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Information System on International Labour Standards

Definitive Report - Report No 241, November 1985

Case No 1260 (Canada) - Complaint date: 03-FEB-84 - Closed

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  1. 97. The complaint (Case No. 1172) of the Canadian Labour Congress (CLC), on behalf of its affiliated organisations the National Union of Provincial Government Employees (NUPGE), the Ontario Public Service Employees Union (OPSEU) and the Canadian Union of Public Employees (CUPE), is contained in a communication dated 15 November 1982. The CLC supplied additional information in communications dated 15 December 1982, 16 February and 28 October 1983 and 10 January 1984. The World Confederation of Organisations of the Teaching Profession (WCOTP), presented its complaint, on behalf of its affiliates the Canadian Teachers Federation and the Ontario Teachers Federation, in a letter of 8 February 1983 and further information in a communication of 7 March 1983. The Service Employees International Union (SEIU) presented its complaint in a letter dated 6 April 1984. The Government sent its observations in communications dated 25 April 1983 and 7 June and 16 October 1984.
  2. 98. The Confederation of Alberta Faculty Associations (CAFA) presented a complaint (Case No. 1234) of violations of trade union rights against the Government of Canada/Alberta in a communication dated 19 September 1983. The Government supplied its observations in a communication dated 21 February 1984.
  3. 99. The Canadian Labour Congress (CLC) presented a complaint (Case No. 1247) of infringements of trade union rights in Alberta in a communication dated 1 November 1983 on behalf of the Alberta Union of Provincial Employees (AUPE), a component of the National Union of Provincial Government Employees (NUPGE) which is the CLC's second largest affiliate. The Government transmitted its observations in a communication dated 3 May 1984.
  4. 100. The Canadian Labour Congress (CLC) presented a complaint (Case No. 1260) of infringements of trade union rights in Newfoundland in a communication dated 3 February 1984 on behalf of the Newfoundland Association of Public Employees (NAPE), a component of the National Union of Provincial Government Employees (NUPGE) which is affiliated to the CLC. The Government transmitted its observations in a communication dated 29 May 1984.
  5. 101. The Governing Body Committee on Freedom of Association, at its meeting in November 1984 (236th Report, para. 7, approved by the Governing Body at its 228th Session, November 1984), decided to postpone its examination of the cases concerning Ontario, Alberta and Newfoundland since it was of the view that, before reaching conclusions in these cases, it would be necessary to obtain additional information, particularly through a study and information mission, which could assist in clarifying aspects of the laws and practices involved. The Committee accordingly requested the Government to indicate its consent to such a procedure.
  6. 102. In a letter dated 1 February 1985 the Government indicated that, after consultation with the various provincial governments concerned, it had no objection to such a mission taking place.
  7. 103. In its 238th Report, para. 10 (approved by the Governing Body at its 229th Session, February-March 1985), the Committee explained that the study and information mission would take place within the context of its examination of the cases. It emphasised that its proposal for such a mission stemmed from a desire on its part to reach conclusions in as full a knowledge and understanding as possible of the complex issues involved. It said that it was convinced that its work would be greatly facilitated by an on-the-spot appreciation of the day-to-day practical operation, in local conditions, of the legislation that was the subject of the complaints.
  8. 104. Arrangements were accordingly made for a study and information mission to take place in Canada - in particular, the Provinces of Ontario, Alberta and Newfoundland - from 12 to 25 September 1985. The Director-General of the ILO appointed Sir John Wood, CBE, LLM, as his representative to carry out the mission; he was accompanied during the mission by Mr. William R. Simpson, Chief of the Freedom of Association Branch of the International Labour Standards Department and Mrs. Jane Hodges, an official of the Freedom of Association Branch. The report of the representative of the Director-General is annexed to this paper.
  9. 105. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) or the Labour Relations (Public Service) Convention, 1978 (No. 151).
  10. 106. The Committee wishes first to express its deep appreciation to Sir John Wood for having undertaken this study and information mission as representative of the Director-General. It is thanks to his detailed report on all the cases examined that the Committee has been able to reach its conclusions in a fuller knowledge and with a greater understanding of the complex issues involved in these cases. In the view of the Committee, the report of the representative of the Director-General clearly demonstrates the usefulness of missions of this kind especially in difficult cases where, despite the voluminous documentation submitted by the parties, on-the-spot discussions can throw much additional light on the problems involved.
  11. 107. The Committee also wishes to express its thanks to the Government of Canada and to the Governments of the Provinces of Alberta, Ontario and Newfoundland for their co-operation with the mission. It also thanks the representatives of the Canadian Labour Congress, the National Union of Provincial Government Employees and those of the many other international, national or provincial unions who assisted the representative of the Director-General in carrying out his mandate.
  12. 108. Since the complaints and the replies of the various governments, as well as the information obtained during the mission, have all been fully analysed in the report of the representative of the Director-General, it only remains for the Committee to proceed to the formulation of its conclusions in the cases which it has now fully examined.

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

A. The Committee's conclusions on Case No. 1172/Ontario
  1. 109. The Committee has taken note of all the information contained in the various complaints submitted in this case, the reply transmitted by the Government of the Province of Ontario and the detailed information obtained by the representative of the Director-General during the study and information mission.
  2. 110. The allegations in this case concern the enactment, in 1982, of the Inflation Restraint Act (or Bill 179) which came into effect on 21 September of that year. Since September 1983 Bill 179 is no longer in force, having been replaced by a further enactment, on 10 October 1983, known as the Public Sector Prices and Compensation Review Act (or Bill 111). No formal complaint has been submitted regarding this latter enactment. Since, however, as the representative of the Director-General has pointed out in his report, it is directly relevant to the issues raised in the complaint and is the latest act by the Government in the area of public sector collective bargaining, the Committee considers it appropriate to express its views on this legislation which, it notes, was also due to expire at the end of September 1985. The Committee further observes that the representative of the Director-General was able, during his mission, to obtain the views both of the unions and of the Government on the content and effects of Bill 111.
  3. 111. Bill 179 was enacted in the face of what the Government considerd as an emergency situation requiring action to counter rising inflation. It placed restrictions on collective bargaining for provincial public servants and employees of semi-public provincial institutions. The provisions of the Act have the effect of extending for a period of 12 months compensation plans that were in the process of negotiation or due to expire during the period from 1 October 1982 to 30 September 1983.
  4. 112. The complainants have alleged that, although they were consulted about future government action, their observations and opinions went unheeded. In their opinion the economic situation at that time did not warrant emergency legislative measures being taken to restrain public service incomes.
  5. 113. On this first point, the Committee notes from the report of the representative of the Director-General that there has been a lively debate as to the depth or even the existence of economic problems, but that, particularly in the present case, the Government was convinced that the economic situation in the province demanded urgent attention. Whatever the situation, there were, in the Government's view, obvious economic problems which it decided to tackle through the application of wage restraint legislation in the public sector. It is not for the Committee to question the economic arguments that formed the basis of that view or of the action that the Government took.
  6. 114. It is, however, for the Committee to express its views on the question whether, in taking such action, the Government went beyond what the Committee has considered to be acceptable limits that might be placed temporarily on free collective bargaining.
  7. 115. In the first place, the immediate effect of the legislation (Bill 179) was to limit public sector wage increases, for a period which did not exceed one year, to 5 per cent (in some cases 9 per cent). In this respect, the Committee recalls that it had acknowledged that stabilisation measures restricting the right to collective bargaining are acceptable on condition that they are of an exceptional nature, and only to the extent that they are necessary, without exceeding a reasonable period, and that they are accompanied by adequate safeguards to protect workers' living standards. The Committee considers, on the basis of all the information now at its disposal, that, in the present case, all these criteria were met or at least serious efforts were made by the Government to respect these criteria.
  8. 116. Another immediate effect of Bill 179 was to reduce increases negotiated in compensation plans prior to the date on which the legislation became applicable where such increases exceeded those provided for in the Act. While the Committee appreciates that the introduction of wage restraint measures must be timed in order to obtain the maximum impact on the economic situation, it nevertheless considers that the interruption of already negotiated contracts is not in conformity with the principles of free collective bargaining because such contracts should be respected.
  9. 117. As regards the complainants' original allegations that Bill 179 not only imposed financial restrictions but also interrupted all trade union activity, including the right to bargain on non-monetary items and the right to change bargaining agents, the Committee notes that, from a strictly legal point of view, these arguments were proved to be unfounded by the Ontario Court of Appeal in the Broadway Manor case. This decision, however, was handed down too late to be of any practical assistance to the parties during the control period and it is clear that, despite the Court's ruling, much difficulty and tension were caused as a result of the problems that arose on these matters. It is clear that bargaining on non-monetary items was obstructed during the course of the legislation so as not to undermine the intended financial control. It is also clear that it was the Government's intention to prevent any change in the bargaining agent during the restraint period in order, according to the representative of the Director-General, to secure as much industrial relations tranquility as possible during that period. The Committee is of the view that, where wage restraint measures are taken by a Government to impose financial controls, care should be taken to ensure that collective bargaining on non-monetary matters can be pursued and that unions and their members can fully exercise their normal trade union activity.
  10. 118. The Committee further notes that forceful arguments were submitted by the unions that the regular industrial relations machinery had been adversely affected by Bill 179 and subsequently by Bill 111. The fixed norm imposed by Bill 179 in effect constituted a substitute for arbitration. Under Bill 111 the unions argue, the freedom to bargain as well as the freedom of interest arbitrators is severely curtailed by the necessity to take account of the ability of the employer to pay as well as government fiscal policy. Questions were also raised concerning the independence of arbitrators.
  11. 119. Bill 111, the Committee observes, was introduced as a substitute for Bill 179 and removed many of the restrictions on wage bargaining that Bill 179 had been designed to cover. Bill 111, however, it seems clear, did constitute - although in a much less rigid manner - a continuation of the policy of restraint by the introduction of such concepts as "the employer's ability to pay" and "government fiscal policy" as criteria for consideration in arriving at wage settlements. There was much controversy, even amongst arbitrators, as to the extent to which these criteria actually influenced bargaining and arbitration awards or whether they were indeed at all times taken into account.
  12. 120. The Committee would emphasise, in this connection, that restrictions on the right to strike in the public service or in essential services should be compensated by adequate, impartial and speedy conciliation and arbitration proceedings. The Committee would also emphasise that the independence and impartiality of the arbitration system are paramount. If, however, as in the present case, arbitrators are directly appointed by a government which lays down in legislation certain criteria which arbitrators are bound to follow in the determination of awards it is inevitable that confidence in the system will diminish.
  13. 121. In the view of the Committee, the expiry of Bill 111 now renders possible a return to a normal situation in which collective bargaining can take place freely with recourse being available, when appropriate, to arbitration. The loss of confidence of the unions and other residual negative effects on industrial relations that have resulted from the recent wage restraint legislation could, at least to some extent, be offset by consideration being given by the Government, in consultation with the unions, to ensuring that the arbitration system, including the selection of arbitrators, enjoys the fullest possible confidence of all the parties.
    • The Committee's recommendations
  14. 122. The Committee recommends the Governing Body to approve this part of the report and in particular the following conclusions:
    • (a) The Committee is of the view that, in general, the Inflation Restraint Act (Bill 179) did not go beyond what the Committee has previously considered to be normally acceptable limits that might be placed temporarily on collective bargaining;
    • (b) The Committee, however, considers that the interruption, by Bill 179, of contracts that had been already negotiated is not in conformity with the principles of free collective bargaining because such contracts should be respected;
    • (c) The Committee would emphasise that, where wage restraint measures are taken by a government to impose financial controls, care should be taken to ensure that collective bargaining on non-monetary matters can be pursued and that unions and their members can fully exercise their normal trade union activity;
    • (d) The Committee stresses that restrictions on the right to strike in public or essential services should be compensated by adequate, speedy and impartial conciliation and arbitration proceedings;
    • (e) The Committee would express the hope that, since the legislation which was the subject of complaint has now expired, the Government, in consultation with the unions, will endeavour to overcome any residual negative effects of that legislation on industrial relations; more particularly, the Committee hopes that the arbitration system, and the procedures for the selection of arbitrators, will be revised in such a manner as to ensure that they enjoy the fullest confidence possible of all the parties.

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

B. The Committee's conclusions on Case No. 1234/Alberta
  1. 123. The Committee notes that this case concerns allegations that amendments to the Universities Act deny freedom of association to faculty staff by empowering the employers (the Boards of Governors) to determine the membership of academic staff associations. The complainant cites the negative effect of the amendments on staff association membership at Athabasca University.
  2. 124. The Committee observes that this situation arises from the combined effect of two provisions of the Act, namely section 21.2(2) which defines "academic staff association" as a body consisting of "academic staff members", and section 17(1)(d.1) which empowers the Boards of Governors to designate "academic staff members". Although the Government's written reply stresses that the university environment requires a special approach to the employer-employee relationship because of the involvement of faculty staff in all levels of university management, it acknowledges that the employer at Athabasca University - after consultation with the faculty association - altered its restrictive designation of "academic staff members".
  3. 125. It appears from the report of the representative of the Director-General that only at Athabasca University did the employer's use of its designation power lead to problems. In the three other universities of the Province, designations of "academic staff members" were arrived at without difficulty in consultation with the faculty associations. Moreover, it appears that the peculiar circumstances at Athabasca University (namely, that it is an open university and was recently transferred from the provincial capital to a town in the north of Alberta) might have led to misunderstandings regarding the employer's restrictive designation of academic staff at that particular point in time. In any event, the Committee notes that designations have now been made in all four provincial universities to the satisfaction of both sides.
  4. 126. What remains is the fear that future designations could be made to exclude faculty members and non-management administrative or planning personnel from membership of the staff associations whose purpose is to protect and defend the interests of these categories of workers. If designated as non-academic, these workers - who are specifically excluded from the Labour Relations Act and the Public Service Employee Relations Act - would have no possibility of forming or joining an association to further their interests. In these circumstances the Committee draws the Government's attention to the terms of Article 2 of Convention No. 87, ratified by Canada, which guarantee the right of all workers, without distinction whatsoever, to join or establish organisations of their own choosing. The particular circumstances of university decision-making in Alberta do not appear to the Committee to justify any restriction on this right through the vesting of wide designation powers in the employer body. The Committee recalls that it already came to this conclusion in its examination of past cases concerning the Provincial Government of Alberta to which the complainant refers in its written complaint.
  5. 127. The Committee accordingly considers that, in order to ensure full compliance with the principle of Article 2 of Convention No. 87, measures should be taken to repeal section 17(1)(d.1) and introduce an independent system of designation where agreement cannot be reached (for example, as suggested during the study and information mission, third party arbitration machinery). The Committee stresses this latter point because although the report of the representative of the Director-General indicates that consultations between the parties have led to satisfactory designations, the Provincial Government pointed out during the mission that it could not envisage any major change in policy regarding the Universities Act. The Committee is of the opinion that some independent machinery should be available, if necessary, to assist in the designation of "academic staff members" for the purpose of joining an academic staff association. Machinery such as that referred to in the report of the representative of the Director-General could alleviate the complainant's fear of abuse of section 17(1)(d.1).
    • Recommendations of the Committee
  6. 128. In these circumstances, the Committee recommends the Governing Body to approve this part of the report and, in particular, to request the Government to take measures to repeal the provision in the Universities Act which empowers the employer body to determine the membership of academic staff associations. The Committee also recommends that consideration be given to the possibility of introducing an independent system for the designation, where necessary, of academic staff members, either through third party arbitration or some form of informal machinery as referred to in the report of the representative of the Director-General.

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

C. The Committee's conclusions on Case No. 1247/Alberta
  1. 129. The Committee notes that this case concerns allegations that 1983 amendments (contained in Bill 44) to the Labour Relations Act and the Public Service Employee Relations Act of Alberta, on the one hand, restrict freedom of association by excluding numerous employees from bargaining units, and, on the other hand, interfere with the right of workers' organisations to organise their activities in full freedom by restricting the collective bargaining process and rendering the previously impartial arbitration system subject to government fiscal policy.
  2. 130. First, the Committee notes that, although not referred to in the written complaint, section 93 of the Public Service Employee Relations Act which bans the right to strike of provincial government employees was brought to the attention of the study and information mission. The Committee considers that an examination of this provision is important since it sets the background against which the formal allegations must be viewed. The AUPE claims that the Government's main justifications for this total ban on provincial public service strikes is that the employees concerned were so closely linked to those providing essential services as to make it reasonable to treat them in the same way and that there is no alternative supply for these services. AUPE made the point that section 93 does not apply to public servants employed by municipalities and school boards and it told the representative of the Director-General that there was no evidence of close links between essential and non-essential persons such that a strike by the latter would hinder the provision of essential services. Nor was there any evidence that there was no alternative source of supply for the services provided by the employees affected.
  3. 131. The Committee recalls that it has been called to examine the strike ban in a previous case submitted against the Government of Canada/Alberta (Case No. 893, most recently examined in the 204th Report, paras. 121 to 134, approved by the Governing Body at its 214th Session (November 1980).). In that case the Committee recalled that the right to strike, recognised as deriving from Article 3 of the Convention, is an essential means by which workers may defend their occupational interests. It also recalled that, if limitations on strike action are to be applied by legislation, a distinction should be made between publicly-owned undertakings which are genuinely essential, i.e. those which supply services whose interruption would endanger the life, personal safety or health of the whole or part of the population, and those which are not essential in the strict sense of the term. The Governing Body, on the Committee's recommendation, drew the attention of the Government to this principle and suggested to the Government that it consider the possibility of introducing an amendment to the Public Service Employee Relations Act in order to confine the prohibition of strikes to services which are essential in the strict sense of the term. In the present case, the Committee would again draw attention to its previous conclusions on section 93 of the Act.
  4. 132. Linked to this question of restrictions on the right to strike is one of the specific written allegations, namely that an amendment contained in Bill 44 to section 117.1 of the Labour Relations Act prohibits the right to strike of all hospital employees. The Committee notes that this broad exclusion covers kitchen help, janitors, gardeners, etc. but that the Government told the representative of the Director-General that only small groups were affected by section 117.1 and that this question was, in any event, being challenged in the Alberta Court of Appeal and the Canadian Supreme Court. Given that this provision is not sufficiently specific as regards the important qualification of "essential employee", the Committee refers to the principle set out in the above paragraph concerning circumstances in which recourse to strike action may be prohibited. It requests the Government to re-examine section 117.1 so as to confine the prohibition of strikes to services which are essential in the strict sense of the term.
  5. 133. As regards the exclusion from the collective bargaining process of disbursement control officers, hearing officers and employees performing substantially similar duties, as well as employees in the Legislative Assembly Office, Auditor General's, Electoral Office and Ombudsman's Office (section 21(1)(g) and (h) of the Public Service Employee Relations Act), the Committee notes from the Government's written reply that the previous situation has not been altered, but has been "further refined". It also notes from the information contained in the report of the representative of the Director-General that these amendments to section 21(1) were a legislative reversal of several decisions of the Public Service Employee Relations Board. Moreover, during the study and information mission, the AUPE expressed concern over a 1985 amendment to section 21(1)(l) which allows exclusion "for any other reason". Although disputes over subsection (1) exclusions may be referred to the Board for decision under section 21(2), the AUPE remained suspicious of the wide ambit of possible exclusions; they stated that, in practice, over 400 employees had been denied access to the collective bargaining process by these amendments to section 21. The Government, on the other hand, told the mission that only 260 employees had been affected, all being mainly involved in the managerial/personnel policy area.
  6. 134. In the light of the voluminous information provided to the mission as to the non-managerial nature of some of these employees' tasks, the Committee would draw the Government's attention to the principle that only civil servants engaged in the administration of the State (i.e. employed in various capacities in government ministries or comparable bodies) and not other persons employed by the Government, by public undertakings or by independent public corporations, can be excluded from the guarantees of collective bargaining. Under this criterion, the Committee cannot accept that all the public employees now listed in section 21(1) should be excluded from representation in the collective bargaining process. It accordingly requests the Government to reconsider this section in the light of this principle.
  7. 135. Although not referred to in the written complaint, much information was given to the mission on section 48(2) of the Public Service Employee Relations Act which limits the subject-matters which may be referred to arbitration. According to the AUPE, although the Board may determine disputes as to whether certain items are non-arbitral, the unions have lost all confidence in the Board because of its recent decisions in this area which, the union claims, regard all matters as part of the managerial prerogative of the employer and thus not appropriate for arbitration. Moreover, the AUPE claimed that the Board often delayed or prevented reference of whole bargaining disputes to arbitration. The Committee takes note of the information on this question reflected in the report of the representative of the Director-General since it forms part of the background to the second main allegation in the present case, namely that Bill 44 has damaged, if not destroyed, the arbitration system. More specifically, it is claimed by the union that the arbitration system has been weakened by the use of a procedural body (the Public Service Employee Relations Board) to screen issues before they reach arbitration. The Committee also notes the examples that were given to the misson of matters that had been considered by the Board as not being appropriate for submission to arbitration (e.g. hours of work, certain leave periods, transfer, promotion, etc.). The Committee has emphasised that restrictions on the right to strike in the public service or in essential services should be accompanied by adequate, impartial and speedy conciliation and arbitration in which the parties can take part at every stage and on which the awards, once made, are binding on both parties. The Committee is of the view that the existing system, under which the Public Service Employee Relations Board can prevent the referral to arbitration of matters which have formed the basis of a dispute, is not fully in accordance with ILO principles and is one which has led to considerable tension between the parties and to a loss of confidence by the unions in the arbitration machinery.
  8. 136. As regards the alleged interference in the arbitration process itself by the listing of factors - including government fiscal policies - to be taken into account by arbitrators in reaching awards (section 117.8 of the Labour Relations Act and section 55 of the Public Service Employee Relations Act), the Committee notes the Government's written reply that various factors are merely listed in the legislation without indications as to the importance which the arbitration boards should give them. The Committee observes from the report of the representative of the Director-General that, in practice, arbitration boards were not giving overriding predominance to government fiscal policy and in some cases did not find it useful at all. Nevertheless, the complainant still fears potential abuse. It is this lack of confidence that obliges the Committee to recall again the principle that adequate, impartial and speedy conciliation and arbitration procedures should be available in the event of the right to strike being subject to limitations in the public or essential services.
  9. 137. In the present case, it appears to the Committee that the independence of the arbitration boards set up to compensate public employees for the loss of their right to strike (being composed of a representative of each of the parties to the dispute plus a chairman jointly appointed by the representatives) is not called into question by the listing in legislation of factors to be taken into account.
  10. 138. As regards the eight other amendments to the Labour Relations Act (one of which was copied in the Public Service Employee Relations Act) contained in Bill 44, the Committee notes from the report of the representative of the Director-General that many of these have not given rise to problems in practice and that some have not even been utilised. In particular, the Committee sees no threat to freedom of association with the following sections:
    • - Section 1(w.1), introducing a new concept of "trade union organisation", was never adopted;
    • - Section 74(1), requiring a duly authorised representative for collective bargaining to be resident in Alberta, may cause minor inconvenience to the union but is in fact clearly intended to avoid delays in the final settlement and signing of agreements. It does not fetter a trade union's right to seek assistance in bargaining from persons outside the province;
    • - Section 87, allowing only one Board-supervised strike or lock-out vote, restricts certain union tactics but does not prevent the polling of members to determine the position prior to calling for a vote;
    • - Section 49(1), requiring a 90-day moratorium before applying for a further certification order, again affects union tactics but was clearly intended to remove uncertainty as to a union's real strength in the bargaining unit and to avoid abuses of certification proceedings;
    • - Section 132, allowing application to the Board to determine successor rights, only regulates and expedites normal past practice and is not unreasonable;
    • - Section 102.2, empowering the recommendations of a Disputes Inquiry Board to be put to the employees concerned, may raise the question of the role of a union executive but does not deprive individual workers of their trade union rights.
  11. 139. On the other hand, the Committee would express some concern over two other individual amendments to the Labour Relations Act:
    • - Sections 105 and 106, prohibiting the threat of an illegal strike, could impede the freedom of workers' organisations to organise their activities in full freedom and place trade union officials in some jeopardy, given the broad definition of "strike" in the Act. The Government told the representative of the Director-General that section 105 had not been used and that it would be up to the Board to highlight any difficulties with its drafting if and when called to apply this provision. The Committee considers that the uncertainty and imprecision of the definition of a "strike" could, as the representative of the Director-General suggested, lead to difficulties for trade unionists who take bona fide action that is subsequently found to be illegal. The Committee would request the Government to take steps to clarify the situation in consultation with the unions and, if necessary, amend the provision accordingly.
    • - Section 117.94 (and section 92.2 of the Public Service Employee Relations Act), allowing the employer to suspend check-offs if an illegal strike takes place, have not been used. The precise scope of the provision is, however, uncertain in the sense that it is not clear whether the suspension would apply to a whole bargaining unit or only to the illegal strikers. Discussion should take place with the unions to clarify the manner in which the provision would be applied in practice.
      • The Committee's recommendations
    • 140. In these circumstances, the Committe recommends the Governing Body to approve this part of the report and, in particular, the following conclusions:
      • (a) The Committee considers that the provisions of the Public Service Employee Relations Act and the Labour Relations Act prohibiting the right to strike of a broad range of provincial public servants and hospital workers go beyond acceptable limits on the right to strike recognised as deriving from Article 3 of Convention No. 87. The Committee requests the Government to re-examine the provisions in question in order to confine the ban on strikes to services which are essential in the strict sense of the term.
      • (b) As regards the broad range of public servants excluded from the collective bargaining process by section 21(1) of the Public Service Employee Relations Act, the Committee would draw the Government's attention to the principle that only civil servants engaged in the administration of the State may be so excluded. It requests the Government to reconsider this section in the light of this principle.
      • (c) Although the Committee does not consider that the listing of government fiscal policies as a factor to be considered by arbitrators calls into question the principles of freedom of association, it notes with some concern the power given to the Public Service Employee Relations Board (by section 48(2) of the relevant Act) to determine all matters in a collective dispute that may be referred to arbitration. The Committee hopes that provisions such as these which have undermined the union's confidence in the arbitration system - which is meant to compensate the employees concerned for the lack of the right to strike - will be reconsidered in consultation with the parties and appropriate amendments made with a view to enabling arbitrators to examine all matters in dispute.
      • (d) The Committee sees no threat to freedom of association with the various amendments to the Labour Relations Act contained in Bill 44 and outlined in paragraph 138 above, i.e. section 74(1), section 87, section 49(1), section 132 and section 102.2.
      • (e) As regards sections 105 and 106 of the Labour Relations Act, as amended, prohibiting the threat of an illegal strike, the Committee requests the Government to take steps to clarify the precise scope of this provision in consultation with the union and, if necessary, amend the provision accordingly; (f) As regards section 117.94 of the Labour Relations Act and section 92(2) of the Public Service Employee Relations Act, concerning the suspension of check-off in the event of an illegal strike, the Committee recommends that discussion takes place with the unions in order to clarify the manner in which this provision would be applied in practice.

