If these criteria are met, the association is certified for the bargaining unit in question and acquires the exclusive right and responsibility to represent the interests of its members. Hence, the workers of Quebec enjoy considerable freedom in developing their trade union structures.
8. 546. The employees of the public and parapublic sectors have exercised their freedom of association in the health and social services sector within this legislative framework since the 1960s. They opted to regroup, both within general units bringing together all or a large part of employees engaged by a single employer, or in smaller groups, for example of units by sector activity or by occupation. These choices were endorsed by the CRT. Today, the social affairs network accounts for 468 establishments and over 1,800 service outlets: hospitals, local clinics, local community services centres, long-term accommodation and care centres for persons who are losing their autonomy, centres for young people experiencing problems, etc. A wide range of employees from all categories are engaged in this network: the annexes to the Act list some 360 job types. The trade union members in this sector belong to some 3,300 accreditation units, some of which represent only a few employees, as a result of the fragmentation of certification units.
9. 547. The complainants allege that in 2003, the Government of Quebec adopted several anti-union, or even anti-social, laws. These laws were adopted very hastily, without the usual consultations with interlocutors from the world of work in Quebec and without endeavouring, as is customary, to achieve consensus among them. In addition, they were adopted by means of a “guillotine” procedure whereby the parliamentary debate that should normally occur prior to the adoption of a law is cut short. Normally, this procedure is used only in urgent circumstances that did not pertain in this case. This is the first law in the entire legislative history of Quebec where the State has intervened directly in dictating the composition and number of bargaining units and associations. Indeed, in all previous reforms of labour relations, the State had invariably demonstrated circumspection in such matters, in keeping with core international instruments.
10. 548. The Act introduces the new system of trade union representation that applies solely to associations of employees and establishments in the health sector. It provides that no more than four negotiating bodies can be represented by an association of employees within an establishment in the health sector, namely: personnel in nursing and cardiorespiratory care (27 types of occupation); paratechnical staff, auxiliary services and occupations (155 types of occupation); office staff, technicians and administration personnel (67 types of occupation); technical and professional staff (112 types of occupation).
11. 549. Thus, limiting the number of bargaining units per establishment effectively removes the previous possibility for workers to group themselves in small bargaining units revolving around a single occupation. At the other extreme, this measure also effectively prevents the establishment of a general association representing all employees of a given establishment. The existing units of this type, which are popular in small establishments, will be maintained, but no new ones can be established. The employees of an establishment who have chosen to group themselves in a single bargaining unit for the entire establishment are not affected for the time being by the Act. Meanwhile, associations that are accredited in establishments where employees belong to one of more than three bargaining units will immediately be affected by the Act as a result of the “transitional” regime written into the Act.
12. 550. The CRT, which used to decide whether or not bargaining units were appropriate, no longer has any such power and no debate is possible in this regard.
13. 551. According to the complainants, the Act is intended to dismantle the bargaining units that exist in the sector and replace them with units that are predetermined by the Act. In practical terms, this will lead to the disappearance of a large number of employee associations which will therefore no longer have the right to represent their members and will simply cease to exist; their members will then be incorporated into other associations. Hence, the right of employees in this sector to join the association of their choice becomes illusory.
14. 552. If an existing association fails to submit an application to the CRT, or if it is too slow to do so, the establishment may apply for withdrawal of accreditation. If the health establishment does not apply for such withdrawal, the minister may do so him/herself. The minister may also decide, as he/she sees fit, that a health establishment should have no more than four employee associations. Any establishment that is subject to such a decision must submit a report on the situation to the minister describing each of the bargaining units that exist and their respective associations. These associations will receive from the establishment only a listing of the employees they represent and who will belong to one of the four bargaining units imposed by the Act. Hence, an association cannot apply to represent employees belonging to one of these four units unless it already represents some of them. As a result, the employees of health establishments can only join with the employees specified by the Government.
15. 553. The Act lays down not only the number of bargaining units that may operate within an establishment, but also who belongs to them. No new accreditation can be granted unless it conforms with the groups laid down in the Act. The transitional regime therefore provides for the disappearance of the existing bargaining units and imposes a model defined by the Act, whereby all employees will be forcibly assigned to one of the four bargaining units laid down by the Act. Accreditation for a given unit will only be given to an association if it seeks to represent all the employees of one of the four categories. Pursuant to the principle of trade union monopoly that is enforced in Quebec, only one association of employees will be granted accreditation for each of these units. Given that the choice of the association is based on level of representation, accreditation will inevitably be granted to the one that can obtain most votes. The process will therefore leave scores, or even hundreds, of associations without accreditation and thus doomed to extinction. Indeed, once their accreditation is withdrawn, these associations will disappear and with them, their experience, their membership and their expertise.
16. 554. Furthermore, the employees belonging to the small associations that have developed around a given occupation will be “diluted” among all the occupations gathered into each of the four categories imposed by the Act. They will not be able to maintain the associations which, in the absence of accreditation, will no longer have any purpose. These employees will find it very difficult to have a voice in the new association and to have their specific concerns reflected in the enlarged bargaining units.
17. 555. Ultimately, the Act will prevent associations from being established in response to the aspirations of employees in the health sector, considerably curtailing their freedom of association, with the remaining associations being subject to excessively rigid rules and thereby undermining the free representation of workers’ interests. The Act will also have a paralysing effect on employees and will discourage unionization. Indeed, the employees in the sector may question the usefulness of an association of employees which can be extinguished at the bureaucratic whim of the legislator.
