Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Canada (Ratification: 1972)

The Committee takes note of the Government's report and the comments made by the National Union of Provincial Government Employees (NUPGE) on the labour legislation in.

Articles 2 and 3 of the Convention

1. Newfoundland. In its previous observation the Committee had requested the Government to reconsider Bill 59, the Public Service (Collective Bargaining) Act, dated 1 September 1983 (which excludes many workers from the definition of "employee"), so as to allow said workers without distinction whatsoever the right to belong to a union of their own choosing (Article 2) and had also requested the amendment of section 10.1, relating to the procedure for the designation of "essential employees", which leads to difficulty in access to independent arbitration in the event of a dispute (Article 3). The Committee had expressed hope that the pending public service labour legislation review, to be carried by a joint body, would lead to legislative amendments ensuring full conformity with the Convention.

In its last report, the federal Government indicated that the Government of Newfoundland has replied that the Legislative Review Committee was set up in late 1986. The membership of the Committee was later expanded to include representatives from other unions who represent employees working in the public service. Thus, the membership on the Legislative Review Committee was one representative from Treasury board; four representatives of public service unions; the chairperson, an executive secretary and legal counsel. The Committee began its work in early 1987. It examined other provincial and national legislation on public sector employees, held public hearings to give all interested parties an opportunity to make submissions and prepared an information paper for the Government as part of the ongoing consultative process. The Committee held a number of meetings on its own and finalised its report with a series of recommendations on proposed amendments to public sector legislation. This report was submitted to the Minister of Labour of Newfoundland on 21 July 1988.

The Committee further notes that, according to NUPGE, 28 of the 30 recommendations contained in the report were submitted unanimously; the remaining two (one of which deals with interest arbitration in essential services) were not supported by the Government's representatives on the Committee. Still according to NUPGE, the Government stated that it would study the report and recommendations in the spring of 1989, and intended to repeal the Public Service (Collective Bargaining) Act and replace it with different legislation.

The Committee reminds the Government that prohibitions on the right to strike should be confined to public servants acting in their capacity as agents of the public authority, or to essential services, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population (General Survey, 1983, paragraph 214). Furthermore, as pointed out by the Committee on Freedom of Association in the complaints presented against the Government of Canada, Newfoundland (Case No. 1260, paragraph 155(c)), any limitation on the right to strike 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.

Since both the Committee on Freedom of Association and the present Committee have been making these comments for some time, the Committee trusts that the Government of Newfoundland will take the necessary measures to give full effect to the Convention on these points in the near future, and asks the federal Government to indicate in its next report any progress in this regard.

2. Alberta. Referring to the conclusions of the Committee on Freedom of Association in relation to Cases Nos. 1234 and 1247, approved by the Governing Body in its 241st Report (November 1985), the Committee recalls that in order to ensure compliance with Article 2 of the Convention, the Government should have taken measures: (1) to repeal section 17(1)(d.1) of the University Act, as amended in November 1981, which empowers the Board of Governors to designate those employers who shall be "academic staff members" for the purpose of joining academic staff associations; and (2) to introduce an independent system of designation where the parties cannot reach agreement for the purpose of joining academic staff associations.

The Government should also have taken measures to amend the provisions of the Public Service Employee Relations Act and the Labour Relations Act, as amended in 1983, to restrict the prohibition of strikes to services which are essential in the strict sense of the term, and to adopt legislation along the lines already suggested by the Committee and the Committee on Freedom of Association, in the context of the report of the September 1985 study and information mission.

In its previous observation, the Committee noted that the Government of Alberta had initiated a general review of its labour legislation through a joint committee which intended to look at foreign experience and to hold public debates on the legislation. In its last report, the Government of Alberta indicates that it has carried out an extensive review of its private sector labour legislation and enacted the Labour Relations Code (effective date, 28 November 1988), which repeals and replaces the Labour Relations Act, and the Construction Industry Bargaining Act. The Government admits that time constraints and the extent of the consultations with interest groups in the private sector prevented it from reviewing its public sector labour legislation, but gives assurances that its future policy decisions related to public sector collective bargaining will give due consideration to the concerns raised in ILO observations.

The Committee strongly hopes that any reform of the public sector labour legislation in Alberta will be preceded by wide consultations with all interested groups, as was the case for the private sector, so as to allow for a thorough examination of all issues and concerns raised in previous observations and direct requests of the Committee of Experts, the reports of the Committee on Freedom of Association, and the report of the September 1985 study and information mission to Canada. The Committee requests the federal Government to keep it informed in its next report of developments in that respect.