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

D. The Committee's conclusions on Case No. 1260/Newfoundland
  1. 141. The Committee notes all the detailed information supplied by the complainants in this case, the equally detailed information transmitted by the Government and the information contained in the report of the representative of the Director-General.
  2. 142. In essence, the complainants had alleged that the Public Service (Collective Bargaining) Act - known as Bill 59 - which came into effect on 1 September 1983, was in contradiction with international standards on freedom of association in three particular areas: the definition of "employee" contained in section 2(1)(i) of the Act; the designation of "essential employees" (section 10) and the limitation on strike action (sections 10, 23 and 24).
  3. 143. Before examining these individual aspects, the Committee would first note the information now at its disposal concerning the introduction of the legislation in question. It can only express regret that, in spite of what appears to have been a good relationship between the complainant union and the Government, the process of consultation with the union prior to the introduction of Bill 59 was inadequate. The attitudes of both parties were to an extent the reason for this inadequacy. The Government, for its part, had what it considered to be solid reasons, based on experience, for amending existing legislation, whereas the union was opposed to such a course of action. The result was an enactment which, in the opinion of the union, casts suspicion on the Government's real motives in proclaiming it. It was also an enactment which, had proper consultations taken place, may well have taken a different form and thereby avoided the tension and suspicion that obviously exists between the union and the Government. The Committee, in particular, notes that only two years after the enactment of Bill 59, important amendments were made in 1985.
  4. 144. The Committee would emphasise the importance which should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights. It would express the firm hope that the Government and the union will, in the light of the problems which have emerged from the procedure used to introduce Bill 59, engage in systematic and genuine discussions and negotiations with a view to resolving the problems that have arisen in the present case.
  5. 145. As regards section 2(1)(i)(xii) of Bill 59 (definition of "employee"), the union's principal concern was the exclusion from the definition of persons employed in an employment opportunity programme administered and financed by the Provincial Government, and/or financed by the federal Government. According to the union, not only did the provisions prevent such persons from joining a union, but the presence of this non-unionised labour in workplaces where the union had members, constituted an obstacle to collective bargaining and a threat to union effectiveness in the event, for example, of a strike.
  6. 146. On this question, the Committee notes that there seemed to be a considerable amount of misunderstanding between the parties as to the precise number of persons covered by this subsection. Whatever the case, the Committee cannot accept that persons engaged in an employment opportunity programme should be excluded from the right to belong to a trade union of their choice. The Committee considers that the extension of the right to organise of these persons would not necessarily interfere with the proper functioning of the programme and that, in addition, it would diminish the fear of the union that unionised workers might be replaced by workers engaged under the programme.
  7. 147. A further exclusion from the definition of "employee" is the category of workers who advises the employer in relation to the development or administration of policies or programmes (section 2(1)(i)(xv). The Committee notes that the Labour Relations Board, tripartite in character, appears in the past to have exercised its powers fairly restrictively in deciding exclusions from the bargaining unit. It considers that this subsection is not contrary to the principles of freedom of association.
  8. 148. In view of the problems and the climate of suspicion to which the above provisions in Bill 59 have given rise, the Committee would urge the Government to reconsider the question of exclusions in full consultation with the union.
  9. 149. The Committee notes that the right to strike is available to public service employees in Newfoundland subject to a number of limitations concerning, in particular, employees deemed to be essential. Essential employees are defined in the principal Act as "employees whose duties consist in whole or in part of duties, the performance of which at any particular time or during any specified period of time is, or may be, necessary for the health, safety or security of the public" (section 10.1).
  10. 150. In this connection, the Committee would, in the first place, recall that it has accepted that the right to strike may be limited or prohibited as regards public servants acting in their capacity as agents of the public authority or engaged in services whose interruption would endanger the life, personal safety or health of the whole or part of the propulation. Such limitations or prohibitions should, however be offset by adequate, impartial and speedy conciliation and arbitration procedures. In addition, the Committee observes that the 1985 amendments to the legislation exclude a substantial number of bargaining units from the application of section 10 of the Act. The Government had also agreed with the union in writing that no essential services would be sought in some ten bargaining units.
  11. 151. The problem in Newfoundland is that, although strikes can take place even in services such as health-care institutions, the strike may be rendered ineffectual as a result of the procedure for the designation of a certain number of "essential workers". In addition, recourse to arbitration may be impeded if the number so designated by the Labour Relations Board falls below 50 per cent of the employees involved. In other words, it would seem in such circumstances that the limitations placed on unions to carry out an effective strike are not adequately compensated by unimpeded access to arbitration machinery.
  12. 152. The Committee considers that, while the method of designating essential employees is not inconsistent with the principles of freedom of association, the Government should nevertheless review the relevant provision in such a manner as to facilitate access to independent arbitration in the event of a dispute.
  13. 153. Further amendments introduced to the principal Act by Bill 59 affecting the right to strike were also criticised by the union. Section 2 of Bill 59 repealed and substituted section 10 of the principal Act in such a manner as to prevent a bargaining agent from taking a strike vote or going on strike until agreement has been reached on or the Board has determined the number of essential employees in the unit concerned. Moreover, amendments to section 23 and 24 of the Act made it necessary not only to give seven days' notice of a strike but also to indicate the date on which the strike would start. If the strike did not start on the date specified in the notice, no strike could take place for one month, and then only if a further seven days' notice was given with a further proposed date on which the strike would commence. These amendments also prevented strikes on a rotating basis in health service institutions.
  14. 154. As regards these amendments and the allegations that were made, the Committee does not consider the modalities that they impose to be an undue hindrance on unions in the exercise of their right to strike and thereby going beyond what is acceptable under international standards and principles on freedom of association. The Committee also notes, in particular, that the further amendments introduced in July 1985, the one-month period referred to above, now only applies to the hospital sector. The Committee, however, notes from the report of the representative of the Director-General that these limitations are seen by the unions as an interference by the Government in the determination of strike tactics and, in particular, that the notice requirement could be used to delay strikes by last-minute bargaining. The Committee observes that there is no evidence that these fears are justified, particularly in view of the Government's statement that the parties could always agree to extend the seven-day notice period by one day if necessary. This is yet another matter which the Committee considers could be jointly discussed between the parties with a view to removing the doubts and suspicions that remain as to the manner in which the legislation will be applied.
    • The Committee's recommendations
  15. 155. The Committee recommends the Governing Body to approve this part of the report and, in particular, the following conclusions:
    • (a) The Committee emphasises the importance which should be attached to full and frank consultations taking place with the trade unions on any questions or proposed legislation affecting trade union rights; it expresses regret that consultation with the complainant union prior to the enactment of Bill 59 was inadequate.
    • (b) The Committee considers that persons engaged in employment opportunity programmes should not be excluded from the right to belong to a union of their choice; it urges the Government to reconsider the question of the exclusion of this category in full consultation with the union.
    • (c) The Committe emphasises that limitations on strike action in the public service or in essential services should be compensated by adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards should, in all cases, be binding on both parties.
    • (d) The Committee requests the Government to review the provisions of the legislation concerning the designation of essential employees in order to facilitate access to independent arbitration in the event of a dispute.
    • (e) The Committee does not consider the modalities for strike action imposed by sections 23 and 24 of Bill 59, as amended, to be inconsistent with the principles of freedom of association.
    • (f) The Committee expresses the firm hope that the Government and the union will, in the light of the problems which have emerged from the enactment of Bill 59, engage in systematic and genuine discussions and negotiations with a view to resolving the problems that remain concerning the practical application of this legislation.

ANNEX

ANNEX
  1. REPORT ON A STUDY AND INFORMATION MISSION TO CANADA BY SIR JOHN WOOD, CBE,
  2. LLM, REPRESENTATIVE OF THE DIRECTOR-GENERAL OF THE INTERNATIONAL LABOUR
  3. OFFICE, CONCERNING THE FOLLOWING CASES BEFORE THE GOVERNING BODY COMMITTEE ON
  4. FREEDOM OF ASSOCIATION: ONTARIO (CASE NO. 1172), ALBERTA (CASES NOS. 1234 AND
  5. 1247) AND NEWFOUNDLAND (CASE NO. 1260)
  6. Table of contents
  7. I. Introduction ....................................... 1-7
  8. II. General remarks .................................... 8-21
  9. (a) Economic and political pressures .............. 9-10
  10. (b) Public sector ................................. 11-13
  11. (c) Collective bargaining machinery ............... 14-15
  12. (d) Legislation ................................... 16-21
  13. III. Case of Alberta - No. 1247 ......................... 22-84
  14. A. Introduction .................................. 22
  15. B. The issues .................................... 23
  16. (i) Exclusion of certain employees from collective bargaining ...............
  17. . 24-25
  18. (ii) The arbitration system ................. 26-28
  19. (iii) Other issues ........................... 29-45
  20. C. Information obtained during the mission ....... 46-75
  21. (a) Collective bargaining and arbitration .... 48-56
  22. (b) Excluded employees ....................... 57-58
  23. (c) The right to strike ...................... 59-67
  24. (d) Other issues ............................. 68-75
  25. D. Concluding remarks ............................ 76
  26. Collective bargaining and arbitration ......... 77-78
  27. Individual items .............................. 79-80
  28. General considerations ........................ 81-84
  29. IV. Case of Alberta - No. 1234 ......................... 85-96
  30. A. Introduction .................................. 85
  31. B. The issues .................................... 86-92
  32. C. Information obtained during the mission ....... 93-94
  33. D. Concluding remarks ............................ 95-96
  34. V. Case of Ontario - No. 1172 ......................... 97-157
  35. A. Introduction .................................. 97
  36. B. The issues .................................... 98-119
  37. C. Information obtained during the mission ....... 120-143
  38. D. Concluding remarks............................. 144-157
  39. VI. Case of Newfoundland - No. 1260 .................... 158-218
  40. A. Introduction .................................. 158
  41. B. The issues .................................... 159-160
  42. (i) Definition of "employee" ............... 161-165
  43. (ii) Designation of "essential" employees ... 166-173
  44. (iii) Limitations on strike action ........... 174-177
  45. C. Information obtained during the mission ....... 178-179
  46. (a) Consultations ............................ 180-181
  47. (b) Definition of employee ................... 182-185
  48. (c) Questions concerning the right to strike . 186-208
  49. D. Concluding remarks ............................ 209-218
  50. VII. Final remarks ...................................... 219-232
  51. 1. Inflation control ............................. 222-223
  52. 2. Consultation .................................. 224-225
  53. 3. Public servants - bargaining and the right to strike .....................
  54. .............. 226
  55. (a) Collective bargaining .................... 227-228
  56. (b) Independent dispute resolution ........... 229-232
  57. ANNEX .................................................... 113
  58. I. Introduction
  59. 1. The Governing Body Committee on Freedom of Association, at its meeting in
  60. November 1984, decided to postpone its examination of the cases concerning
  61. Ontario, Alberta and Newfoundland since it was of the view that, before
  62. reaching conclusions in these cases, it would be necessary to obtain
  63. additional information, particularly through a study and information mission,
  64. which could assist in clarifying aspects of the laws and practices involved.
  65. The Committee accordingly requested the Government to indicate its consent to
  66. such a procedure.
  67. 2. In a letter dated 1 February 1985 the Government indicated that, after
  68. consultation with the various provincial governments concerned, it had no
  69. objection to such a mission taking place.
  70. 3. The Committee explained that the study and information mission would take
  71. place within the context of its examination of the cases. It emphasised that
  72. its proposal for such a mission stemmed from a desire on its part to reach
  73. conclusions in as full a knowledge and understanding as possible of the
  74. complex issues involved. It said that it was convinced that its work would be
  75. greatly facilitated by an on-the-spot appreciation of the day-to-day practical
  76. operation, in local conditions, of the legislation that was the subject of the
  77. complaints.
  78. 4. Arrangements were accordingly made for a study and information mission to
  79. take place in Canada - in particular, the provinces of Ontario, Alberta and
  80. Newfoundland - from 12 to 25 September 1985. The Director-General of the ILO
  81. appointed me as his representative to carry out the mission, and I was
  82. accompanied, during the mission, by Mr. William R. Simpson, Chief of the
  83. Freedom of Association Branch of the International Labour Standards
  84. Department, and Mrs. Jane Hodges, an official of the Freedom of Association
  85. Branch.
  86. 5. Through the efficient services of the officials of the Canadian Ministry of
  87. Labour responsible for these matters, and the equally efficient services of
  88. the officials of the Canadian Labour Congress, arrangements were made to
  89. establish a programme of meetings with representatives of the federal
  90. Government and those of the provincial governments involved and with the
  91. various national and provincial unions who had been involved in the submission
  92. of the complaints (for a detailed list of the persons involved, see Annex). It
  93. is also thanks to the facilities that were extended to me by the governments
  94. and unions of the provinces of Ontario, Alberta and Newfoundland that I was
  95. able to carry out successfully the mandate that had been entrusted to me.
  96. 6. Prior to my departure to Canada I had had the opportunity to examine the
  97. complaints that had been presented in these cases, the various replies of the
  98. respective governments and the very voluminous documentation and legislative
  99. texts which had accompanied the many communications addressed to the ILO. In
  100. preparing this report I found it appropriate in the first place, to describe
  101. in some detail the main issues raised by the complainants in their written
  102. allegations as well as the respective goverments' arguments in rebuttal of
  103. those allegations. The information which I was able to collect during the
  104. mission concerning these matters is then described. I have attempted thus to
  105. provide the Committee on Freedom of Association with a report that gives as
  106. complete a picture as possible of the situation from the time the complaints
  107. were presented until the present time. I am hopeful that, in presenting my
  108. report in this manner, I have been successful in facilitating the work of the
  109. Committee in reaching its conclusions in these cases.
  110. 7. I would emphasise that it was at no time my intention or desire - nor
  111. indeed was it part of my mandate - to formulate any conclusions on the various
  112. issues that I was called upon to examine. That responsibility rests
  113. exclusively with the Committee on Freedom of Association itself. I did,
  114. however, carry out this mission having in mind the international standards and
  115. principles concerning freedom of association, the application of which had
  116. been brought into question by the complainant organisations and I have not
  117. hesitated in this report to set forth certain personal opinions or impressions
  118. that I was able to form regarding possible breaches of international
  119. obligations or regarding any remedial steps that might be taken if ILO
  120. standards and principles did not seem to be fully applied. In so doing, my
  121. intention was not to prejudge the conclusions of the Committee, which will no
  122. doubt attach to these opinions or impressions the weight which it considers
  123. appropriate and correct.
  124. II. General remarks
  125. 8. It is not necessary for me to emphasise that the individual complaints
  126. arise in three provinces of a federal State. The structure and complexities of
  127. such a constitutional arrangement will be well known to the Committee.
  128. Although each issue has to be assessed in the confines of the individual
  129. provincial context it is instructive to note that the problems have some
  130. common aspects. This is well known to the parties. Indeed, on the trade union
  131. side the influence of trade union centres inevitably leads to attention being
  132. given to the general similarities of the issues. It may be worth while to draw
  133. attention to a few of these general points. The purpose is not to divert
  134. attention from the duty to treat each case indpendently but to illustrate more
  135. clearly the underlying problems.
  136. (a) Economic and political pressures
  137. 9. The legislation which lies at the heart of most of the complaints
  138. represents an attempt by the government concerned to tackle perceived economic
  139. problems. These problems have provoked a political response which in turn
  140. lends shape to the objects and scope of the consequent legislation. This is
  141. very clearly the case with Bill 44 in Alberta and Bill 179 in Ontario. Bill 59
  142. in Newfoundland is less obviously concerned with economic problems but the
  143. steps taken appear to flow, however indirectly, from such considerations.
  144. 10. There is, of course, a lively debate as to the depth, even as to the
  145. existence, of economic problems. Whatever view is taken on this it is plain
  146. that the governments concerned were clear that the economic problems demanded
  147. urgent attention usually described as an attack on inflation. It is the impact
  148. of these legislative steps on the implementation of ILO principles such as
  149. those enshrined in Conventions Nos. 87 and 98 that lies at the core of these
  150. complaints. The debate on the validity of economic judgements lies elsewhere.
  151. (b) Public sector
  152. 11. The complaints are raised by public service trade unions and concern the
  153. impact of legislative measures on the collective bargaining arrangements in
  154. the public sector. One factor in the minds of the complainants is that there
  155. is a lack of even handedness in the treatment of the public as opposed to the
  156. private sector. Such comparisons are not always easy to make and anyway lie
  157. outside the concern of the Committee. None the less it is a feeling that has
  158. to be noted.
  159. 12. There is a crucial difficulty which is very obvious. Collective bargaining
  160. involves the concept of two parties, the employer and the trade union,
  161. settling their mutual concern by discussion and negotiation. Where the
  162. employer is the government there is an added difficulty. The Government has
  163. the wider task of managing the economy and this will in particular often
  164. involve the task of seeking to influence the level of settlements in
  165. collective bargaining by fiscal and economic argument. It is extremely
  166. difficult for the Government to separate the two roles so as to equate
  167. bargaining in the public sector with that in the private sector.
  168. 13. The usual way in which this separation is attempted is by the
  169. establishment of a sound set of bargaining structures in the public sector.
  170. These can then operate in the normal way and the wider concerns of government,
  171. which need not necessarily be the same in respect of public as opposed to
  172. private employment but generally will be, can be imposed from outside the
  173. collective bargaining machinery, for example by legislation.
  174. (c) Collective bargaining machinery
  175. 14. It is difficult and dangerous to generalise about the structure of
  176. collective bargaining which is constructed separately by each province, as
  177. well as by the federal Government. There are obviously so many variations that
  178. cannot be properly assessed in a short study. Consideration of the formal
  179. statutory-based machinery does not necessarily give an accurate picture of
  180. what actually happens in practice. It is even more difficult to assess the
  181. ability of structures to meet pressures which will inevitably be encountered
  182. as a result of, for example, a recession or growth of unemployment.
  183. 15. Collective bargaining in Canada has been established at both the national
  184. and provincial level since the 1960s, so does not have a long history. Three
  185. differing aspects of the employer-employee relationship can be distinguished.
  186. Consultation is the process most difficult to assess since it will often be to
  187. a large extent informal. It follows that a study of the processes laid down
  188. may fail to indicate the level of consultations in practice. Bargaining itself
  189. is likely to follow fairly closely the rules laid down in the legislation
  190. setting it up and the practices developed over the years by agreement between
  191. the parties. Finally, and most elusive, it is hard to describe the impact of
  192. the power to legislate. The use of legislation of course lies to the hands of
  193. one of the parties, the employer. The various ways in which it is used raise
  194. difficulties and appear to lead to possible misunderstanding and bad feeling.
  195. (d) Legislation
  196. 16. The complaints before the Committee arise from specific pieces of
  197. legislation and their interpretation and application in practice. The next
  198. part of this report will take the form of a more detailed examination of the
  199. specific issues raised against aspects of Bill 59 in Newfoundland, Bill 44 in
  200. Alberta and Bill 179 in Ontario.
  201. 17. At this stage it is necessary to refer to a more general point. It seems
  202. important to distinguish the objects of government legislation and its impact.
  203. In the context of this study it has been apparent that two features of
  204. legislation should be given careful attention.
  205. 18. The scope of legislation varies. It may be permanent or temporary. It may
  206. affect the employment generally or apply to specific bargaining relationships.
  207. Its genesis may be the regulation of the economy on the one hand or the
  208. control of the structure of bargaining procedures on the other. Often the two
  209. strands will be interwined and the purposes of the legislation difficult to
  210. separate.
  211. 19. It appears, secondly, that it is possible to intervene more directly in
  212. the collective bargaining process. Steps can be taken to affect the outcome of
  213. a particular bargain by recourse to one form of the legislative processes.
  214. Whereas the process alluded to in the last paragraph may be regarded as
  215. strategic intervention, what is being described here is more in the nature of
  216. tactical.
  217. 20. The standards secured by the Committee on Freedom of Association apply, of
  218. course, with equal rigour to action, whatever its character. Viewed from the
  219. standpoint of trade unions concerned, it may be difficult to appreciate these
  220. distinctions since all actions of the type that leads to a complaint is
  221. obviously notable for its perceived deleterious effect. The concerns that this
  222. Committee have shown in the past, however, indicate that the distinctions have
  223. a bearing on ILO deliberations. Emergency legislation even handedly applied to
  224. collective bargaining overall to meet a perceived economic crisis is of a
  225. markedly different character to legislation aimed at a particular section of
  226. employment or individual collective bargaining process. Here the process of
  227. collective bargaining, it must be stressed, covers the totality of the steps
  228. available, including, it is important to stress, any access given to
  229. independent arbitration.
  230. 21. An attempt will be made in the next section to assist the Committee with
  231. indications formulated with these analytical distinctions in mind.
  232. III. Case of Alberta - No. 1247
  233. A. Introduction
  234. 22. In this case the Canadian Labour Congress (CLC) presented a complaint of
  235. infringements of trade union rights in a communication dated 1 November 1983.
  236. The complaint was presented on behalf of the Alberta Union of Provincial
  237. Employees (AUPE), a component of the National Union of Provincial Government
  238. Employees (NUPGE) which is the CLC's second largest affiliate. The Government
  239. transmitted its observations in a communication dated 3 May 1984.
  240. B. The issues
  241. 23. In its letter of 1 November 1983 the CLC alleged that new legislation in
  242. Alberta violated Conventions Nos. 87, 98 and 151. On 1 June 1983, an Act to
  243. amend various pieces of labour legislation (the Labour Statutes Amendment Act
  244. (known as Bill 44)) had been proclaimed. According to the CLC, Bill 44 was
  245. aimed at attacking in particular public sector workers in Alberta. One
  246. amendment denied the right to strike of thousands of non-essential hospital
  247. workers, and another destroyed any degree of impartiality in the arbitration
  248. system which had been intended to compensate public sector workers for the
  249. loss of their right to strike.
  250. (i) Exclusion of certain employees from collective bargaining
  251. 24. The complainant referred specifically to new section 21(1) of the Public
  252. Service Employee Relations Act which reads as follows:
  253. A person employed by an employer in a position classified under the Public
  254. Service Act as a budget officer, a systems analyst, an auditor, a disbursement
  255. control officer or a hearing officer who hears matters under the Summary
  256. Convictions Act, or performing for an employer substantially similar duties to
  257. a person employed in any of those positions, (and) in any of the following:
  258. the Legislative Assembly Office, the Office of the Auditor General, the
  259. Office of the Chief Electoral Officer, or the Office of the Ombudsman or who
  260. in the opinion of the (Public Service Employee Relations) Board should not be
  261. included in a collective bargaining unit by reason of the duties and
  262. responsibilities he has to his employer or for any other reason shall not be
  263. included in a bargaining unit or in any other unit for collective bargaining.
  264. According to the complainant, this amendment had reversed a series of
  265. decisions of the Public Service Employee Relations Board (one of which was
  266. unsuccessfully challenged by the Government before the courts) to the effect
  267. that the Government could not legitimately exclude certain groups of employees
  268. from the right to engage in collective bargaining and be represented by a
  269. trade union.
  270. 25. On this point the Government, in its communication of 3 May 1984,
  271. explained that the legislative amendments with respect to section 21(g) and
  272. (h) of the Public Service Employee Relations Act did not represent a
  273. significant change in the policies originally contained in those subsections;
  274. the exclusion of managerial and confidential employees, those involved in the
  275. implementation of personnel-related programmes, those involved in supporting
  276. the collective bargaining function, and those involved in the operations of
  277. the Government financial control system, activities of the Ombudsman, the
  278. courts and the Legislature itself had not been altered, but further refined to
  279. reflect continuing alterations in the structure of Government and the nature
  280. of employment in these cases.
  281. (ii) The arbitration system
  282. 26. The complainant stated that the amendments to section 117.8 of the Labour
  283. Relations Act and section 55 of the Public Service Employee Relations Act
  284. contained in Bill 44 showed the Government's lack of faith in the impartial
  285. arbitrators who determine the wages and working conditions of many public
  286. sector employees in Alberta in recent months. According to the complainant,
  287. rather than reassess the adequacy of cases presented to the arbitrators by
  288. government representatives and rather than take direct political
  289. responsibility for the imposition of wage controls, the Government had
  290. fettered the discretion of arbitrators and imposed an informal system of
  291. controls. The amendments, which were identical, read as follows:
  292. To ensure that wages and benefits are fair and reasonable to the employees
  293. and employer and are in the best interest of the public, the arbitration board
  294. (a) shall consider, for the period with respect to which the award will apply,
  295. the following: wages and benefits in private and public and unionised and
  296. non-unionised employment; the continuity and stability of private and public
  297. employment including employment levels and incidences of lay-offs, incidences
  298. of employment at less than normal working hours, and opportunity for
  299. employment; any fiscal policies that may be declared from time to time in
  300. writing by the Provincial Treasurer for the purposes of this Act; and (b) may
  301. consider, for the period with respect to which the award will apply, the
  302. following: the terms and conditions of employment in similar occupations
  303. outside the employer's employment taking into account any geographic,
  304. industrial or other variations that the board considers relevant; the need to
  305. maintain appropriate relationships in terms of conditions of employment
  306. between different classification levels within an occupation and between
  307. occupations in the employer's employment; the need to establish terms and
  308. conditions of employment that are fair and reasonable in relation to the
  309. qualifications required, the work performed, the responsibility assumed and
  310. the nature of the services rendered; any other factor that it considers
  311. relevant to the matter in dispute.
  312. 27. According to the complainant, the foregoing provision required that an
  313. arbitrator take into account government fiscal policy and thereby sought to
  314. impose a system of informal wage restraint. The complainant recalled that in
  315. many cases dealing with the rights of employees in the civil service and in
  316. essential services where the right to strike has been withdrawn and a system
  317. of arbitration substituted, the Committee on Freedom of Association had
  318. stressed the importance of impartiality. The complainant claimed that it was
  319. dishonourable for the Government to withdraw the right to strike in these
  320. sectors and then impose a system of binding arbitration which was not even
  321. apparently impartial.
  322. 28. To the allegation that section 117.8 of the Labour Relations Act and
  323. section 55 of the Public Service Employee Relations Act unreasonably
  324. restricted the freedom of arbitration boards and in so doing amounted to a
  325. disguised form of wage controls, the Government had replied that amendments
  326. concerning the nature of factors to be considered by a board did not, as
  327. alleged, impose restrictions. The criteria considered relevant to the
  328. decisions were merely listed, including wages and benefits elsewhere in the
  329. provincial labour market and the fiscal policies of the Government. The
  330. Government stated that the legislation did not stipulate how consideration of
  331. these factors was to be employed in the decision-making process. The shifting
  332. relevancy of criteria over time was recognised to the extent that "any other
  333. factor" might be considered, and given whatever weight was deemed appropriate.