18. 556. Moreover, the process is likely to cause previously represented employees to renounce union membership. Indeed, it is possible that a new unit may include 40 per cent or more of the employees who were not represented prior to the decree. In such cases, the Act requires that a vote be held to ascertain whether employees wish to become unionized, following which those who were previously represented by an association of employees may find themselves with no association. Moreover, any association which fails to submit an application will automatically lose its certification. Furthermore, the same process is triggered in the event of a merger or integration of establishments or partial cessation of activities, each of which situations calls accreditation into question.
19. 557. The Act infringes the freedom of association of employees in the sector by reason of the fact that it terminates their associations’ accreditation rights. Obtaining accreditation is one of the association activities that lies at the very heart of the freedom protected by the international instruments. In this case, the efforts by a group of employees to establish a recognized organization are nullified overnight by this Act, which is not consistent with the rules originally laid down. Certified associations are suddenly and arbitrarily deprived of their status as recognized associations; employees find themselves suddenly and arbitrarily deprived of their associative strength and obliged to start again from the beginning. For employees, this may culminate in the removal of any trade union recognition in the establishment. They may indeed find themselves deprived not only of their certified association, but also of the benefit of belonging to any certified association at all.
20. 558. The Act furthermore violates the freedom of association of employees in social affairs in that it excludes them from the protection of the Labour Code and railroads them into an accreditation regime that totally ignores the will of employees, their trade union aspirations and, more particularly, their community of interests. In establishing rigid accreditation units, employees who have no community of interests and even, in certain cases, employees with contrary interests, may be forced into the same association. Meanwhile, it is recognized in labour law that community of interest is an essential element in ensuring the viability of a unit. The establishment of rigid categories deprives social affairs employees of any possibility of choice in establishing the group, regardless of the fact that this consideration features in the general regime laid down by the Labour Code.
21. 559. Moreover, the Act totally ignores the geographical element that is provided for in the Labour Code. An establishment may combine several service points over a vast area or even an entire region. Section 9 of the Act provides that only those employees whose home base lies within the territory of a single regional board can belong to a bargaining unit, while a bargaining unit, as defined by the Act, could cover a whole territory, or even an entire administrative region; this may have an impact on an association’s activities in that a single unit is required to cover an entire territory, regardless of the distances involved.
22. 560. A centralized structure for collective bargaining has been in place for several years in this sector, with bargaining taking place between, on the one hand, the major trade union confederations and, on the other, the Government and the employers’ associations. The resulting agreements are applicable to all workers’ associations and all employers. Agreement at the “national” level may provide for and allow so-called “local” bargaining between individual associations and employers in connection with specific employment conditions identified by the parties at the central level. This system is provided for in the Act concerning the system of negotiation of collective agreements in the public and parapublic sectors, which is substantially amended by the Act that has given rise to this complaint.
23. 561. The Act introduces substantial modifications to the modalities for the negotiation of collective agreements in that it dictates which matters are to be negotiated at the local level. The most unacceptable change relates to the fact that a number of important aspects of employment conditions must be negotiated at the so-called local level in circumstances under which workers cannot go on strike and cannot even refer their claims to arbitration. Indeed, the system laid down by the Act provides for local collective bargaining in connection with which strikes are not permitted. In the event of a stalemate, workers have no means to back their demands.
24. 562. While the Act allows for recourse to arbitration for disputes in local matters, this may take place only once, during the first round of bargaining following the changes imposed by the Act with, in addition, very substantial restrictions being placed on the arbitration tribunal. The method specified is known as the “selection of last offers” transmitted to the arbiter by each of the parties. However, section 42 of the Act provides that the option selected by the mediator-arbitrator cannot involve any costs additional to those already existing for implementing the matters in question and must ensure provision of services to clients. This effectively denies workers in this sector the right to bargain freely.
25. 563. Removing a range of employment conditions from the sphere of national level bargaining violates the principles of freedom of association, in that the mechanisms established by the Act for the negotiation of such matters hamper the establishment of any genuine process of collective bargaining. These matters are not of the type that can be removed from free and voluntary negotiation on the pretext that they fall within the competence of the administration of government affairs. In addition, these provisions infringe the principles of freedom of association in the sense that the level at which collective bargaining takes place should be decided by the parties concerned, not imposed by legislation.
26. 564. In short, the Act ultimately destabilizes and weakens the trade union movement in the social affairs network, by uprooting the workers’ associations which will, for the most part, cease to exist as a result of implementation of the system introduced by this law and by depriving workers of the right to bargain freely in several important aspects of employment conditions. This law sets a dangerous precedent in the annals of labour relations in Quebec, in that the legislator has departed from the historical principle whereby the Labour Code protects freedom of association and allows employees to join associations of their choice, in full freedom and without interference by the employer. The Act undermines the principles of freedom of association because it denies the choice expressed by employees, both in regard to the identity of the association chosen to represent them and in the composition, structure and modus operandi of their association.
27. 565. The complainant organizations ask the Committee to note that the Act is contrary to the Conventions and to the principles of freedom of association, and to recommend that it be repealed or amended to bring it into conformity with these Conventions and principles.
28. B. The Government’s reply
29. 566. In its communication dated 21 June 2005, the Government maintains that the Act does respect the principles of freedom of association and the right of workers to establish trade union organizations of their own choosing.
