Definitive Report - Report No 248, March 1987

Case No 1356 (Canada) - Complaint date: 09-DEC-85 - Closed

1. 67. The complaint of the World Confederation of Labour (WCL) is contained in communications dated 9 December 1985 and 8 January 1986, that of the Quebec Central Teachers' Union (CEQ) in a communication of 18 June 1986, and that of the World Confederation of Organisations of the Teaching Profession (WCOTP) in a communication of 10 July 1986. In a letter of 10 October 1986, the federal Government forwarded the remarks and information furnished by the Government of Quebec, dated 2 September 1986.
2. 68. 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).

A. The complainants' allegations

1. 69. According to the 9 December 1985 communication of the World Confederation of Labour (WCL), Quebec's Act 37 of 19 June 1985 respecting the process of negotiation of the collective agreements in the public and parapublic sectors severely limits the right to organise, to bargain and to reach collective agreements in these sectors. It alleges that the Act infringes Articles 3 and 10 of Convention No. 87, as well as the conclusions and recommendations of the Committee of Experts on the Application of Conventions and Recommendations, and runs counter to the jurisprudence of the Committee on Freedom of Association, in that it allows government authorities to take measures that suppress arbitration and limit the right to strike, thus effectively limiting the right of workers to organise and promote and defend their own interests.
2. 70. In a subsequent communication of 8 January 1986, the WCL explains that Act 37 modifies the framework for the negotiation of collective agreements in the sectors of education, social affairs and government agencies by imposing new bargaining methods on workers' organisations, which the Act refers to as "groups of associations of employees" or "associations of employees"; in certain cases, their scope for bargaining is reduced, and the workers are divided into separate groups, even though they may belong to the same sector or work in the same establishment. The Act authorises the Government to establish by decree salaries and salary scales for the second and third years of a collective agreement, without providing for a procedure by which workers in the sectors concerned may defend their interests. Furthermore, the Act introduces severe restrictions to the right to strike. It confers to the Essential Services Council - which, as its very name indicates, is a council, and therefore an administrative body - a vast number of quasi-judicial functions and powers, thus effectively replacing the judiciary (section 111-17, subparagraphs 1 to 6), in violation of the constitutional principles concerning the separation of powers which are universally applied in democratic countries.
3. 71. According to the WCL, this Act undermines the rights of workers' organisations and interferes in the organisation of their activities and management by limiting their scope of bargaining (national, regional or local) and their programmes of action, which should be determined by the workers' organisations themselves through their own policies and organisational structures. Moreover, the Act limits recourse to strikes over wages issues to a period of one year (sections 55 and 56). As concerns regional or local issues, the Act effectively suppresses the right to strike and the right to seek the settlement of disputes before a court of law (sections 60, 64, 65 and 66); it prohibits strikes as a means of resolving local arrangements, and provides no guarantees to safeguard the interests of workers (section 71).
4. 72. The WCL further alleges that the provisions of Act 37 arbitrarily restrict bargaining procedures by imposing bargaining modalities that do not favour the promotion or defence of workers' social and economic interests. The restriction on the right to strike introduced by the Act seriously limits the means available to trade unions to promote and defend the interests of their members (Article 10 of the Convention), as well as the right of trade unions to organise their activities (Article 3), and is therefore incompatible with the principles of freedom of association.
5. 73. According to the WCL, Act 37 authorises the Government to establish by decree the salaries and salary scales of workers in the public and parapublic sectors for the second and third years of collective agreements. These workers are neither allowed to strike, nor are they granted adequate guarantees to safeguard their interests. Experience in Canada has shown that the adjustment of wages in the public sector in the past three years has fallen short of the rate of inflation (approximately 3.8 per cent) by 1.5 per cent. It is thus clear that, whatever the results of the studies and research undertaken by the Institute for Research and Information on Remuneration concerning the forecast of wage adjustments based on hypothetical inflation rates, such adjustments will always fall short of actual rates of inflation. There will then be a need for direct action, which is now prohibited or limited. Only the salaries and salary scales for the first year will be negotiable, and only in this respect are workers entitled to exercise their right to strike, except for workers in the social affairs sector. The right to strike is non-existent with respect to all matters which the Act requires to be negotiated at the local or regional level, and yet there are no adequate guarantees that the interests of workers in these sectors will be safeguarded.
6. 74. As regards the social affairs sector, the Act requires trade unions and workers to maintain essential services functioning at an abusively high level, to the order of 55 to 90 per cent, thus rendering illusory the exercise of the right to strike and the freedom to negotiate at this level, without providing adequate guarantees that the interests of these workers will be safeguarded.
7. 75. In the education sector, the Act abolishes the right of teachers as well as non-teaching professional staff of colleges to strike with regard to a considerable number of collective bargaining issues.
8. 76. Lastly, as concerns the whole of the education sector, including the support staff and the non-teaching professional staff of school boards, the Act abolishes recourse to strike action in connection with the determination of salaries and salary scales for the second and third years of collective agreements.
9. 77. In conclusion, the WCL considers that the present case represents a recidivism by the Government of Quebec, recalling that during the November 1983 discussion within the ILO Governing Body of Case No. 1171 concerning the complaint filed by the WCL in connection with Acts Nos. 70, 105 and 111, the representative of the Government of Canada had declared that all consideration would be given to the recommendations of the Committee on Freedom of Association, including the possibility of repealing Act 111, with a view to restoring harmonious relations between the Government and teaching personnel. However, the WCL notes with regret that, contrary to its promises, the Government of Quebec failed to give effect to the recommendations of the Committee on Freedom of Association, and that not only is Act 111 still in force, but that the new Act 37 further infringes trade union freedoms.
10. 78. Subsequently, in a communication of 18 June 1986, the Quebec Central Teachers' Union (CEQ), which claims to encompass 168 trade unions of teachers, professional staff and support staff in the public sector representing 108,000 members, as well as the Quebec Government Professionals' Trade Union (10,000 workers), likewise presented a complaint against Act 37.
11. 79. According to the CEQ, section 25 of Act 37 imposes collective bargaining at the national or local levels. It claims that the procedures for negotiating salaries, described in sections 52 to 56, call for the unilateral fixing of salaries for the second and third years of a collective agreement, and that section 91 undermines the right to organise by abolishing the right to strike in respect of the determination of salaries and salary scales for the second and third years of the collective agreement, thus diluting management's obligation to negotiate in good faith, as required in sections 30 to 43 of the Act. Sections 57 to 74 of the Act allegedly deny trade unions the right to strike over issues as fundamental as trade union recognition, union dues, the right to hold meetings and receive information, thus threatening the trade unions' very survival. It alleges that the Act would virtually deprive employees of the right to strike and would establish a permanent system for collective labour relations in the public and parapublic sectors without introducing an effective machinery for arbitration.
12. 80. In conclusion, the CEQ considers that the Act abolishes the right to strike in the second and third years and in respect of certain matters listed in Schedule A of the Act, and that it fails to provide any other machinery with a view to compensating for the loss of the right to strike, since it calls for certain conditions of work to be fixed by legislation or regulations. The Quebec Human Rights Commission has declared that, in its opinion, Act 37 is incompatible with Convention No. 87.
13. 81. The World Confederation of Organisations of the Teaching Profession (WCOTP), in its communication of 10 July 1986, claimed that Act 37 represents a flagrant and direct violation of Convention No. 87, and specifically that sections 52 to 56 limit the duration of collective agreements to one year and give the Government full power to determine unilaterally by regulation the conditions for the renewal of collective agreements during the course of their second and third year, and that section 91 prohibits recourse to strikes during this period.