  334. The comprehensive result of all listed factors was to give unfettered
  335. discretion to a board as to the weight it would assign to any particular
  336. criterion. According to the Government, the factors listed were evidentiary
  337. rather than substantive in nature.
  338. (iii) Other issues
  339. 29. The complainant further alleged that many of the amendments contained in
  340. Bill 44 were designed to undermine the bargaining authority of trade unions
  341. and thereby to impair free collective bargaining. It cited in particular
  342. section 74(1) of the Labour Relations Act which required that every trade
  343. union appoint only persons residing in Alberta with authority to bargaining
  344. collectively, conclude and sign a collective agreement. That section reads as
  345. follows:
  346. On the service of a notice to commence collective bargaining by or on an
  347. employer or trade union, the employer or trade union shall appoint a person
  348. resident in Alberta with authority to bargain collectively, to conclude a
  349. collective agreement, and to sign a collective agreement on its behalf.
  350. According to the complainant this requirement would seriously impair the
  351. operation of those small local unions which relied on out-of-province business
  352. agents associated with the national or international federations to conduct
  353. collective bargaining.
  354. 30. In response to this allegation the Government pointed out that section 74
  355. of the Labour Relations Act had been amended to require the parties to
  356. collective bargaining to "appoint a person resident in Alberta". The
  357. Government explained that where trade union locals were part of a national
  358. labour organisation, accessibility to someone with authority to sign and
  359. conclude a collective agreement had been a problem in the past. Under the
  360. amendments to section 74, a small local union might still utilise
  361. out-of-province business agents associated with a national or international
  362. network as part of the bargaining committee and to act as a principal
  363. spokesman, but someone resident in the province must have authority for the
  364. purpose of facilitating the conduct of bargaining, including the conclusion of
  365. a collective agreement.
  366. 31. The complainant referred to section 87 of the Labour Relations Act which
  367. provided that only one strike or lock-out vote might be taken with respect to
  368. a dispute. This section reads as follows:
  369. During the open period, a bargaining agent may apply to the board to
  370. supervise a strike vote or an employers' organisation may apply to the board
  371. to supervise a lock-out vote. Only one strike or lock-out vote may take place
  372. with respect to a dispute. According to the complainant this provision would
  373. prevent unions and employers' associations from canvassing the opinions of
  374. their membership as to whether a strike or lock-out should take place in any
  375. given set of circumstances; the pro-strike or pro-lock-out vote would become a
  376. mere formality to be obtained at the commencement of collective bargaining.
  377. The complainant stated there was no sound reason why the members of a
  378. bargaining unit should not be free to change their mind as to whether to
  379. strike as circumstances changed.
  380. 32. In relation to section 87 of the Labour Relations Act, the Government
  381. stated that a strike or lock-out was the commencement of the economic contest
  382. and therefore such votes were supervised by the Labour Relations Board of
  383. Alberta. The changes to section 87 did not prohibit a union from conducting
  384. its own vote or canvassing the opinion of its membership as to whether a
  385. strike should take place in any given set of circumstances. Such a vote,
  386. conducted by the union, was part of the internal administration of the trade
  387. union and accordingly the provision did not interfere with a private vote
  388. within the union. The Government explained that such a vote or canvassing was
  389. not in substitution of a vote supervised by the Labour Relations Board which
  390. is a precondition for a lawful strike. Moreover, continued the Government, if
  391. the vote carried whether for strike or lock-out, then one party or the other
  392. had chosen the economic forum as the means of resolving the dispute. The
  393. policy as represented by this provision was that the members were free to
  394. strike, but should do so only when that appeared the only means of resolving
  395. the dispute. The alternative would be to open the door to a series of strike
  396. votes.
  397. 33. According to the complainant, section 102.2(2) of the Labour Relations Act
  398. as amended by Bill 44 empowered the Minister of Labour to require that the
  399. members of a bargaining unit affected by the recommendations of a Disputes
  400. Inquiry Board vote whether or not to accept the recommendations. This section
  401. reads as follows:
  402. Unless a party to the dispute notifies the (Labour Relations) Board of its
  403. acceptance of the recommendations of the disputes inquiry board within ten
  404. days after receiving a copy of the recommendations from the Minister, the
  405. (Labour Relations) Board shall supervise a vote on the acceptance or rejection
  406. of the recommendations by the employees or employers affected by the dispute
  407. who are represented by that party. According to the complainant this power
  408. amounted to unwarranted interference in the internal affairs of a trade union
  409. which had the right and responsibility to canvass its own members as to the
  410. acceptability of any particular settlement proposal; it believed that the
  411. conduct of labour relations ought to be left to the parties and not to the
  412. Minister of Labour.
  413. 34. With regard to section 102.2(2) the Government stated that the amendments
  414. to this section were aimed at recent situations in which a trade union had
  415. refused to resolve a dispute notwithstanding that a majority of employees in
  416. the unit had wished the dispute to be resolved under certain conditions.
  417. According to the Government, this provision ensured that the wishes of the
  418. majority in the unit might be expressed on the question of acceptance of a
  419. board award.
  420. 35. The complainant alleged that sections 105 and 106 of the Labour Relations
  421. Act created a new and dangerous offence by prohibiting persons acting on
  422. behalf of trade unions or employers from threatening a strike or lock-out in
  423. circumstances where a strike or lock-out would not be permitted under the Act.
  424. The sections read as follows:
  425. Section 105(3). No employee, bargaining agent, or person acting on behalf of
  426. a bargaining agent shall threaten to strike or to cause a strike unless the
  427. strike is permitted by this Act.
  428. Section 106(3). No employer shall threaten to lock-out unless the lock-out is
  429. permitted by this Act. The complainant pointed out that the question of
  430. whether a strike or lock-out was illegal was a complicated one and the parties
  431. should not therefore be prohibited from talking about it. The complainant
  432. questioned whether it was the Government's intention to penalise employees
  433. under section 105 who, for example, refused to perform work which they
  434. believed to be unsafe.
  435. 36. With regard to the inclusion of "threats" to strike or lock-out in
  436. sections 105 and 106 of the Labour Relations Act, the Government stated that a
  437. strike or lock-out was not permitted where the preconditions as set out in the
  438. Act had not been satisfied. However, if a strike or lock-out with its serious
  439. consequences upon employees and employers might only occur when certain
  440. conditions had been satisfied then neither the trade union, employees or
  441. persons acting on behalf of the trade union or the employer should be able to
  442. threaten an illegal act to achieve other purposes, such as threatening a
  443. strike to force an alteration of a collective agreement during its term
  444. against the will of the other party. In any case, the Government pointed out
  445. that these provisions were being reconsidered primarily because of evidentiary
  446. difficulties. The Government added that it was not the intention of this
  447. section to penalise workers who refused to perform work which they believed
  448. was unsafe. Questions of unsafe work were fully addressed in legislation
  449. concerning health and safety. According to the Government, the essential
  450. element of a strike was that it was a concerted refusal by two or more
  451. employees aimed at compelling an employer to accept terms and conditions of
  452. employment; the Labour Relations Board had never interpreted a strike to
  453. include a refusal to work when conditions were unsafe.
  454. 37. The complainant alleged that several provisions in Bill 44 were designed
  455. to make it more difficult for trade unions to obtain and maintain certificates
  456. enabling them to represent workers in collective bargaining. It refered in
  457. particular to section 49(1) of the Labour Relations Act which reads as
  458. follows:
  459. Notwithstanding anything in this Act, if an application for certification as
  460. a bargaining agent, revocation of the certification of a bargaining agent, a
  461. declaration that a bargaining agent is no longer entitled to bargain
  462. collectively, registration of employers' organisation or cancellation of
  463. registration of an employers' organisation, has been refused by the Board or
  464. withdrawn by the applicant, the applicant shall not, without the consent of
  465. the Board, make the same or substantially the same application until after the
  466. expiration of 90 days from the date of the withdrawal or refusal. According to
  467. the complainant this section would prevent trade unions from withdrawing
  468. applications for certification when they realised that there was no majority
  469. support and resubmitting the application when a majority had been obtained.
  470. The only effect of this amendment would be to make organisation campaigns more
  471. difficult and accordingly more expensive.
  472. 38. The Government explained that amendments to section 49 of the Labour
  473. Relations Act required an applicant for certification to obtain board
  474. permission to reapply before the expiry of 90 days from the date of withdrawal
  475. or refusal of a previous application. It stated that these amendments had been
  476. implemented in recognition of the administrative effects on the employer,
  477. employees and the Labour Relations Board itself where repeated failed
  478. applications are made.
  479. 39. The complainant further stated that before the introduction of section 132
  480. of the Labour Relations Act, a trade union's certificate remained in full
  481. force notwithstanding the sale or disposition of the business of an employer
  482. and that the previous situation had aimed at preventing the employer from
  483. selling or transferring his business to an allied operator in order to get rid
  484. of a certified trade union. According to the complainant, the new situation
  485. (whereby the Labour Relations Board may, upon application by any employer,
  486. trade union or person affected, determine what rights, privileges and duties
  487. have been acquired or retained) provided an opportunity to successor employers
  488. to frustrate the desires of employees who might wish to continue being
  489. represented in collective bargaining by their previously certified bargaining
  490. agents.
  491. 40. As regards the amendments to section 132, the Government stated that these
  492. were designed to prevent incongruous results. Before the introduction of these
  493. changes, if the Labour Relations Board had concluded that there had been a
  494. sale, lease or transfer of a business or part of it, then automatically the
  495. certificate and the collective agreement to which the vendor was party applied
  496. to the purchaser. The Government stated that the intention of the provision as
  497. amended remained to that effect; however if a question arose under section
  498. 132, the Labour Relations Board might declare the certificates, collective
  499. agreement or proceedings to be binding on the purchaser in contrast to the
  500. former provision where the Board was required to so declare. The new provision
  501. allowed for conflicts to be resolved by the Labour Relations Board by allowing
  502. the Board to amend the certificate or collective agreement in question or even
  503. revoke it. The Government stressed that the Board had only been given power
  504. permissibly to resolve conflicts.
  505. 41. The complainant further alleged that new section 1(w.1) of the Labour
  506. Statutes Amendment Act, creating the concept of a "trade union organisation",
  507. would create a situation in which the national or provincial organisation
  508. which had authority to bargain on behalf of local unions would be subjected to
  509. the penalties prescribed in the Act for trade unions. The Government pointed
  510. out that the amendments proposed in section 1(w.1) had never been adopted and
  511. did not form part of the Labour Relations Act.
  512. 42. The complainant referred to section 117.94 of the Labour Relations Act -
  513. which was identical to new section 92.2 of the Public Service Employee
  514. Relations Act - as the most pernicious example of anti-union legislation in
  515. Bill 44. According to the complainant, the clear intention of this section was
  516. to cripple a union financially if its members went on a strike. The section
  517. reads as follows:
  518. (1) If a strike of employees to which this Division applies (i.e. public
  519. employees who are prohibited from striking) commences, the employer,
  520. notwithstanding any collective agreement or any other provision of this Act,
  521. may serve the bargaining agent that represents those employees with a notice
  522. of intention to suspend the deduction and remittance of union dues,
  523. assessments and other fees payable to the bargaining agent.
  524. (2) A notice of intention shall specify the bargaining unit or part of the
  525. bargaining unit with respect to which the employer intends to suspend the
  526. deduction and remittance of union dues or other fees and a time period of not
  527. less than one month and not more than six months with respect to which the
  528. employer intends the suspension to be in effect.
  529. (3) A bargaining agent affected by the notice may apply to the board within
  530. 72 hours of service ... for a determination as to whether or not a strike has
  531. occurred.
  532. 43. As regards section 117.94 of the Labour Relations Act and section 92.2 of
  533. the Public Service Employee Relations Act as amended by Bill 44, the
  534. Government stated that, unless the union committed an illegal act, the
  535. forwarding of union dues continued. It added that, if the employer served
  536. notice that union dues were to be withheld, an expeditious and inexpensive
  537. appeal to the appropriate quasi-judicial Board was available and the Board
  538. would decide whether a break in collection and remittance should occur based
  539. on evidence that the union had or had not contravened the Act in question and
  540. illegally interrupted the employer's operations. Adequate and appropriate
  541. appeal provisions existed to protect the interests of all parties.
  542. 44. With regard to the withdrawal of the right to strike from hospital workers
  543. contained in section 117.1 of the Labour Relations Act, the complainant
  544. alleged that all hospital workers, including kitchen help, janitors,
  545. gardeners, registered nurses, health service technicians and clerical staff,
  546. were covered by this new section.
  547. 45. The Government stated its position as regards the international standards
  548. relevant to the question, namely that freedom to associate was protected but
  549. specific association objectives and dispute resolution mechanisms were not. It
  550. pointed out that the evolutionary nature of labour relations precluded
  551. commitment to a single universal approach to dispute resolution. The objects
  552. of association within the context of labour relations, principally the
  553. protection of the interests of the workers, could be and were achieved without
  554. utilisation of the strike mechanism. According to the Government, public
  555. sector collective bargaining must be approached within the larger framework of
  556. the governing process itself of which it was but one part. A number of
  557. extremely important characteristics had to be recognised in the design of the
  558. collective bargaining system intended to be compatible with it: the governing
  559. process in Canada was one in which decisions were reached by compromise and
  560. response to pressures brought to bear; those interests which influenced the
  561. distribution of scarce resources were involved in a political process and must
  562. therefore be subject to the contraints normally associated with such
  563. participation; in order to maintain the essential and delicate balance within
  564. this process, particularly with respect to essential administrative
  565. decision-making outside the normal review and evaluation associated with the
  566. electoral process, no single interest could be allowed to place other
  567. interests at a disadvantage. The Government also pointed out that while the
  568. nature of the work performed by public service employees was often unique in
  569. most ways, the unique nature of the employer remained constant, in that the
  570. Government was subject to scrutiny. Lastly, the Government stated that
  571. continuance of the right to withhold services by health care workers would
  572. place these interests at an unacceptable advantage and priority over those
  573. whose legitimate health care needs must be met by the system, for which there
  574. was no acceptable alternative, and as such would compromise the
  575. decision-making process relating to the provision of health care. This
  576. situation had been altered only to the extent that an alternative to the
  577. withdrawal of services had been provided and the Government considered that
  578. this was an effective compromise which would permit proper representation of
  579. employee interests within a framework that complied with international
  580. standards.
  581. C. Information obtained during the mission
  582. 46. In the course of the mission I had the opportunity of discussing the
  583. various issues involved in this case; first, in Ottawa, with representatives
  584. of the Canadian Labour Congress (CLC) and the National Union of Provincial
  585. Government Employees (NUPGE), and secondly, in Edmonton, with representatives
  586. of the Alberta Union of Public Employees (AUPE) and its component divisions.
  587. Discussions were also held with the Assistant Deputy Minister of Labour and
  588. other provincial government officials. In addition to the oral submissions
  589. that were made by the parties, voluminous documentary evidence was
  590. communicated to me in support of the arguments put forward by them.
  591. 47. From all these discussions it was clear that the three main issues causing
  592. concern to the unions as a result of the enactment of Bill 44, which amended
  593. both the Public Service Employee Relations Act of 1980 and the Labour
  594. Relations Act, were the curtailment of collective bargaining rights for
  595. public-sector employees and the manner in which the arbitration procedures
  596. functioned, the further restrictions that Bill 44 placed on the right to
  597. strike of public employees and the exclusion of certain employees from the
  598. bargaining unit. Several other issues, which also formed part of the
  599. complaint, were also examined in detail and will be dealt with later.
  600. (a) Collective bargaining and arbitration
  601. 48. The claim of the unions was that the introduction of Bill 44 had been a
  602. clear and deliberate attempt to place further restrictions on the collective
  603. bargaining rights of provincial government employees. In addition, the result
  604. of Bill 44 had been to destroy any credibility in the fairness and
  605. impartiality of the arbitration system, the only dispute-settlement mechanism
  606. available to this category of workers.
  607. 49. Much information was obtained concerning the manner in which collective
  608. bargaining takes place between the Alberta Union of Public Employees, as the
  609. certified bargaining agent covering 12 separate divisions of public employees
  610. (approximately 38,000 employees), and the Crown in the Right of Alberta, as
  611. employer. Under section 50 of the Public Service Employee Relations Act, in
  612. the event of a dispute arising, if the the Public Service Employee Relations
  613. Board is satisfied that the parties to the dispute have failed to make
  614. reasonable efforts to conclude a collective agreement, the Board may direct
  615. the parties to continue collective bargaining. Section 51(1)(c) of the Act
  616. permits the Board to establish an arbitration board if it is satisfied that
  617. not only are there additional items which should be referred to arbitration
  618. but also that it is the appropriate time to refer the matter to an arbitration
  619. board.
  620. 50. At the time the mission took place collective agreements had been
  621. concluded in respect of eight out of the 12 divisions of the AUPE; the four
  622. groups in respect of which no agreement had been reached being nurses,
  623. economic staff, social workers and teachers.
  624. 51. The chief negotiator for the AUPE explained that Bill 44 had been enacted
  625. following the discontent of the Government at the awards granted by 12
  626. separate arbitration boards in 1983. These arbitrations had been preceded by a
  627. decision of the Public Service Employee Relations Board that there had been a
  628. failure on the part of the employers to bargain in good faith. The current
  629. round of negotiations, commenced in January 1984 for the biennium 1984-85, had
  630. taken place in the context of the new atmosphere created by the enactment of
  631. Bill 44 and the employers demonstrated an aggressive attitude at the
  632. bargaining table. The failure of negotiations led to a request being made in
  633. April 1984 by the union for arbitration but this was rejected by the Board. In
  634. July 1984, following the failure of mediation, the Board referred the main, or
  635. master agreement, to arbitration.
  636. 52. Evidence was also submitted concerning the negotiating process which the
  637. unions claimed was frustrating and time-consuming. The Public Service Employee
  638. Relations Board often served to delay or prevent references to arbitration. In
  639. one case involving some 14,000 administrative and clerical workers,
  640. negotiations had commenced in January 1984; the Board had, on no fewer than
  641. three occasions, rejected an application for arbitration on the grounds that
  642. it was "untimely and inappropriate". This was followed by an application to
  643. the court which, in March 1985, upheld the Board's discretionary power to
  644. establish an arbitration board and stated that the Board's decision in the
  645. present case was not "patently unreasonable". It was only after the lapse of
  646. at least 18 months from the commencement of negotiations that arbitration was
  647. obtained and, as the unions pointed out, the question of retroactivity of wage
  648. increases was itself a matter of negotiation.
  649. 53. More specifically, as regards the arbitration process, the unions
  650. expressed considerable concern over the practical application of section 48(2)
  651. of the Public Service Employee Relations Act which limits the subject-matters
  652. that may be referred for arbitration. The Public Service Employee Relations
  653. Board has jurisdiction to determine whether any particular claim falls within
  654. the list of non-arbitral items set out in this provision. In the view of the
  655. unions this provision conferred upon the employer the unilateral right to
  656. determine terms and conditions of employment. They claimed that all matters
  657. covered by this provision should fall within the scope of bargaining and
  658. arbitration since they did not entirely concern questions of management
  659. prerogative.
  660. 54. Examples of matters that had not been considered arbitral by virtue of
  661. section 48 included the right of an employer to contract out work of the
  662. bargaining unit, questions concerning hours of work and shift work, certain
  663. leave periods and the calculation of overtime (section 48(2a)); questions of
  664. job evaluation, creation of job descriptions, questions of equal pay for work
  665. of equal value (section 48(2b)); selection, transfer, promotion, training, the
  666. provision of training in the safer operation of equipment, etc. (section
  667. 48(2c)). In a recent case (December 1984) the Public Service Employee
  668. Relations Board had determined that a union's proposal to protect the
  669. positions of laid-off employees by requiring an employer to give notice of
  670. intended lay-offs was non-arbitral because it limited employer discretion. The
  671. unions, accordingly, claimed that these examples showed that the Board gave a
  672. broad interpretation of section 48(2) in order to protect the managerial
  673. prerogative of the employer.
  674. 55. Furthermore, the unions claimed that, even where items in dispute were
  675. referred to arbitration, the discretion of arbitrators was curtailed by the
  676. requirement that they take certain matters into consideration. These criteria
  677. are set out in section 55 of the Act, and in particular, oblige arbitrators to
  678. give special consideration to statements of government fiscal policy. In the
  679. unions' view, these provisions were introduced in 1983 in response to the
  680. series of arbitration awards which the Government had criticised as being too
  681. generous. Some recent statements of fiscal policy issued by the Government
  682. were made available to the mission. According to the unions, arbitrators were
  683. required to promote government fiscal policy and, accordingly, the results of
  684. arbitration were a reflection of that policy. In other words, such control of
  685. arbitral decision-making meant that the Government was, in fact, legislating
  686. results for itself as employer. Arbitrators were thus prevented from
  687. exercising the degree of independence that was necessary to constitute an
  688. adequate substitute for collective bargaining.
  689. 56. In this connection, a number of recent arbitration awards were made
  690. available to the mission. From these it was clear that the arbitration boards
  691. involved had given careful considerations to the provisions of section 55(a)
  692. and (b) and had explored at length the conflicting roles of government as the
  693. determiner of provincial labour fiscal policy, and as employer. In some cases,
  694. the board had, in fact, not considered it necessary to take account of the
  695. optional provisions contained in section 55(b) of the Act. In one case, in May
  696. 1984, the arbitration board had stated that it did not find the government
  697. fiscal policy useful since, inter alia, it did not prescribe the exact amount
  698. of the increase.
  699. (b) Excluded employees
  700. 57. The mission also heard evidence concerning the exclusion, by virtue of
  701. section 21(1) of the Act, of certain categories of employees from the
  702. bargaining unit for the purpose of collective bargaining. The recent
  703. amendments under Bill 44 had broadened the range of persons denied the right
  704. to engage in collective bargaining. Some of these categories had previously
  705. enjoyed this right. It was recalled that section 21 substantially provides
  706. that persons employed who have or exercise management responsibilites or
  707. duties or who are primarily engaged in the administration of personnel
  708. policies or pesonnel programmes, shall not be included in any bargaining unit.
  709. 58. In the view of the unions, the exclusion of such employees was not
  710. justified and the amendment, under Bill 44, had removed the right to
  711. collectively bargain from a number of groups of employees who had been granted
  712. that right by the Public Service Employee Relations Board under the previous
  713. statute. The Governmment had used its legislative authority to reverse a
  714. series of decisions of the Board. For example, the Board, in one case, had
  715. held that employees in occupational health and safety programmes and
  716. organisational development programmes and activities were not within the scope
  717. of "personnel policies or programmes" defined in section 21(1)(b) of the Act.
  718. The Board, in its decision, had stated that personnel, in the sense described,
  719. encompassed policies or programmes concerning the recruitment of candidates,
  720. the hiring, the appointment and promotion of employees, or the classification,
  721. evaluation, discipline or discharge of employees. The unions submitted further
  722. examples of cases in which the amendments of Bill 44 denied the right to
  723. belong to a bargainging unit to groups of workers, or individual officers, to
  724. whom that right had been recognised by the Board. According to the unions,
  725. over 400 persons had been denied the right to collective bargaining by the
  726. amendments to section 21.
  727. (c) The right to strike
  728. 59. The mission also heard submissions from the unions concerning the overall
  729. denial of the right to strike imposed by section 93 of the Public Service
  730. Employee Relations Act on those employees to whom the Act applies. According
  731. to the unions, the Government had sought to justify this denial by stating
  732. that, although all the employees concerned did not provide essential services,
  733. they were so closely linked to those providing essential services as to make
  734. it reasonable that they should be treated in the same way; that there was no
  735. alternative supply for these services; and that these employees were in a
  736. special position to place more pressure on the Government than other citizens.
  737. 60. The unions claimed that there was no evidence of close links between
  738. essential and non-essential persons and, more importantly, that the withdrawal
  739. of labour by non-essential persons would not adversely affect the provision of
  740. essential services. Nor was there any evidence that there was no alternative
  741. source of supply for the services provided by the employees affected.
  742. Moreover, the unions stated, the same rationale had not been applied in the
  743. private sector in cases where no alternative source of supply for many
  744. services was available.
  745. 61. At meetings with representatives of the provincial Government of Alberta,
  746. the issues that had been brought to the attention of the ILO and discussed
  747. with the mission, were explained in detail. The government representatives
  748. explained to the mission that the response by the private sector to the
  749. dramatic decline in the economy had been constructive, and the claims of the
  750. public-sector unions that they were being selected for special, unfavourable
  751. treatment were unique to that category of workers.
  752. 62. As regards the collective bargaining process, the government
  753. representatives explained that either party had the right to veto matters that
  754. were suggested for reference to arbitration. Those which the Public Service
  755. Employee Relations Board had excluded from those parts of the master agreement
  756. with AUPE in respect of which arbitration had been sought concerned
  757. exclusively management rights. The Government conceded, however, that the
  758. definition of management rights was a complex question.
  759. 63. In this connection, I suggested to the government representatives that the
  760. Public Service Employee Relations Board, by refusing to consider certain
  761. specific issues as arbitral, was itself arbitrating on these issues. Where
  762. arbitration was fundamental in a non-strike situation, it seemed anomalous
  763. that the Board, which was a procedural body, should be seen itself to be
  764. acting as arbitrator on certain issues. Such a procedure was certain to
  765. destroy the unions' faith and confidence in the Board. I further indicated
  766. that it seemed that the Government's use of the legislative process to deal
  767. with collective bargaining had also led to a loss of confidence by unions in
  768. the bargaining system.
  769. 64. As regards arbitration itself, the government representatives indicated
  770. that, from the limited experience that the Government had of arbitration of
  771. interest disputes, there had been no evidence of misuse of the provision
  772. (section 55 of the Act) requiring arbitrators to take account of provincial
  773. fiscal policy. There was no way of knowing what attention arbitrators paid to
  774. the section, but, in any event, the fiscal policy provided wide scope for
  775. arbitrators. Examples of government fiscal policy were given to the mission.
  776. 65. On the question of exclusions under section 21(1) of the Act, as amended,
  777. the Government explained that 260 employees in all were affected by the
  778. amendment. These were mainly involved in the personnel policy area and only
  779. about 12 in the field of safety and health had been excluded from the
  780. bargaining unit.
  781. 66. Concerning the denial of the right to strike, I informed the Government
  782. generally that the Committee on Freedom of Association was likely to express
  783. some concern about the provisions in the legislation on this matter in the
  784. light of its stated principles. The government representatives took note of
  785. this and informed me that certain issues concerning the right to strike for
  786. public employees were presently before the court.
  787. 67. I also brought to the attention of the Government the question, also a
  788. concern of the unions, of the lack of prior consultation with the unions on
  789. legislation concerning matters affecting them or their members. In response,
  790. the government representative informed me that any failure to consult on such
  791. matters would be caused by the emergency of the situation and not from any
  792. systematic policy not to consult. Even on issues that were urgent, public
  793. hearings would take place in Parliament, but normally legislation was the
  794. result of lengthy and constructive discussions with any parties that would be
  795. affected.