30. 567. Regarding the grounds for adopting the Act, the Government explains that, as in the other Canadian provinces and several developed countries, Quebec’s public health and social services scheme is under tremendous pressure because of the combination of a number of factors, including: a change in the demand for health care and social services; the high cost of recent scientific and technological progress; the aging of the population; the serious shortage of manpower; and budget constraints. In 2005 the health and social services sector accounts for nearly 40 per cent of Government expenditure, i.e. $20.9 billion. Successive Quebec governments have tried to find solutions that can guarantee the continued existence and constant adaptation of the scheme in the best interests of the population. In 2000, the Government set up a commission on health and social services (Clair Commission) to undertake a broad-ranging debate on the issues involved and to suggest appropriate solutions. The Commission proposed that the scheme be made more user-oriented, that users be better covered by the scheme, and that they be given greater access to health and social services. For these proposals to be implemented, the network’s very structure needs to be adjusted and the organization of work and management of human resources need to be made more flexible.
31. 568. Regarding the shortage of manpower, the Ministry of Labour and Social Services has undertaken various planning exercises to resolve this major problem. This is recognized by all trade unions in the health and social services sector, which have been directly involved in the Ministry’s efforts to devise a set of strategies for the future: review of conditions for access to training programmes; organization of trainee programmes; promotion of training professions and programmes; and recruitment abroad. A new approach to the organization of work which has become essential and unavoidable, is one of the main thrusts of these strategies.
32. 569. The Act is intended to provide health and social service institutions with the means of streamlining their work so as to improve access to health care and its effectiveness. The Act is one of a series of Acts adopted in pursuit of these objectives: an Act to modify the Occupations Code and other health-care legislation was adopted in 2002 to introduce a new division of occupational responsibilities in the health-care field; in 2003 the Agencies Act established a system of integrated health and social services in order to bring those services closer to the population and to make it easier for people to find their way about in the network of services.
33. 570. The organization of integrated services entails the creation of one or more local health and social service networks, each of which has a local branch that is responsible for the population within its territory, provides first-line services and guarantees access to the services of specialists. Generally speaking, a local branch comprises the various institutions providing the services of a local community service centre, an accommodation and long-term health care centre, and a hospital. The public institutions that operate within the local health and social service network are thus amalgamated into a single public institution that serves as the network’s local branch.
34. 571. Prior to the adoption of the Act the network comprised 3,914 bargaining units in 423 institutions, several of which had a very large number of bargaining units and often several units for the same class of personnel. A single institution, for example, might have more than one collective bargaining unit for nurses. Since each bargaining unit is governed by its own collective agreement, the large number of bargaining units within the same institution – especially when they cover a single class of personnel – is very difficult to operate and limits the institution’s ability to organize work efficiently and meet users’ needs. This situation derives from the Labour Code, according to which industrial peace is one of the criteria observed by the CRT in its assessment of the appropriate nature of the bargaining unit. Preference normally goes to “industrial” or general units, though the creation of specific units is accepted in so far as it does not pose a threat to industrial peace. In other words, the bargaining unit may be of a general nature or may be composed of employees belonging to one or more classes of personnel. In practice, there are almost as many bargaining units in the health sector as there are groups of health professionals and technicians. This multiplicity of general bargaining units did not pose any threat to industrial peace because collective bargaining at the national level was centralized.
35. 572. However, from the 1990s onwards, the need to reorganize the network led to the amalgamation of institutions and a consequent increase in the number of bargaining units in a single institution and the overlapping of bargaining units serving a single class of personnel, and this did affect industrial peace. Despite this, the situation remained unchanged because, once certification had been granted, the Labour Code did not provide for any kind of juridical mechanism to remedy it. This has generated serious problems in the organization of work in the institutions, notably for the posting of jobs and the corresponding budgetary provisions, overtime, holiday arrangements, working hours and recall lists. The compartmentalization of bargaining units is also a genuine obstacle to staff mobility. For example, in an institution with more than one bargaining unit for nursing personnel, it may be impossible for a nurse to apply for a vacancy in another bargaining unit in which his or her seniority may not be recognized. Without the Bargaining Units Act, the restructuring provided for under the Agencies Act would obviously have added to the problems arising from the multiplication and overlapping of the bargaining units for a single class of personnel.
36. 573. It was therefore essential to make the organization of work and the management of human resources more flexible, and the Act is specifically designed with that in mind. In addition to determining that certain aspects of the organization of work shall be negotiated and agreed at the local or regional level, the Act provides for the bargaining units to be grouped together under four classes of personnel so that those responsible for managing the institutions are in a position to organize work along more efficient lines. Once the reform has come into effect, there will no longer be 423 institutions but 274 and the number of bargaining units will drop from 3,914 to around 1,000, i.e. generally speaking, four or fewer bargaining units per institution. This form of regrouping is similar to the practice followed in the parapublic, educational and municipal sectors in Quebec and in other provinces. The combined effect of these Acts is to focus the health and social services scheme more on the users, to improve their coverage and to give them better access to available services.
37. 574. The Act introduces a system of union representation for associations of employees and for institutions in the social affairs sector. Sections 4-11 lay down the general rules that are applicable to both the permanent and the transitional scheme. Bargaining units must be set up according to the four classes of personnel provided for under the Act: nursing and cardiorespiratory care personnel; paratechnical personnel and auxiliary services and trades personnel; office personnel and administrative technicians and professionals; health and social services technicians and professionals. These classes were determined on the basis of the organizational requirements of the health and social service institutions.
38. 575. The Act also provides that only one association of employees can be certified to represent the employees of a bargaining unit within each institution. Moreover, only one collective agreement can be applicable to the employees included in that bargaining unit. In this respect, the Act does not entail any change in previous arrangements, apart from the number of bargaining units.