B. The Government's reply 82. In a letter of 10 October 1986, the federal Government forwarded the reply of the Government of Quebec, dated 2 September 1986, in which it declares that it has always held the ILO's institutions in high esteem and has taken great care in preparing its reply, and requests the Committee to understand that the delay in replying is due to the importance that the Government attaches to this procedure.

1. 83. Concerning the substance of the complaint, the Government notes that the complainants are critical of the Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors (Act 37), adopted by Quebec's National Assembly on 19 June 1985, and that they allege that Act 37 is contrary to the principles of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in the sense that it "authorises the Government to establish by decree the salaries and salary scales for the second and third years of a collective agreement, without providing for a procedure by which workers in the sectors concerned may safeguard and defend their interests, and by placing severe restrictions on the right to strike".
2. 84. The Government of Quebec sets out to show that the machinery instituted by Act 37 provides trade union associations with appropriate means to defend the interests of their members, and that it respects the Conventions and Recommendations of the International Labour Organisation, to which the Government attaches the utmost importance. The Government explains that the experience of recent years has demonstrated the need for revising the legal framework for negotiations in the public and parapublic sectors in Quebec; that since 1983 it had undertaken a study and consulted all interested parties in order to identify solutions that might improve labour relations in these sectors; and that Act 37 is the outcome of the search for a balance between the means given to workers and their trade union organisations to promote their legitimate interests, and the responsibilities of the State, as employer and guardian of the public interest. Foremost among its objectives, this Act seeks to harmonise labour relations in these sectors which have a substantial social and economic impact in Quebec; within the context of Quebec, the Act seeks to promote the kind of free collective bargaining which the Committee upholds.
3. 85. The Government begins by describing the general rules that govern labour relations in Quebec, explaining that they are contained in the Labour Code, which guarantees workers the freedom of association. Like most labour legislation in North America, the Code endorses the monopoly system for trade union representation, under which only one association which represents the absolute majority of all wage earners in a given establishment or group of wage earners, is recognised as the bargaining agent for this group (or bargaining unit). This recognition or certification is declared by a special tribunal and usually cannot be challenged except during a specified period preceding the expiry of the collective agreement. The Labour Code requires the parties to undertake and pursue negotiations with diligence and good faith with a view to reaching a collective agreement, and sets out a machinery available to the parties to settle their differences, such as recourse to conciliation or arbitration.
4. 86. The right to strike and lock-out is generally recognised and may be exercised provided advance notice is given upon the expiry of the collective agreement. In accordance with Quebec's Labour Code, employers are forbidden to engage persons or avail themselves of the services of other employees for the purpose of replacing workers who are inactive due to a lawful strike or lock-out; according to the Government, these measures which are intended to speed up the settlement of disputes and to eliminate any violence that may arise in connection with the exercise of the right to strike, are among the most progressive as concerns the rights that they confer on workers' associations. It should be noted that the Code suspends the right to strike or lock-out during the duration of the collective agreement, but provides for all disagreements concerning the interpretation or application of an agreement to be submitted to an arbiter.
5. 87. The Code also provides for machinery aimed at ensuring the maintenance of essential services during a labour dispute in the public services, such as electricity or gas supply services, and services entrusted to the public and parapublic sectors. The Essential Services Council was created in 1982 to oversee the application of this machinery and to help the parties to identify the services to be maintained during a dispute. The Essential Services Council is composed of eight members: a president and a vice-president, two members from the ranks of the most representative workers' associations in the areas of public and health services and social services, two members from the most representative employers' associations in these same areas, and two additional members who are chosen after consultations with the Human Rights Commission and other bodies.
6. 88. The provisions of the Labour Code apply to labour relations in the public and parapublic sectors, subject to certain adaptations. The Code defines the "public and parapublic sectors" as being the Government, its ministries and agencies, the establishments of the public health network and social services, as well as the establishments of the public education network. As regards the organisation of the parties, Act 37, which was adopted on 19 June 1985, substantially reproduces the provisions of the 1978 Act on the organisation of employers and trade unions for the purposes of collective bargaining in the education, social affairs and government agency sectors. Negotiations in these sectors are thus held on a sectoral basis, in derogation of the general system provided for in the Labour Code, pursuant to which negotiations are held, in principle, at the level of the undertaking.
7. 89. Moreover, Act 37 institutes new machinery which specifically addresses the particular needs of the public sector as distinct from the private sector. It also establishes a procedure for determining salaries in which a new body, the Institute for Research and Information on Remuneration, plays a vital role, and establishes other mechanisms for settling other specific differences. Furthermore, Act 37 grants new powers to the Essential Services Council.
8. 90. In general, Quebec legislation grants very broad rights to the associations of workers in the public and parapublic sectors. The rights granted to trade unions in the private sector, such as the principle of monopoly in trade union representation, obligatory check-off of union dues for all wage earners, whether or not they are members of a trade union association, and the prohibition against replacing striking workers, are also conferred on trade unions in the public and parapublic sectors. They represent suitable means to enable these trade unions to promote and defend the economic interests of their members.
9. 91. In the private sector, the weight of these trade union rights is counterbalanced by the economic constraints inherent in an enterprise's competitive posture, which helps the parties to reach an equilibrium. In the public and parapublic sectors, in which services are rendered to the public in a virtual monopoly and in which bargaining is carried out on a sectoral basis, the element of competition is missing, and its absence creates a disequilibrium between trade unions and the State as employer; thus, other means must be found to strike a balance between the parties.
10. 92. The Government outlines the history of the development of labour relations in the public and parapublic sectors from 1960 to 1983, explaining that throughout this period the public and parapublic sectors experienced considerable growth due to the nationalisation of the electricity services, the reform of the educational system and the introduction of a hospitalisation insurance scheme. In 1964, the Labour Code granted the right to strike to workers in the public and parapublic sectors and subsequently extended this right to teachers and some government employees in 1965.
11. 93. From 1964 to 1977, collective bargaining which was supposed to take place locally, in accordance with the existing legal framework, experienced a gradual centralisation at the national level. The Government twice adopted new legislation with a view to defining the legal framework of negotiations and in an effort to institutionalise them at the national level, namely the 1971 Act respecting the process of collective negotiation in the education and hospital sectors, and the 1974 Act respecting collective bargaining in the education, social affairs and government agencies sectors.
12. 94. The centralisation and accrued politisation of negotiations in the early 1970s led to a major confrontation between the trade unions, joined in a common front, and the Government during the negotiations of 1972. This period was further marked by significant disruptions in public services available to the general public, including certain essential services. The negotiations which began in 1976 were also accompanied by the disruption of a number of services to the general public, and highlighted once again the fact that, under the existing bargaining system, the parties were unable to conclude negotiations without a significant disruption of services.
13. 95. In 1977, the Government set up a committee to study and advise on the revision of the collective bargaining system in the public and parapublic sectors; the committee presented a number of recommendations to the Government, without, however, calling the existing structures and machinery into question. As a follow-up to the committee's report and with a view to fresh bargaining, in 1978 the Government adopted Act 59 amending the Labour Code and instituting a new procedure for determining essential services, as a prerequisite for the exercise of the right to strike. This Act called for the creation of a council on the maintenance of health and social services in the event of labour disputes, which was responsible for keeping the public informed as regards the maintenance of essential services; the Act also called for the creation of another council responsible for keeping the public informed on the progress of negotiations. Lastly, the Act fixed the stages and time limits for bargaining with a view to ensuring its progress.
