Interim Report - Report No 230, November 1983

Case No 1173 (Canada) - Complaint date: 29-DEC-82 - Closed

1. 551. In a communication dated 29 December 1982, the World Confederation of Organisations of the Teaching Profession (WCOTP) presented a complaint of violations of trade union rights in Canada/British Columbia. It sent additional information in support of its complaint on 21 January, 10 February, 25 August and 31 October 1983. The Government sent its observations on the WCOTP's initial communications in a letter dated 17 May 1983.
2. 552. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151) or the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant's allegations

1. 553. In its communication of 29 December 1982, the WCOTP states that, due to sudden reductions in school board budgets imposed by the Provincial Government, current collective agreements between teachers and their employers, the school boards, will not be implemented and a large number of teachers may face dismissal. It also alleges that emergency legislation orders that salaries specified in collective agreements be reduced by five or 11 days' pay in view of a reduction by five days in the length of the school year.
2. 554. The complainant points out that, although school boards are responsible for their own budgets, the tax procedures are such that boards are dependent on annual grants from the Provincial Government. The reduction of such grants is of such a magnitude that boards cannot meet the salary obligations arising from the current collective agreements. Accordingly, in some school districts the boards are offering unions the choice between voluntarily reopening collective agreements and accepting salary roll-backs or dismissal of teachers.
3. 555. According to the WCOTP, the Minister of Education has called on teachers to accept renegotiation and has stated that he will use the financing formula to force a freeze on salaries for 1983. Although the pertinent provincial legislation is silent on the right of public servants to strike outside collective bargaining issues, the Minister of Education has threatened to dismiss any teachers who take part in any work stoppage called in protest against the measures described above.
4. 556. In its communication of 21 January 1983, the WCOTP supplies a copy of the emergency legislation - the School Services (Interim) Act - which became law on 14 October 1982. According to sections 1(3) and 5(3), the school boards shall reduce salary instalments payable to each employee by an amount equal to five working days' pay between the period 1 January 1983 to 30 June 1983 and, if there is no agreement between boards and teachers over non-payable non-teaching days during the 1982-83 school year, a further reduction of two working days' pay shall be made per month for the months of October, November and December 1982. The complainant points out that, under section 2, the Act is deemed to prevail over any provisions of a contract or existing law which conflict with the Act.
5. 557. While noting that the Government of Canada has not ratified Conventions Nos. 98 and 154, the complainant alleges that this unilateral change in the terms of existing collective agreements constitutes a breach of the principle of bilateral determination of collective bargaining.
6. 558. In addition, according to the WCOTP, the public comments of the Minister of Education threatening layoffs if agreements or awards grant salary increases, no matter how small, improperly affected arbitration proceedings which are compulsory in the case of failure to reach bilateral agreement. The complainant encloses a copy of the comments of one arbitration board referring to the Minister's threats as "totally unwarranted and an improper interference in the judicial functions of this board".
7. 559. The complainant's communication of 10 February 1983 contains a copy of the decision of a highly respected arbitrator in the final stage of salary negotiations between certain teachers and their employing boards. The judgement - dated 4 December 1982 - refers to the discriminatory effect of the new Act (in that teachers alone bear the burden of salary reductions in agreed rates) and in particular awards an increase of 3.5 per cent for the teachers concerned despite the recommendations of the Minister of Education referred to above.
8. 560. In its communication of 25 August 1983, the WCOTP refers to further draft provincial legislation which appears to have the objective of putting an end to the possibility of collective bargaining by public servants in general and teachers in particular. It encloses copies of the three Bills in question. The first is Bill 3 "the Public Sector Restraint Act" which empowers the employer, with unfettered discretion and without appeal, to dismiss employees for a wide range of economic reasons; where the existing collective agreements provide for due process, that provision remains valid only until the original intended date of expiry of the agreement, even if the agreement as a whole is unilaterally extended by other government measures. In addition Bill 3 applies the designation of "senior manager" to "a principal or vice-principal or any other teacher who is employed by a school board and who holds a supervisory position" thereby enabling the Lieutenant Governor in Council to fix their salaries, classification and terms of employment, rather than through the process of collective bargaining.
9. 561. According to the complainant, Bill 11 amending "the Compensation Stabilisation Act" makes permanent the controls on collective bargaining which were introduced in 1982 as an emergency measure for a two-year period and adds further controls on collective bargaining. This Bill provides that the paramount consideration for determining compensation is the public sector employer's ability to pay. The complainant views this as dangerous in view of yet another bill, Bill 6 "the Interim Education Finance Act", under which the Government gives itself the power to control the ability to pay of the teachers' employers namely the school boards. The WCOTP also alleges that Bill 11 empowers a government-appointed Commissioner to limit increases in, maintain or reduce compensation in the public sector in accordance with regulations issued by the Government at its pleasure.
10. 562. The third piece of offending legislation in the complainant's opinion is Bill 26 amending "the Employment Standards Act" in such a fashion that where a collective agreement makes any provision regarding one of a number of matters listed in the Bill (e.g. hours of work, vacation, maternity leave, layoff), all the provisions of the Act regarding that matter - including those more favourable legislative provisions - are rendered invalid. Accordingly, states the complainant, in the British Columbian teachers' bargaining situation, if the employees manage to gain incomplete contractual conditions supplementary to the minimum standards contained in the Employment Standards Act, they risk losing even that minimum protection for all aspects of the negotiated item.
11. 563. In a further communication dated 31 October 1983, the WCOTP states that the draft legislation referred to above has become law with two principal amendments being of concern to this complainant, namely the Public Sector Restraint Act (formerly Bill 3) which automatically designates school principals, vice-principals and other supervisory personnel as persons whose salaries will be unilaterally set by Cabinet without the formality of having them designated as "senior management" and, secondly, the Interim Education Finance Act (formerly Bill 6) which is in force until 31 December 1986. This means that the Government will control the employers' (the school boards') ability to pay teachers' salaries until then.