39. 576. The Act further provides for the mechanisms for accrediting associations of employees to represent the personnel included in the new bargaining units. This can be done under the provisions either of the permanent scheme or of the transitional scheme. The latter is established by the Act in order to allow for the reorganization of the sector, mainly as a result of the adoption of the Agencies Act. Under the transitional scheme, the minister determines by decree, i.e. in stages, which institutions come under the Act as regards the grouping of bargaining units and the certification of the associations of employees for each of these units. This step-by-step implementation of the Act is designed to allow trade union and employers’ organizations, as well as the CRT, to use the available time to complete successfully each of the stages in the regrouping of the bargaining units. The Act also provides for a permanent scheme to be introduced following an integration of activities, an amalgamation of institutions or a partial transfer of activities from one institution to another, so as to respect the general rules of the new system of union representation. Once they have been certified, associations of employees are governed by the general rules of the Labour Act as they relate to the certification process.
40. 577. The mechanisms provided for under the permanent scheme and under the transitional scheme are similar. First, it is the associations of employees that were already certified within the institution concerned which can request certification to represent the employees of the new bargaining unit, provided they have already been certified for part of the employees of the new bargaining unit. Certification is also open to associations of employees with requests for certification still pending with the CRT. Secondly, these associations of employees may group together to request certification to represent the employees of a new bargaining unit or agree on the designation of one of them to represent those employees. They may also choose between these options, even after the requests for certification have been submitted. A vote is held only if two or more associations submit a request for certification for the same group. In this event, the association of employees with the most votes is certified to represent the employees included in the new bargaining unit.
41. 578. The Act limits and defines the bargaining units in an institution, according to which classes of personnel best meet its organizational requirements. It also ensures that the definition of those classes is the same for all the institutions in the network. In addition, it stipulates that there cannot be more than four classes of association of personnel in each institution. The Act thus guarantees that, in each of the network’s institutions, there are never more than four bargaining units, four certified associations and four collective agreements.
42. 579. The Government maintains that the Act respects the principles of freedom of association inasmuch as the workers retain the right to establish and to join organizations of their own choosing, in all circumstances. It does not impose any choice on employees as to their representation within the new bargaining units but, on the contrary, affords them a number of options for expressing their preference to be represented by one association or another. All the associations concerned may submit requests to represent the employees included in a new bargaining unit. Moreover, none of the Act’s provisions modifies or restricts the employees’ right to establish and join organizations of their own choosing.
43. 580. Furthermore, the Act contains provisions relating to the maintenance of the workers’ rights after the association that is certified to represent the employees included in a new bargaining unit has been selected. Section 86 establishes the rule of subrogation in favour of the newly certified association of employees: the rights and obligations resulting from the collective agreements of the other associations are thus transferred to the newly certified association of employees. Section 89 provides for the continued application of the collective agreements and of the local arrangements that relate to it. The personnel’s working conditions are therefore maintained since the collective agreements continue to apply to all the employees until such time as new agreements come into force. For example, the wages, social benefits and the right to apply for a post, to choose one’s holidays and to obtain assignments are all maintained. The right to accumulate seniority in an association of employees continues to exist, and the seniority of each person is recognized in full. In this way, the Act provides specifically for the maintenance of workers’ rights under earlier collective agreements. The Government therefore concludes that these provisions respect the principles of freedom of association.
44. 581. In the case of the SPGQ (whose statutes restrict membership to professional personnel and which alleges that it could be dissolved simply by administrative decision), the Government emphasizes that members of organizations are at liberty to amend their statutes and by-laws so that other classes of personnel can apply for membership. There is therefore no legal obstacle to any such amendment should it prove necessary; the decision is up to the members of the organization concerned. Moreover, should its members so wish, the SPGQ can take advantage of one of the other scenarios contemplated in the Act, namely the designation of another association or the constitution of a new association by group.
45. 582. The Government also rejects the complainants’ allegations regarding the dissolution of organizations, which are based on precedents set by the committee dealing with unilateral dissolution ordered on the initiative of the Government and have nothing to do with the situation here. In point of fact, the provisions of the Act concern neither the dissolution nor the abolition of trade union organizations. Rather, the aim is to allow employees to choose the associations that will represent them in the new bargaining units. Where an association of employees that was certified prior to the Act finds itself no longer certified to represent the employees included in a new bargaining unit, this is simply the natural and logical outcome of a democratic choice made by the employees themselves. Even if it loses its certification, an association of employees still continues to exist. Moreover, some trade union organizations may lose their certification with one bargaining unit and acquire it with others.
46. 583. The Government is quite aware that the implementation of the Act, by means of the restructuring of the bargaining units, may have repercussions on how the associations of employees as a whole are organized, but it emphasizes that any organizational changes that are made will respect the choices made by the employees.
47. 584. Traditionally, the health and social services network is a very highly unionized sector in which working conditions are governed by collective agreements that have been duly negotiated. The network comprises 219,397 unionized workers, i.e. 96 per cent of the wage earners. The Act is not designed to alter this situation and does not modify in any way the right of workers in the sector to establish and join organizations. On the contrary, following the partial implementation of the Act, the number of unionized employees increased by 5,000 to a total of 224,396. The purpose of the Act is therefore anything but the de-unionization of employees in the health and social services network.
