Definitive Report - Report No 194, June 1979

Case No 893 (Canada) - Complaint date: 04-NOV-77 - Closed

1. 92. The Committee has already examined this case, at its November 1978 Session, when it submitted interim conclusions in paragraphs 512 to 546 of its 187th Report. The Governing Body also approved this report in November 1978, at its 208th Session.
2. 93. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has not ratified either the Right to Organise and Collective Bargaining Convention, 1948 (No. 98), or the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. Previous examination of the case

1. 94. In November 1978 the Committee noted that the promulgation of the Public Service Employee Relations Act in Alberta in 1977 was an attempt to consolidate a number of existing legislative enactments covering provincial public employees, including the Alberta Labour Act, 1973, the Crown Agencies Employee Relations Act and the Public Service Act. The new legislation had been preceded by a study of the labour relations situation in the public service by a task force comprising government and trade union representatives. As the Government pointed out, although the task force had produced several mutually acceptable recommendations, the general lack of consensus in Canada was reflected in the separate recommendations issued by the two groups comprising the task force.
2. 95. The promulgation of the Public Service Employee Relations Act - which came into force on 22 September 1977 - had given rise to complaints which fell under four main heads: (1) the new Act placed a general prohibition on strikes by public employees and imposed heavy penalties in the event of strikes taking place; (2) the Act discriminated between certain categories of public employees who because they were brought within the scope of the new Act were denied the right to strike, and other public employees who because they were not covered by the new Act retained the right to strike under other legislation; (3) the Act excluded certain items from the scope of collective bargaining; and (4) one result of the Act had been to remove the right of academic staff to choose whether or not they wished to bargain collectively.
3. 96. Sections 93 and 94 of the Public Service Employee Relations Act placed a general prohibition on strikes and lock-outs, and section 95 imposed a fine of not more than $10,000 for breach of these provisions. In this connection, the Committee had in a number of cases pointed out that recognition of the principle of freedom of association in the case of public officials did not necessarily imply the right to strike. The Committee had also stressed the importance which it attached, whenever strikes in essential services or in the civil service were forbidden or subject to restriction, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests; these restrictions should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures, in which the parties could take part at every stage and in which the awards were binding in all cases on both parties; these awards, once they had been made, should be fully and promptly implemented. The Committee noted that the Act provided for mediation and arbitration in the event of disputes.
4. 97. The Committee also pointed out that the Labour Relations (Public Service) Convention, 1978 (No. 151), does not deal with the question of the right to strike.
5. 98. The Committee recalled, at it had done in previous cases, that it would not appear to be appropriate for all publicly owned undertakings to be treated on the same basis in respect of limitations of the right to strike without distinguishing in the relevant legislation between those which are genuinely essential because their interrupted operation may cause public hardship and those which are not essential according to this criterion. In one case, for example, the Committee had considered that it had not been established in a satisfactory way that the mint, the government printing service and the state alcohol, salt and tobacco monopolies constituted genuinely essential services according to the criterion expressed above. The Committee had in this case considered that, although it might be said that a stoppage of work by the workers concerned in these undertakings could cause public inconvenience, it did not appear possible to consider that it could bring about serious public hardship.
6. 99. The Committee noted that a certain number of government undertakings were excluded from the scope of the Public Service Employee Relations Act (the telephones commission, the education communications corporation, the railway corporation, etc.). One undertaking to which the complainants had referred was the Alberta Liquor Board, the employees of which were prohibited from striking under the new Act. Having regard to the principles and considerations stated above, the Committee suggested that the Government consider the possibility of introducing an amendment to the legislation so that in cases where strikes were prohibited in certain undertakings these undertakings should be confined to services which were essential in the strict sense of the term.
7. 100. Secondly, the complainants alleged that the Act discriminated between different categories of public servants in that those covered by the new Act did not enjoy the right to strike whereas others, who were not brought within the scope of the new Act, continued to enjoy this right under other legislation.