B. The Government's reply

1. 564. In its communication of 17 May 1983, the Government refers firstly to the serious recessionary period of 1982-83 and states that the Province's large budgetary deficit was due to circumstances outside its control such as high interest rates, slumping energy demands and restrictive monetary policies all of which were initiated elsewhere. It points out that, in view of this emergency situation, the Government of British Columbia introduced an economic stabilisation programme comprised of a "restraint in Government programme" and a "compensation stabilisation programme", both of which apply to all provincial and municipal government employees numbering about 225,000.
2. 565. The Provincial Government stresses that its "compensation stabilisation programme" is not discriminatory, is limited to two years, does not violate or reopen existing collective agreements (unless both parties agree), does not affect the right to free collective bargaining or the right to strike and suggests merely voluntary guide-lines for wage increases of 0 to 10 per cent in the first year and 0 to 9 per cent in the second year. At the date of writing, 500 compensation plans covering nearly 100,000 public employees had been settled.
3. 566. As regards the specific allegations in this case, the Government of British Columbia describes the usual process of collective bargaining for teachers and points out that the only change under the "compensation stabilisation programme" is that negotiated agreements (or awards where arbitration has been resorted to) are translated into a form in which they become compensation plans. Such plans must be submitted for review to the Commissioner charged with the administration of the programme. According to the Government, he has received all of the awards governing teachers which, by law, had to be made by 31 December 1982. The Government states that 11 compensation plans concerning teachers have been approved; they provide for increased rates of pay from 0 to 3.61 per cent - with individual local circumstances determining the actual pay increase - and take account of the Province's ability to pay during this temporary recession.
4. 567. Regarding the reduction in the length of the school year, the Government of British Columbia notes that this only affects the amount of pay for teachers in 1983, not the rate of pay which was determined by collective bargaining. It also points out that the reduction results in increased productivity.
5. 568. As regards the alleged threats against any protest action by teachers, the Government of British Columbia explains that at the moment strikes by teachers do not have the protection of the British Columbian Labour Code and unauthorised absences from the classroom are classified under the School Act as misconduct which is subject to disciplinary action, including dismissal. It further points out that strikes or lock-outs during the term of a collective agreement - which would be the situation of such action by teachers - have been illegal in every jurisdiction of Canada (except Saskatchewan) for the past 39 years. The Government replies to the allegation that the Minister of Education's statements influenced the arbitration processes by asserting that none of the 13 arbitration boards which sat in 1982 made the zero award recommended by the Minister, so they were obviously not intimidated. Moreover, according to the Government, the Minister has the right and the duty to make his views known as to the budgetary implications of the results of salary negotiations.
6. 569. Lastly, the Government stresses that this flexible provincial programme of wage comparability and stabilisation meets its obligation to its population of preserving jobs and services and, being of a temporary and extraordinary nature, works fairly and without discrimination.