14. 96. In 1978, Quebec's National Assembly also adopted the Act on the organisation of employers and trade unions for the purposes of collective bargaining in the education and social affairs sectors. Among other things, the Act called for the establishment of employer committees responsible for conducting negotiations in accordance with the mandates issued by the Government. The Act confirmed the principle of bargaining at the national level, but allowed the parties to negotiate arrangements regarding the application of clauses agreed at the national level, to the local and regional levels.
15. 97. The 1979 negotiations opened with the creation of a central negotiations board; the number of issues dealt with at this level increased, further accentuating the centralisation of discussions. Because these negotiations took place in a context of relative economic growth, the conditions of work set forth in the collective agreements allowed employees to profit from the more favourable general economic conditions. Thus, the collective agreements resulting from these negotiations included indexation clauses which assured employees of annual wage increases throughout the duration of the agreement, in other words, for a period of three years.
16. 98. However, like all Western economies, Quebec experienced a broad economic and social crisis in the early 1980s, and the Government was forced to adopt exceptional legislative measures in Acts Nos. 70, 105 and 111. It proposed the establishment of a joint commission on remuneration and the creation of a working party to explore an overhaul of the bargaining system in the public sector. The joint commission on remuneration, whose creation was favourably received by the trade unions, was to discuss the bases of the Government's remuneration policy (comparisons with the private sector, ability to pay, etc. ).
17. 99. This period of reflection and consultations led, in March 1982, to a symposium attended by all the parties concerned. The symposium helped to define the problems affecting the bargaining system in the public and parapublic sectors and to draw certain conclusions which, on the whole, proved negative. Although the bargaining system was successful in reaching a number of predefined objectives, including that of endowing public and parapublic sector employees with working conditions equivalent to those of wage earners in the private sector, a number of problems had come to light in the course of negotiations in these sectors. In fact, labour disputes, the disruption of services to the population, the impact of the right to strike, the special laws adopted by the Government, the centralisation of negotiations, the sudden improvement in the wages of public sector workers which actually exceeded those of workers in the private sector, all pointed to the need to change the bargaining system with a view to reaching a fair balance between the State, as employer, and the trade unions.
18. 100. Thus, the Act impugned by the complainants must be viewed within the context of a general dissatisfaction with the collective bargaining system in the public and parapublic sectors. The Government sets out to demonstrate that it took appropriate measures to encourage and promote the broadest development and use of procedures for the voluntary negotiation of collective agreements as regards conditions of work, and that the ensuing limitations to the right to strike in the public and parapublic sectors have been accompanied by appropriate safeguards to protect the workers' interests. The Government emphasises that, within the framework of Act 37 for the reform of the collective bargaining system in the public and parapublic sectors, it has sought not to restrict the trade union rights of employees in the sectors concerned, but rather to promote the search for new solutions based on negotiation and mediation.
19. 101. The introduction of the system of negotiating collective agreements as defined in Act 37 was preceded by a series of consultations that took place over a period of two years. A working party set up in April 1983 undertook successive consultations with trade union and employer representatives, requesting them to participate in the reform of the institutional and legal framework of collective bargaining in the public sector. Concurrently, in 1983, the Government commissioned a study of the characteristics of labour relations systems in the public sector in a number of industrialised countries, including the United Kingdom, the Federal Republic of Germany, Belgium, France, Italy, Sweden, the United States and the other Canadian provinces; the study focused on three aspects, namely, the rights of public sector trade unions, the machinery for determining working conditions, and the machinery for settling labour disputes. The study revealed that Quebec is the only province to have complemented the North American system of trade union rights with a machinery for negotiations which is exclusively typical of sovereign western European States. The study also revealed that the imbalance between the employer and trade union parties arises from the fact that the Quebecois system subjects an exceedingly large number of trade union rights to negotiation, thus allowing trade unions pressure to have maximum impact, without providing for counterbalancing limitations to help to settle disputes arising within the system itself. The study concluded that the readjustments needed to render the system more effective were not simple or mechanical, but required serious consideration and political and social choices that could not be simply copied from elsewhere.
20. 102. In the spring of 1984, the Quebec Government opened a public debate on a document entitled "The search for a new balance. Reform of the process of negotiation in the public sector", which identified the main points of the above-mentioned study: the State's role and responsibilities as government and employer, the centralisation of negotiations, the systematic confrontation resulting from the system then in effect, and lastly, the settlement of differences and alternatives to the right to strike as regards essential services.
21. 103. In October 1984, following the public debate and the advice gathered at several informal meetings, the responsible minister proposed to trade union leaders that a new bargaining system be established before negotiating new collective agreements. The Government proposed a model agreement covering the following points: the negotiability of remuneration on an annual basis, the creation of a research centre on remuneration, the decentralisation of negotiation on certain normative clauses in accordance with a permanent bargaining model, binding mediation machinery and, lastly, the enforcement of existing legal provisions concerning essential services.
22. 104. On 5 November 1984, the three central trade unions,CNS, CEQ and FTQ, stated that they were ready to consider procedures aimed at making negotiations more effective, in particular by supplying the parties with basic data on remuneration, and foregoing in advance a process for the automatic adjustment of wages; although they indicated their preference for maintaining negotiations on a national basis, they agreed that certain issues could be negotiated in other fora, subject to agreement between the parties. None the less, the central trade unions proposed that the discussions on the reform of the bargaining system be held concurrently with discussions aimed at reviewing the conditions of work which had been established more than two years earlier through collective agreements within the framework of Act 105. This trade union proposal is indicative of the respective positions of the parties throughout the discussions and consultations held since the spring of 1983: while the Government of Quebec aimed essentially at revising the process of negotiation, the central trade unions sought to link this revision to new negotiations in order to attenuate the effects of Act 105, which had met with strong opposition among the employees.
23. 105. At the time, the Government considered the discrepancy in objectives to be of little consequence and proceeded to the parliamentary phase of the reform in question; on 20 December 1984, the Government presented the draft bill respecting the process of negotiation of the collective agreements in the public and parapublic sectors. All parties concerned were given the opportunity to comment on the draft bill during the course of a parliamentary commission held in January and February 1985.
24. 106. The central trade unions, CEQ, FTQ and CSN, together with 16 other trade union associations composing a vast coalition, began by requesting that the draft bill be simply withdrawn; in a working paper presented at a trade union meeting in early February 1985, they reiterated their commitment to certain principles: the freedom to negotiate the whole of working conditions, the establishment of an agency to make public information concerning wage comparisons, the maintenance of the recognition of trade unions bargaining at the national level, the suppression of the Government's discretionary power as regards the designation of issues subject to local bargaining, the recognition of the inalienable right to resort to strikes, and lastly, the return to the 1979 process for determining and maintaining essential services.
25. 107. Concurrent with the parliamentary discussions, negotiations were held between members of the trade union coalition and government representatives. A number of meetings were held between the Prime Minister and the trade union leaders. Eventually, on 2 May 1985, the Government presented to the National Assembly the Bill of Act 37 respecting the process of negotiation of the collective agreements in the public and parapublic sectors. Again, parliamentary hearings were held at which all interested parties were given the opportunity to present their views. The Act was finally adopted on 5 June 1985 and signed into law on 19 June 1985.
26. 108. The Government claims to have taken appropriate measures to encourage and promote the broadest development and use of procedures for the voluntary negotiation of collective agreements as regards conditions of employment.