  796. (d) Other issues
  797. 68. During discusssions with the AUPE, I was informed that, although that
  798. organisation had initially feared that the use of experienced out-of-province
  799. negotiators might have been restricted by section 74(1), the provision as it
  800. stood was not a problem. The provincial government representatives explained
  801. that this provision had been introduced solely to deal with the practical
  802. difficulties which had arisen in the past, when out-of-province negotiators
  803. had not been able to be contacted during negotiations or, even at the time of
  804. settlement, for signature of an agreement. Given that there appeared to be no
  805. serious problem with section 74(1) in practice, I expressed my hope that the
  806. parties would be able to discuss its application if, in the future, any
  807. problems might arise in this respect.
  808. 69. It was explained to the mission that section 87 of the Labour Relations
  809. Act (providing for only one strike or lock-out vote with respect to a dispute)
  810. had been introduced in reaction to a strike in 1982 by nurses at the Banff
  811. Mineral Springs Hospital during which one of the trade unions involved had
  812. disputed the results of a pro-strike vote. The Government also pointed out
  813. that, under this provision, the unions could meet and discuss possible strike
  814. action as often as they wished, but could only apply for one strike vote
  815. supervised by the Labour Relations Board. Both sides agreed that there
  816. appeared to be no problem with the present situation in practice.
  817. 70. It was explained to the mission, in relation to section 102.2(2)
  818. (providing for a Labour Relations Board supervised vote on the acceptance by
  819. employees of a settlement in a dispute) that the Disputes Inquiry Board was a
  820. form of binding mediation set up to examine particular disputes. The provision
  821. addressed the question as to whether union executives were free to accept
  822. awards or whether individual union members should decide this at a vote and it
  823. has not been used as yet.
  824. 71. During discussions with the union representatives, it was made clear to
  825. the mission that the effect of section 105(3)'s introduction of an offence for
  826. the mere threat of illegal strike action had added to their fears as to the
  827. real purpose behind Bill 44. They stressed that the danger of this provision
  828. was compounded by the fact that the strike action had been broadly defined in
  829. the legislation. The Government, on the other hand, pointed out that there
  830. were many Labour Relations Board decisions which clarified the definition of
  831. strikes. It also stressed that this provision stemmed from the principle of
  832. fair collective bargaining in that the threat of illegal action did not
  833. contribute to the resolution of a particular bargaining issue or negotiations
  834. in general. I pointed out that "persons acting on behalf of the bargaining
  835. agent" were also covered by this broad provision. The Government explained
  836. that section 105(3) had not been used and that it would be up to the Labour
  837. Relations Board, when faced with the application of this provision, to
  838. highlight any drafting difficulties regarding the position of union agents.
  839. 72. As regards the allegation relating to section 49 (introducing a 90-day
  840. delay before the filing of further certification applications) of the Labour
  841. Relations Act, it was explained to the mission that, under the Labour
  842. Relations Act, the Labour Relations Board was empowered to grant a collective
  843. bargaining certificate in three sets of circumstances: firstly, when satisfied
  844. that a majority of employees in the unit were paid-up union members having
  845. selected the trade union to be their bargaining agent; or secondly, when
  846. satisfied that a majority of employees in the unit had applied for union
  847. membership and paid a fee (or "deposit") not longer than 90 days before the
  848. date of the application for certification, or thirdly, after conducting a
  849. vote. Before the amendment only 30 days had applied to fee-paying employees.
  850. The union representatives felt that this time extension was yet another
  851. example of the real intent of Bill 44. The Government explained that section
  852. 49 was aimed at situations where there was not a constant organising drive by
  853. trade unions for the purposes of collective bargaining certification. This
  854. amendment had been introduced to remove any uncertainty as to a union's real
  855. strength in the bargaining unit and to avoid the possible abuse of
  856. certification proceedings as, for example, a defence to organising drives by
  857. other unions in the same bargaining unit. The Govenment pointed out that since
  858. this amendment there had been no evidence of its impact on a trade union's
  859. ability to organise and apply for certification. Since a union's own
  860. constitution would set out the time limit for the lapse of fee-paying
  861. applicants' membership, any procedural problem that section 49 might raise for
  862. unions could possibly be avoided by simple amendment of their constitutions.
  863. In addition, it was pointed out that the Labour Relations Board had the
  864. discretion to conduct a vote even if a majority (51 per cent) of employees in
  865. the bargaining unit had indicated its selection of a trade union as its
  866. bargaining agent.
  867. 73. The union representatives told me that the amendment to section 132
  868. concerning successor rights had no labour relations rationale. The Government
  869. explained that the amendment was a reaction to a court decision which had
  870. interpreted the previous provision too broadly, thus enabling successor rights
  871. to bind employees in "other related activities"; the position on successor
  872. rights was now clarified in the Act and the Labour Relations Board only had a
  873. discretion, not an obligation, to determine what rights, privileges and duties
  874. carried on where a question arose under the provision.
  875. 74. From information obtained during the mission concerning section 117.94 of
  876. the Labour Relations Act and section 92.2 of the Public Service Employee
  877. Relations Act concerning withdrawal of the check-off, it was clear that the
  878. complainant's initial allegations related to a draft provision which had not
  879. provided for notice and the right to appeal to the appropriate board. The
  880. union representatives acknowledged that there was no problem at the moment
  881. with sections 117.94 and 92.2 as drafted and currently in force since they had
  882. not been utilised. The Government stressed the fairness of the notice, appeal
  883. and time limit aspects of the present section; it nevertheless acknowledged
  884. that the possibility existed for an employer to suspend all employee check
  885. offs in a situation where only one employee had withdrawn his services. It
  886. considered that in such cases the appropriate board would have to decide
  887. whether an illegal strike had taken place and, if not, order the employer not
  888. to go ahead with suspension of the check-off.
  889. 75. During discussions on the withdrawal of the right to strike from hospital
  890. workers (section 117.1 of the Labour Relations Act), the AUPE representatives
  891. emphasised their concern over the indiscriminate nature of section 117.1 in
  892. that non-essential staff were covered by the strike ban. This has been
  893. discussed in a more general context in some detail above. Evidence was put
  894. forward from hospital clerical staff to the effect that their job description
  895. and duties did not differ from clerical work carried on outside the hospital
  896. system and could not be described as essential. The Government pointed out
  897. that there was much uncertainty, both at the national and international
  898. levels, as to what was an "essential service". It was explained that the
  899. Provincial Government decided to clarify the situation through legislation
  900. rather than through Labour Relations Board decisions or arbitration decisions.
  901. The Government stressed that only small groups were affected by section 117.1.
  902. After it was pointed out to the Government that in some specific cases the
  903. international bodies had been very clear in defining the concept of essential
  904. services, the question of possible abuse was raised. The Government explained
  905. that this question was before the courts in two jurisdictions, namely the
  906. appeal of an Alberta Court of Appeal decision to the Canadian Supreme Court
  907. (challenging Bill 44 on grounds of violation of the Canadian Charter of Rights
  908. and Freedoms - to be heard in October 1985) and an AUPE appeal to the Alberta
  909. Court of Appeal which has been stayed pending the afore-mentioned Supreme
  910. Court decision.
  911. D. Concluding remarks
  912. 76. The complaints lodged against the Government of Alberta fall into two
  913. groups. A number of them appeared to indicate that recent legislative changes,
  914. in particular Bill 44 had changed the process of collective bargaining and
  915. submission to arbitration. This it was alleged was in clear breach of ILO
  916. principles applying to a structure where limitation on the right to strike is
  917. balanced by free access to binding arbitration. Others were individual points
  918. of detail. These taken together it was suggested presented serious obstacles
  919. to freedom of association and free collective bargaining. Together the two
  920. groups of complaints were felt - and the feeling was strong and genuinely held
  921. - to form a coherent policy aimed at weakening the public service trade union.
  922. I feel it would be helpful to the Committee on Freedom of Association if I
  923. summarised the position as I saw it treating each of the groups separately and
  924. then assessing the overall position.
  925. Collective bargaining and arbitration
  926. 77. Bill 44 has made several changes to the structure of bargaining, and
  927. recent practice has led to the feeling that major limitations have been
  928. imposed and damage done. The system as it is now working raises these issues
  929. to which the Committee's attention is specially drawn:
  930. (a) the system denies public service employees who are covered the right to
  931. strike. It offers in its place access to binding arbitration;
  932. (b) the access to arbitration is limited by a jurisdictional clause (section
  933. 48(2)). That clause is in effect the equivalent of a management rights clause
  934. commonly found in a collective agreement. Two questions were raised:
  935. (i) the drafting of the statute enables the adjudicating body to take a wide
  936. view of management rights. In such instances there will be a strong counter
  937. argument raised by the trade union since the exercise of such rights will
  938. undoubtedly, on many occasions, raise the issue that a trade union feels
  939. properly falls within the ambit of bargaining;
  940. (ii) the procedural methods adopted put the jurisdictional issue in the hands
  941. of the Public Service Employee Relations Board. This has the effect of taking
  942. from the arbitrator, seized with problems arising from the break down of
  943. negotiations, some of the issues in dispute. The trade unions do seem to be
  944. hampered by this duality.
  945. A study of arbitration awards indicates that the application of these
  946. provisions has produced results that narrow considerably the arbitrator's
  947. jurisdiction. It appears that the system, which it will be recalled is aimed
  948. at balancing the lack of the right to strike, is narrowing the issues that are
  949. deemed arbitrable. It is a matter that calls for careful attention.
  950. (c) The addition within the statutory rules governing the work of the
  951. arbitrator set out in section 55 of the duty to consider "any fiscal policies
  952. that may be declared from time to time in writing by the Provincial
  953. Treasurer". It appears from what I was told that it is the potential impact of
  954. this clause that is feared. It is difficult to see the effect of the clause,
  955. taken at face value, on the practice of arbitration. It cannot be seriously
  956. contended that such fiscal policy would not be considered by an arbitrator
  957. without such direction. The dangers are, however, there:
  958. (i) an arbitrator aware of the precariousness of the profession may give
  959. paramountcy to this one provision. Although it has to be said that this
  960. realistically is a theoretical danger, such a problem exists whether the
  961. position is statutory or not;
  962. (ii) the Government may issue its fiscal policy in such a form, for example,
  963. as a pay increase norm. That would undoubtedly raise the impact of the
  964. particular criterion that is being considered. It would seriously fetter the
  965. freedom of the arbitrator. Indeed it would prove to change the concept of
  966. independent arbitration. Such intervention should be directly, rather than
  967. indirectly, statutory. The fiscal policies I was shown show no sign of such
  968. interference. They state clearly and succintly general economic factors of
  969. concern to the Government. Awards studied cannot be said to show any misuse of
  970. this section to destroy independence.
  971. (d) exclusions from the process of the Act have been recently extended. This
  972. increases the number of public servants who lack the protection of the system.
  973. The facts are clearly set out in the evidence given by the parties and
  974. summarised above. The numbers under the Public Service Employee Relations Act
  975. are not excessive. Whilst it would be possible to argue about the validity,
  976. under ILO standards, of a few categories there is no flagrant neglect of the
  977. appropriate principles.
  978. 78. Attention must be given, however, to the exclusion of health care workers
  979. from the parallel bargaining structures secured by the Labour Relations Act.
  980. That exclusion is widely drawn and gives too little attention to the important
  981. qualification of "essential worker". Its width gives real cause for concern.
  982. Individual items
  983. 79. These have been set out in detail above and the views of the parties
  984. recorded. They can be partially grouped: Four involve statutory changes to
  985. legal structures. Undoubtedly these changes make the trade unions' position
  986. less favourable, hence the reason for the complaints. They do not appear,
  987. however, to involve significant fetters on trade union rights. The Committee
  988. will be able to judge them from the views expressed; I found little to add.
  989. (a) s. 74(1) - Labour Relations Act
  990. Requires a duly authorised representative for collective bargaining to be
  991. resident in Alberta. It was made clear that the legislation does not debar the
  992. trade unions seeking assistance in bargaining from persons resident outside
  993. the Province.
  994. (b) s. 87 - Labour Relations Act
  995. Allows only one strike or lock-out vote. This restricts certain previously
  996. allowable trade union tactics but does not prevent sufficient polling to
  997. determine the position prior to calling for a vote.
  998. (c) s. 49(1) - Labour Relations Act
  999. Where a certification ballot is lost there is provision now for a 90-day
  1000. moratorium. This affects the current practice of signing members on a short
  1001. (30 day) basis. No doubt it will lead to a change of tactics.
  1002. (d) s. 132 - Labour Relations Act
  1003. Where a business or enterprise changes hands there has been automatic
  1004. transfer to the new employer of the collective bargaining rights and duties.
  1005. This provision now allows the Board to intervene. Since it is only likely to
  1006. do so where difficulties are anticipated the provision appears merely to
  1007. regulate and expedite normal practice. There was no indication that this
  1008. provision would be used to change previous grounds for intervention.
  1009. (e) s. 1(W. 1) of the Labour Relations Act was never promulgated.
  1010. 80. Three issues require separate comment.
  1011. (a) s. 102.2 - Labour Relations Act
  1012. This provides the power to put the recommendations of a Disputes Inquiry
  1013. Board to the workers concerned after 10 days of issue. Calling for such a vote
  1014. is seen as a denial of the right of the trade union officials to manage their
  1015. own union. It does not, however, deprive individual workers of their rights.
  1016. (b) s. 105 and s. 106 - Labour Relations Act
  1017. The crime of threatening an illegal strike created by these provisions needs
  1018. careful consideration. It appears to put employees and trade union officials
  1019. in some jeopardy. Two problems arise:
  1020. (i) the definition of a strike is by no means certain and precise. In many
  1021. instances it is possible that the matter could only be determined by a court.
  1022. An employee or trade union official either has his conduct widely fettered
  1023. (fearing possible but not certain transgression) or acts in good faith,
  1024. believing the strike to be lawful and subsequently finding that it is not. It
  1025. seems essential that an individual who has no subjective guilt (i.e. knowledge
  1026. or belief in the illegality) should be protected;
  1027. (ii) the question of the authority of individuals to act on behalf of the
  1028. trade union also may arise. Again it is to be hoped that clarification will be
  1029. undertaken to avoid uncertainty.
  1030. (c) s. 117.94 - Labour Relations Act and s. 92.2 - Public Service Employee
  1031. Relations Act
  1032. These provisions provide that where illegal strike action takes place the
  1033. employer may suspend the deduction of union dues from employees' pay and their
  1034. remission to the trade union. This is an instance of fear that the provisions
  1035. may be used unfairly. The statute appears to allow the stopping of all dues in
  1036. the unit consequent upon the action of one individual. We were told that such
  1037. response was most unlikely, except in the instance of specially selected key
  1038. workers. Again, it is important to note that there may be circumstances where
  1039. the trade union itself is trying to prevent or end the illegal action.
  1040. Retaliatory measures in these circumstances would not appear to be fair. Again
  1041. it is a matter, once aired, that can be dealt with by clarification of the
  1042. exact scope of the provision.
  1043. General considerations
  1044. 81. Consultation: The complaints relate to a period when the perceptions of
  1045. the Government and the public service trade union were markedly divergent.
  1046. Routine consultation on matters such as health and safety appeared to have
  1047. continued unaffected. However, the Government's determination to act quickly
  1048. as a result of the major downturn in economic activity meant that consultation
  1049. on the legislative changes in Bill 44 were almost entirely restricted to a
  1050. public hearing before a committee of the whole legislature. Since the
  1051. legislation affected procedures in which the Government and the trade union
  1052. played a joint part, it is unfortunate that more time was not found for
  1053. consultation. It would appear that now the urgency of the economic pressures
  1054. has abated, the process of consultation can be re-established. At the very
  1055. least this will enable misconceptions to be ironed out before changes are
  1056. promulgated.
  1057. 82. Attitudes: It was clear that the trade union believed that it had been
  1058. singled out for a concerted attack on its position and rights. The steps taken
  1059. by the Government, both in their obvious intent to restrict monetary rises and
  1060. the individual changes, viewed in the worst light, gave a basis for the
  1061. formation of such a view. Whether these fears and the harshest reading of the
  1062. legislative changes reflect what were intended is not easy to determine. I saw
  1063. little objective evidence to support this pessimistic view although I accept
  1064. that the fear was genuine.
  1065. 83. Two aspects of the underlying problem should be mentioned.
  1066. 1. It is important and practically sensible to review the questions raised as
  1067. to fears of ways in which the legislation may be used to seriously impede the
  1068. trade union in carrying out its bargaining role. Many of these, it seemed,
  1069. could be resolved by an internal understanding secured, for example, by an
  1070. exchange of letters.
  1071. 2. The second is somewhat more complicated. The procedures appear to have
  1072. changed the perceived independence of both the Public Service Employee
  1073. Relations Board and the process of arbitration. The reasons for this are set
  1074. out at the beginning of this section. It is vital that consideration be given
  1075. to ensuring that the independence of arbitration is maintained and seen to be
  1076. valued.
  1077. 84. The establishment of better relationships between the parties is desirable
  1078. and even possible given the present, less alarming economic position and the
  1079. increased awareness of both unions and Government of their respective
  1080. responsibilities and obligations. It will not be easy to build mutual trust
  1081. quickly, but if attention is jointly given to the problems that were disclosed
  1082. to me better relationships should be attainable. It is clearly in the
  1083. interests of both parties to make efforts to this end and to eliminate the
  1084. fears that exist at present of a disregard of ILO principles.
  1085. IV. Case of Alberta - No. 1234
  1086. A. Introduction
  1087. 85. It was in a communication of 19 September 1983 that the Confederation of
  1088. Alberta Faculty Associations (CAFA) presented a complaint of alleged
  1089. violations of trade union rights in Alberta. The observations of the
  1090. Government of Alberta were contained in a communication dated 21 February
  1091. 1984.
  1092. B. The issues
  1093. 86. In its communication of 19 September 1983 the CAFA alleged that a November
  1094. 1981 amendment to the Universities Act denied the academic staff of the
  1095. universities of the Province of Alberta the rights bestowed by Convention No.
  1096. 87, ratified by Canada. The complainant explained that a new section 17(1)
  1097. (d.1) empowered the Board of Governors at each university to designate those
  1098. employees who shall be "academic staff members" and therefore eligible to join
  1099. the faculty staff associations at each university. The provision reads as
  1100. follows:
  1101. After consultation with the academic staff association, (The Board of
  1102. Governors is entitled) to do one or more of the following: (i) designate
  1103. categories of employees as academic staff members at the university; (ii)
  1104. designate individual employees as academic staff members at the university;
  1105. (iii) change the designation made under the subclauses above.
  1106. According to the complainant, this provision gave the right to the employer to
  1107. determine who should belong to a faculty association, contrary to Article 2 of
  1108. Convention No. 87.
  1109. 87. The CAFA explained that the present complaint was similar to previous
  1110. complaints brought by various Canadian workers' associations against the
  1111. Government, in particular, in 1977, the Canadian Labour Congress and the
  1112. Canadian Association of University Teachers' complaint (Case No. 893, last
  1113. examined in detail by the Committee in its 194th Report, paragraphs 92 to 118)
  1114. and the 1981 complaint of the Alberta Association of College Faculties (Case
  1115. No. 1055, examined by the Committee in its 214th Report, paras. 332-350).
  1116. 88. The CAFA pointed out that it had delayed presenting a complaint to the ILO
  1117. concerning the Universities Amendment Act of 1981 in order to observe what
  1118. would actually occur in the initial determination by the Board of Governors of
  1119. who should be designated as academic staff, and hence members of an
  1120. association under the new legislation. It cited an example of such a
  1121. determination: the governing authority of Athabasca University declared its
  1122. intention to designate as "academic staff members" fewer than one-third of the
  1123. persons who had formerly been members of the Athabasca University Faculty
  1124. Association by an arbitrary declaration of who were to be excluded on the
  1125. basis that they were involved in senior management or that their activities
  1126. did not meet the governing authority's definition of "academic". According to
  1127. the complainant, the Athabasca University Faculty Association was able to
  1128. persuade the governing authority concerned that the original definitions were
  1129. unwarranted, and eventually an agreement on designation was reached. However,
  1130. according to the complainant, given that the Act continued to give governing
  1131. authorities the right to revoke designation at will, following consultation,
  1132. the legislative threat to freedom of association continued.
  1133. 89. In its communication of 21 February 1984, the Government explained that
  1134. universities in Alberta were created and structured in accordance with the
  1135. principle of academic freedom, the right of each individual member of the
  1136. faculty of the institution to enjoy the freedom to study, to inquire, and to
  1137. communicate ideas. The Government added that the principle of academic freedom
  1138. must be safeguarded through appropriate institutional structures and the role
  1139. of academic professionals in the management of universities had long been
  1140. recognised.
  1141. 90. According to the Government, from the complexity of the academic and
  1142. administrative functions undertaken by such institutions stemmed the
  1143. recognition that university management is the joint responsibility of the
  1144. various major elements of the academic community, including faculty,
  1145. administrators, governing boards and students. In particular, the faculty must
  1146. play a major role in determining curriculum, subject-matter and method of
  1147. instruction, research, requirement for degrees, academic appointments and
  1148. granting of tenure and dismissals, since only the faculty had the competence
  1149. needed for making and forming judgements on such matters. The Government cited
  1150. the example of the structure at the University of Alberta where faculty
  1151. members played a substantial role in administration and in setting the overall
  1152. university policy; "staff members" are defined in the faculty association
  1153. collective agreement as all persons who have been appointed to full-time
  1154. teaching and research positions which includes all senior academics and
  1155. administrators, such as the president, vice-president and deans. The Board of
  1156. Governors there consists of, amongst others, the president of the university
  1157. and two members of the academic staff. The General Faculties Council, which is
  1158. responsible for the academic affairs of the university subject to the
  1159. authority of the university, consists of, inter alia, the president, the
  1160. vice-president, the deans of all the faculties, the directors of each school,
  1161. the chief librarian, the registrar and elected members from all faculties and
  1162. schools. The Government explained that all these persons are "academic staff"
  1163. yet they are active and influential members of the very body that acts as the
  1164. university board's instrument for internal college management, which includes
  1165. dealing with questions of tenure, salaries and promotions and the hearing of
  1166. appeals and disciplinary matters.
  1167. 91. The Government, therefore, concluded that within the university
  1168. environment traditional employer/employee or managerial/non-managerial
  1169. distinctions did not apply. All interest groups active within the institution
  1170. played a role in its management, including the designation of "academic
  1171. staff", because the Board of Governors comprised significant staff
  1172. representation. The Government stressed that the Universities Amendment Act
  1173. attempted to create a framework within which dialogue regarding more
  1174. traditional conditions of work issues could take place, while at the same time
  1175. recognising the unique nature of the universities. In particular, the Act
  1176. designated the Board of Governors as the final authority and, secondly, the
  1177. Act required "consultation" which the Government interpreted as including full
  1178. consultation enabling the persons involved to have reasonable, ample and
  1179. sufficient opportunity to express their views.
  1180. 92. Referring to the example cited by the complainant, the Government
  1181. explained that in early 1983 the Athabasca University Governing Council
  1182. declared its intention to designate as "academic staff members" fewer than
  1183. one-third of those persons who were formerly members of the Athabasca
  1184. University Faculty Association. The Governing Council had felt that many
  1185. professional staff were involved in senior management positions and their
  1186. activities did not fall in the Governing Council's definition of "academic";
  1187. as a result of consultation between the Governing Council and the Faculty
  1188. Association, an altered scope of designation had been reached, with the result
  1189. that many of the persons involved - whose designations had been changed - had
  1190. been redesignated as "academic staff members". According to the Government,
  1191. this example proved the effectiveness of consultation as required under the
  1192. Universities Amendment Act, in particular in view of the fact that the
  1193. Governing Council had recognised that fragmentation of the professional staff
  1194. into small bargaining units was not an advantage to the University.
  1195. C. Information obtained during the mission
  1196. 93. During discussions with representatives of CAFA, two points were
  1197. emphasised. First, the union was trying to have consultations, in good faith,
  1198. with the employers (the Boards of Governors) in an effort to overcome the
  1199. restrictive nature of s. 17(1)(d.1); such informal consultations had, in fact,
  1200. worked in the Athabasca situation referred to in the written complaint.
  1201. Secondly, CAFA stressed its concern that there was no right to appeal a
  1202. designation of academic staff made by the Boards of Governors under s.
  1203. 17(1)(d.1). CAFA considered that a possible solution to the situation would be
  1204. to include provisions in the legislation for third party arbitration on the
  1205. question of designation, such as exists for collective bargaining deadlocks. I
  1206. noted that this was a useful suggestion since, in most cases, the job
  1207. descriptions indicated those members of the university staff who were involved
  1208. in teaching and research and those who were employed in managerial tasks.
  1209. 94. The Government pointed out that the Athabasca situation had been
  1210. particularly tense since the campus had, at the time of the complaint, just
  1211. been transferred from Edmonton to the northern town of Athabasca (after which
  1212. the university had been named) to continue its "open university" curriculae.
  1213. According to the Government none of the three other Alberta universities had
  1214. had problems, and the employees of the University of Alberta (in Edmonton) had
  1215. indeed been surprised at the complaint because they had no trouble in
  1216. negotiating with their Board of Governors the question of academic staff.
  1217. Nevertheless, the Government recognised that the legislation did not address
  1218. the radical differences in the four universities of the Province. I pointed
  1219. out that, although no problems were occurring at present with the legislation,
  1220. CAFA wanted some form of machinery to protect against situations such as had
  1221. occurred in Athabasca. To this the Government replied that since the other
  1222. universities had managed to arrive at designations, no major change in policy
  1223. could be envisaged. I indicated that informal machinery such as a letter of
  1224. understanding would perhaps suffice.
  1225. D. Concluding remarks
  1226. 95. The issue here is a simple one. The power given to the employer to
  1227. designate staff as academic or not gave a high degree of control over the
  1228. nature and size of the bargaining unit. Industrial relations in universities,
  1229. which have a large degree of participation and consultation, is of an
  1230. individual nature. Relationships have been excellent but the designation power
  1231. led to a serious problem in Athabasca University, a body which because it
  1232. concentrated upon "distance learning", that is to say students not on campus,
  1233. has a special staff structure. That problem has been satisfactorily resolved
  1234. but the Staff Association has been alerted to a weakness in the law.
  1235. 96. There is no doubt that a unilateral power to designate does potentially
  1236. put the trade union at a serious disadvantage. All that is being sought is
  1237. access to independent arbitration of disputed designation. This appears to be
  1238. a necessary safeguard to protect the integrity of the bargaining unit. It
  1239. seems most unlikely that the machinery will often be used for the relationship
  1240. appears to be good. Consideration could, accordingly, be given to the
  1241. introduction of the simple safeguard that is being sought by the union.