8. 101. In this connection the Committee took note of the Government's explanation that the new Act deliberately avoided encroaching upon the jurisdictions of more local levels of government, regardless of the similarities that might exist in the facilities operated by these levels of government. The limited scope of the Act in the health care industry, for example, stated the Government, was a direct result of the desire to recognise the role of other levels of government in this industry. The Committee also noted the Government's statement that it was never its intention to provide an over-all collective bargaining framework for any particular industry.
9. 102. The Committee considered that the Public Service Employee Relations Act, in so far as it excluded from its scope certain categories of public employees who continued to enjoy more favourable provisions under other legislation, did not infringe trade union rights.
10. 103. The third aspect of the complaint concerned the alleged exclusion of certain matters from the scope of collective bargaining. The Committee noted that section 48 of the Act, to which the complainants referred in this connection, in fact provided that an arbitral award might deal only with those matters that might be included in a collective agreement but that certain matters might not be referred to arbitration, namely: (a) the organisation of work, the assignment of duties and the determination of the number of employees of an employer; (b) the systems of job evaluation and the allocation of individual jobs and positions within the systems (c) selection, appointment, promotion, training or transfer; and (d) pensions. The provision in question did not, in the view of the Committee, appear to exclude the possibility of bargaining on these matters. The Government for its part explained that it considered that certain items were not appropriate for determination by a third-party arbitration process, and that it considered it proper to ensure perpetuation of its existing decision-making flexibility with respect to the items in question.
11. 104. The Committee understood that, although collective bargaining might take place on the items thus excluded from referral to arbitration, in the event of failure to reach agreements on these matters - certain of which related directly to conditions of employment of public employees - the Government might decide unilaterally on these matters. Public employees covered by the Act, therefore, who were also deprived of the right to strike, were unable to seek to have such matters determined by arbitration. The Committee pointed out that there were certain matters which clearly appertained primarily or essentially to the management and operation of government business; these could reasonably be regarded as outside the scope of negotiation. It was equally clear that certain other matters were primarily or essentially questions relating to conditions of employment and such matters should not be regarded as outside the scope of collective bargaining conducted in an atmosphere of mutual faith and trust.
12. 105. The Committee accordingly recommended the Governing Body to request the Government, in the light of the foregoing principles and considerations, to consider the possibility of extending the scope of matters that might be referred to arbitration so as to include those matters specified in section 48(2) of the Public Service Employee Relations Act which relate directly to conditions of employment of public employees.
13. 106. As regards the fourth aspect of the complaint concerning academic staff, the Committee noted that such workers, both in colleges and universities, were not covered by the new legislation and that they were furthermore specifically removed from the ambit of the Alberta Labour Pct, 1973. The Committee recommended the Governing Body to request the Government to supply information concerning the right to organise of academic staff members of colleges and universities, the right of such workers to engage in collective bargaining for the purpose of determining their terms and conditions of employment, and the machinery available for the settlement of disputes.
14. 107. In these circumstances the Governing Body, on the recommendation of the Committee:
    • (a) drew the attention of the Government to the principles and considerations set forth above concerning the right to strike in the civil service and in essential services and suggested that the Government consider the possibility of introducing an amendment to the Public Service Employee Relations Act so that, in cases where strikes were prohibited in undertakings, the latter should be confined to services which were essential in the strict sense of the term;
    • (b) drew the Government's attention to the principles and considerations set forth above concerning the scope of collective bargaining and requested the Government to consider the possibility of extending the scope of matters that might be referred to arbitration so as to include those matters specified in section 48(2) of the Public Service Employee Relations Act which related directly to conditions of employment of public employees;
    • (c) requested the Government to supply information concerning the right to organise of academic staff members of colleges and universities, the right of such workers to engage in collective bargaining for the purpose of determining the terms and conditions of their employment, and the machinery available for the settlement of disputes;
    • (d) took note of the interim report.