48. 585. Freedom of association is fully protected under domestic law, specifically by the Canadian and Quebec charters of rights and freedoms and by the Labour Code. The complainants have also instituted court proceedings, backed by the majority of the union organizations in the sector, to have the Act declared unconstitutional. The Government accordingly refers to a recent decision of the CRT to the effect that the Act does not infringe the principle of freedom of association:
49. Employees continue to enjoy the right that they have always had to join or not to join an association based on what they perceive as their interests. Of course, if they wish to negotiate their working conditions collectively with their employers in the social affairs sector, they have to take into account the relevant rules and regulations for certification in the sector. Moreover, the Act does not prevent such associations from being constituted, if the employees so wish, on the basis of the various professions, job titles or groups of job titles, even if it involves these associations grouping together with other associations if they want to be certified. The social affairs sector is one of the sectors with the highest level of union membership and is likely to remain so.
50. 586. Regarding the level of negotiation, negotiations in the past were held at the national level in this sector unless the parties agreed to hand over the negotiation of certain matters (other than wages) to the local and regional level. This system enabled the parties, once a collective agreement came into force, to make local or regional arrangements for implementing matters negotiated at the national level. The aim of the system was to take into account the particular nature of each institution, which may vary according to its purpose, its size, its geographical location, the territory served and the density of the population (Quebec’s health and social service institutions are spread over thousands of kilometres, some areas being densely populated and others less so). There was reason to believe that this would facilitate dialogue in the search for local solutions, but since the entry into force of the system in 1985, the anticipated decentralization of negotiations on the organization of work failed to materialize. As a result, institutions had to apply highly complex collective agreements that had been negotiated at the national level, without any consideration of how local circumstances might affect the organization of work. In 2003, the Government was constrained to intervene to ensure that users had access to efficient services and to improve the organization of work. Bearing in mind the advantages of decentralized negotiations on certain matters, it included in the new legislation a list of 26 matters (mostly linked to the organization of work) to be negotiated in future at the local or regional level. The Act sets out the conditions under which the parties are to negotiate such matters, once the certification process under the new scheme is over. No negotiations may start until the review of the bargaining units and the consequent certifications have been completed, since institutions have to know the identity of the representative that has been authorized to negotiate with them.
51. 587. The Government adds that the Act maintains the acquired rights of employees at the national level as regards remuneration and other matters covered by the collective agreement (other than those relating to the organization of work). In other words, all matters relating to remuneration, including social welfare, bonuses, disability insurance, parental rights and pensions, are to be negotiated and agreed at the national level. In the event of a breakdown in negotiations on these matters, the associations of employees have the right to strike, subject to clearly delineated rules of procedure and the maintenance of essential services. Since remuneration is negotiated at the national level, the Government, in drawing up the list of matters negotiated at the local or regional level, deliberately excluded certain aspects linked to remuneration, such as the concept of travel, voluntary transfer, bumping, daily and weekly hours of work, overtime arrangements, recall lists, availability, national holidays, movable holidays and annual leave. These matters are therefore negotiated at the national level when the corresponding remuneration is established. It follows that negotiations at the local or regional level cover the implementation of these matters in the light of the particular characteristics of each institution.
52. 588. The health and social services sector is called upon to provide the population with adequate health in a context of high costs and a shortage of manpower. In terms of the organization of work, the Government has accordingly taken steps so as not to impose employment conditions on the sector’s employees but rather to encourage their determination by genuine negotiations between the institutions and the associations of employees. Under the Act, local or regional negotiations are conducted in the following manner. The institution and association enter into negotiations on matters of local and regional relevance as from the date of certification of the new association of employees; they have 24 months in which to reach agreement. Should they fail to agree on one or more matters, the parties may separately or jointly request the Minister of Labour to appoint a “mediator-arbitrator of final offers”. In order to settle the matters on which no agreement has been reached, the mediator-arbitrator chooses either the final offer of the association of employees or the final offer of the institution. The offer that is selected must not entail any expenditure over and above the existing cost of implementing the matters under discussion and must guarantee that users have access to the relevant services. The mediator-arbitrator’s decision then constitutes the collective agreement that is applicable between the association of employees and the institution. The matters covered by the decision cannot be renegotiated for a period of two years.
53. 589. The renegotiation of the provisions laid down in the agreements or determined by the mediator-arbitrator is governed by the procedure laid down in the Bargaining Act. This Act stipulates that provisions dealing with matters that have been negotiated and agreed at the local or regional level remain in force so long as they have not been amended, repealed or replaced by agreement between the parties, and continue to apply even though the provisions negotiated and agreed at the national level may have expired. The parties may then, at any time, renegotiate a provision of the collective agreement that relates to local or regional matters. Should any disagreement arise in the course of those subsequent negotiations, the association of employees or the institution may request the Minister of Labour to appoint a mediator-arbitrator to settle the issue. These rules are applicable to both parties, and thus do not give rise to any imbalance in the search for a solution to disputes.
54. 590. Since the matters negotiated at the local or regional level are essentially those linked to the organization of work and determined in the light of the particular characteristics of each institution, the Government considers that this procedure affords employees adequate guarantees for the determination of their conditions of employment as they relate to such matters. These guarantees are particularly appreciable given the whole range of options available to employees in the sector, especially the right to strike in the event of a breakdown in negotiations on conditions of work linked to remuneration and to other matters with monetary implications, including the entire social welfare system. The Government therefore considers that it has taken adequate steps to ensure that employees are able to defend their economic and social interests and that the Act respects the principles of freedom of association in the area of collective bargaining.