  1242. V. Case of Ontario - No. 1172
  1243. A. Introduction
  1244. 97. The complaint of the Canadian Labour Congress (CLC), on behalf of its
  1245. affiliated organisations the National Union of Provincial Government Employees
  1246. (NUPGE), the Ontario Public Service Employees Union (OPSEU) and the Canadian
  1247. Union of Public Employees (CUPE), was contained in a communication dated 15
  1248. November 1982. The CLC supplied additional information in communications dated
  1249. 15 December 1982, 16 February and 28 October 1983 and 10 January 1984. The
  1250. World Confederation of Organisations of the Teaching Profession (WCOTP)
  1251. presented its complaint, on behalf of its affiliates the Canadian Teachers'
  1252. Federation and the Ontario Teachers' Federation, in a letter of 8 February
  1253. 1983 and further information in a communication of 7 March 1983. The Service
  1254. Employees International Union (SEIU) presented its complaint in a letter dated
  1255. 6 April 1984. The Government sent its observations in communications dated 25
  1256. April 1983 and 7 June and 16 October 1984.
  1257. B. The issues
  1258. 98. In its initial communications the CLC alleged that new Ontario
  1259. legislation, "the Act respecting the restraint of compensation in the public
  1260. sector of Ontario and the monitoring of inflationary conditions in the economy
  1261. of the province" (known as Bill 179), violated Articles 3 and 4 of Convention
  1262. No. 87 and Article 4 of Convention No. 98. The Act came into force in late
  1263. 1982 and covered employees of the Ontario Public Service, all Ontario
  1264. municipalities, municipal and provincial corporations, commissions, boards and
  1265. agencies including universities, colleges, hospitals and health boards. In
  1266. particular, the CLC alleged that of the Act took away the right of the workers
  1267. covered to organise and bargain collectively because it allowed the Provincial
  1268. Government to extend, arbitrarily, collective agreements for a 12-month period
  1269. during which it could unilaterally determine employees' wage increases. In
  1270. addition, according to the CLC, the Inflation Restraint Board established
  1271. under the Act had been given sweeping powers to resolve disputes without
  1272. reference to the unions or employees concerned.
  1273. 99. The WCOTP, in its communication of 8 February 1983, stated that Bill 179
  1274. constituted an unjustifiable interference with bargaining rights. It pointed
  1275. out that Bill 179 overrode the usual collective bargaining process prescribed
  1276. in various specific Provincial Acts by imposing legislated limits on the wages
  1277. of public sector employees, including teachers, because it took effect
  1278. "notwithstanding any other Act, except the Human Rights Code, 1981 ...". The
  1279. WCOTP further stated that no grave national emergency existed in Ontario such
  1280. as to justify this substantial restriction on the fundamental right to
  1281. collective bargaining, the Government's professed commitment to the reduction
  1282. of inflation not being a sufficient reason for this suspension by legislative
  1283. action.
  1284. 100. According to the additional information provided by the CLC on 16
  1285. February 1983 the Act in fact had become law on 15 December 1982 with
  1286. retroactive operation as from 21 September 1982 and applied also to privately
  1287. owned, para-public sector companies contracted to or funded by the Provincial
  1288. Government, for example, nursing homes, ambulance services, garbage
  1289. contractors as well as to certain private charitable organisations and
  1290. non-government agencies such as the Art Gallery of Ontario and the Botanical
  1291. Gardens (section 6). The complainant stated that the coverage of the Act might
  1292. further be extended by regulation by the Lieutenant Governor in Council,
  1293. without legislative discussion (section 25).
  1294. 101. The CLC explained its dissatisfaction with the Act as follows: the Act
  1295. imposed a 5 per cent increase on the compensation received by employees
  1296. concerned for at least a one-year period (called "the control year"),
  1297. regardless of the rate of inflation and the value of wage and benefit
  1298. settlements in the private sector (section 12); it "rolled back" or
  1299. expropriated, without compensation, the existing contractual rights of
  1300. employees under collective agreements which extended beyond 1 October 1983 and
  1301. limited the increase in compensation and monetary benefits payable to such
  1302. employees under such agreements (sections 8, 9, 10, 11 and 12); it removed the
  1303. right to strike or to binding arbitration in so far as such activities related
  1304. to efforts to obtain monetary benefits in excess of those dictated by the Act
  1305. (section 13); it appeared to allow the parties to a collective agreement to
  1306. amend non-monetary issues of that agreement without providing a mechanism for
  1307. such amendment because the right to strike and the right to binding
  1308. arbitration were removed (section 15); it prevented a union from negotiating a
  1309. first agreement with an employer where the certification of the bargaining
  1310. unit had occurred after 21 September 1982 because employees could only strike
  1311. or obtain binding arbitration on non-monetary issues (section 13, in
  1312. conjunction with Ontario Regulation 57 of 21 January 1983 made under the Act
  1313. whereby first agreements made after 21 September must comply with the 5 per
  1314. cent increase in compensation laid down in the Act); it discriminated against
  1315. public sector employees by subjecting them to the above restrictions whereas
  1316. private sector employees were not so restricted. The complainant pointed out,
  1317. in addition, that even if the parties to a collective agreement had agreed to
  1318. an increase in wages or monetary benefits in excess of that permitted by the
  1319. Act, the Inflation Restraint Board - consisting of appointed officials of the
  1320. Ontario Government - could issue an order preventing the parties from
  1321. implementing their agreement (section 21 of the Act). In addition, the orders
  1322. of the Board might be filed with the Supreme Court of Ontario so that they had
  1323. the force of a judgement, thus allowing the Government to enforce them through
  1324. any of the judicial methods of enforcement, such as imprisonment and fines.
  1325. 102. According to the CLC, such restrictions on collective bargaining as
  1326. listed above violated Article 4 of Convention No. 98 and Article 7 of
  1327. Convention No. 151, and the lack of disputes settlement machinery infringed
  1328. Article 8 of Convention No. 151. Moreover, the CLC considered that Article 3
  1329. of Convention No. 87 was violated because of the alteration, by legislation,
  1330. of the conditions of work over a certain period of time and the removal of the
  1331. unions' possibility to act through negotiation. The CLC pointed out that under
  1332. section 2(d) of the Canadian Charter of Rights and Freedoms, incorporated as
  1333. part of the Federal Constitution in 1981, all persons had the right to freedom
  1334. of association in Canada; in view of the new legislation, public servants and
  1335. other individuals covered by the Act in Ontario were now denied freedom of
  1336. association.
  1337. 103. The WCOTP, in its communication of 7 March 1983, recalled that, under the
  1338. Ontario School Boards and Teachers Collective Negotiations Act 1975, a
  1339. collective bargaining process had been established according to which - if
  1340. initial negotiations between teachers and their employing boards failed - the
  1341. following action could be taken: initial fact-finding, mediation, voluntary
  1342. binding arbitration, final offer selection, strike or lock-out. According to
  1343. the complainant, free collective bargaining under this process had not
  1344. resulted in inflationary wage pressures; in fact, in every quarter since 1978,
  1345. the rate of teachers' salaries had fallen below the rate of inflation
  1346. producing a cumulative decline in purchasing power of more than 7 per cent.
  1347. 104. In addition, the WCOTP listed its principal criticisms of the new
  1348. legislation as follows: in cases where negotiations relating to the 1981-82
  1349. contract period were continuing, Bill 179 terminated negotiations, declared
  1350. the previous agreement to be still in force until the first anniversary
  1351. following 1 October 1982 (called "the transition period") and imposed a wage
  1352. increase not to exceed 9 per cent. Agreements already in effect and expiring
  1353. before 30 September 1983, were deemed to be extended for a period of 12 months
  1354. (again, "the control year"), with a wage increase of 5 per cent. According to
  1355. the WCOTP, Bill 179 also forbade the payment of any merit award,
  1356. service-related increment, long-service bonus or allowance in respect of
  1357. successful completion of a training programme or course of education,
  1358. regardless of whether such payments were provided for in collective
  1359. agreements, if the effect would be to increase total remuneration to a level
  1360. above $35,000 per annum. This extension by legislation of collective
  1361. agreements eliminated the possibility of negotiation even on non-monetary
  1362. items, such as conditions of work, and, since strikes were not permitted
  1363. during the life of a contract, Bill 179 amounted to denial of the right to
  1364. strike; thus, affected employees would have no way to make any changes to
  1365. their working conditions.
  1366. 105. Lastly, the WCOTP criticised the membership and procedures of the
  1367. Inflation Restraint Board set up under Bill 179 - in particular the lack of
  1368. appeal of its decisions - as well as the wide powers conferred on the
  1369. Lieutenant Governor in Council. The WCOTP stated that where the right to
  1370. strike was removed, it was imperative to replace it with an adequate dispute
  1371. resolution mechanism - Bill 179 left affected employees with no such
  1372. mechanism.
  1373. 106. In its communication of 28 October 1983, the CLC referred to a recent
  1374. decision of the Supreme Court of Ontario (Broadway Manor case) and the
  1375. Government's public announcement of its intention to extend the duration of
  1376. its control programme by legislation at the beginning of November 1983. The
  1377. decision, dated 24 October 1983, ruled that section 13(b) of Bill 179 was
  1378. invalid because it infringed the right to freedom of association - which
  1379. included the right to change bargaining agents, to bargain collectively and to
  1380. strike - which was guaranteed under the Canadian Constitution. Only this
  1381. section of the legislation was held to be unconstitutional because it
  1382. restricted collective bargaining over non-compensation matters which,
  1383. according to the Court, could not be justified as being reasonably necessary
  1384. to control wage increases. On 10 January 1984, the CLC sent certain
  1385. documentation referring to the replacement of Bill 179 by new draft
  1386. legislation (known as Bill 111) which, if enacted, would take effect as of 1
  1387. October 1983.
  1388. 107. On 6 April 1984 the Service Employees International Union presented its
  1389. submissions against Bill 179 reiterating the above-mentioned points for
  1390. dissatisfaction with the legislation (it removed the right to change
  1391. bargaining agents, to bargain collectively on non-monetary as well as monetary
  1392. matters and the right to strike or resort to interest arbitration for a
  1393. broadly defined public sector) and adding that the legislation is not in
  1394. harmony with Convention No. 154.
  1395. 108. Referring to the importance of the independence and autonomy of parties
  1396. to the collective bargaining process and the voluntary negotiation of
  1397. collective agreements recognised by the Committee on Freedom of Association as
  1398. fundamental aspects of Convention No. 98, the SEIU claimed that Bill 179, by
  1399. interfering with existing provisions of freely negotiated collective
  1400. agreements, constituted an unnecessary and unacceptable interference in the
  1401. results of free collective bargaining and contravened Convention No. 154. It
  1402. cited the example of the Sensenbrenner Hospital employees who were awarded an
  1403. 11 per cent overall pay increase in the summer of 1982 by a three-man interest
  1404. arbitration board and some of whom - since they were among the lowest paid
  1405. workers in the hospital sector - were awarded a supplementary award in October
  1406. 1982. On 2 November 1983 the Inflation Restraint Board ruled that the special
  1407. wage increases contained in the supplementary award were null and void to the
  1408. extent that they exceeded the 5 per cent limit prescribed by the Act, and
  1409. ordered that any wages received by the 72 employees concerned in excesss of
  1410. the prescribed increase were to be repaid to the hospital. In January 1984 the
  1411. Board had refused a request made by the SEIU that it recommend, under section
  1412. 17(5) of the Act, that the employees of the Sensenbrenner Hospital be exempt
  1413. from its application. According to the SEIU, there had not been any
  1414. recommendations or exemptions granted to workers under these provisions of the
  1415. Act.
  1416. 109. Lastly, the SEIU criticised the Government's statements that conditions
  1417. of work other than compensation were not disrupted by Bill 179, that
  1418. non-monetary aspects of a compensation plan might be made under section 15 of
  1419. that Act, that the right to select a bargaining agent was only delayed for at
  1420. most one year and, most importantly according to the complainant, that
  1421. although the scope of collective bargaining had been temporarily narrowed it
  1422. still covered trade-offs between wages and benefits and the determination of
  1423. non-monetary terms and conditions of employment. The SEIU alleged that this
  1424. last justification was entirely inaccurate and unfounded especially in view of
  1425. the Act's suspension of the obligation to bargain in good faith as required
  1426. under the Labour Relations Act.
  1427. 110. Responding to the complaints in its communication of 25 April 1983, the
  1428. Government stated that its adoption of the new legislation was a responsible
  1429. and necessary action, taken only after consideration of a wide range of
  1430. restraint options to overcome the worst recession since the Great Depression.
  1431. According to the Government, in 1981 and the first half of 1982 public sector
  1432. wage increases were higher than private sector settlements in Ontario and
  1433. there was evidence that administered prices - prices set or directly
  1434. authorised by ministries or public agencies - were a major factor perpetuating
  1435. inflation.
  1436. 111. The Government pointed out that the compensation restraint programme
  1437. provided for a temporary (in most cases, only one year) constraint on wage
  1438. increases of up to 5 per cent or 9 per cent, allowing conditions of work other
  1439. than compensation to be changed by mutual agreement (section 15 of the Act).
  1440. It stated that special provision was made for workers with low incomes
  1441. (section 12) and emphasised that the Lieutenant Governor in Council could
  1442. exempt compensation plans from the Act (section 25). According to the
  1443. Government, trade-offs between wages and benefits could be made with the
  1444. permission of the Inflation Restraint Board under section 14, and it listed
  1445. examples of such trade-offs.
  1446. 112. As regards the alleged infringement of Convention No. 87, the Government
  1447. emphasised that the legislation in fact favoured worker organisations in one
  1448. way because workers with collective agreements were automatically entitled to
  1449. a 5 per cent wage increase whereas other workers could receive less (section
  1450. 12(1)(d)). For workers already represented wishing to change certified
  1451. representatives, the Government admitted that the extension of collective
  1452. agreements under the Act would delay this for, at most, one year, but pointed
  1453. out that under the normal collective bargaining system such a change was in
  1454. any case also subject to a time-limit - of 90 to 120 days, for example under
  1455. the Labour Relations Act. As for the alleged limitation on the unions' freedom
  1456. of action, the Government stated that this was incorrect: while the scope of
  1457. negotiations had been temporarily restricted, the collective bargaining system
  1458. remained in place and unions were free to organise their activities, the right
  1459. to strike and to binding arbitration only being delayed temporarily. An
  1460. example of this freedom of action was the case of groups which had been
  1461. certified before 21 September 1982 but which had not attained their first
  1462. collective agreement. Under Regulation 57/83 made under the Act, such groups
  1463. could use all of the normal collective bargaining procedures - including
  1464. strike action - to arrive at first collective agreements on condition that the
  1465. agreement provided for a compensation increase of 5 per cent for a 12-month
  1466. period commencing between 1 October 1982 and 1 October 1983 and that the
  1467. provisions of the whole agreement were substantially comparable to those of
  1468. employees in related labour markets.
  1469. 113. As regards the alleged infringement of Conventions Nos. 98 and 151, the
  1470. Government stated that the Act did not discontinue the voluntary negotiation
  1471. machinery but merely prolonged collective agreements, with specified
  1472. provisions for wage increases, for the period stipulated. It stressed that
  1473. non-monetary terms and conditions could be altered by mutual agreement and the
  1474. parties were free to agree to use mediators and arbitrators in this
  1475. connection. According to the Government, there had been quite a few instances
  1476. of collective bargaining resulting in the full 9 per cent being granted for
  1477. the 12-month period prior to the control year under section 10 of the Act. As
  1478. for the limitation on disputes settlement procedures, the Government stated
  1479. that, under section 14 of the Act, the Inflation Restraint Board could
  1480. arbitrate, giving decisions which were binding on the parties and also
  1481. indicating its reasons although the Act did not require it to do so. Moreover,
  1482. the Government pointed out that under sections 17 and 25 of the Act groups of
  1483. employees could be exempted from the application of Part II of the Act; it
  1484. recognised that these provisions had not yet been utilised.
  1485. 114. In its communication of 7 June 1984, the Government referred to the
  1486. appeal lodged against the decision of the Divisional Court of the Supreme
  1487. Court of Ontario dated 24 October 1983 which held section 13(b) of the
  1488. Inflation Restraint Act to be invalid. The Government enclosed extracts from
  1489. Hansard containing statements made by the Attorney General of Ontario which
  1490. reflected the Government's concern over "the implications of the very broad
  1491. interpretation given by the Court to freedom of association".
  1492. 115. In its communication of 16 October 1984, the Government again referred to
  1493. the economic crisis of 1981 which had led all Canadian provinces except
  1494. Manitoba to introduce public sector restraint programmes. According to the
  1495. Government, 71 per cent of all agreements and 69 per cent of all employees
  1496. affected by the Inflation Restraint Act had been subject to controls for 12
  1497. months only. It also presented statistics to show that after the Act had been
  1498. introduced there had been a dramatic decrease in the rate of inflation.
  1499. 116. As regards the negotiation of non-monetary issues under section 15 of the
  1500. Act, the Government pointed out that the Ontario Ministry of Labour had
  1501. continued to offer and provide mediation services to parties covered by the
  1502. Act who agreed to bargain non-compensatory issues, and negotiations had taken
  1503. place on such items as grievance procedures, pupil-teacher ratios and job
  1504. security. The Inflation Restraint Board had made 655 decisions and orders
  1505. between 1 December 1982 and December 1983, a number of which resulted from
  1506. issues which had arisen in negotiation. The Government contended that such
  1507. mediation fulfilled the requirements of Convention No. 151.
  1508. 117. The Government also pointed out that the Lieutenant Governor's power
  1509. under the Act to terminate the application of the controls to any compensation
  1510. plan had been used with respect to certain municipal employees' retirement
  1511. plan (Regulation 92/83) and to exclude certain handicapped people, persons not
  1512. covered by minimum wage legislation and persons who received less than 50 per
  1513. cent of their expenses from a government employer (Regulations 819/82 and
  1514. 844/82). Moreover, the Act required the Inflation Restraint Board to
  1515. investigate price increases in government services called "administered
  1516. services" referred to it by the Minister. For example, in 1982, the Board had
  1517. investigated a price increase for Northern and Central Gas which had been
  1518. approved by the Ontario Energy Board, and had concluded that the price
  1519. increase did not comply with the Minister's criteria; the proposed price was
  1520. subsequently reduced to bring it into compliance. Moreover, the Cabinet
  1521. Committee on Administered Prices had maintained an increase of only 5 per cent
  1522. in over half the cases submitted to it, e.g. for legal aid fees, beer prices,
  1523. school-bus tariffs, tuition fees for Canadian students, provincial park fees,
  1524. resident fishing licence fees and Northern Telephone Ltd. charges. Thus 92 per
  1525. cent of the adminstered prices had kept within the 5 per cent increase
  1526. guide-line.
  1527. 118. The Government explained that the legislation which replaced Bill 179 as
  1528. of October 1983 - the Public Sector Prices and Compensation Review Act (known
  1529. as Bill 111) - provided for full collective bargaining of both compensation
  1530. and non-compensation issues and allowed the normal strike or arbitration
  1531. procedures when the parties were unable to conclude a collective agreement.
  1532. 119. Lastly, the Government referred to the SEIU's allegations, stating that
  1533. at no time during the operation of the Inflation Restraint Act had the right
  1534. of employees to establish, join and participate fully in organisations of
  1535. their own choosing been withheld. Only situations such as that which had
  1536. arisen in the Broadway Manor case had been affected by the Act; in that case
  1537. only certification had been delayed and certification under Ontario law was
  1538. not a prerequisite to the lawful establishment of or participation in a "new"
  1539. union. The Government stated that its appeal to the Ontario Court of Appeal
  1540. against the Divisional Supreme Court decision in the Broadway Manor case had
  1541. been heard on 4 June 1984 but the decision had not, at the time of the
  1542. Government's reply to the ILO, been rendered. As for the situation in the
  1543. Sensenbrenner Hospital, the Government denied that the Inflation Restraint
  1544. Board had ordered a recovery of the excess payments that had already been
  1545. made, but merely referred the matter back to the parties.
  1546. C. Information obtained during the mission
  1547. 120. During the mission's stay in Toronto I had the opportunity to meet
  1548. representatives of the following organisations: Service Employees
  1549. International Union (local 204), the Ontario Public Service Employees' Union,
  1550. the Canadian Union of Public Employees and the Ontario Teachers' Federation.
  1551. These meetings were followed by a meeting with a number of Government
  1552. officials representing the Province of Ontario. In the course of my meetings
  1553. with the trade union organisations I obtained information in the form of oral
  1554. presentations and written submissions. Written submissions and documentation
  1555. were also supplied on behalf of the provincial government.
  1556. 121. At my initial meetings with the Canadian Labour Congress in Ottawa the
  1557. problems referred to in the complaint resulting from the coming into force, on
  1558. 21 September 1982, of the Inflation Restraint Act (Bill 179), had already been
  1559. mentioned.
  1560. 122. Since the main thrust of the arguments advanced by all the trade unions
  1561. was virtually identical as regards what they considered to be a violation of
  1562. their trade union rights consequent upon the enactment of Bill 179, and to
  1563. some extent, the later enactment, on 10 October 1983, of the Public Sector
  1564. Prices and Compensation Review Act (Bill 111), it will suffice here to
  1565. summarise these arguments and the information supplied in substantiation of
  1566. them.
  1567. 123. I should, at this point, state that I emphasised to all the parties that
  1568. no formal allegations concerning Bill 111 had been submitted to the ILO and
  1569. that, strictly speaking, this legislation fell outside my terms of reference.
  1570. However, since Bill 111 is directly relevant to the issues raised in the
  1571. formal complaints and is the latest act by the Government in the area of
  1572. public sector collective bargaining, I felt that it was appropriate to record
  1573. the unions', as well as the Government's views on this later enactment and its
  1574. effect on public sector bargaining. Indeed, at the time of the mission, Bill
  1575. 111, itself a temporary enactment, was due to expire.
  1576. 124. The principal claim of all the unions was that the enactment of Bill 179
  1577. in September 1982 not only put an end to collective bargaining, and indeed to
  1578. trade union activity, for a period of almost two years, but also prevented the
  1579. coming into force of collective agreements freely concluded prior to the Act.
  1580. Generally, agreements that were due to expire on or after 10 October 1981
  1581. would be extended for a period of 12 months provided that compensation rates
  1582. did not exceed 9 per cent. These agreements on their expiry and every other
  1583. agreement would be deemed to include a provision increasing compensation rates
  1584. by 5 per cent for the ensuing 12-month period. The unions argued that it was
  1585. questionable that the economic situation in the country, and more specifically
  1586. in the province, justified these measures and even if there were economic
  1587. difficulties there was no justification for what amounted to a virtual ban on
  1588. trade union activity for the period during which the Act was to remain in
  1589. force. In effect, since collective bargaining was excluded, even on
  1590. non-monetary issues, there could be no arbitration, which was an accepted
  1591. substitute for the denial of the right to strike in the public service.
  1592. 125. The SEIU, the majority of whose 33,000 members were employed in the
  1593. hospital and nursing home sector said that it had always accepted the
  1594. substitution of the right to strike for the right of independent and binding
  1595. third party arbitration. Bill 179, and subsequently Bill 111, showed that the
  1596. Government supported neither the right to strike nor truly independent and
  1597. impartial arbitration. Similar arguments were advanced by OPSEU, representing
  1598. 80,000 members, who added that the 5 per cent limit on wage increases had
  1599. widened the gap between lower-paid and higher-paid employees. Some 15,000 of
  1600. their members employed in part-time employment, for whom protracted
  1601. negotiations had resulted in a two-year agreement for a 9 per cent and 11 per
  1602. cent increase in increment, had been denied the 11 per cent increase on the
  1603. enactment of Bill 179. Other categories of workers had been similarly
  1604. affected. OPSEU also introduced witnesses who described the effects of Bill
  1605. 179 on laboratory workers and on the support staff of community colleges
  1606. (approx. 5,000) who had been guaranteed, during the 1981 bargaining operation,
  1607. that their wages would be increased by 20 per cent over the following three
  1608. years. All of these categories had suffered under the wage controls imposed by
  1609. Bill 179.
  1610. 126. The CUPE emphasised that Bill 179 not only restrained compensation but
  1611. eliminated the right to bargain effectively with employers over non-monetary
  1612. provisions in a collective agreement. This, they added, had been criticised by
  1613. the Ontario Court of Appeal (Broadway Manor case) in a decision issued on 22
  1614. October 1984, a decision that was of little practical relevance since Bill 179
  1615. had then, for all practical purposes, been replaced by other legislation (Bill
  1616. 111). CUPE also emphasised that during the existence of Bill 179, workers
  1617. governed by the Labour Relations Act were effectively deprived of the right to
  1618. strike. In addition, the possibility of resorting to arbitration by workers
  1619. governed by the provisions of either the Hospital Labour Disputes Arbitration
  1620. Act or the Crown Employees Collective Bargaining Act was effectively
  1621. eliminated.
  1622. 127. Another point made by CUPE was that, as a result of Bill 179, they had
  1623. originally claimed that the right to organise was infringed since workers
  1624. could not change bargaining agents during the control period. This was another
  1625. matter which has been settled by the Court of Appeal of Ontario in the
  1626. Broadway Manor case. The Court held that the effect of Bill 179 was not to
  1627. extend collective agreements themselves, but only to extend the terms and
  1628. conditions of such agreements. Bill 179 did not, therefore, curtail the right
  1629. to change bargaining agents. As stated above, however, the decision in the
  1630. Broadway Manor case was only handed down on the expiry of Bill 179.
  1631. 128. CUPE provided a number of examples of some 100 agreements, concluded
  1632. prior to the enactment of Bill 179, that had been "rolled back" by the Act,
  1633. and explained that many low-paid workers were affected by this measure. This
  1634. union also mentioned that, in the hospital sector, a close wage relationship
  1635. had always existed between workers represented by CUPE and those represented
  1636. by SEIU. However, the SEIU hospital members, who do exactly the same work as
  1637. CUPE members, were awarded 11 per cent in a one-year contract arbitrated just
  1638. prior to the institution of Bill 179, whereas CUPE members received a maximum
  1639. of 9 per cent in the first year of their agreement, pursuant to the provisions
  1640. of Bill 179. As a result CUPE members were adversely treated in comparison
  1641. with SEIU members simply because of the luck of different termination dates of
  1642. collective agreements.
  1643. 129. The Ontario Teachers' Federation, which represents over 104,000 teachers
  1644. employed in the publicly supported elementary and secondary schools in
  1645. Ontario, also complained that Bill 179, and later Bill 111, had the effect of
  1646. overriding the negotiating process established under the School Boards and
  1647. Teachers' Collective Negotiations Act, 1975, as amended in 1983. In its view
  1648. no economic emergency existed in Ontario to justify the enactment of Bill 179.
  1649. In addition, the right to strike which teachers have in Ontario, was suspended
  1650. during the control period imposed by the Act. Detailed information was
  1651. supplied by the Federation showing the impact of Bill 179 on the wages of
  1652. teachers in the province.