B. Recent developments

1. 108. In a letter of 26 February 1979 the Canadian Association of University Teachers, while admitting that a type of collective bargaining existed for the teaching staff of universities in Alberta, adds that bargaining takes place in a legislative vacuum and in a climate of general uncertainty on the basis of common law. According to the Association, collective bargaining on the basis of common law is a difficult area, fraught with ambiguities in at least one university in Alberta the arrangements adopted have worked reasonably well to date and have resulted in an effective form of co-determination with respect to working conditions. However, the teaching staff in other institutions in the Province have been less fortunate. Thus some of the members of the complainant organisation would be satisfied with a form of legislative authorisation for the present system of co-determination. Others argue strongly that the present arrangements could adequately protect the basic freedoms of academic staff only if they were reinforced by the possibility of a legally sanctioned collective bargaining relationship, available in the event of a breakdown of the informal systems.
2. 109. In a note attached to its communication, the complainant explains in greater detail the nature of the informal bargaining procedure known as the "Special Plan", which takes place outside the scope of the relevant labour relations legislation. It adds that there are other formulae which are similar to collective bargaining in certain respects. Nevertheless, gradual recognition in the early 1970s that university employers could unilaterally alter terms and conditions of employment led the teaching staff to the view that more formal procedures for their participation were necessary. Today, states the complainant, a large proportion of the academic staff of Canadian universities in general have secured collective bargaining rights, while others have opted for the Special Plan approach.
3. 110. With the passage of the Public Service Employee Relations Act in 1977, continues CAUT, academic staff in Alberta were excluded from the ambit of the Labour Act as well as from the Public Service Employee Relations Act itself. This, according to the complainant, left Special Plan bargaining as the only vehicle for negotiations for that category of staff, whereas formerly, despite a decision of the Alberta Supreme Court, there was good reason to believe that the statutory procedure was applicable. However, adds the complainant, common law in Canada is regarded as being inadequate to deal with the notion of a collective employment contract, and uncertainty as to the viability of collective agreements at common law manifests itself in a number of respects, of which the complainant gives details. The complainant reiterates the need for legislative intervention in this field and criticises certain statements made by the Government in its reply to the allegations presented. In a letter of 8 May 1979 the International Federation of Free Teachers' Unions expresses its support for the complaint of CAUT.
4. 111. In a letter of 27 April 1979 the Government transmits additional information supplied by the Provincial Government of Alberta, which refers firstly to the recommendation to introduce an amendment to the 1977 Act in order to limit the prohibition of strikes, where this exists, to services which are essential in the strict sense of the term. In the opinion of the Provincial Government, although some services might be more essential than others, the public service generally provides to the people of Alberta services for which, in the main, there is no reasonable alternative. It stresses that it would not seem advisable to set up a process whereby different dispute resolution mechanisms would apply to different groups of employees of a single employer. The Public Service Employee Relations Act includes a universal dispute resolution mechanism, along with protection of employees' rights to organise and be represented by an agent of their own choosing.
5. 112. The Government next refers to the possibility of extending the scope of matters that may be referred to arbitration, and considers that non-arbitrable matters which relate directly to conditions of employment are, in the interest of the public, either essential to the management and operation of government or crucial to maintaining the integrity of the selection and appointment of employees. The Government also considers it essential to ensure perpetuation of its existing decision-making flexibility with respect to the scope, organisation and allocation of the workforce. All matters mentioned in the Public Service Employee Relations Act, including non-arbitrable matters, may be negotiated. Employees also have consultative, representative or appeal rights which they may freely exercise directly or through their chosen representatives.
6. 113. As regards the right to organise of members of the academic staff of colleges and universities, the Government communicates a copy of the Universities Act, pointing out in particular that section 19(3) confers special privileges regarding appointments, promotion and dismissal mechanisms on the General Faculties Council of each university. The Government also points out that the CAUT admits the existence of a type of collective bargaining; the complainant also recognises, it adds, that at one university in the Province at least, the arrangements adopted have worked reasonably well and have resulted in an effective form of co determination with respect to working conditions; the complainant also acknowledges a variety of opinions among academics as to what might constitute a preferred alternative. In view of the uncertainty of preference within the advanced education community, continues the Government, it is prepared to consider a variety of options and has commenced a process to explore alternatives.