27. 109. As regards remuneration, the Government recalls that the impasse encountered during the negotiations prior to the adoption of Act 37 resulted, in particular, from the significant discrepancy between the Government's wage offers and the trade union demands, which was due to the absence of acceptable comparative data on remuneration in the public and private sectors. In order to correct this situation, Act 37 called for the creation of an Institute for Research and Information on Remuneration, which is responsible for publishing information on the comparative state and trends in the total government wage bill, and the wage bills of school boards, colleges and social affairs establishments, in particular, and the global wage bill of other wage earners in Quebec in categories designated by the Institute. In fact, the Government had adopted a policy designed to align public sector wages with those of the private sector. Thus, the Institute can carry out surveys, studies and analyses on the remuneration of different groups or sectors of wage earners in Quebec, and may also carry out any other study or research approved by its governing body. It publishes a report on its findings by 30 November of each year.
28. 110. The Institute is administered by a governing body composed of 19 members, including a president and two vice-presidents, who are appointed by resolution of the National Assembly passed by no less than two-thirds of its members, on a motion of the Prime Minister, presented after consultation with the employers and trade union associations. The other 16 members who may be appointed to the governing body come in equal numbers from employer and trade union circles.
29. 111. As concerns the salaries and salary scales of public and parapublic sector employees, Act 37 requires that the clauses in collective agreements applicable for the first year shall be negotiated and agreed at the national level, as well as other matters dealt with at this level. The Government considers that its responsibility with regard to the management of public funds requires that negotiations concerning remuneration take place on a national basis. The wage-fixing machinery instituted by the Government for the first year of a three-year collective agreement does not place any restrictions on negotiations between the parties, and guarantees that associations of employees shall have the right to strike in defence of their economic interests.
30. 112. For the second and third years of the agreement, remuneration is determined in accordance with the following modalities: following the publication of the annual report of the Institute for Research and Information on Remuneration, the parties are to negotiate with a view to reaching an agreement on the fixing of the salaries and salary scales for the following year. Once this bargaining is concluded, a draft regulation is prepared and, where necessary, adopted by the Government. However, the draft regulation may not be submitted to the appropriate government bodies for approval until the parties have been invited to a hearing on its content before a Parliamentary Committee. The salaries and salary scales thus determined by regulation, which according to Act 37 may not be lower than those of the preceding year, are incorporated into the collective agreement for the current year.
31. 113. This machinery for determining salaries on an annual basis allows for periodic adjustments in terms of budgetary and economic fluctuations which cannot be accurately forecast several years in advance; it will help to avoid a repetition of the events of 1982, when the Government of Quebec was forced to revise wage increases that had been set for the last year of a three-year contract due to a sudden change in the economic situation. Thus, the remuneration of workers in the public sector will reflect the overall health of Quebec's economy, without the risk of significant differences in respect of the situation prevailing in the private sector.
32. 114. To the extent that negotiations in the public and parapublic sector take place every three years, the Government considers that the procedures established by Act 37 as concerns remuneration, and, in particular, the creation of the Institute for Research and Information on Remuneration and the machinery for fixing salaries on an annual basis, conform with the criterion endorsed by the Committee of Experts in its 1983 General Survey on Freedom of Association and Collective Bargaining: "While machinery and procedures are established in many countries by legislation, they must be designed to facilitate bargaining between the two sides of industry and leave them free to reach their own settlements" (paragraph 304), as well as the criterion laid down by the Committee on Freedom of Association in its Digest of decisions and principles of 1985, which acknowledges that "Article 7 of Convention No. 151 allows a degree of flexibility in the choice of procedures to be used in the determination of the terms and conditions of employment" (paragraph 606).
33. 115. In the opinion of the Government of Quebec, the negotiation of remuneration on the right to strike, without restrictions for the first year of the agreement, the negotiation hearing before a Parliamentary Committee and determination of remuneration for the second and third years of the agreement on the basis of data furnished by the Institute, together with the guarantee that salaries shall not be reduced, constitute a machinery which favours voluntary negotiation of collective agreements with a view to determining conditions of employment. This machinery gives trade union associations suitable means to protect and defend the economic interests of their members in terms of prevailing economic conditions; furthermore, within the context of Quebec, it guarantees a fair balance between trade union rights and the public administration's imperatives of maintaining budgetary and economic order.
34. 116. As concerns the various levels of bargaining, the Government explains that the execessive centralisation of negotiations in the public and parapublic sectors had been identified as a further shortcoming in the previous system. The experience of previous negotiations had shown that the concentration of discussions at the national level led to an increased politisation of negotiations which tended to transform the relationship between the State, as employer, and the trade unions, into a relationship of the State as government, and the trade unions. The fact that the vast majority of the conditions of work of public sector employees in Quebec are subject to negotiation, led inevitably to the overloading of central negotiations owing to the multitude, variety and complexity of the subjects dealt with. Lastly, the great distance between the place in which the normative conditions of work were discussed and the places in which they were experienced on a daily basis, often led to serious problems in the implementation of collective agreements at the local level; the ensuing dissatisfaction tended to have negative repercussions on subsequent negotiations.
35. 117. The Government considers that Act 37 will inaugurate a new process that will reverse the disturbing trends of the last 20 years; this process will encourage, generally at the wish of the parties, the local negotiation of matters more appropriate to the local level. While the Act upholds the principle of bargaining at the national level, it institutes machinery to encourage the parties to bargain at the local level with respect to subjects that are better suited to that level. Thus, the Act provides that in the social affairs sector and, in the education sector, in respect of the support staff and the non-teaching professional staff of school boards, the parties meeting at the national level will themselves determine the matters to be negotiated at the local or regional level. For teaching staff in the education sector, and in respect of non-teaching professional staff in the case of colleges, the matters to be negotiated at the local or regional level, in addition to those agreed to by the parties, are listed in Schedule A of the Act.
36. 118. The Act also provides that the stipulations of collective agreements negotiated at the national level may be the subject of arrangements negotiated and agreed at the local or regional level. Thus, in the social affairs sector and in the education sector, in respect of the support staff and in respect of the non-teaching professional staff of school boards, the parties may, once the collective agreement comes into force, agree upon local or regional arrangements with a view to the implementation or replacement of a clause of the collective agreement on matters provided for in Schedule B of the Act.
37. 119. As regards matters defined by the Act or the parties as the subject of clauses negotiated and agreed at the local or regional level, the Act establishes a permanent machinery for negotiation. The Act provides that an association of employees and an employer, may at any time, negotiate and agree on the replacement, amendment, addition or repeal of a clause of the collective agreement. This permanent bargaining process, which had heretofore not existed in Quebec's labour laws, has the advantage of allowing the parties to determine conditions of work from time to time in keeping with the needs of each establishment or region by reference to the kinds of services involved and local practices. The right to bargain at any time with regard to conditions of work is counterbalanced by the absence of the right to strike or lock-out at this level.
38. 120. Act 37 provides that clauses on matters defined as being the subject of negotiation and agreement at the local or regional level remain in force as long as they are not amended, repealed or replaced by common accord between the parties. Thus, the bargaining process at this level guarantees that workers and their organisations will maintain the rights acquired during the course of previous negotiations, since these can only be modified by common agreement.
39. 121. The Government of Quebec considers that the machinery provided for in Act 37 concerning the levels of negotiation will encourage the parties to agree voluntarily to a gradual decentralisation of bargaining. The objective is to preserve the negotiation of the principal conditions of work, such as remuneration, which are common to all employees in the public and parapublic sectors and which depend on budgetary constraints, at the central bargaining level. In this connection, trade union rights which have been recognised for over 20 years, including the right to strike, are maintained. Moreover, the Act provides for negotiating at a more appropriate level the conditions of work that are not common to all employees in the public and parapublic sectors, and which do not directly affect their standard of living.