  1653. 130. The Public Sector Prices and Compensation Review Act, 1983 (known as Bill
  1654. 111), which replaced Bill 179 did not, according to the unions, restore free
  1655. collective bargaining but imposed, in a more subtle manner, a further period
  1656. of restrictions on collective bargaining. In effect, Bill 111 provided that,
  1657. during a "restraint period" of 12 months, the Inflation Restraint Board was
  1658. empowered to fix and monitor all changes in compensation in the same broadly
  1659. defined public sector as Bill 179, in order to determine whether compensation
  1660. changes complied with the fiscal policy of the province as determined by the
  1661. Treasurer of Ontario. The Treasurer had announced that increases in average
  1662. compensation should not exceed 5 per cent during this restraint period.
  1663. Furthermore, the Government had announced that government grants and transfers
  1664. to publicly funded institutions covered by Bill 111, as well as allocations to
  1665. its own civil servants would provide for average compensation increases of up
  1666. to 5 per cent. While compensation increases in excess of 5 per cent were
  1667. possible, the Inflation Restraint Board, the Government and leaders of
  1668. municipalities had made it clear that any attempt to exceed the 5 per cent
  1669. guide-line would result in lower transfer payments from the province.
  1670. 131. In submitting these comments on Bill 111, both CUPE and SEIU also
  1671. referred to the requirement, under section 10 of the Bill, that arbitrators
  1672. take into account the "employers' ability to pay (...) in the light of
  1673. existing provincial fiscal policy". According to the unions, the Government,
  1674. using this device, could unilaterally determine the funding of public-sector
  1675. institutions, and the reliance on the employer's ability to pay effectively
  1676. meant that the Government could also unilaterally establish wage rates. Any
  1677. claim of independence and impartiality of the arbitration process was also
  1678. undermined. The Canadian Teachers' Federation submitted similar comments in
  1679. connection with Bill 111.
  1680. 132. In addition, all the unions referred to the fact that a number of a
  1681. well-known interest arbitrators had rejected the criterion of "ability to pay"
  1682. for public-sector wage determination. Statements made by some leading
  1683. arbitrators were produced in which they referred to the "atmosphere of
  1684. intimidation" which the legislation engendered and to the public statements
  1685. made by the Treasurer indicating that, unless the economic policy of the
  1686. Government was followed, restrictive legislation of a long-term nature would
  1687. be introduced.
  1688. 133. With the representatives of the Government of the Province of Ontario I
  1689. raised all the issues that had been brought to my attention during my meetings
  1690. with the various public sector unions. The Government representatives claimed
  1691. that compelling reasons of national and provincial economic interest had led
  1692. the Government to conclude that it should control wage rates in the public
  1693. sector. In 1982, they explained, Ontario was experiencing recession,
  1694. double-digit inflation (11-12 per cent), loss of international competitiveness
  1695. and loss of jobs in the private sector (approximately 164,000 jobs in Ontario
  1696. alone). The restrictions on public-sector wages contained in Bill 179 were
  1697. imposed as an exceptional measure. The Bill was not intended to restructure
  1698. labour legislation in the province, nor was it intended to be permanent. Bill
  1699. 179 imposed wage controls for only 12 months for the majority of the
  1700. employees, and only 31 per cent of the employees affected were subject to the
  1701. transition period which could extend controls for two years. No employees were
  1702. now affected by Bill 179.
  1703. 134. The subsequent legislation (the Public Sector Prices and Compensation
  1704. Review Act, 1983 - Bill 111), established a guide-line for public-sector
  1705. increases for a one-year period. In the case of public-sector employees whose
  1706. agreements were determined by interest arbitration, the new legislation
  1707. required interest arbitrators to cost any change in the terms of collective
  1708. agreements and to consider the employer's ability to pay. In the case of
  1709. public-sector employees who negotiated agreements (including those who had the
  1710. right to strike) the legislation required the filing of information with
  1711. respect to any changes in the compensation plan. If an arbitrator determined,
  1712. or the parties agreed to wage increases in excess of the 5 per cent
  1713. guide-line, the legislation had no mechanism to "roll back" the wage increases
  1714. thus determined or negotiated. The Government representatives added that,
  1715. since Bill 111 was now at an end, no wage restraint legislation was presently
  1716. in force in Ontario.
  1717. 135. The Government representatives further explained that, in considering the
  1718. economic situation in 1982 a number of options for action had been considered,
  1719. including a national programme of wage and price controls. Because a consensus
  1720. with the other provinces could not be reached on this, and because of the
  1721. difficulties encountered by reason of the nature of the Province of Ontario
  1722. itself as regards a possible programme covering public and private-sector
  1723. workers, a programme controlling prices and wages in the public sector alone
  1724. was decided.
  1725. 136. The Government emphasised that safeguards were provided to protect
  1726. workers' living standards. In addition to controlling prices, the rate of
  1727. inflation was lowered (to less than 11 per cent during the third quarter of
  1728. 1982). Since Bill 179 was introduced, inflation had continued to drop, and for
  1729. the first quarter of 1985, it stood at 3.6 per cent. Public-sector job
  1730. security and employment was also maintained at a time when there was much job
  1731. loss in the private sector. Fair and reasonable increases were also ensured
  1732. for employees covered by the legislation. In this connection, the Government
  1733. supplied statistical information showing that increases under the legislation
  1734. were comparable to private-sector wage increases and had in fact exceeded
  1735. private-sector wage increases since the fourth quarter of 1983. Bill 179 also
  1736. made provision for minimum increases, low-income earners and for wage
  1737. adjustments. It also permitted newly certified unions, i.e. those certified
  1738. prior to the enactment of Bill 179, to freely negotiate compensation increases
  1739. for the period leading into the control period in their first agreements. The
  1740. ability to change non-compensatory items of a collective agreement by mutual
  1741. consent was also maintained by the Act as was eventually shown by the decision
  1742. of the Ontario Court of Appeal to this effect in the Broadway Manor case.
  1743. 137. Referring to the SEIU complaint that Bill 179 had suspended the right to
  1744. change bargaining agents, the right to bargain collectively on non-monetary
  1745. items and the right to strike or to resort to interest arbitration, the
  1746. Government representatives referred to the decision of the Court of Appeal in
  1747. the Broadway Manor case which established that the union was wrong in its
  1748. allegations. The Court had, however, expressed some doubt that the employees
  1749. could strike or resort to arbitration without actually making any decision on
  1750. this point.
  1751. 138. The Government added that a wide range of consultations had taken place
  1752. prior to the enactment of Bill 179 and there had been a broad political
  1753. consensus for its adoption. The Government had been satisfied with the results
  1754. of Bill 179 and had replaced it by Bill 111 which was not an exceptional
  1755. measure taken in a period of crisis. Bill 111 was intended as a further step
  1756. towards a normal situation and re-established collective bargaining in the
  1757. public sector. The continuing existence of the Inflation Restraint Board was
  1758. merely for the purpose of ensuring its participation in current litigation.
  1759. 139. As regards the requirement, under Bill 111, that interest arbitrators
  1760. take account of provincial fiscal policy and the ability to pay of the
  1761. employer, the Government representatives pointed out that sums transferred to
  1762. public institutions had always been decided upon by the Government. Under Bill
  1763. 111 the amounts were clearly stated. In cases where the 5 per cent norm was
  1764. exceeded either by arbitrators or by the needs of a public institution ways
  1765. could be found to provide the extra funds required.
  1766. 140. Regarding the unions' concern that the Government had appeared to be
  1767. constantly trying to find ways of reducing flexibility and placing pressures
  1768. on arbitrators, which eroded and damaged confidence in the arbitration system,
  1769. the Government representatives emphasised that arbitrators were merely asked
  1770. in Bill 111 to keep certain criteria in mind. Many did not feel bound by these
  1771. criteria and some 200 awards had been made in 1984/85, the majority of these
  1772. exceeding negotiated settlements. Under the Labour Relations Act, a panel of
  1773. arbitrators had been established for grievance disputes and it was generally
  1774. from this panel that arbitrators were selected to deal with interest disputes.
  1775. The Government admitted that its information on wage settlements in certain
  1776. sectors (e.g. in the municipalities) was inadequate but that efforts were
  1777. being made to resolve this problem.
  1778. 141. On the question of "roll backs", the Government admitted that this had
  1779. been seen to be harsh but again stated that they had been dictated by economic
  1780. necessity. The Government also pointed out that it could not recall, apart
  1781. from one or two cases, that the problem of the absence of negotiations on
  1782. non-monetary items to have been a significant one.
  1783. 142. The Government also admitted that there might be some longer-term effects
  1784. of Bill 179, for example on job evaluation and classification programmes, but
  1785. it was expected that the return to collective bargaining would resolve any
  1786. anomalies that remained. It was also clear that, in some cases, employers had
  1787. taken advantage of the legislation by refusing to pay negotiated wage
  1788. increases. This was, however, a matter for the courts and one over which the
  1789. Government had little control.
  1790. 143. Referring again to the decision in the Broadway Manor case and the
  1791. problem of changing bargaining agents during the one-year period of control
  1792. under Bill 179, the Government explained that it had considered this matter
  1793. prior to the Bill's adoption. It had been thought that it was inappropriate
  1794. for a change in bargaining agent to take place during that period since the
  1795. incoming union would not be able to negotiate. The Government had discussed
  1796. this question with the unions whose reaction to the problem had been a mixed
  1797. one. In any event, according to the Government, since the public service
  1798. unions were well-established it was unlikely that any challenge would have
  1799. been made during the control period. The Government recalled that newly
  1800. certified unions were not affected by what was subsequently proved - by the
  1801. decision in the Broadway Manor case - to be a false problem.
  1802. D. Concluding remarks
  1803. 144. An obvious feature of this complaint is that it concerns the provisions
  1804. and effects of the Inflation Restraint Act, 1982 (Bill 179) which is no longer
  1805. in force. Indeed, that statute was followed by Bill 111, a measure which
  1806. itself is due to expire at the end of September 1985. No further legislation
  1807. in this area has been proposed at the present time. It is none the less
  1808. important to complete the process of assessing Bill 179 against ILO standards.
  1809. Even though it is no longer in effect, apart from some residual matters
  1810. remaining for technical purposes, there is still a strong divergence of views
  1811. in the province as to its nature and effect. In addition, it has been
  1812. suggested that some practices introduced by the legislation will continue to
  1813. operate as a result of informal administrative action. This point, too, has
  1814. to be considered.
  1815. 145. Bill 179 was enacted to counter rising inflation. Its effect, put
  1816. generally, was to impose a fairly rigid control of wages in the public sector.
  1817. This was built around a "control year" with a limit of a 5 per cent increase.
  1818. This was embedded in less severe controls which could be effective as a 9 per
  1819. cent ceiling. The whole exercise could affect a particular bargaining unit
  1820. over a two-year period. It was suggested that the Government had failed to
  1821. establish that there was in fact an economic crisis. There had been
  1822. insufficient research and understanding of the problem. It was also said that
  1823. wage increases would have fallen year by year without legislative
  1824. interference. Both these beliefs are of course matters of opinion. The basic
  1825. data is not seriously in dispute. There is a marked difference of
  1826. interpretation between the trade unions who made these points and the
  1827. Government. It was suggested that such divergence of view should be resolved
  1828. by some independent mechanism, such as the courts. It is difficult to see the
  1829. necessity in principle for such a fetter upon the exercise of the political
  1830. will. There is every opportunity for the matters concerned to be tested
  1831. through debate in the political forum.
  1832. 146. Since the public sector was being singled out for special control, on the
  1833. assumption that wages in the private sector would follow the trend set, it
  1834. does seem essential that there should be ample time allowed for consultation.
  1835. Failure to do this might indicate that the action was indeed precipitate and
  1836. partisan. There was no complaint about lack of consultation. What was said was
  1837. that the views of the trade unions had no discernible effect on the attitude
  1838. and actions of the Government. That is a different matter.
  1839. 147. So far, these remarks relate to the political aspects of the concern
  1840. expressed. The actions do raise, however, practical and legal considerations.
  1841. The most obvious is the impact the legislation had upon existing collective
  1842. agreements. They were subject in many cases to amendment in particular a
  1843. lesser wage increase being allowed. A lawyer can characterise such action as
  1844. the expropriation of rights.
  1845. 148. Such a result is difficult to avoid where a scheme of restraint is
  1846. imposed which it is intended should have a speedy effect. The Government was
  1847. aware of the problem and chose to apply what it regarded as "rough justice".
  1848. Indeed attention was paid to attempting to mitigate some of the consequences.
  1849. Most notable was some degree of protection of the first agreement, that is to
  1850. say, the first agreement made after a trade union has secured bargaining
  1851. rights. Such agreements often involve substantial improvements in terms and
  1852. conditions. This was recognised by the leglisation and the impact of the 5 per
  1853. cent delayed to allow the first agreement to operate.
  1854. 149. Despite these concerns, the legislation appears to have had a greater
  1855. impact on free collective bargaining than was intended or anticipated. Three
  1856. aspects of this appear to be particularly important: the "chilling effect" on
  1857. collective bargaining generally, damage to policies being pursued by the trade
  1858. unions from bargain to bargain and the machinery for certification during the
  1859. so-called "open" period.
  1860. 150. Although the legislation applied only to monetary items it seems to have
  1861. had an effect on matters not covered by the Act on which the parties were free
  1862. to bargain. In part this was made more likely because there had been the
  1863. anticipation of a switch of bargaining to non-monetary items. Some steps had
  1864. been taken to prevent this being used to undermine the intended financial
  1865. control. There can be little doubt that there were items adversely affected,
  1866. health and safety issues spring to mind. Now the problem can be seen in the
  1867. light of experience; it can be tackled should such a need arise in the future.
  1868. Particular attention should be paid to the availability of the disputes
  1869. resolution mechanisms so that normal relations can continue hampered only by
  1870. the minimum of restrictions needed to secure the objects of the emergency
  1871. measures.
  1872. 151. The general objectives which the trade unions in the public sector were
  1873. pursuing and which suffered setbacks are, for example, remedying low pay and
  1874. seeking equality for women. Both objectives are legitimate, indeed
  1875. praiseworthy. There can be no doubt that Bill 179 constituted a check to their
  1876. progress. Most obvious is the use of a norm for pay increases expressed as a
  1877. percentage, rather than as a flat increase. The Government accepts that this
  1878. consequence occurred and points out that some steps had been taken to mitigate
  1879. the result. Some of the provisions did seek to give special advantages to the
  1880. lower paid: the highest were to some extent held back. Whether enough was done
  1881. is in dispute. Recognition of the need to take into account such
  1882. considerations when legislation is being prepared seems to be accepted. This
  1883. seems to be an important point.
  1884. 152. The third example of the wider effects of the legislation concerns the
  1885. "closing" of the "open" period which is a feature of the Canadian industrial
  1886. relations system. The legislation purported to close the open period of the
  1887. control year. This was thought to deny the unions the right to gain
  1888. certification. The matter was taken to the courts. Again, it is clear that the
  1889. object of the provision was to secure as much industrial relations tranquility
  1890. as possible during the restraint period. The question raised is whether such
  1891. action was convenient and useful rather than necessary. It would need detailed
  1892. knowledge of what the precise effect was during the operation of Bill 179 but
  1893. prima facie the limitation appears to seek to avoid disturbance rather than
  1894. secure an essential component of the limitation plan.
  1895. 153. Attention was drawn to the Broadway Manor case and two comments might be
  1896. useful. The decision was that the open period was not in fact closed - a
  1897. distinction being made between terms and conditions which were continued and
  1898. the collective agreement which did not. The decision turned of course on the
  1899. precise wording of the provisions of Bill 179. In that it has narrow interest,
  1900. but wider considerations arise. The case shows the importance of prior
  1901. discussion of all the possible consequences of proposed legislation, that is
  1902. to say, of consultation. What is decided then will be effective. On the other
  1903. hand, reliance on the courts to clarify or interpret the legislation may bring
  1904. changes but these will almost invariably prove ineffective since the decision
  1905. is unlikely to be available during the currency of legislation which is short
  1906. term. Consultation not only on the wider issues - should a provision be
  1907. enacted - may merely lead to reaffirmation of the policy proposed but, on the
  1908. practical consequences, what exactly is likely to happen might lead to
  1909. sensible modifications being adopted.
  1910. 154. One of the clearest and most important points put to us by the various
  1911. trade unions was the impact the legislation has had on the regular industrial
  1912. relations machinery. Various examples were given. It was felt that the
  1913. employer, where his financial ability to meet trade union claims was severely
  1914. limited by government fiscal policy, was unable to bargain with freedom. The
  1915. scope of his flexibility might vary but his attitude was significantly
  1916. altered. There were some signs of this in some of the instances put but there
  1917. was too little information to enable the position in the Province of Ontario
  1918. to be confidently assessed.
  1919. 155. The problems the legislation and subsequent practice have posed for the
  1920. important component of the system, independent arbitration, are much clearer
  1921. and were put forward with much greater force. During the period when Bill 179
  1922. operated on collective bargaining, of course norms were in effect substituted
  1923. for arbitration. Since then, under Bill 111, the idea of a norm, or desirable
  1924. maximum increase formulated by the Government has continued. Arbitrators are
  1925. given quite specific indications of the Government's view and are expected to
  1926. take this into account. There are widely differing views on the effect of this
  1927. practice, which appears likely to continue. It must be true that arbitrators
  1928. will always have in mind the economic background in which they are operating.
  1929. Many independent arbitrators are academics but few live in such ivory towers,
  1930. as is commonly supposed, as not to have a clear awareness of these factors. In
  1931. the unlikely chance of this being lacking, no doubt the parties will raise the
  1932. issue in their statements. On the other hand, the publication to the
  1933. arbitrator of a norm may have some effect. Again empirical evidence is less
  1934. than clear since, alas, it is not possible to assume that when an arbitrator
  1935. says he has "taken into account" such a figure, he is indicating that he has
  1936. or has not been greatly influenced by it. There are ample instances of the
  1937. arbitrator expressing scepticism. To balance this it appears that several
  1938. arbitrators have refused to act feeling that their freedom of action was
  1939. fettered.
  1940. 156. The independence of arbitration is of paramount importance. It is the
  1941. feature of the system in the public sector which seeks to balance the
  1942. non-existence of the right to strike. That equation is one which not all those
  1943. giving evidence accept as fair or proper but that question does not arise at
  1944. this time. What is important is that where that system operates, arbitration
  1945. must be independent. Confidence in arbitration is easily destroyed so
  1946. everything must be done to ensure that doubts as to independence should be
  1947. assuaged. It is not a question of testing or challenging their validity. It is
  1948. essential to see whether steps can be properly taken to strengthen
  1949. independence. One significant point put concerns the appointment of
  1950. arbitrators. If at all possible, this should be done by a body independent of
  1951. Government, a Labour Relations Board, a court and so on, depending on the
  1952. particular structure. It is a matter that would require serious consideration
  1953. by the provincial authorities.
  1954. 157. Finally, it is necessary to note that the way in which these remarks are
  1955. to be interpreted depends very much on whether inflation restraint secured by
  1956. putting pressure on the public sector in particular is to continue. It has
  1957. already been noted that Bill 111 does not appear to have a successor.
  1958. Continuation of the policy, if at all, will be through administrative and
  1959. practical measures. Experience indicates that they can play an important part
  1960. in the Government's policy. If they do, since the method adopted is informal,
  1961. greater care will be essential to ensure that the damage to industrial
  1962. relations structures, especially the right to seek certification, to bargain
  1963. collectively and to enjoy truly independent arbitration, does not occur. The
  1964. trade union apprehensions appear to run ahead of what is happening -
  1965. justifiably so. Awareness of these fears and discussion of the problems should
  1966. help to avoid unwitting damage to the very vital safeguards built into current
  1967. Ontario legislation.
  1968. VI. Case of Newfoundland: No. 1260
  1969. A. Introduction
  1970. 158. This case has its origin in a formal complaint submitted, on 3 February
  1971. 1984, by the Canadian Labour Congress on behalf of the Newfoundland
  1972. Association of Public Employees (NAPE) which belongs to the National Union of
  1973. Provincial Government Employees (NUPGE), an affiliate of the CLC. The
  1974. Government's observations in response to the complaint were contained in a
  1975. communication of 29 May 1984.
  1976. B. The issues
  1977. 159. On 19 August 1983 an Act (known as Bill 59) was proclaimed the object of
  1978. which was to introduce amendments to the the Public Service (Collective
  1979. Bargaining) Act, 1973. According to the CLC these amendments are in violation
  1980. of ILO Conventions Nos. 87, 98 and 151 in three different areas: the
  1981. definition of "employee" contained in section 2(1) of the Bill, the
  1982. designation of "essential" employees (section 10), and the limitation placed
  1983. on strike action (sections 10(12), 23 and 24). According to the CLC Bill 59
  1984. was the latest in a series of restrictive anti-union enactments introduced to
  1985. control wages in the public service and limit the possibilities for strike
  1986. action.
  1987. 160. The Government of Newfoundland explained that, between 1973 (when the
  1988. Public Service (Collective Bargaining) Act extended bargaining rights to
  1989. employees of the Provincial Government) and 1983, it had become obvious that
  1990. section 10 of the Act was not effective in that almost every application
  1991. before the Labour Relations Board had been found by either the Board or the
  1992. courts to be defective in some respect. Section 10 clearly needed to be
  1993. amended to provide for the designation of essential employees whose services
  1994. were necessary for the health, safety or security of the public. In addition,
  1995. unions continued to apply to the Labour Relations Board for inclusion in
  1996. bargaining units of management and confidential employees and, although the
  1997. Board generally rejected these efforts, it was determined that the Act should
  1998. also be amended to remedy an oversight in the legislation and explicitly state
  1999. the exclusions. According to the Government, no amendments had been made to
  2000. the basic Act prior to Bill 59. Because of preliminary discussions with
  2001. various public service unions and concerns expressed regarding three
  2002. particular sections, the Act had been made subject to proclamation. The
  2003. Minister of Labour had contacted each of the public service unions and had
  2004. invited recommendations to be submitted to the Government regarding expressed
  2005. concerns. No concrete proposals or written submissions were received by the
  2006. Government and, accordingly, on 19 August 1983 the amending Act was proclaimed
  2007. to come into force on 1 September 1983.
  2008. (i) Exclusions from the definition of "employee"
  2009. 161. The CLC maintained that the amended definition of "employee" had resulted
  2010. in the exclusion of more than 2,000 government employees from membership of
  2011. NAPE and prevented them from joining any other union. This group included
  2012. justice department solicitors, legislative staff, middle management and
  2013. consultants and could exclude a number of employees who currently had union
  2014. membership with the bargaining agent that represented provincial government
  2015. employees, namely NAPE. The complainant considered as particularly offensive
  2016. new section 2(1)(i)(xii) which specifically prohibits people hired for
  2017. programmes sponsored by Government grants and working for the provincial
  2018. government from joining a union; it suspected that the provincial government
  2019. would use this subsection to lay off permanent employees and hire non-union
  2020. personnel to do the work of those laid off, work which had traditionally been
  2021. done by members of the bargaining unit concerned.
  2022. 162. In its written response to the complaint, the Government stated that the
  2023. amendments to section 2 had been necessary to prevent interference by
  2024. employers in trade union activities and to avoid conflicts of interest
  2025. involving management staff. It pointed out that the exclusions described in
  2026. section 2(l)(i)(viii), (ix), (x) and (xi) concerned high-level employees whose
  2027. functions are normally considered as policy-making or managerial, or employees
  2028. whose duties are of a highly confidential nature as contemplated in Article
  2029. l.2 of Convention No. 151. The Government stated that none of these employees
  2030. had been members of bargaining units at the time of enactment of Bill 59, nor
  2031. had the union involved ever made application for inclusion in a bargaining
  2032. unit of any of these categories of employees. According to the Government, the
  2033. exclusions provided for in section 2(1)(i)(xiii), (xiv) and (xv) concern
  2034. persons on whom the Labour Relations Board, and not the Government, makes a
  2035. determination as to the appropriateness of inclusion in a bargaining unit.
  2036. These employees would be those who, in the opinion of the Board, performed
  2037. management or supervisory functions, or were employed in a confidential
  2038. capacity in matters relating to labour relations. In the past, in utilising
  2039. these criteria the Board had taken a fairly restrictive approach to exclusions
  2040. from the bargaining unit.
  2041. 163. The Government stated that section 2(l)(i)(xv) allows for the exclusion
  2042. of employees who, in the opinion of the Board, provide advice to the employer
  2043. in relation to the development or administration of policies or programmes and
  2044. that it was senior consultants who were intended to be excluded from the
  2045. bargaining units under this provision. Although these employees might not be
  2046. supervisors in the normal sense of the word, or have access to confidential
  2047. labour relations information, according to the Government they did form an
  2048. essential part of the senior management team in many government organisations
  2049. and were therefore clearly inappropriate for inclusion in a bargaining unit.
  2050. The Government emphasised that there had been no decisions by the Labour
  2051. Relations Board interpreting this provision to date.
  2052. 164. As regards section 2(l)(i)(xii) the Government stated that this was an
  2053. amendment to deal with a unique situation concerning which there had been a
  2054. written agreement with the union concerned, namely that of individuals
  2055. receiving social assistance from the Provincial Government, with the aim of
  2056. helping them to become self-sufficient by introducing them to the workforce
  2057. and of qualifying them for unemployment insurance benefits. The Government
  2058. explained that many of these individuals had no work experience or job skills,
  2059. thus making it virtually impossible for them to obtain employment in difficult
  2060. times; they were placed throughout the province with a variety of employers,
  2061. many in the private sector, in order for them to learn a skill or gain some
  2062. experience so that they might find a job in the future; they were not
  2063. employees in the true sense of the word since they were not required to report
  2064. for work, and, if they did not, they simply returned to social assistance; the
  2065. Government paid their wages and employment was for a specified period of time.
  2066. The Government pointed out that the union had agreed that these individuals
  2067. would not be required to pay union dues and would not be covered by collective
  2068. agreements. However, in May 1983, the union refused to honour its agreement,
  2069. which had led to the introduction of this legislative amendment. The
  2070. Government maintained that it was clearly inappropriate for normal union
  2071. hiring and recall provisions to apply to this type of unique programme; if
  2072. this had been the case, the programme would have been significantly impaired,
  2073. if not rendered inoperable, causing hardship for many needy people.