55. 591. Regarding the holding of consultations, the Government states that trade union organizations are recognized social partners and take part in all debates affecting Quebec society. Their views are sought both on the occasion of the major consultations organized by the Government and in the course of more formal negotiations on labour relations. The Clair Commission organized very extensive consultations, notably with union organizations. In May 2001, representatives of the Ministry of Health and Social Services and of the Ministry of Labour held another series of consultations with the major union organizations on the problems posed by the multiplicity of bargaining units and the imperative need to find solutions. The unions were invited to work with the Government in seeking administrative or legislative solutions, but the outcome of these meetings was not conclusive. Further talks were held in May 2002, in the form of individual meetings with union organizations, but again there was no agreement. At the beginning of 2003, there were therefore still almost 4,000 bargaining units in the health and social services sector. In September 2003, the minister held another series of network meetings with union organizations on the proposed bills, which were placed before Parliament on 11 November 2003. Between the introduction of the bill and the adoption of Act No. 30, the National Assembly’s Standing Committee on Social Affairs held individual consultations. On that occasion, the trade union associations submitted memoranda; the representatives of the CSQ, CSN, FTQ and CSD were heard by the committee on 4 December. The report on these consultations was placed before the National Assembly on 9 December 2003. The trade union organizations thus took part in consultations and hearings in the parliamentary proceedings leading up to the adoption of the Act. The Government therefore maintains that, as regards both the global issues and the drafting of specific laws, the union organizations were invited by the Government to give their views, to engage in consultations, to submit memoranda, and to attend hearings on possible solutions to problems relating to all the aspects of the organization of work in the health and social services sector.
56. 592. In conclusion, the Government submits that the Act does indeed comply with the Conventions and principles relating to freedom of association and calls for the complaint to be rejected.

C. The Committee’s conclusions

1. 593. The Committee notes that the complainant organizations allege that the Government of Quebec has, without prior consultation with the workers’ organizations, modified by means of legislation the systems of union representation and collective bargaining in the health and social affairs sector, thereby infringing the freedom of association of the employees concerned. The Government replies that the changes in the said legislation were in response to administrative and budgetary constraints, and that the Act contested by the complainant organizations does respect the Conventions and principles relating to freedom of association, notably as regards the right of workers to establish organizations of their own choosing and their collective bargaining rights.
2. 594. Regarding the reorganization of the structure and composition of bargaining units in the health and social services sector, the Committee notes the information and explanations provided by the Government (the difficulties posed by the multiplicity of bargaining units, the multiplication and overlapping of collective agreements, etc.) to justify the legislative measure that has been adopted. The Committee recalls that it is not for it to decide whether or not it is desirable to modify the number of bargaining units in a given sector in such circumstances, or even to restrict it to four per institution, as is the case here; such decisions are for the Government to take. In this respect, the present case is not fundamentally different from a complaint submitted from another Canadian province, on which the Committee was called upon to rule recently (Case No. 2277 (Canada/Alberta), 333rd Report of the Committee).
3. 595. The Committee is aware that, in the context of such a sweeping reorganization, the trade union monopoly system that characterizes labour relations in Canada – in this case in Quebec – is bound to have profound repercussions on the composition of bargaining units. Some units will disappear, others will come into being, yet others will amalgamate, and the lines of demarcation will be permanently modified. Without underestimating the organizational difficulties arising from such a major restructuring exercise, the Committee nevertheless recalls that the fundamental consideration is that, notwithstanding these changes, all employees retain their right to join a trade union, as is the case here, even though the Act concerned does define that right more restrictively than did the previous legislation.
4. 596. While it does take note of the concerns and fears expressed by the complainant organizations as to the impact of the Act on union membership, the Committee nevertheless observes that, in fact, the number of unionized workers increased by 5,000 following the partial implementation of the Act, and that the level of union membership in the sector is around 96 per cent. Considering that some time is needed to assess more accurately the implications of the Act in practice, the Committee requests the Government to keep it informed of developments in the trade union situation in the health and social affairs sector, specifically as regards the number of bargaining units, the associations that are certified to represent those units and the number and percentage of personnel covered.
5. 597. Regarding the appeals lodged against the Act concerned, the Committee notes the decision of the Labour Relations Commission (CRT), the independent body which is responsible for supervising the implementation of labour relations legislation, which concludes that the Act does not infringe the principle of freedom of association. Noting further that the constitutionality of the Act has also been challenged in the courts, the Committee requests the Government to keep it informed of the ruling to be handed down in this respect and of any other relevant ruling on the subject.
6. 598. Regarding the holding of consultations with workers’ organizations, the Committee notes that the positions of the parties concerned are very different, if not contradictory. The complainant organizations allege that there were neither consultations nor any attempt to reach a consensus. The Government, on the other hand, gives several examples of such consultations, including the submission of memoranda by the principal organizations concerned to the relevant parliamentary committee. The Committee wishes simply to recall that, where a government seeks to alter bargaining structures in which it acts directly or indirectly as employer, it is particularly important to follow an adequate consultation process, whereby all objectives perceived as being in the overall national interest can be discussed by all parties concerned. Such consultations imply that they be undertaken in good faith and that both partners have all the information necessary to make an informed decision. Such consultations should be held prior to the introduction of the legislation [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 932 and 941].
7. 599. Regarding the negotiation of collective agreements, the Committee notes in the first place that the workers’ acquired rights have been maintained at the national level, specifically as regards remuneration and the principal social benefits. It would appear that, in this respect, the disputes settlement procedure has not been modified.