C. Conclusions of the Committee

1. 114. The Committee has taken note of this information. Under Article 3 of Convention No. 87, trade union organisations - as organisations of workers for furthering and defending their occupational interests (Article 10) - have the right to formulate their programmes and organise their activities. It is on the basis of the right which trade unions are thus recognised as possessing that the Committee has always considered the right to strike as a legitimate - and indeed essential - means by which workers may defend their occupational interests. The Committee has recognised that strikes may be restricted, and even prohibited, in the public service, essential services or a key centre of a country's economy because - and to the extent that - a work stoppage may cause serious harm to the national community. Accordingly, the Committee holds the view that it is inappropriate in the present case to place all public establishments covered by the Public Service Employee Relations Act of 1977 on the same footing as regards the prohibition of the right to strike. To take only the example quoted by the complainants, the Alberta Liquor Board is not a service in which strikes should be prohibited.
2. 115. In all cases in which strikes have been prohibited in the public service or an essential service, the Committee has stressed, as recalled in paragraph 96 above, that workers should be assured of appropriate conciliation and arbitration procedures. The 1977 Act provides for mediation and arbitration in the event of dispute. It nevertheless appears - and this is the second point on which the Committee made recommendations in 1978 - that questions directly relating to conditions of employment of public servants cannot be settled by arbitration. If the negotiations break down, it would seem that the Government can take unilateral decisions on these matters, which cannot fail to have an influence on the course of the negotiations.
3. 116. In November 1978 the Committee referred to the distinction made by the Fact-Finding and Conciliation Commission on Freedom of Association (in its report on persons employed in the public sector in Japan) between matters appertaining primarily or essentially to the management and operation of government business - which can reasonably be regarded as outside the scope of negotiation - and those relating primarily or essentially to conditions of employment - which should be regarded as within the scope of collective bargaining. The Committee added that there were also problems affecting both the management and operation of government business on the one hand and conditions of employment on the other. In particular, it referred to numbers of employees and transfer of personnel, and considered that questions of this kind should not be considered as lying outside the scope of collective bargaining conducted in an atmosphere of mutual faith and trust. The Committee considers that the same distinction should be drawn in the present case in order to determine what subjects may be referred to arbitration in the event of a breakdown in negotiations. It is of the opinion that most of the points listed in section 48(2) of the 1977 Act are directly related to conditions of employment and should not therefore be excluded from the scope of arbitration.
4. 117. As regards the members of the academic staff of colleges and universities, the Committee notes that these persons possess organisations to defend their interests and that the Alberta Universities Act provides for the participation of teaching staff in university bodies, in particular the University Board (section 13) and the General Faculties Council (sections 32 and 33). These latter provisions mark a substantial difference in the status of the persons concerned from that enjoyed by other public servants. In addition, collective bargaining takes place, although on an informal basis opinions vary as to the bargaining procedure to be used, even among the academic staff, and the Government states that it is prepared to examine a series of options and that it has begun to investigate other possibilities. The Committee notes this latter statement with interest and, in the light of all the elements of information provided, considers that this aspect of the case should not be pursued further.

The Committee's recommendations

1. 118. In these circumstances, and as regards the case as a whole, the Committee recommends the Governing Body:
   • (a) to note that the members of the academic staff of the colleges and universities of Alberta are able to organise and negotiate their conditions of employment collectively, although on an informal basis, and that the Government has began to explore alternative procedures for negotiation;
   • (b) to confirm, for the reasons set forth in paragraph 114 above, its earlier conclusions concerning the right to strike in the public service and again to suggest that the Government consider the possibility of introducing an amendment to the Public Service Employee Relations Act in order to confine the prohibition on strikes to services which are essential in the strict sense of the term;
   • (c) likewise to confirm, for the reasons set forth in paragraphs 115 and 116 above, its earlier conclusions regarding the scope of matters that may be referred to arbitration and to request the Government to review in this light the list of points set forth in section 48(2) of the above-mentioned Act.