  2074. 165. The Government's final point concerning the definition of "employee"
  2075. under the amended Act was that the excluded employees did enjoy freedom of
  2076. association and the right to organise. Neither did Convention No. 87 nor
  2077. Convention No. 98 impose an obligation on Government to grant certification
  2078. rights for the purpose of collective bargaining. Excluded employees were able
  2079. to organise and negotiate their conditions of employment collectively, often
  2080. on an informal basis, and often on a formal basis when the Government had
  2081. voluntarily recognised certain associations and bargained with them on behalf
  2082. of their membership, e.g. Newfoundland and Labrador Association of
  2083. Superintendents of Education and the Newfoundland Medical Association.
  2084. (ii) Designation of "essential" employees
  2085. 166. As regards the amendment to section 10 of the Act which defines the
  2086. method of designating essential employees, the complainant cited the
  2087. restrictions contained in subsections 1, 2, 3, 6, 7 and 8. Subsection 1
  2088. empowers the employer of employees in a bargaining unit to provide the
  2089. provincial Labour Relations Board with a statement in writing as to the number
  2090. of employees whom it considers to be essential. Under subsection 2, where no
  2091. objection is made to this statement before the Board the number of employees
  2092. specified shall be deemed to be the number of essential employees; where an
  2093. objection is made to the written statement before the Board, under subsection
  2094. 3, the Board after considering the objection and affording the bargaining
  2095. agent and employer an opportunity to make representations and to be heard
  2096. shall determine the number of employees who are essential. Once this process
  2097. is completed the employer, under subsection 7, shall name the employees in the
  2098. unit who are essential; under subsection 8 the employer has the right to
  2099. substitute names. According to the complainant, subsection 1 allows the
  2100. employer to make a statement at any time to the Board on the number of
  2101. employees it considers essential, there being no restrictions as to the number
  2102. of times that the employer can make that statement. This permits the employer
  2103. to participate in strike-breaking activities because, for example, an employer
  2104. could designate few employees as essential in the initial stages of a strike
  2105. and designate more and more employees as essential as the strike progressed so
  2106. as to make strike action pointless. In addition, the combination of
  2107. subsections 2, 3 and 7 of section 10 enables employers to determine that only
  2108. some employees in a classification are essential while certain other employees
  2109. performing exactly the same duties need not be declared essential.
  2110. 167. The complainant alleged another discriminatory element in the process of
  2111. designating essential employees under Bill 59: the Labour Relations Board was
  2112. now restricted from operating in an independent manner because, under section
  2113. 10(3), it could not increase the number of essential employees from the figure
  2114. that was contained in the employer's statement. For example, when an employer
  2115. designated 49 per cent of bargaining unit members as essential, for all
  2116. practical purposes strikes were outlawed, and employees were prevented from
  2117. taking their case to arbitration under the Act because a majority was
  2118. necessary for such action.
  2119. 168. According to the complainant section 10(12) also violated the rights of
  2120. public sector workers; it provides that a strike vote cannot be taken until
  2121. any dispute involving the determination of essential employees is settled.
  2122. Thus even the polling of a union's members to get an indication of the
  2123. feelings towards strike action is prohibited.
  2124. 169. The complainant stated that the most repressive feature of the amendment
  2125. to the designation of essential services employees was the fact that employees
  2126. who had been deemed essential lost all their rights with respect to employment
  2127. - they were not covered by a collective agreement and they were not covered by
  2128. the basic labour standards legislation. In addition, section 10(11) allows the
  2129. employer to terminate immediately the employment of an essential employee who
  2130. fails to report to work, without that employee having access to any appeals
  2131. procedure. Subsection 11 reads as follows: "Where an employee named by the
  2132. employer as an essential employee does not report for work as required under
  2133. subsection 10, the employer shall forthwith terminate the employment of that
  2134. employee, unless the employer is satisfied that there are reasonable grounds
  2135. for the employee not so reporting".
  2136. 170. In its written observations on the question of essential employees, the
  2137. Government stated that the 1973 Act did not take away the right to strike from
  2138. any particular group of employees, but only from those individuals in any
  2139. given bargaining unit which the Labour Relations Board might determine were
  2140. necessary for the health, safety or security of the public. The Government
  2141. stated that the 1973 version of section 10 had not achieved its purpose since
  2142. the unions effectively thwarted the Government's applications to the Board for
  2143. a determination of essential employees. At first, few strikes had taken place
  2144. in areas affecting the health, safety or security of the public and those that
  2145. had taken place were of relatively short duration; emergency services could be
  2146. provided by management employees and, in some cases, the unions had allowed
  2147. some bargaining unit members to work in emergency situations. The situation
  2148. changed, however, in 1981 when the laboratory and X-ray employees took strike
  2149. action. According to the Government, the union provided emergency services but
  2150. not essential services, emergency services being provided only in cases where
  2151. there was an immediate threat to life. Management employees were able to
  2152. provide additional services so that for a period of time hospitals had been
  2153. able to cope. The strike continued beyond a month's duration and difficulties
  2154. arose, forcing the Government to act by introducing Bill 111 which provided
  2155. for the designation of approximately one-third of the bargaining unit to
  2156. provide essential services. This Act had been repealed with effect from the
  2157. date of signing a new collective agreement to cover laboratory and X-ray
  2158. employees and, in any case, on the date of the enactment of Bill 111, the
  2159. union had called off the strike. Following the conclusion of this difficult
  2160. situation, the Government had decided that the 1973 Act would have to be
  2161. amended to provide a workable method of designating essential employees by an
  2162. independent tribunal prior to a strike. Therefore Bill 59 introduced new
  2163. essential employee provisions; employees could strike but essential services
  2164. would have to be maintained. The Government explained that, under the
  2165. amendment, the Labour Relations Board determined the number of employees in
  2166. any particular classification that was required to provide essential services.
  2167. This determination was based on the submission from the employer and provided
  2168. for intervention by the bargaining agent. After the union and the employer had
  2169. agreed, or the Board had determined the number of employees, the employer
  2170. named the individuals and might substitute those names. This was necessary,
  2171. stated the Government, so that the employer might choose employees who could
  2172. do the required work since employees in the same classification might be
  2173. somewhat specialised, e.g. critical-care staff or general day nurses. It also
  2174. allowed the employer to substitute names of employees who had resigned,
  2175. retired or taken leave of absence.
  2176. 171. Regarding the allegation that the Labour Relations Board was now
  2177. prohibited from operating independently, since it could not increase the
  2178. number of essential employees contained in the employer's statement, the
  2179. Government stated that it or the employer, and not the Labour Relations Board,
  2180. had to determine the level of service which had to be provided to ensure that
  2181. the health, safety or security of the public was not jeopardised. It claimed
  2182. that there would be a dereliction of public duty if the employer were to seek
  2183. a lower number of employees than reasonably necessary to perform the required
  2184. level of service. It pointed out that where the number of employees deemed
  2185. essential exceeded 50 per cent, the bargaining unit had the right to advise
  2186. the employer and the Board that every employee would be deemed essential, and
  2187. thus the right to compulsory binding arbitration was available to the
  2188. bargaining agent pursuant to section 29 of the Act.
  2189. 172. The Government stated that, under section 10(12), strikes and strike
  2190. votes which led to strikes were not permitted until the number - not the names
  2191. - of essential employees had been agreed between the parties or determined by
  2192. the Board. The employer could not delay the determination of the number of
  2193. essential employees unilaterally since section 10(1) allowed the union to
  2194. request the Labour Relations Board to order the employer to make the necessary
  2195. submissions. The Government emphasised that section 10(12) did not prohibit
  2196. the union in any way from polling its members to ascertain their feelings
  2197. towards job action; it merely provided that a strike vote leading to a strike
  2198. pursuant to section 23 could not be taken prior to a determination of
  2199. essential employees. According to the Government, this was similar to a
  2200. provision which stated that a strike vote could not be taken until
  2201. conciliation proceedings have been completed.
  2202. 173. The Government maintained that employees who were named essential and
  2203. reported to work did not lose all their rights with respect to employment.
  2204. Section 10(10) provided that they must report to work as if a strike were not
  2205. taking place, which meant that the provisions of the expired collective
  2206. agreement continued to govern essential employees. The essential employees who
  2207. worked through a strike were automatically entitled to all benefits that the
  2208. striking employees were able to obtain upon settlement of the strike. In
  2209. addition, the Government repeated that, if more than 50 per cent of the
  2210. employees in a bargaining unit were deemed essential, all employees had the
  2211. right to binding arbitration. As regards the allegation that because of the
  2212. designation of essential employees, strike action would prove a useless tool,
  2213. the Government stated that this was a premature statement in view of the fact
  2214. that no orders had yet been issued by the Board. The Government also pointed
  2215. out that an essential employee who failed to report to work without reasonable
  2216. grounds was subject to termination, but since the expired collective agreement
  2217. continued to govern essential employees who were not on strike, the grievance
  2218. provisions likewise remained in effect. Employees were always subject to
  2219. dismissal for just cause and the legislation merely stated that failure to
  2220. report to work without a valid excuse would be just cause. The employer's
  2221. action and the employee's reasonable grounds would continue to be subject to
  2222. the scrutiny of arbitrators and the courts.
  2223. (iii) Limitations on strike action
  2224. 174. The third amendment introduced by Bill 59 which was the subject of the
  2225. complaint concerned section 23, which now provided that employees who opt for
  2226. strike action are required by law to give 38 days' (one month plus seven days)
  2227. notice before they are legally able to strike. In addition, section 24 of the
  2228. Act had been amended so that workers in health care institutions did not have
  2229. the right to strike on a rotating basis. According to the complainant,
  2230. sections 23 and 24 as they now read served no other purpose than to limit
  2231. union members in their freedom to express themselves, as well as the right to
  2232. strike to a particular means of striking. It pointed out that the employer,
  2233. when drafting the legislation, had decided to attack solely the union since
  2234. the legislation did not provide for any reciprocal provisions concerning the
  2235. employer, such as lock-out.
  2236. 175. Concerning the limitation on strike action, the Government pointed out
  2237. that, under the 1973 Act, a seven-day notice prior to taking strike action was
  2238. required. This provision had not been altered except that where strike action
  2239. did not commence on the notified date, a one-month's delay was required before
  2240. another notice was permitted. The Government explained that this provision had
  2241. been included to prevent a union from closing an institution, such as a
  2242. hospital, without actually going on strike. When a hospital was notified that
  2243. a strike was to take place, operations had to be significantly curtailed and
  2244. the hospital was geared down to providing only essential services whether or
  2245. not the employees actually withdrew their services. The new provision required
  2246. that the employees give the institution an opportunity to return to
  2247. operational status for a reasonable period of time if they did not strike on
  2248. the date originally intended.
  2249. 176. Regarding rotating strikes, the Government stated that such action in
  2250. health service institutions had been prohibited so as to avoid a situation
  2251. where persons were admitted to hospital and scheduled for surgery and, with no
  2252. further notice, employees of that hospital went on strike. Rotating strikes in
  2253. health service institutions created life-threatening situations and, stated
  2254. the Government, were completely unacceptable. It pointed out, however, that
  2255. these two provisions covering the timing and nature of strike action had no
  2256. effect on the right to strike or the effectiveness of job action once taken,
  2257. but were reasonable limitations taken only in the interests of protecting the
  2258. health and safety of the public and did not amount to an infringement of
  2259. freedom of association. The Government considered that the allegation that the
  2260. amendment did not include an accompanying prohibition on rotating lock-outs is
  2261. difficult to understand since such action would never benefit health service
  2262. institutions.
  2263. 177. In conclusion, the Government stated that the amendments under
  2264. examination had been made to protect the health, safety and security of the
  2265. public and not intended to discriminate or interfere in lawful union
  2266. activities. It pointed out that the Committee on Freedom of Association had
  2267. recognised that exclusion from trade unions and the collective bargaining
  2268. process of public servants occupying managerial or supervisory positions of
  2269. trust was justified. The Government maintained that the amendment to section
  2270. 2(1) had excluded such employees from a bargaining unit but left them free to
  2271. join associations to protect their occupational interests; such associations
  2272. had been recognised by the Government and bargaining had taken place with
  2273. them. As regards the other specific exclusions listed in section 2(1)(i)(viii)
  2274. to (xii) the Government stated that it had no control over such exclusions
  2275. since applications had to be made to the Labour Relations Board which made
  2276. decisions based on established precedent and labour law principles relevant to
  2277. exclusions from the bargaining unit. It pointed out that, over the past
  2278. several years, most inclusions/exclusions in government departments had been
  2279. settled by agreement between the union concerned and the employer with only a
  2280. very few disputed positions being taken to the Labour Relations Board for a
  2281. determination. As regards the allegation that the new method of designating
  2282. essential employees discriminated against union activists, the Government
  2283. stated that there had been no interference in union organisation and no
  2284. instances of an employee having to join or relinquish membership in a trade
  2285. union. According to the Government it was in the employer's interest to have
  2286. employees who would perform essential services and it was employer policy not
  2287. to designate union executives and officials unless they were the only
  2288. individuals in the classification who were able to perform the required work.
  2289. It reiterated that the amendments to the legislation concerning the timing or
  2290. nature of strike action were not unnecessary interferences in the union's
  2291. activities or programmes, but merely laid down preconditions to the
  2292. implementation of a strike. It stated that the union was free to poll its
  2293. members and conduct ballots to determine the feeling of the membership towards
  2294. job action and that only the formal strike vote which culminated in a strike
  2295. might not be taken until essential employees had been designated.
  2296. C. Information obtained during the mission
  2297. 178. I had extensive discussions on the issues raised in this case with both
  2298. the NAPE and the provincial government representatives, headed by the
  2299. Assistant Deputy Minister, on the spot in St. John's, Newfoundland and in
  2300. Ottawa where CLC and NUPGE representatives also spoke to me about Bill 59.
  2301. Once again, the oral submissions of the parties were supplemented by extensive
  2302. written submissions, handed to me in St. John's.
  2303. 179. The first point that emerged during these discussions was that the
  2304. healthy industrial relations climate which had reigned in the Province since
  2305. the 1950s had fallen to an adversarial one. According to the union, partly due
  2306. to the recession, partly in over-reaction to an increasing radicalism in
  2307. certain civil service unions, and perhaps partly due to an aversion on both
  2308. sides to seek interest arbitration, the Government interferred in the
  2309. collective bargaining process with Bill 59. NAPE's view was that, prior to
  2310. Bill 59, responsibility for the decline in labour relations lay as much with
  2311. the unions because of their radicalism as with the Goverment because of its
  2312. paternalistic approach. The unions, however, could not be blamed for the
  2313. "panic" of the Government in enacting Bill 59 which was utterly pro-employer
  2314. in character and which would only lead to a further deterioration in labour
  2315. relations. The background to the introduction of the legislation in Parliament
  2316. evidences the misunderstanding between the parties at present, a point which
  2317. will be referred to further on in this report.
  2318. (a) Consultations
  2319. 180. The union stressed during our discussions that it had, in effect, only
  2320. been given one day's notice when the draft legislation was tabled. There were
  2321. no public hearings on the proposed amendments and NAPE had been under the
  2322. impression that Bill 59 as a whole was subject to proclamation whereas only
  2323. the three disputed areas (definition of employee, designation of essential
  2324. employees and the strike provisions) were held in abeyance and gazetted at a
  2325. later date. NAPE claimed that Bill 59 had eroded any previous trust that
  2326. existed beween the parties and caused a situation of confrontation. According
  2327. to the union, the reason for the introduction of this legislation had been
  2328. clearly a growing contempt by the Government for the unions and their
  2329. increasing strength as well as a lack of respect for the unions' ability to
  2330. represent the interests of their members. The situation prior to Bill 59 had
  2331. been satisfactory with 294 contracts having been concluded. The arbitration
  2332. system and the selection of arbitrators from a panel established by the Labour
  2333. Management Co-operation Committee had also been satisfactory.
  2334. 181. The Government, on the other hand, explained that copies of the draft
  2335. amendments had been given to the union very shortly before they were tabled in
  2336. Parliament. The difficulties with the basic collective bargaining Act and with
  2337. section 10 in particular had been discussed with NAPE representatives on many
  2338. occasions in the past. The Government delayed proclamation of the disputed
  2339. parts of Bill 59 and informed the union that it wanted to receive its
  2340. suggestions on them. However, according to the Government, no written
  2341. submissions were received; only a general tape-recorded description of the
  2342. problems was handed in to the Ministry of Labour. This the Government took to
  2343. be a lack of interest in face-to-face discussion. The provisions were then
  2344. proclaimed and came into force on 1 September 1983. The Government could not
  2345. explain why the union backed off at this juncture although it recognised that
  2346. it may had been due to the breakdown in the informal, co-operative relations
  2347. which the union had had with the Government as employer in the past.
  2348. (b) The definition of employee
  2349. 182. According to NAPE, in the amendment of section 2(1) in Bill 59 the
  2350. Government had effectively excluded up to 2,000 workers from union membership
  2351. which some had previously enjoyed. NAPE was concerned with the exclusion from
  2352. the definition of employee of persons employed in an employment opportunity
  2353. programme administered by the provincial Government with its own and/or
  2354. federal monies (section 2(1)(i)(xii)). The union pointed out that this
  2355. exclusion from coverage of the Act does not apply to similar programmes
  2356. administered by other levels of government such as school boards and
  2357. municipalities. It claimed that the aim of such programmes was not to train
  2358. the unemployed to enter the workforce, but to transfer them from the
  2359. provincial payroll to the federal payroll. Since such persons could not join a
  2360. union, it was more difficult to negotiate increases in union members'
  2361. benefits, and the union felt threatened by this source of scab labour should
  2362. strikes occur and the possible reduction in working time of union members.
  2363. NAPE was particularly suspicious of this provision given that it has made many
  2364. agreements with employers not covered by the Act (municipalities, the College
  2365. of Fisheries, private hospitals) allowing employment opportunity programmes in
  2366. workplaces where it represents workers. From copies of such agreements handed
  2367. to me, it appeared that NAPE's only precondition for accepting non-union
  2368. workers in such workplaces was the protection of the job security and benefits
  2369. of its members. The union's other concern with this provision - that it denied
  2370. these persons the right to join a union - was not related to an earlier
  2371. agreement NAPE had had with the Government concerning non-unionisation; that
  2372. agreement had only concerned persons on welfare. According to NAPE, when the
  2373. Government started using these people in programmes, that understanding fell.
  2374. Given that the union was prepared to represent these people on matters not
  2375. connected to their rates of pay which were set under the scheme, more or less
  2376. in line with the minimum wage, and would not expect them to pay dues, it felt
  2377. that the Government ought to have negotiated their situation with NAPE instead
  2378. of legislating them out of coverage under the Act.
  2379. 183. The Government pointed out that the employment opportunity programmes
  2380. were designed to enable unemployed persons to accrue the 20 weeks' workforce
  2381. experience required for entitlement to federal unemployment benefits. When
  2382. NAPE's position on coverage of such persons for non-collective bargaining
  2383. items was put to the Government, there appeared to be further
  2384. misunderstanding: the Government stated that, in 1984-85, about 600 people had
  2385. been involved in the programmes and therefore not entitled to collective
  2386. bargaining, whereas the union had claimed that 2,000 had been without
  2387. collective agreements. Given the temporary employment of people in these
  2388. unique programmes, the Government found it hard to understand why the union
  2389. would be interested in recruiting these people for membership per se but did
  2390. not express opposition to this possibility.
  2391. 184. As regards the exclusion contained in section 2(1)(i)(xv) (persons
  2392. providing advice to the employer in relation to policies or programmes), NAPE
  2393. explained that the past practice of negotiations and Labour Relations Board
  2394. decisions had worked well when disputes - which were quite rare - over this
  2395. type of employee arose. It feared that this amendment could be stretched to
  2396. include such persons as social workers or consultants. It pointed out that the
  2397. Labour Relations Board has refused to grant exemptions for the present until
  2398. judicial challenges to Bill 59 as a whole are completed. The Government
  2399. considered that it had only put into legislative form the criteria of the
  2400. Board's past practice, namely the exclusion of managerial, confidential and
  2401. policy-making employees. It pointed out that this was an exclusion
  2402. specifically recognised in Article 1 of Convention No. 151. I pointed out that
  2403. the union's suspicion might have been the result of a lack of communication as
  2404. to the intent of this provision.
  2405. 185. During these discussions on section 2(1), the Government also emphasised
  2406. that there was no hidden motive behind subsection (ix) - which excludes
  2407. solicitors and legislative counsel from the Act - and pointed out that they do
  2408. form associations and bargain collectively with the employer.
  2409. (c) Questions concerning the right to strike
  2410. 186. Section 2 of the Amendment Act of 1983 (Bill 59) repealed section 10 of
  2411. the Public Service (Collective Bargaining) Act of 1973 which related to the
  2412. designation of essential employees, that is to say "employees whose duties
  2413. consist in whole or in part of duties the performance of which, at any
  2414. particular time or during any specified period of time, is or may be necessary
  2415. for the health, safety or security of the public". While the definition of
  2416. essential employees remained the same after the 1983 amendment, a number of
  2417. issues arose from the further amendments introduced by Bill 59 to the Act of
  2418. 1973.
  2419. 187. NAPE claimed that public-sector unions had always provided essential
  2420. services to protect the health, safety and security of the public. It was
  2421. NAPE's belief, however, that the legislation was being used to give the
  2422. employer, the Government and the Newfoundland Hospital Association, an
  2423. advantage in collective bargaining. NAPE representatives insisted that they
  2424. were fully conscious of the need to provide essential services during labour
  2425. disputes. Bill 59, however, empowered the Labour Relations Board to be final
  2426. arbitrator with respect to essential services. The Board would always err on
  2427. the side of caution in its decisions on essential services, thus favouring the
  2428. employer. It was NAPE's contention that the Board would not appoint more
  2429. essential employees than the number requested by the Government. The result
  2430. was the prevention of more than half of any bargaining unit being designated
  2431. as essential, thereby preventing in turn a resolution of a dispute by
  2432. arbitration; it was obviously the Government's intention to eliminate the
  2433. right to strike, but also to prevent disputes from being resolved through
  2434. arbitration.
  2435. 188. NAPE argued that it was difficult for the union to agree on the
  2436. determination of essential employees since the employer refused to give it
  2437. information on the total number of workers in bargaining units and their job
  2438. classifications.
  2439. 189. According to NAPE, the workers in liquor stores who had previously been
  2440. considered essential, had had their right to strike restored, whereas the
  2441. status of hospital food service workers had not changed, their right to strike
  2442. always having remained intact. It was an anomalous situation when health
  2443. inspectors employed by the provincial Government were considered essential but
  2444. workers not working for the province but who prepared food for a number of
  2445. hospitals were not.
  2446. 190. The Government, according to NAPE, had always been unwilling to settle
  2447. questions of essential employees through negotiation or by following
  2448. alternative disputes settlement procedures. This question was one which had
  2449. been going on for years and the courts and the Labour Relations Board had
  2450. decided that the Government's approach had been impractical.
  2451. 191. If, for example, through negotiations or by decision of the Labour
  2452. Relations Board, 33 per cent of hospital support staff were declared
  2453. essential, this would mean that out of a bargaining unit of 800, 265 would
  2454. remain at work. To this latter figure would be added management and
  2455. non-bargaining unit workers and workers of other bargaining units. In other
  2456. words, a major hospital, during a strike, could have more workers available
  2457. than during the peak annual leave period. It was, in addition, the practice in
  2458. Newfoundland to recruit other workers to replace striking workers. Hospital
  2459. support staff had, therefore, lost their collective bargaining rights through
  2460. this procedure which, in addition, denied them any other disputes settlement
  2461. machinery.
  2462. 192. Under Bill 59, employers could select essential employees as they wished
  2463. or otherwise manipulate strikes by making it difficult to deal with a dispute
  2464. if a large minority of workers were deemed essential and received full pay and
  2465. benefits while those on strike had their regular income interrupted.
  2466. 193. Another aspect of the matter was the ability, according to NAPE, of the
  2467. employer to have a small percentage of the bargaining unit declared essential
  2468. and to return periodically to the Board for further increases in that
  2469. percentage. Such a practice would have the effect of destroying strikes.
  2470. 194. NAPE agreed that the legislation had never been used by the employer in
  2471. this manner but claimed, nevertheless, that these advantages written into the
  2472. legislation had a prejudicial effect on the morale of the workers and on the
  2473. collective bargaining process. The belief, shared by NAPE and by the
  2474. Government, is that there must be levels below which public services should
  2475. not be reduced, should not be used, either by unions or by government, to gain
  2476. advantages in collective bargaining.
  2477. 195. In NAPE's view, the question of essential services should be decided
  2478. through negotiation between the Government and the union, or decided by an
  2479. expert third party. No one should gain any advantage and essential services
  2480. should be shared equally amongst the qualified members of the bargaining unit.
  2481. Since the question of essential services destroys the right to strike, any
  2482. bargaining unit in which the question arises must have an alternative disputes
  2483. settlement procedure at its disposal.
  2484. 196. NAPE also questioned the need of sections 27-29 of the Act which provide
  2485. for a declaration of a state of emergency during a strike where such a strike
  2486. would be injurious to the health or safety of persons, or a group or class of
  2487. persons, or the security of the province.
  2488. 197. The union referred to one case concerning a strike in 1981, of laboratory
  2489. technologists, X-ray technologists, technicians, etc. following the failure of
  2490. the Government to accept the report of a conciliation board. Although a strike
  2491. was declared, the union set up an essential employees system and provided
  2492. specialist skills, on a permanent basis. A renewed offer by the employer was
  2493. refused by the union. The Government introduced legislation (Bill 111)
  2494. declaring up to half the bargaining unit as essential, thus putting an end to
  2495. the strike. In the view of NAPE, the Government could have referred the issues
  2496. in dispute to arbitration or returned to the negotiating table. Instead, by
  2497. introducing legislation, it destroyed collective bargaining for the unit
  2498. concerned. The union thereafter signed a collective agreement and Bill 111
  2499. came to an end.
  2500. 198. NAPE also argued that section 2(12) of Bill 59 denied union members the
  2501. right to vote to take strike action. If the employer made an offer, the only
  2502. vote that could be taken would be one to accept it, otherwise it would be
  2503. illegal. The designation of essential employees should follow - and not
  2504. precede - a decision to strike.
  2505. 199. Another problem was that posed by section 23 of the Act, as amended by
  2506. section 6 of Bill 59. Under the previous legislation of 1973, bargaining units
  2507. were required to give seven days' notice of any strike. Under Bill 59, if the
  2508. union did not go on strike on the date specified in the notice, 30 days had to
  2509. elapse before a further notice of seven days could be given. Again, in the
  2510. view of the union, this was an attempt to control collective bargaining to the
  2511. advantage of the employer.
  2512. 200. Section 24 of the 1973 Act was also amended by Bill 59 to prevent
  2513. rotating strikes which, in NAPE's view, should not be banned. Here again, this
  2514. prohibition gave the employer great influence on the union's negotiating
  2515. strategy. In addition, rotating strikes would ensure that only a portion of
  2516. the hospitals in the province would be on strike at any given time.
  2517. 201. In its submissions on the question of strikes, the Government explained
  2518. that the 1973 Act granted this right to all workers covered by it, i.e. civil
  2519. servants, hospital employees and vocational school instructors, with the
  2520. exception of those who might be designated as essential. Prior to Bill 59, the
  2521. employer, at the time of certification of the union, made an application to
  2522. the Labour Relations Board for designation of a list of named employees.