40. 122. Only the matters listed in Schedule A, which apply to certain categories of staff in the education sector, are to be negotiated and agreed at the local level without requiring an agreement between the parties at the national level to that effect. A brief examination of this schedule shows that the matters listed essentially concern the modalities for applying regulations established at the national level or by law, or for establishing regulations that necessarily depend on the conditions in individual establishments and which, for practical purposes, can only be determined on a local basis. As regards "union dues", for example, the employer is required by the Labour Code to withhold these dues and turn them over to the trade union; thus, bargaining will be limited to the modalities for collecting and turning over these funds. The "distribution of work load" provides another good example of the way in which rules established at the national level are to be applied in accordance with the needs of individual institutions.
41. 123. The Government of Quebec considers that this procedure conforms with the principle set out by the Committee on Freedom of Association: "While the public authorities have the right to decide whether they will negotiate at the regional or national level the workers, whether negotiating at the regional or national level, should be entitled to choose the organisation which shall represent them in the negotiations" paragraph 607 of the Digest of Decisions).
42. 124. As concerns limitations on the right to strike in the public and parapublic sectors, in which the interruption of services could seriously endanger society at large, the Government of Quebec has provided appropriate guarantees to protect the interests of workers. The Government explains that Act 37 establishes new machinery adapted to the various levels of negotiations to facilitate the settlement of differences and clearly sets forth conditions for exercising the right to strike.
43. 125. As regards all matters negotiated at the national level, with the exception of salaries and salary scales, the Government explains that the Minister of Labour, at the request of either party, appoints a mediator to try to settle a dispute. If no agreement is reached within 60 days after the date of his appointment, the mediator transmits to the parties a report containing his recommendations on the dispute, which must be made public, unless an agreement on the dispute has been reached. Act 37 also provides that the parties may agree on other procedures of mediation. The Government of Quebec considers that this procedure for settling disputes on matters negotiated at the national level is in accordance with Article 8 of the Labour Relations (Public Service) Convention, 1978 (No. 151), which provides that: "The settlement of disputes arising in connection with the determination of terms and conditions of employment hall be sought, as may be appropriate to national conditions, through negotiation between the parties or through independent and impartial machinery, such as mediation, conciliation and arbitration, established in such a manner as to ensure the confidence of the parties involved." The Government recalls that trade union associations still benefit from the right to strike on matters negotiated at the national level, thus preserving all safeguards required for the defence of the interests of workers; consequently, the Government considers that the procedure established by Act 37 for settling disputes on these matters is in accordance with the principle stated by the Committee on Freedom of Association in the following words: "Legislation imposing recourse to compulsory conciliation and arbitration procedures in industrial disputes before calling a strike cannot be regarded as an infringement of freedom of association" (paragraph 378 of the Digest of Decisions).
44. 126. As regards matters negotiated at the local or regional level in respect of which the Act prohibits strikes or lock-outs, the Government considers that, inasmuch as these matters may be negotiated at any time during the life of the collective agreement, it is reasonable that such matters, which do not directly affect the standard of living of employees, unlike remuneration or other major conditions of work, should not provide grounds for interrupting services to the population. In order to avoid an impasse in negotiations, Act 37 proposes a machinery to help the parties settle their differences. Thus, either party may request the Minister of Labour to appoint a mediator-arbitrator with a view to settlement of the disagreement. The mediator-arbitrator endeavours to bring the parties to settle their disagreement, but if the disagreement still subsists 60 days after his appointment, the parties may, in common agreement, request the mediator-arbitrator to rule on the subject of the disagreement. If the mediator-arbitrator is then of the opinion that a settlement is not likely to be reached by the parties, he carries out their request. If the mediator-arbitrator gives no decision, he makes a report of his recommendation on the subject and makes the report public ten days after having transmitted it to the parties. Lastly, the Act allows the parties to agree on other modes to settle disagreements.
45. 127. According to the Government, the fact that certain matters are negotiated at the local or regional level unless otherwise agreed by parties, as well as the institution at this level of a permanent machinery for negotiation endowed with an elaborate process for mediation and arbitration by an impartial third party, and the requirement for a negotiated agreement in matters affecting the acquired rights of workers, represent safeguards that guarantee the complete and effective representation of workers by their trade unions. The only matters which, in accordance with the Act, must be dealt with at the local or regional level are, according to the Government, matters which do not directly affect the economic interests of workers in the educational sectors concerned. Therefore, the Government considers that the Act conforms with the principle set out by the Committee on Freedom of Association in the following words: "While the Committee has always regarded the right to strike as constituting a fundamental right of workers and of their organisations, it has regarded it as such only in so far as it is utilised as a means of defending their economic interests" (paragraph 364 of the Digest of Decisions).
46. 128. As regards the maintenance of essential services, the Government reports that Act 37 has amended the provisions of the Labour Code concerning the maintenance of essential services in the event of disputes, by providing that, in the social affairs sector, the parties must negotiate the number of employees to be maintained by unit and category of service, subject to the following minimum percentages: 90 per cent in establishments providing the services of a reception centre or long-term care, or specialised care in psychiatry, neurology or cardiology and in hospital centres having a department of clinical psychiatry or a community health department; 80 per cent in hospital centres for short-term care and the health care centres not contemplated in the previous category; 60 per cent in local community services other than health care centres; 55 per cent in social service centres. The Government adds that, in the event an agreement is not reached, the association of employees is required to submit to the Essential Services Council a list specifying the services to be maintained, and that the exercise of the right to strike is subject to the Council's approval of an agreement or list.
47. 129. The Government explains that the Essential Services Council, which is composed of equal numbers of employers' and workers' representatives, has been granted new powers. Thus,in the event of a lock-out, strike, slowdown or other organised action which is contrary to the Act or likely to affect the services to which the public is entitled, or in the absence of an agreement or list concerning essential service in connection with a strike, the Council may intervene in an effort to help the parties settle the dispute and, if need be, order the parties to take corrective measures appropriate to the circumstances.
48. 130. The Government considers that the new limitations on the right to strike in the social affairs sector are in accordance with the principles and criteria stated by the Committee on Freedom of Association as follows: "The right to strike may be restricted or even prohibited in the civil service - civil servants being those who act on behalf of the public authorities - or in essential services in the strict sense of the term, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population" (paragraph 394 of the Digest of Decisions), and that "the hospital sector is an essential service" (paragraph 409).
49. 131. The Government emphasises that the minimum percentages established in Act 37 have been determined so as to guarantee services which are strictly necessary to avoid endangering the life, personal safety or health of Quebec's population. As concerns safeguards instituted to compensate for the limitation of the right to strike in the social affairs sector, the procedures for settling disputes on matters negotiated at the national level and at the local or regional level are equally applied. Thus, the Government considers to have conformed with the principles set out by the Committee on Freedom of Association in the following words: "Where the right to strike is restricted or prohibited in certain essential undertakings or services, adequate protection should be given to the workers to compensate them for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services" (paragraph 396 of the Digest of Decisions).