8. 600. The Committee notes further that the changes in the collective bargaining system introduced by the Act will have at least two serious repercussions: a reduction in the number of collective agreements (no more than four per institution) and changes in the level of negotiations – whether national or regional – in respect of certain matters. The Committee considers that a reduction in the number of collective agreements does not in itself warrant criticism from the standpoint of the principles of freedom of association. However, as regards the 26 matters which in future have to be negotiated at the local or regional level, the Committee recalls that the determination of the bargaining level is essentially a matter to be left to the discretion of the parties and should not be imposed by law [see Digest, op. cit., para. 851]. The Committee requests the Government to take steps to amend the legislation so that the parties can freely determine the level of collective bargaining. The Committee invites the Government, jointly with the trade union organizations, to establish a mechanism for settling disputes over the level of collective bargaining. The Committee requests the Government to keep it informed of developments in the situation, as regards both the collective agreements applicable at the national level and the local or regional agreements.
9. 601. Regarding the disputes settlement procedure and the workers’ recognized means of bringing pressure to bear, the Committee recalls that the right to strike may be restricted or even prohibited in essential services, i.e. those whose interruption would endanger the life, personal safety or health of the whole or part of the population, and that the hospital sector and health sector are essential services. However, even in essential services certain classes of personnel should not be deprived of that right when the possible interruption of their functions does not, in practice, have any bearing on people’s life, personal safety or health. Similarly, the Committee has considered that workers who are deprived of the right to strike should be entitled to adequate protection to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such services; restrictions on the right to strike should therefore be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Digest, op. cit., paras . 546-547].
10. 602. It is not clear from the allegations and the reply whether or not the new procedure, particularly as regards the mechanisms available to workers in the health and social affairs sector to compensate for the limitation or absence of the right to strike in these services which have been recognized as essential, is in conformity with the principles of freedom of association recalled above. The Committee therefore invites the Government to to send it information on the matter, particularly as regards the independence of the mediator-arbitrator and the compensatory mechanisms that are available to workers in the sector who are deprived of the right to strike.

The Committee's recommendations

1. 603. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed of developments in the trade union situation in the health and social affairs sector, specifically as regards the number of bargaining units, the associations that are certified to represent those units and the number and percentage of personnel covered.
   • (b) The Committee requests the Government to take steps to amend the legislation so that the parties can freely determine the level of collective bargaining. The Committee invites the Government, jointly with the trade union organizations, to establish a mechanism for settling disputes over the level of collective bargaining. The Committee requests the Government to keep it informed of developments in the collective bargaining situation in the health and social affairs sector, specifically as regards the number and nature of collective agreements concluded and the personnel and percentage of workers concerned.
   • (c) The Committee requests the Government to keep it informed of the ruling to be handed down by the competent tribunals on the constitutionality of the Act respecting bargaining units in the social affairs sector, and of any other relevant ruling on the subject.
   • (d) The Committee invites the Government to send it information on the independence of the mediator-arbitrator and the compensatory mechanisms that are available to workers in the health and social affairs sector who are deprived of the right to strike.

Annex 1

1. An Act respecting bargaining units in the social affairs sector and amending the Act respecting the process
2. of negotiation of the collective agreements in the public and parapublic sectors
3. Explanatory notes
4. This bill introduces a union representation system applicable to associations of employees and institutions in the social affairs sector whose negotiation process is governed by the Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors. In addition, it amends that Act to introduce into the social affairs sector the negotiation of matters defined as necessarily being the subject of clauses negotiated and agreed at the local or regional level.
5. The bill first sets out the general rules applicable to certifying an association of employees to represent employees in an institution in the social affairs sector. To that end, the bill establishes the bargaining units that may be constituted on the basis of four classes of personnel. It specifies that only one association of employees may be certified to represent the employees of a bargaining unit in an institution and that only one collective agreement may be applicable to the employees in that bargaining unit.
6. Under the bill, a mechanism is established for the certification of an association of employees to represent the employees included in a bargaining unit following an integration of activities, an amalgamation of institutions or a partial transfer of activities. The bill sets out the special terms according to which the parties, following the certification of the new association of employees, must negotiate the matters defined as being the subject of clauses negotiated and agreed at the local or regional level.
7. The bill contains transitional provisions and empowers the Minister to determine when those provisions will be applicable to institutions.
8. Finally, the bill amends legislative provisions concerning certain health professionals to whom the Act does not apply and enacts final provisions.
9. DIVISION I
10. Introductory provisions
11. 1. This Act introduces a union representation system applicable to associations of employees and institutions in the social affairs sector whose process of negotiation is governed by the Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors (R.S.Q., chapter R-8.2).
12. To that end, this Act establishes classes of personnel according to which bargaining units are to be constituted, and limits their number. It also provides for a mechanism by which an association of employees may be certified to represent the employees included in a bargaining unit following an integration of activities, an amalgamation of institutions, or a partial transfer of activities from one institution to another. Finally, it sets out the special terms according to which the parties, following the certification of the new association of employees, must negotiate the matters defined as being the subject of clauses negotiated and agreed at the local or regional level.
13. 2. The provisions of the Labour Code (R.S.Q., chapter C-27) apply, with the necessary modifications, to the extent that they are not inconsistent with the provisions of this Act.
14. […]
15. DIVISION II
16. Union representation system
17. 1. General rules
18. 4. The bargaining units in any institution in the social affairs sector must be constituted according to the following classes of personnel:
19. (1) nursing and cardio-respiratory care personnel, as defined in section 5;
20. (2) paratechnical personnel and auxiliary services and trades personnel, as defined in section 6;
21. (3) office personnel and administrative technicians and professionals, as defined in section 7;
22. (4) health and social services technicians and professionals, as defined in section 8.