  2523. Almost every such application had been contested by the union and in some way
  2524. found wanting by the courts which themselves said that the Act required
  2525. substantial modification on this question. Even on one occasion, when the
  2526. Board had appointed a panel of experts to designate, the court had found that
  2527. this panel did not have jurisdiction to do so.
  2528. 202. This unsatisfactory situation lasted for almost ten years and it was only
  2529. after the strike, in 1981, of laboratory and X-ray workers during which a
  2530. threat was made to call out even essential services, that amendments were
  2531. introduced in Bill 59. As regards the 1981 strike, the Government added that
  2532. arbitration was not provided for in the legislation nor, from an economic
  2533. point of view, did the Government consider it appropriate to refer the issues
  2534. to arbitration. Although the conciliation results had been rejected by the
  2535. Government, it was often the union that rejected such results. In any event,
  2536. the emergency legislation was enacted since there was an urgent and grave risk
  2537. to the health of patients.
  2538. 203. The 1973 Act had, accordingly, proved to be unworkable as regards
  2539. essential services and Bill 59 had introduced amendments which were procedural
  2540. rather than substantial. Instead of asking the Board to designate named
  2541. employees, a number was requested. The employer could apply to the Board at
  2542. any time and not, as before, only at the time of certification, most unions
  2543. being in any event voluntarily recognised. According to the Government, the
  2544. union's claim that the employer might make successive requests to the Board in
  2545. order to increase the number and thus break a strike was a misunderstanding on
  2546. its part. Not only was it not the employer's intention to do this but it was
  2547. also practically impossible since there were major difficulties in convening
  2548. the Board at short notice.
  2549. 204. According to the Government, there had been meetings with NAPE concerning
  2550. these problems but in spite of all the explanations given to them, the
  2551. misunderstanding remained. No such problems, however, existed between the
  2552. employer and other bargaining units, e.g. the Canadian Union of Public
  2553. Employees, on these matters. Agreements as to the designation of essential
  2554. employees had been reached with other unions, but NAPE who had knowledge of
  2555. the employer's current proposals, had requested the Board not to proceed with
  2556. hearings on them. The Government supplied the mission with detailed
  2557. information on the recommendations it had made to the Board as to the
  2558. percentage of essential employees that might be fixed by the Board. Since
  2559. 1983, however, NAPE had steadfastly refused to participate in the process of
  2560. negotiating essential employee requirements.
  2561. 205. It was important to emphasise, continued the Government, that in June
  2562. 1985, section 10 of the Act was amended and a significant number of Government
  2563. employees in nine specific bargaining units were excluded from the designation
  2564. of essential requirement. Other government agencies or boards had identified a
  2565. minimal or no essentials requirement and, in the overall government sector, it
  2566. had been determined that 21 per cent (17.7 per cent including section 10
  2567. units) of the employees were essential. This group included 100 per cent of
  2568. prison warders (who now had automatic access to arbitration) and others such
  2569. as forest-fire suppression crews, social workers, etc. The requirement in the
  2570. health-care sector was greater (33 per cent) to ensure a minimum standard of
  2571. care for the sick and the aged.
  2572. 206. The Govermment pointed out that five years ago the union would not have
  2573. been prepared to accept arbitration as an alternative to its right to strike.
  2574. Now it was the Government which, in the present economic situation, was
  2575. reluctant to seek arbitration. Bill 59, the Government insisted, resulted from
  2576. court decisions and was precipitated by the 1981 strike. Now, the Government
  2577. pointed out, the rules were set and well known and this was preferable to the
  2578. adoption - as was the case in 1981 - of emergency legislation in the event of
  2579. a strike in an essential service. There had been no strikes in the hospital
  2580. sector since 1981.
  2581. 207. As regards sections 23 and 24 of the Act, as amended by Bill 59, the
  2582. amendments introduced in June 1985 had repealed section 23 but had maintained
  2583. the seven-day notice period in respect of hospitals and health-care
  2584. institutions. If workers in these sectors did not go on strike on the date
  2585. specified in the notice, a further 30 days had to elapse before another notice
  2586. was given. The reason for this was to deal with the problem of sending
  2587. patients home and bringing them back to hospital if the strike did not occur.
  2588. The system did not exclude eleventh-hour bargaining and, in the view of the
  2589. Government, there was no reason why there could not be an agreement between
  2590. the parties to extend by one day the seven-day notice period if a new offer
  2591. was made.
  2592. 208. Concerning rotating strikes, the Government explained that Bill 59 had
  2593. amended section 24 of the Act to prohibit such strikes in health service
  2594. institutions only. The Act concerned the bargaining unit only, and while part
  2595. of that unit could be called out on strike, there could be no question of that
  2596. part striking on a rotating basis. This provision had been introduced to avoid
  2597. the kind of problem that had been experienced during the 1981 strike of
  2598. laboratory and X-ray workers.
  2599. D. Concluding remarks
  2600. 209. Public servants represented by NAPE basically retain the right to strike.
  2601. The counter-inflation measures overrode the bargaining system which remained
  2602. intact for use once the special legislation had run its course. The complaint,
  2603. therefore, relates to limitations which appear to have recently been
  2604. introduced into the usual process of bargaining.
  2605. 210. The first point raised, and it is a very important one, was that the
  2606. measures in Bill 59 were never the subject of proper consultation. It is
  2607. obvious to an outsider coming to Newfoundland that, although industrial
  2608. relations in the public sector are not without their share of problems and
  2609. some strife, there has been a good relationship between the trade union and
  2610. government. This did not prevent disharmony on Bill 59. It is difficult to
  2611. describe accurately the extent of consultation on Bill 59 since perceptions
  2612. differed. Such contact as there was took place in an atmosphere where the
  2613. Government, having recently reviewed industrial relations was determined to
  2614. seek revision built on experience. Whilst the trade union viewed the changes
  2615. as a threat to its position, indeed it felt that the position had not been
  2616. adequately assessed and felt threatened by the provisions of the Bill, some of
  2617. which it found far from clear. It appeared to NAPE that a series of incidents
  2618. over the previous few years had led to a somewhat extreme reaction which did
  2619. not reflect what was really to be anticipated. The underlying confusion and
  2620. suspicion were clear.
  2621. 211. The Act has been in place now for some two years. Misunderstandings and
  2622. hesitancies still exist. It has to be noted that very recently some important
  2623. modifications have been made by an amendment Act of June 1985. This serves to
  2624. underline the need for a resumption of co-operative consultations. It is still
  2625. possible to detect divergent views on the meaning and intent of various
  2626. provisions of Bill 59: several practical difficulties can be foreseen and both
  2627. sides are looking predominantly at the possiblity of extreme reactions from
  2628. the other. This is surely fruitful ground for consultation and it would seem
  2629. that there is scope for jointly clarifying, tidying up and more closely
  2630. defining the rules and, in the process, re-establishing a better working
  2631. relationship.
  2632. 212. One of the most serious points put by the union relates to the limitation
  2633. on collective bargaining by amendments to the definition of employee. This has
  2634. two components. Section 1(b)(xii) excludes from the crucial definition of
  2635. employee, those employed in an opportunity employment programme. There was
  2636. some confusion between the accounts given as to the exact coverage of this
  2637. subsection. What is clear is that it excludes workers offered opportunity
  2638. placements from bargaining units. This is understandable since the principal
  2639. terms and conditions are governed by the terms of the scheme. However two
  2640. worries remain. The trade union seeks the right to be consulted on such
  2641. workers who are used in work within or connected with the bargaining unit.
  2642. There also appears to be no reason why such workers could not be admitted as
  2643. members with limited or notional dues so that residual services other than
  2644. bargaining could be provided. The second provision to which objection is
  2645. raised in that of advisers to the Government in the development or
  2646. administration of policies or programmes to be determined by the Labour
  2647. Relations Board. This subsection, it was agreed, enshrined what had been the
  2648. practice. It is illustrative of the lack of understanding that both agree on
  2649. this, yet the trade union has a suspicion that some change was intended. Only
  2650. an open dialogue can remove such apparent misunderstandings.
  2651. 213. Most complicated and central to the complaint are the changes made by
  2652. Bill 59 to the concept of essential employee. The bargaining units concerned
  2653. include for example, hospitals and air traffic controllers. Although there
  2654. have been few strikes the Government has sought in the Bill to give added
  2655. protection to essential services. The trade union in almost all cases has
  2656. offered "emergency personnel". There is a discrepancy in thinking as to what
  2657. this should cover which is epitomised by the use of different words -
  2658. "emergency" and "essential". The process of designating a proportion of each
  2659. bargaining unit as essential has ground to a halt. The figures suggested by
  2660. the Government have been made knowing the Labour Relations Board has power of
  2661. decision. Two difficulties arise. The trade union challenges some of the
  2662. numbers which, it appears, have been selected with a liberal eye. It fears the
  2663. Labour Relations Board will be unable to look at such an issue with rigour
  2664. since the decision, possibly affecting safety and health is an onerous one.
  2665. That should not be too difficult to resolve.
  2666. 214. Of much greater concern is the effect designation is likely to have on
  2667. strikes and it should be remembered that the right to strike is an important
  2668. feature of the relationships being considered. If more than 50 per cent of a
  2669. unit are designated as essential then the right to strike is replaced by
  2670. independent binding arbitration. Neither the Government nor the trade union
  2671. has a great liking for this mechanism. None the less it is clear that if a
  2672. substantial proportion of the workers are designated as essential then it
  2673. becomes more attractive to the trade union than a weak strike. As with so much
  2674. in the complaint the issue cries out for study and compromise. Unless some
  2675. relaxation in the rules is made, those sectors where say 33-50 per cent are
  2676. designated will fall between the two systems and trade unions rights will be
  2677. restricted unacceptably. The relationship between designation of essential
  2678. workers and the strike vote is a further point raised. Again there is a
  2679. different view of how the system will work in practice. There appears to be a
  2680. chance that designation of a proportion outside the context of a strike, i.e.
  2681. as a normal procedure, and of individuals after the strike vote might go some
  2682. way to alleviating the problem.
  2683. 215. Two strike tactics have been dealt with by Bill 59. Both have arisen from
  2684. isolated examples in the past and the provisions again appear to have a degree
  2685. of ambiguity. The prohibition of a strike where the stated date has passed,
  2686. for a period of 30 days, and fresh notice could be used to delay a strike by
  2687. last-minute bargaining. There is no evidence that that is intended, and a
  2688. simple amendment, or even letter of intent, should remove the genuinely held
  2689. fear. The provision against so-called rotating strikes does appear to
  2690. interfere with the trade union's power to determine how it shall conduct a
  2691. strike in the tactical sense. Again the provision gives rise to a justified
  2692. fear but unless it is misused cannot be said to be a serious fetter on action.
  2693. 216. It will be obvious that the Government has looked at past practice and
  2694. has decided to prevent practices which were felt to be abuses of trade union
  2695. power that caused potentially difficult management problems in key public
  2696. sector areas. This has led to a strong reaction and even stronger suspicion.
  2697. The trade union has suggested, for example, that provisions which appear at
  2698. first sight to be enshrining useful and common practice (such as section 18
  2699. allowing the Minister power to defer the statutory process to introduce a
  2700. conciliator or mediator) are devices that can be used to defer or delay. There
  2701. can be no clearer example of the need to clarify attitudes and intentions. A
  2702. relatively small number of agreements or statements of intent on both sides
  2703. would ensure that the possible use of the legislation to damage or hamper the
  2704. proper use of trade union power would be accepted as not being the intention
  2705. of the legislation.
  2706. 217. The Committee on Freedom of Association will appreciate that the purpose
  2707. behind the legislation has been left unclear since it can be used in several
  2708. instances with differing results. One interpretation would seriously limit the
  2709. right to strike effectively using normal criteria. If this is to be a
  2710. possibility the underlying basis of the system could be in jeoparady. It has
  2711. to be remembered that the usual formula in the public sector is that if the
  2712. right to strike is withdrawn, the alternative protection in these special
  2713. cases is access to independent binding arbitration. Where the right to strike
  2714. exists but is seriously fettered or put in jeoparady, then the workers
  2715. concerned lack effective protection.
  2716. 218. It is important that the exact meaning and possible uses of the
  2717. provisions of Bill 59 are clarified. This will undoubtedly lead to some
  2718. adjustments - it was pleasing to hear that the 1985 Bill has already started
  2719. that process, albeit unilaterally. Once this process is complete it will be
  2720. necessary to see whether the right to strike, with reasonable limitations to
  2721. protect the health, welfare and safety of the people, exists. Where it does
  2722. not, alternative protection will be required.
  2723. VII. Final remarks
  2724. 219. Three of the complaints arise as a reaction to recently enacted
  2725. legislation in Alberta (Case No. 1247) - Bill 44, in Ontario (Case No. 1172) -
  2726. Bill 179 and in Newfoundland (Case No. 1260) - Bill 59. The fourth, Alberta
  2727. (Case No. 1234), is a much narrower point. Although the industrial relations
  2728. system varies from province to province, in some respects markedly so, and
  2729. although the three pieces of legislation take differing approaches, there is a
  2730. strong underlying similarity of policy and aims. It seems appropriate
  2731. therefore in these concluding remarks to draw the Committee on Freedom of
  2732. Association's attention to the underlying currents.
  2733. 220. All three statutes were enacted as a result of the Government's need to
  2734. combat inflation. All three applied to the public sector, that is to say,
  2735. direct employees of the Government and others employed by independent bodies
  2736. largely dependent upon government funding. This special attention had two
  2737. prime causes. The Government itself was the employer or had a strong influence
  2738. over the employer and it was felt that control of the public sector was both
  2739. necessary and would set the level for the private sector. Most of the queries
  2740. raised on this belong to the economic debate. What concerned the trade unions
  2741. and must concern the Committee is the damage such legislation has done to
  2742. industrial relations, in particular of course, in breach of the principles set
  2743. out in the ILO freedom of association Conventions (i.e. Conventions Nos. 87,
  2744. 98 and 151).
  2745. 221. Several major features merit attention. The Canadian industrial relations
  2746. system has a structure that at first sight mirrors that developed in the
  2747. United States. That is to say it is fairly closely regulated by legislation.
  2748. However there is also a strong tradition of informal contacts which have
  2749. enabled the parties to reach voluntary agreements and to determine a not
  2750. insignificant part of the relationship. It has been suggested that this
  2751. consultative process has been damaged. Certainly the use of legislation has
  2752. given that impression. One major problem is that the Government, when it is
  2753. using legislation in the public sector is at the same time carrying out two
  2754. functions. It is the democratic government acting to protect the economy but
  2755. it is also the employer, altering the balance of its relationship with the
  2756. trade union. This gives ample opportunity for confusion, misunderstanding and
  2757. a serious breakdown in internal relationships. It is easy to overestimate this
  2758. since normal relationships tend to carry on in many spheres, but the fear and
  2759. suspicion were apparent in all three provinces. Ironically it can be said that
  2760. the greatest need is the re-establishment of normal industrial relations
  2761. processes - consultation, conciliation and mutual understanding.
  2762. 1. Inflation control
  2763. 222. Whereas inflation control is an important task of government, a
  2764. distinction has to be made between short-term measures aimed at bringing a
  2765. situation under control, and a more permanent structure. Action is taken under
  2766. the first head because a particular problem overshadows the system. This was
  2767. the position in Alberta where the economic decline was sudden and serious. It
  2768. applied with somewhat less force to Ontario and Newfoundland although the
  2769. economic problems in those provinces were clear. The legislation in Ontario
  2770. had already lapsed. In all three provinces, however, it is the lasting effects
  2771. of the legislation, or in the case of Ontario of practices springing from the
  2772. period of legislation, which have to be measured.
  2773. 223. In each case there has no doubt been some lasting effect. This involves
  2774. either changes in the structure of collective bargaining or influences on the
  2775. independent dispute resolution machinery which is the predominant safeguard in
  2776. Alberta and Ontario and plays a small part in Newfoundland. It is an
  2777. assessment of this damage which is crucial to these cases.
  2778. 2. Consultation
  2779. 224. Although the Canadian system of industrial relations operates legally
  2780. regulated bargaining procedures the importance of consultation remains. This
  2781. is particularly so where a government introduces proposed legislation to amend
  2782. the rules governing that system and to change the relative position of the
  2783. parties to the bargaining. It has already been remarked that such consultation
  2784. is doubly important where the Government seeks to alter bargaining structures
  2785. in which it acts actually or indirectly as employer. Time available for
  2786. consultation must be adequate. Obviously it may be limited by the urgency of
  2787. action in face of economic problems. Its effectiveness can be reduced by the
  2788. attitude taken by the trade unions concerned. But it is a truism that
  2789. proposals should be openly discussed, clarified and doubts, fears and
  2790. misunderstandings resolved before legislation takes its final form. Otherwise
  2791. suspicion grows and attention is diverted to lengthy and often untimely
  2792. challenges in the courts.
  2793. 225. In Alberta the Government took the view that the rapid fall in economic
  2794. prosperity called for urgent action. Consultation appears to have been limited
  2795. to a formal presentation of views to the legislature. In Ontario there appears
  2796. to have been ample opportunity for consultation which does not seem to have
  2797. been used constructively. In Newfoundland there has been a long-established
  2798. and strong commitment to consultation which had been a valued feature of the
  2799. relationship. Unfortunately although there was some consultation the usual
  2800. relationship appears to have broken down at least temporarily.
  2801. 3. Public servants - bargaining
  2802. and the right to strike
  2803. 226. In most Canadian provinces, but not Newfoundland, the right to strike is
  2804. withheld and access to independent binding arbitration takes its place. This
  2805. only occurs in very limited circumstances in Newfoundland. To ensure the
  2806. integrity of the system it is essential that the bargaining procedures are
  2807. unfettered and that there is truly independent machinery to settle disputes of
  2808. interest that are not agreed in bargaining. Most of the details of the
  2809. complaints, from all four cases, relate to one or other aspect of this crucial
  2810. balance. If the balance is seriously destroyed, leaving aside short-term
  2811. economic intervention in time of emergency, then the ILO principles on freedom
  2812. of association are called into question.
  2813. (a) Collective bargaining
  2814. 227. It is not necessary to draw the Committee's attention to every complaint
  2815. made of provisions that were felt to destroy the fair balance of collective
  2816. bargaining. Equally it is only necessary to underline the common view of
  2817. governments that it has become important in times of economic stringency to
  2818. introduce into public sector bargaining factors which correspond to the gloomy
  2819. information a private employer is able to bring to the bargaining table by way
  2820. of declining profits and slim order books.
  2821. 228. Several examples will suffice. In Alberta a considerable number of
  2822. changes to the machinery of bargaining have been promulgated. In Newfoundland
  2823. significant limitations in the bargaining units and in the participation of
  2824. members of those units in strikes have been enacted. It is not an easy task to
  2825. assess the extent of the damage but trade unions point to flexible provisions
  2826. which give rise to fear of loss of effectiveness.
  2827. (b) Independent dispute resolution
  2828. 229. This aspect is vital to a proper system. All the provinces have a Labour
  2829. Relations Board that acts as an independent regulator and decision maker
  2830. within the system. Although some suspicions of bias were mentioned there is
  2831. not a great deal of evidence to substantiate this. Of more concern is the
  2832. position of binding arbitration. Disliked at times by both sides, it remains
  2833. the crucial keystone to the alternative pattern of no strikes - independent
  2834. dispute resolution.
  2835. 230. Arbitrators have a notoriously short professional life, and their
  2836. decisions often give one side the view, almost invariably erroneous, that the
  2837. arbitrator lacks independence. There is no doubt that in times of economic
  2838. stringency the pressures increase. Governments resent a system which passes
  2839. control of financial decisions to a third party. They naturally tend to
  2840. attempt to influence the arbitrator. Asking that the economic background be
  2841. taken into account seems inevitable and sensible. Insisting on conformity to a
  2842. norm destroys independence. In practice the pressure tends to lie between
  2843. these extremes. It is essential that care be taken to protect independent
  2844. arbitration: both the mode of their appointment and their tenure must be
  2845. carefully regulated. The system inevitably, however reluctant the parties may
  2846. be, insists that arbitrators be trusted to act fairly and sensibly.
  2847. 231. Finally it has to be stressed that a large number of the grounds on which
  2848. these complaints have been raised could be settled, not easily it is true, by
  2849. agreement between the governments and the trade unions. Until they are, the
  2850. tendency will be to use legislation, powers and practices which damage the
  2851. essential balance enshrined in ILO Conventions. How far that has occurred is
  2852. not a matter for me: the detailed information above is intended as material on
  2853. which the Committee on Freedom of Association reach its decisions.
  2854. 232. In concluding this report, I wish to express my sincere appreciation to
  2855. the Government of Canada and to those of the Provinces of Alberta, Ontario and
  2856. Newfoundland for the efficient and courteous manner in which my mission was
  2857. received and for the genuine spirit of co-operation in which the discussions
  2858. with the representatives of the various governments took place. I also wish to
  2859. thank the Canadian Labour Congress, the National Union of Provincial
  2860. Government Employees, the Canadian Teachers' Federation and all the provincial
  2861. unions of public employees whose representatives were of the greatest
  2862. assistance to me throughout the mission. A special word of thanks is due to
  2863. Ms. Lucille Caron, of the Federal Ministry of Labour, Mr. Brian Mallon of the
  2864. Canadian Labour Congress and Mr. Derek Fudge of the National Union of
  2865. Provincial Government Employees, who accompanied me at various stages of the
  2866. mission and whose valuable assistance regarding practical arrangements was
  2867. much appreciated. Thanks is also due to Mr. John R.W. Whitehouse, Director of
  2868. the ILO Office in Ottawa who, along with his efficient staff, facilitated
  2869. practical arrangements. Finally, I must express my deep indebtedness to Mr. W.
  2870. R. Simpson, Chief of the Freedom of Association Branch of the ILO and Mrs.
  2871. Jane Hodges also of that Branch, who accompanied me during my mission to
  2872. Canada. Their mastery of ILO principles, deep understanding of industrial
  2873. relations, combined with their ability to work at speed, were essential to the
  2874. completion of my mission and this report.
  2875. John Wood, LLM, CBE.
  2876. ANNEX
  2877. Meetings in Ottawa (12-13 September 1985)
  2878. Mr. M. Dorais, Director-General, Policy and Liaison, Department of Labour of
  2879. Canada together with Mrs. L. Caron, Mr. B. de Laat, Mr. A. Torobin, Mr. P.
  2880. Sorokan, Ms. C. Racine, Mrs. J. Godon, Mr. J. Lynch, Mr. P. Hewson and Mr.
  2881. Beaupré Bérard of the Federal Ministry; from the Alberta Ministry of Labour
  2882. and Education Department, respectively: Mr. A. Kennedy (Assistant Deputy
  2883. Minister of Labour) and Ms. C. Mead; from the Ontario Ministry of Labor and
  2884. Treasury, respectively: Ms. M. Kenny and Ms. J. Bass; from the Newfoundland
  2885. Ministry of Labour, Treasury Board and Department of Justice, respectively:
  2886. Mr. H. Noseworthy, Mr. L. Powell and Ms. D. Fry. From the Union side, Ms. S.
  2887. Carr, Secretary-Treasurer of the Canadian Labor Congress (CLC), Mr. J. Fryer,
  2888. President of the National Union of Provincial Government Employees (NUPGE) and
  2889. representatives of their affiliated organisations: Mr. F. March, Mr. J.
  2890. Shields, Ms. M. Hedley, Mr. A. Kube, Mr. D. Bean, Mr. D. Fudge, Ms. L.
  2891. Nicholson, Ms. N. Riche and Mr. F. Moorgen. Meetings were also held with
  2892. representatives of the Canadian Teachers' Federation (CTF), namely, President
  2893. Mr. F. Garritty, Mr. S. McDowell, Mr. R. Barkar, Ms. E. McMurphy, Mr. D. Yorke
  2894. and Mrs. S. Hanley.
  2895. In Edmonton (16-17 September 1985)
  2896. Assistant Deputy Minister Mr. A. Kennedy, Ms. C. Mead, Mr. R. Maybank, Mr. W.
  2897. Sawadsky, Mr. P. Whittaker and Ms. D. Gares; and representatives of the
  2898. Alberta Union of Provincial Employees (AUPE), namely President Mr. J. Booth,
  2899. Mr. T. Christian, Mr. G. Bourgeois, Mr. F. McRae, Mr. F. Moorgen, Ms. M.
  2900. Sykes, Mr. S. Nymchuk, Ms. P. Wocknitz and Ms. K. Lilly as well as several
  2901. other witnessess including Mr. B. Olien, Mr. D. Andersen, Mr. W. Leeson,
  2902. Professor J. Robb and Mr. D. Werlin. Meetings were also held with
  2903. representatives of the Confederation of Alberta Faculty Associations:
  2904. Professor R. Heron, Mr. G. Unger, Mr. A. Mandelbaum and Professor M.
  2905. Sandilands.
  2906. In Toronto (18-20 September 1985)
  2907. Mr. D. Gilbert, Director of Policy Branch and Ms. J. Bass, Ms. K. Boney, Ms.
  2908. M. Kenny, Mr. R. Peebles, Mr. Q. Silk and Mr. R. Huston; and representatives
  2909. of the Service Enployees International Union (SEIU), namely President Mr. T.
  2910. Roscoe and Mr. J. van Beek together with legal counsel Mr. J. Sack, Mr. S.
  2911. Barrett and Mr. Poskranzer; the Ontario Public Service Employees Union (OPSEU)
  2912. , namely President Mr. J. Clancy, Mr. C. Paliare, Mr. A. Todd, Ms. J. Gates,
  2913. Ms. S. Vallance, Mr. J. Bernard, Ms. R. Lees and Mr. R. Martin; the Canadian
  2914. Union of Public Employees (CUPE), namely President Ms. L. Nicholson, Mr. L.
  2915. Kovacsi, Mr. D. Macleod, Mr. G. Williams, Mr. D. Foley; as well as the Ontario
  2916. Teachers' Federations, namely, President Mr. G.Matte, Ms. S. Hildreth, Mr. D.
  2917. McAndless, Mr. K. Kennedy, Mr. M. Buchanan, Mrs. M. Wilson, Mr. M. Green, Mr.
  2918. J. Carey and Mr. D. Halesworth.
  2919. In St. Johns (23-24 September 1985)
  2920. Assistant Deputy Minister Mr. H. Noseworthy, Ms. D. Fry, Mr. L. Powell, Mr. A.
  2921. Andrews and Mr. J. O'Neill; and representatives of the Newfoundland
  2922. Association of Public Employees (NAPE), namely President Mr. F. March, Mr. E.
  2923. Seward, Ms. M. Fleming, Mr. P. Ivany, Mr. E. Hogan, Ms. E. Price, Mr. D.
  2924. Curtis and Mr. D. Harnett.
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