C. The Committee's conclusions

1. 570. The Committee notes that this case essentially concerns alleged interference in collective bargaining through legislative provisions which effectively reduce the amount of pay to be received by a certain category of British Columbian public servants, namely teachers, in the 1982-83 school year which had previously been agreed upon during voluntary collective bargaining. There is an additional allegation that the provincial Minister of Education publicly threatened layoffs if any future collective agreements or awards granted any wage increases, no matter how small, and threatened dismissals if teachers attempted to protest the new legislation.
2. 571. In addition, the Committee notes that the most recent communication from the complainant introduces new allegations concerning wage restraint legislation of British Columbia, to which the Government has not yet replied. The Committee will examine these allegations at a later date when it is seized of the Government's observations.
3. 572. The Committee notes the Government's argument that, faced with an extraordinary economic recession, it was forced to introduce programmes for a two-year period to stabilise wages in the public sector. However, the Committee observes that the allegation under examination at present does not criticise the general wage restraint programme of the Government; on the contrary, the issue is that the Government is forcing particular public employers, the school boards, to resile previously agreed, existing contracts. The Government partly recognises this when it stresses that the legislation does not affect future collective bargaining or the right to strike or arbitration procedures.
4. 573. After examining the legislation in question - the School Services (Interim) Act, the effect of which is to modify, in an adverse manner, the provisions of freely concluded collective agreements, the Committee concludes that such action is not consistent with the principles of freedom of association, all the more so because the legislation was adopted apparently without consultation with the workers involved, their unions or representatives. The Committee has stressed in the past the importance it attaches to the principle of the autonomy of the parties to the collective bargaining process, a principle generally recognised in the preparatory discussions that led to the adoption by the International Labour Conference in 1981 of the Collective Bargaining Convention (No. 154). It follows from this principle that the public authorities should not as a rule intervene in order to modify the contents of collective agreements freely concluded. The Committee would also recall that restrictions on the right to collective bargaining might only be acceptable on condition that they are of an exceptional nature and only to the extent that they are necessary, without exceeding a reasonable period, and that they are accompanied by adequate safeguards to protect workers' living standards.
5. 574. As regards the budgetary restrictions imposed in the present case and which limited the possibilities of the employing authorities of fulfilling their obligations, the Committee considers that the exercise of financial powers in a manner that prevents compliance with collective agreements already entered into by public bodies is not consistent with the principle of free collective bargaining.
6. 575. An equally serious issue is raised in the Government's reply which, although not the subject of allegations, merits consideration by the Committee. The Committee notes that under the Government's compensation stabilisation programme, freely concluded agreements or awards are translated into so-called compensation plans which must be submitted for review to the Commissioner responsible for the programme. It appears that if such agreements or awards grant too high wage increases they can be disapproved. The Committee considers this a discouragement to the use of voluntary collective bargaining, and, even where the intervention by the public authorities is essentially for the purpose of ensuring that the negotiating parties subordinate their interests to the economic policy pursued by the Government, irrespective of whether they agree with that policy or not, it is incompatible with the principle of non-interference by the public authorities.
7. 576. The allegation of threatened layoffs if any wage increases are granted is answered by the Government by reference to the fact that, to date, in spite of its guide-lines and certain statements made, 11 compensation plans involving increases of up to 3.6 per cent for teachers have been approved without any layoffs being made. In addition, the Committee notes the British Columbian arbitration boards' determination not to be swayed by public announcements, as evidenced by the information supplied by the complainant. It accordingly considers that this aspect of the case does not call for further examination.
8. 577. In addition, as regards the Minister of Education's public statements regarding possible dismissals if teachers take protest action in the form of work stoppages against the new legislation which according to the Government, would constitute "unauthorised absence from the classroom", and hence "misconduct" under the School Act, the Committee notes that neither the School Act nor the School Act Regulation define what constitutes "misconduct". Despite the Government's claim that strike action could fall into this category because it would be an "unauthorised absence from the classroom", the Committee can find no justification for this reasoning in the Act itself or the Regulation. Moreover, the Committee would point out that the principle whereby the right to strike may be limited or prohibited in the public service or in essential services, whether public, semi-public or private, would become meaningless if the legislation defined the public service or essential services too broadly. Such prohibition should be confined to public servants acting in their capacity at agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee considers that teachers do not fall within this definition.) The Committee notes, however, that no allegation has been made that any dismissals have taken place as a result of protest action.

The Committee's recommendations

1. 578. In these circumstances, the Committee recommends the Governing Body to approve this interim report and, in particular, the following conclusions:
   • (a) The Committee notes that the Government has not yet replied to the complainant's most recent communication referring to three recent pieces of British Columbian legislation on wage restraint and will, therefore, adjourn its examination of the new allegations until it has received the Government's observations.
   • (b) As regards the alleged interference in collective bargaining through legislative provisions which effectively reduce the amount of pay to be received by teachers in the 1982-83 school year despite current collective agreements, the Committee considers that such action is not consistent with the principles of freedom of association, all the more so because the legislation in question was adopted apparently without consultation with the workers involved.
   • (c) As regards the budgetary restrictions imposed in the present case and which limited the possibility of the employing authorities of fulfilling their obligations i.e. the school boards' ability to pay teachers the sums previously agreed upon, the Committee considers that the exercise of financial powers in a manner that prevents compliance with collective agreements already entered into by public bodies is not consistent with the principle of free collective bargaining.
   • (d) The Committee observes from the Provincial Government's general reply that its legislation package for public servants, including teachers, provides for the submission of negotiated agreements or awards to a public authority for approval. The Committee would point out that such action is not only liable to discourage the use of voluntary collective bargaining, but that it is also incompatible with the principle of non-interference in the collective bargaining process by the public authorities.
   • (e) The Committee considers that the allegations regarding threats of layoffs of teachers and dismissals for misconduct made by the Minister of Education in public statements do not call for further examination; it would, however, draw the attention of the Government to the principle that a prohibition against the right to strike for public servants should be confined to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population.