C. The Committee's conclusions

1. 132. In the present case, the complainants criticise the contents of Quebec's Act 37 of 19 June 1985 concerning the process of negotiation of the collective agreements in the public and parapublic sectors. They allege that the text would effectively suppress arbitration and limit the right to strike, claiming: (1) that the scope of negotiation of groups of associations of employees or associations of employees would be limited or fragmented, even for workers belonging to the same sector or the same establishment, and that collective bargaining would be imposed at the national or local level; (2) that the Government would determine salaries and salary scales by decree for the second and third years of the collective agreement, and that the workers would have no means to guarantee or defend their interests in the sectors concerned; (3) that the right to strike would be severely limited; (4) and lastly, that the Essential Services Council, an administrative body, would be given quasi-judicial powers. 133. The Committee notes that a complaint was filed in 1982 by several trade union organisations in the public sector concerning the determination of salaries for these workers (Case No. 1171). This complaint was examined in November 1983 (see 230th Report, paragraphs 114 to 171), and the Committee had then noted that the Government of Quebec strove to negotiate with the trade unions in the public and parapublic sectors, and that for a considerable number of them including certain of the complainant unions, these negotiations did lead to the conclusion of a collective agreement or some other agreement amending the decrees determining working conditions in those sectors. Nevertheless, the Committee noted with concern that Acts Nos. 70 and 105 had imposed important salary reductions on certain salaried employees by proclaiming that the requirements of government financial policy took precedence over collective agreements, and it regretted that Act No. 111 had suspended the right to strike of teachers until 1985. In conclusion, the Committee recommended that, in order to restore harmonious industrial relations, the Government should continue collective bargaining in the sectors concerned so as to settle the salary conditions of the workers in question in an atmosphere of mutual trust, and requested the Government to lift the suspension of the right to strike imposed on teachers until 1985. 134. In the present case, the Committee notes that the system of industrial relations instituted by Act 37 which, as the Government states, covers the Government, its ministries and bodies, the establishments of the public health network, social services as well as the establishments of the public education network, is complex. What is at issue now is whether the procedures for determining the conditions of employment and the settlement of disputes involving persons employed by the public authorities in Quebec conform with the principles set forth in these matters by the Committee on Freedom of Association. 135. The Committee notes that the Government claims to have taken appropriate measures to encourage and promote the development and full utilisation of procedures for the voluntary negotiation of collective agreements in the determination of conditions of employment, and that the limitations to the right to strike in the public and parapublic sectors are accompanied by suitable safeguards to protect the interests of workers. 136. In the present case, as regards the level of negotiations, the Committee notes that the complainants allege that the scope of negotiation of groups of associations or associations has been limited and fragmented, even in cases where the workers concerned belong to the same sector or the same establishment, and that bargaining has been imposed at the national or local level. On the other hand, according to the Government, the experience of previous negotiations has shown that the concentration of bargaining at the national level resulted in the politisation of discussions and the overloading of agendas, on the one hand, and on the other that the great distance between the places where working conditions were discussed and those where they were experienced on a daily basis, created difficulties in applying collective agreements locally; therefore Act 37 sought to establish a process which allows the parties to agree to negotiate on a local basis matters more suitably discussed at that level. The Government acknowledges, however, that, in the education sector, as regards teaching personnel and, in the case of colleges, as regards professional non-teaching staff, the matters to be discussed at the local or regional level, in addition to those agreed by the parties, will also include those listed in Schedule A of the Act. 137. The Committee notes that the schedule in question contains from 25 to 28 matters as diverse as the recognition of local parties, union dues, time off for union activities, meetings and bill posting, information transmitted at the local level, labour relations committees, departments, selection of teachers, education committees, engagements, seniority, disciplinary measures, leave for professional activities and leave without pay, modalities for the payment of salary, moving expenses, civil liability, professional improvement, hygiene and safety, placement on reserve, distribution of workload, annual vacation, parking, sexual harassment, grievance and arbitration on matters negotiated locally, etc. 138. According to the Government, however, the text establishes a permanent process for negotiation as regards matters defined by the law or by common consent between the parties as clauses to be negotiated at the local or regional level. The Government claims that the opportunity to initiate negotiations at any time is counterbalanced, in the terms of Act 37, by the absence of the right to strike and lock-out at this level. 139. To the extent that the terms of this Act allow the parties to decide by common agreement to negotiate at a more appropriate level the conditions of work that are not common to all employees and which do not directly affect their standard of living, thereby accepting the permanent machinery for negotiation set up by the Act, and waiving the right to resort to strikes or lock-outs on these matters, the Committee considers that these provisions of the Act do not require further comment. On the other hand, as concerns the matters listed in Schedule A, which must be negotiated through the new permanent machinery and which cannot constitute grounds for a strike or lock-out, while it is true, as the Government notes, that these matters concern the modalities for applying regulations established at the national level or by law, or concern rules that affect conditions of employment in each undertaking, and as such can only be negotiated locally (for example, with union dues, the modalities for collecting and remitting funds, since the Labour Code itself stipulates the obligation for the employer to withhold union dues at the source), it is none the less a fact that the Act deprives workers in teaching establishments of the right to resort to strikes to protect their rights. 140. Consequently, the Committee requests the Government to amend the relevant provisions of Act 37 (in particular section 58) in order to allow the parties themselves to determine freely which matters concerning conditions of work shall be negotiated at the local level, where such matters are not common to all employees, and accept the permanent machinery for negotiation established by the Act. 141. As regards the allegations that Act 37 allows the Government to determine salaries and salary scales by decree for the second and third years of a collective agreement without providing safeguards for workers to defend the interests of the sectors concerned, and prohibits recourse to strikes in matters affecting salaries, the Committee notes the Government's statement that the impasses encountered during previous negotiations resulted from substantial discrepancies between government offers and trade union demands due, in parti

The Committee's recommendations

1. 147. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a) As regards the establishment through legislation of the list of matters which must compulsorily be negotiated locally and for which the right to strike is thus prohibited, the Committee requests the Government to take measures to amend the legislation so as to permit the parties themselves to decide freely the level at which they wish to negotiate certain conditions of work.
   • b) As regards the determination of salaries for the second and third years of a collective agreement in the public sector, the Committee suggests that the Government consider the possibility of establishing a further procedure enabling both parties to appeal to a mediator or independent arbiter to resolve a dispute in cases where the machinery set up by the Act is unsuccessful in resolving the dispute, especially since strikes are prohibited during this period. The awards of such arbiters should be binding on both parties. Furthermore, the Committee reminds the Government that workers in education establishments should enjoy the right to strike.
   • c) Concerning the power to determine which services should be maintained in the event of strike in the social services sector and the remedial powers granted to the Essential Services Council, the Committee trusts that this joint Council will not use its powers except in situations involving strikes in essential services in the strict sense of the term, which would endanger the life, personal safety or health of part or all of the population. Furthermore, it invites the Government to allow the parties to resort to independent arbitration for the settlement of disputes.

APPENDIX

1. Extract of pertinent provisions of the Act respecting the process of
2. negotiation of the collective agreements in the public and parapublic sectors
3. CHAPTER II
4. INSTITUTE FOR RESEARCH AND INFORMATION ON REMUNERATION
5. DIVISION I
6. ESTABLISHMENT AND COMPOSITION
7. 2. An agency is hereby established under the name of "Institut de recherche
8. et d'information sur la rémuneration" (Institute for Research and Information
9. on Remuneration).
10. .............................................................. ....
11. 4. The affairs of the Institute shall be administered by a board of directors
12. consisting of not more than 19 members, including a president and two
13. vice-presidents.