23. […]
24. 9. A bargaining unit may not include more than one class of personnel listed in section 4 and may only include employees whose home base is in the territory of a single regional board.
25. One single association of employees may represent within a single establishment, the employees in one bargaining unit, and one single collective agreement may be applicable to the totality of this bargaining unit.
26. 10. It is the duty of the Commission des relations du travail, on being seized of a petition, to rule on the class of personnel to which a job title is related when the validity of the job title has been recognized by agreement between unions and management at the national level and the job title is not listed in any of Schedules 1 to 4.
27. Once a year, the Commission sends the Minister of Health and Social Services a list of the job titles to be added to those in Schedules 1 to 4, following decisions rendered by the Commission. The Minister publishes the list in the Gazette officielle du Québec. The Minister of Justice ensures that the list of job titles is updated in the schedules in the Revised Statutes of Québec, based on the published list.
28. […]
29. DIVISION III
30. Determination of clauses negotiated and agreed
31. at the local or regional level
32. 35. From the date of certification of a new association of employees following an integration of activities or an amalgamation of institutions, the integrating institution or the new institution resulting from the amalgamation and the association of employees newly certified under section 20 negotiate the matters defined as being the subject of clauses negotiated and agreed at the local or regional level by the Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors.
33. The parties have 24 months from the date on which the new association of employees is certified to agree on those clauses. Failing agreement within those 24 months on a matter that is the subject of clauses negotiated and agreed at the local or regional level, the institution must, in the ensuing 10 days, request the Minister of Labour to appoint a mediator-arbitrator to settle the disagreement, informing the association of employees of the request.
34. However, failing agreement, the parties may, during the first 12 months, jointly request the Minister of Labour to appoint a mediator-arbitrator to settle the disagreement. On the expiry of the first 12 months, either of the parties may make such a request to the Minister of Labour in the ensuing 12 months, informing the other party of the request.
35. 36. Except where the certification of an association of employees is revoked under section 24, and despite section 9, the collective agreement of each certified association of employees referred to in paragraph 1 of section 14, in force on the day before the date on which the new association of employees is certified, and the local arrangements that relate to it continue to apply for employees covered by each of those collective agreements. The integrating institution or the new institution resulting from the amalgamation and the newly certified association of employees may, however, agree to apply the collective agreement of the newly certified association of employees and the local arrangements relating to it to all the employees included in the new bargaining unit.
36. From the date on which the new association of employees is certified, the collective agreement of the newly certified association of employees and the local arrangements that relate to it apply to employees who were not represented by a certified association of employees on the day preceding the date of integration or amalgamation.
37. As of the date of coming into force of an agreement relating to a matter negotiated and agreed at the local or regional level, the clauses negotiated and agreed at the national level and the local arrangements regarding that matter cease to apply. The institution and the newly certified association of employees may agree to bring the clauses negotiated and agreed at the local or regional level into force on different dates.
38. The new clauses negotiated and agreed at the national level after the date on which the new association of employees is certified take effect on the date set out in those clauses. The local arrangements relating to the clauses of the previous collective agreement, which are replaced by the new clauses, cease to apply on that date.
39. 37. The seniority accumulated by an employee in an institution before the date on which the clauses negotiated and agreed at the local or regional level come into force is recognized up to one year per period of 12 months.
40. […]
41. 67. List of the matters negotiated and agreed at the local or regional level in the social affairs sector:
42. (1) Concept of position, except concept of reserved position, and conditions of application
43. (2) Concepts of unit and activity centre
44. (3) Duration and conditions of probationary period
45. (4) Temporarily vacant position
46. (5) Concept of re-assignment and conditions of application, except remuneration
47. (6) Rules applicable to employees on temporary assignment, except those relating to employees with employment security, employees on disability leave, and employees covered by the parental rights plan
48. (7) Rules applicable to voluntary transfers in the facilities maintained by the institution, except those relating to employees with employment security and employees on disability leave, and those relating to remuneration
49. (8) Bumping procedure (conditions of application of the general principles negotiated and agreed at the national level), except remuneration
50. (9) Working hours and weekly schedule, except remuneration
51. (10) Conditions governing time compensation for overtime work, recall, and standby duties, except rates and remuneration
52. (11) Paid holidays, floating holidays, and annual vacation, except quanta and remuneration
53. (12) Granting and conditions of leave without pay, except leave without pay under the parental rights plan and leave without pay to work in a northern institution
54. (13) Human resources development, except allocated amounts and retraining of employees with employment security
55. (14) Activities carried on with users within the meaning of the Act respecting health services and social services outside facilities maintained by an institution governed by that Act, or with beneficiaries within the meaning of the Act respecting health services and social services for Cree Native persons outside an institution governed by that Act
56. (15) Mandate and mode of operation of local committees with respect to the matters listed in this schedule, except any release for union activities required to negotiate those matters
57. (16) Rules of conduct between the parties
58. (17) Posting of notices
59. (18) Professional orders
60. (19) Professional practice and liability
61. (20) Special conditions applicable during transportation of users within the meaning of the Act respecting health services and social services or beneficiaries within the meaning of the Act respecting health services and social services for Cree Native persons
62. (21) Loss or destruction of personal property
63. (22) Rules to be followed when uniforms are required by the employer
64. (23) Locker room and dressing room
65. (24) Payment of salaries
66. (25) Establishment of a savings union
67. (26) Moving allowances, except the quanta.