14. 5. The president and vice-presidents shall be appointed by resolution of the
15. National Assembly passed by no less than two-thirds of its Members, on a
16. motion of the Prime Minister, presented after consultation with the groups of
17. associations of employees contemplated in section 26, the associations of
18. employees contemplated in section 27, the groups of school boards, colleges
19. and establishments contemplated in sections 31 and 37 and with the
20. associations of employees recognised or certified under sections 54 to 67 of
21. the Public Service Act.
22. .............................................................. ....
23. 6. The other members shall be appointed by the Government.
24. Six of the members shall be chosen from among the persons whose names appear
25. on lists drawn up by the associations of employees and the groups of
26. associations of employees contemplated in this Act and by the associations of
27. employees recognised or certified under sections 64 to 67 of the Public
28. Service Act.
29. Six other members shall be appointed after consultation with the groups of
30. school boards, colleges and establishments.
31. The Government may, in addition, appoint not more than two other members
32. after consultation with the organisations most representative of the employees
33. of the private sector and not more than two other members after consultation
34. with the organisations most representative of the employers of the private
35. sector.
36. DIVISION II
37. FUNCTIONS
38. .............................................................. ....
39. 19. The Institute is responsible for informing the public on the comparative
40. state and evolution of the total remuneration of the employees of the
41. Government and of school boards, colleges and establishments, and the total
42. remuneration of any other category of persons employed in Quebec that it
43. determines.
44. The Institute may conduct surveys, studies and analyses on the remuneration
45. in various occupations or groups of employees in Quebec.
46. No later than 30 November each year, the Institute shall publish a report of
47. its findings.
48. CHAPTER III
49. COLLECTIVE AGREEMENTS OF THE EDUCATION AND SOCIAL AFFAIRS SECTORS
50. DIVISION I
51. GENERAL PROVISION
52. .............................................................. ....
53. 25. The clauses of a collective agreement binding between an association of
54. employees and a school board, a college or an establishment shall be
55. negotiated and agreed by unions and management at the national level or at the
56. local or regional level in accordance with the provisions of this chapter.
57. DIVISION II
58. ORGANISATION OF THE PARTIES
59. 1. The unions
60. 26. Every association of employees that belongs to a group of associations of
61. employees shall negotiate and agree the clauses contemplated in section 44
62. through a bargaining agent appointed by that group.
63. A group of associations of employees includes a union, federation,
64. confederation, corporation, labour body or other organisation which an
65. association of employees representing persons employed by a school board, a
66. college or an establishment joins, or to which it belongs or is affiliated.
67. 27. Every association of employees that does not belong to a group of
68. associations of employees shall negotiate and agree the clauses contemplated
69. in section 44 as well as those contemplated in sections 57 and 58 that are
70. applicable to the employees that it represents, through a bargaining agent
71. appointed by that association.
72. 28. The clauses negotiated and agreed by a group of associations of employees
73. are binding on every new association of employees that affiliates to that
74. group while the clauses contemplated in section 44 are in effect.
75. 29. For the purposes of the negotiation of a collective agreement binding
76. between an association of employees and a school board or a college, the
77. following classes of personnel shall form separate groups:
78. (1) the teachers employed by the school boards or, as the case may be, by the
79. colleges;
80. (2) the non-teaching professional staff;
81. (3) the support staff.
82. .............................................................. ....
83. DIVISION III
84. MODE OF NEGOTIATION
85. 1. Clauses negotiated and agreed at the national level
86. .............................................................. ....
87. 44. The clauses negotiated and agreed at the national level shall deal with
88. all the matters contained in the collective agreement, except those matters
89. that are defined as being the subject of clauses negotiated and agreed at the
90. local or regional level under sections 57 and 58.
91. They may also provide for modes of discussion between the parties for the
92. duration of the collective agreement for the purpose of resolving
93. difficulties.
94. 45. The clauses negotiated and agreed at the national level may be the
95. subject of agreements negotiated and agreed at the local or regional level in
96. accordance with section 70.
97. 46. At the request of either party the Minister of Labour shall entrust a
98. mediator with attempting to settle a dispute on matters that are the subject
99. of a clause negotiated and agreed at the national level, except salaries and
100. salary scales.
101. In the social affairs sector, the request to the Minister shall be made by a
102. management negotiating subcommittee or by the union negotiating with the
103. subcommittee. The dispute to be settled by the appointed mediator shall
104. include all matters contemplated in section 44 concerning the establishments
105. represented by the subcommittee, except salaries and salary scales.
106. 47. If no agreement is reached within 60 days after the date of his
107. appointment, the mediator shall transmit to the parties a report containing
108. his recommendations on the dispute.
109. The report shall be made public unless an agreement on the dispute has been
110. reached.
111. The period provided for in the first paragraph may be extended with the
112. consent of the parties.
113. 48. The parties may agree on a procedure of mediation other than that
114. provided in sections 46 and 47. They may, in particular, appeal to a board of
115. mediation or a public interest group.
116. A third party designated under the first paragraph shall make to the parties
117. a report of its recommendations on the dispute within the time-limit they
118. determine.
119. The report shall be made public unless an agreement on the dispute has been
120. reached.
121. 49. In case of a dispute on a matter that is the subject of a clause
122. negotiated and agreed at the national level, the parties may also agree to
123. make a joint report on the subject of their dispute and make it public.
124. 50. Every person or group by whom or which a report is made public pursuit to
125. sections 47, 48 or 49 shall, on the same day, give a written notice thereof to
126. the Minister of Labour.
127. The Minister shall, without delay, inform the parties of the date he received
128. the notice.
129. .................................................... .......... ....
130. 2. Salaries and salary scales
131. 52. The clauses of the collective agreements which deal with salaries and
132. salary scales shall be negotiated and agreed at the national level for a
133. period ending, at the latest, on the last day of the year in course of which
134. an agreement concerning such clauses has been reached at the national level.
135. For each of the two years following the year for which the clauses are
136. applicable, the salaries and salary scales shall be determined in accordance
137. with the provisions which follow.
138. 53. After publication by the Institute of the report contemplated in section
139. 19, the Conseil du trésor (Council of the Treasury), in collaboration with the
140. management negotiating committees established under this chapter, shall
141. negotiate with the groups of associations of employees or, as the case may be,
142. the associations of employees in view of reaching an agreement on the
143. determination of the salaries and salary scales.
144. 54. The Chairman of the Conseil du trésor shall, each year, during the second
145. or third week in March, table in the National Assembly a draft regulation
146. fixing the salaries and salary scales for the current year.
147. .............................................................. ....
148. The draft regulation shall be accompanied with a notice that it will be
149. submitted to the Government, for adoption with or without amendment, during
150. the second or third week in April. In no case may the draft regulation be
151. submitted to the Government for adoption until the parties have been invited
152. to a hearing on its content before a Parliamentary Committee.
153. 55. The salaries and salary scales applicable for the current year are those
154. provided for in the regulation adopted by the Government during the second or
155. third week in April. In no case may the salaries and salary scales be lower
156. than those of the preceding year.
157. .............................................................. ....
158. 56. Once fixed by regulation, the salaries and salary scales shall form part
159. of the collective agreement and have the same effect as clauses negotiated and
160. agreed at the national level.
161. 3. Clauses negotiated and agreed at the local or regional level
162. 57. In the social affairs sector and, in the education sector, in respect of
163. the support staff and the non-teaching professional staff of school boards,
164. the matters pertaining to the clauses negotiated and agreed at the local or
165. regional level are those that are defined by the parties in the course of the
166. negotiation of the clauses negotiated and agreed at the national level.
167. 58. In the education sector, in respect of the teaching staff, and in the
168. case of colleges, in respect of the non-teaching professional staff, the
169. matters listed in Schedule A are the subject of clauses negotiated and agreed
170. at the local or regional level.
171. The same applies, in respect of the same classes of personnel, to any other
172. matter defined by the parties in the course of the negotiation of the clauses
173. negotiated and agreed at the national level.
174. .............................................................. ....
175. 60. In matters defined as being the subject of clauses negotiated and agreed
176. at the local or regional level, an association of employees and an employer
177. may, at all times, negotiate and agree on the replacement, amendment, addition
178. or repeal of a clause of the collective agreement.
179. In no case, however, may any negotiation under the first paragraph give rise
180. to dispute.
181. .............................................................. ....
182. 62. If no agreement is reached on a matter that is the subject of clauses
183. negotiated and agreed at the local or regional level, one party may request
184. the Minister of Labour to appoint a mediator-arbitrator in view of the
185. settlement of the disagreement.
186. 63. The mediator-arbitrator shall endeavour to bring the parties to settle
187. their disagreement. For that purpose, he shall meet the parties and, in case
188. of refusal to attend a meeting, give them an opportunity to present their
189. views.
190. 64. If a disagreement still subsists 60 days after the appointment of the
191. mediator-arbitrator, the parties may, in common agreement, request the
192. mediator-arbitrator to rule on the subject of the disagreement. If the
193. mediator-arbitrator is then of the opinion that a settlement is not likely to
194. be reached by the parties, he shall rule on the question and inform the
195. parties of his decision.
196. The decision of the mediator-arbitrator is deemed to be an agreement within
197. the meaning of section 60.
198. 65. If the mediator-arbitrator makes no decision under section 64, he shall
199. make a report of his recommendations on the subject of the disagreement to the
200. parties.
201. The mediator-arbitrator shall make the report public ten days after having
202. transmitted it to the parties.
203. 66. The parties may agree on any other mode of settlement of a disagreement.
204. .............................................................. ....
205. 4. Local arrangements
206. 70. In the social affairs sector and, in the education sector, in respect of
207. the support staff and in respect of the non-teaching professional staff of the
208. school boards, the parties may, once the collective agreement is in force,
209. agree on local or regional arrangements in view of the implementation or
210. replacement of a clause of the collective agreement negotiated and agreed at
211. the national level on a matter provided for in Schedule B that is applicable
212. to the establishment, to the school board or, as the case may be, to the
213. college.
214. In addition to what is provided for in the first paragraph, the parties to a
215. collective agreement may also negotiate and agree such agreements to the
216. extent that a clause negotiated and agreed at the national level provides
217. therefore.
218. 71. In no case may the negotiation of a local arrangement give rise to a
219. dispute.
220. .............................................................. ....
221. CHAPTER VI
222. AMENDMENTS TO THE LABOUR CODE
223. .............................................................. ....
224. 89. The said Code is amended by replacing sections 111.10 to 111.10.6,
225. enacted by sections 11 and 12 of Chapter 37 of the Statutes of 1982, by the
226. following sections:
227. 111.10 In the event of a strike in an establishment, the percentage of
228. employees to be maintained per workshift from among the employees who would
229. usually be on duty during that period shall be at least:
230. (1) 90 per cent in an establishment providing the services of a reception
231. centre or long-term care, an establishment providing specialised care in
232. psychiatry, neurology or cardiology and a hospital centre having a department
233. of clinical psychiatry or a community health department;
234. (2) 80 per cent in a hospital centre for short-term care and a health-care
235. centre not contemplated in paragraph 1;
236. (3) 60 per cent in a local community service centre other than a health-care
237. centre;
238. (4) 55 per cent in a social service centre.
239. In the case of a body declared by the Government to be classified as an
240. establishment under the fourth paragraph of section 1 of the Act respecting
241. the process of negotiation of the collective agreements in the public and
242. parapublic sectors, the number of employees to be maintained shall be
243. determined by agreement between the parties or, failing an agreement, by a
244. list established in accordance with section 111.10.3. The agreement or the
245. list shall be approved by the Council.
246. 111.10.1 The parties shall negotiate the number of employees to be maintained
247. per unit of care and class of services from among the employees usually
248. assigned to such units of care and classes of services. The agreement shall,
249. in addition to conforming to section 111.10, in the case of an establishment
250. contemplated therein, include provisions designed to ensure the normal
251. operation of intensive care units and emergency care units, if necessary. It
252. shall also include provisions designed to ensure a recipient's freedom of
253. access to the establishment.
254. The agreement shall be transmitted to the Council for approval.
255. 111.10.2 Every establishment shall, upon request, inform the Council of the
256. number of employees per bargaining unit, workshift, unit of care and class of
257. services, who are usually on duty for the period indicated in the request.
258. 111.10.3 If no agreement is reached, every certified association shall
259. transmit to the Council for approval a list providing, per unit of care and
260. class of services, the number of employees of the bargaining unit who are
261. maintained in the event of a strike.
262. The list shall provide, from among the employees of the bargaining unit
263. usually assigned to a care unit or class of services in the establishment,
264. that a number of employees at least equal to the percentage provided in
265. subparagraphs 1-4 of the first paragraph of section 111.10 that is applicable
266. to the establishment, are maintained.
267. The list shall also include provisions designed to ensure the normal
268. operation of intensive care units and emergency care units, if necessary. It
269. shall also include provisions designed to ensure a recipient's freedom of
270. access to the establishment.
271. Any list providing for a number of employees greater than the usual number of
272. employees required in the service concerned is null and void.
273. 111.10.4 On receiving an agreement or a list, the Council shall assess, with
274. reference to the applicable criteria set forth in sections 111.10, 111.10.1
275. and 111.10.3, whether or not the essential services provided for therein are
276. sufficient.
277. In case of disagreement between the parties, the Council may, to the
278. exclusion of any other person, rule on the qualification of an establishment
279. for the purposes of the application of the percentages provided in the first
280. paragraph of section 111.10.
281. The parties are bound to attend any sitting of the Council to which they are
282. convened."
283. 111.10.5 Even where a list or agreement is consistent with the criteria set
284. forth in sections 111.10, 111.10.1 and 111.10.3, the Council, before approving
285. it, may, if the situation of the establishment justifies it, increase or
286. modify the services provided for therein.
287. If it considers that the services are insufficient, the Council may make to
288. the parties the recommendations that it considers appropriate in view of
289. amending the list or agreement, or it may approve the list with amendments.
290. 111.10.6 No list approved by the Council may be amended thereafter except at
291. the latter's request. If an agreement is reached between the parties after the
292. list is filed with the Council, the agreement approved by the Council shall
293. prevail.
294. 111.10.7 Every list or agreement is considered to be approved as filed if,
295. within 90 days of its receipt by the Council, the latter has not ruled on the
296. sufficiency of the services provided for in it.
297. However, the Council may subsequently amend, if necessary, such a list or
298. agreement in order to bring it into conformity with the applicable provisions
299. of sections 111.10, 111.10.1 and 111.10.3.
300. 111.10.8 No person may derogate from the provisions of a list or agreemen
301. approved by the Council.
302. 90. Section 111.11 of the said Code, enacted by section 34 of Chapter 45 of
303. the statutes of 1984, is amended
304. (1) by replacing the first paragraph by the following paragraphs:
305. 111.11 In no case may a party declare a strike or a lock-out unless 20 days
306. have lapsed since the date on which the Minister received the notice provided
307. for in section 50 of the Act respecting the process of negotiation of
308. collective agreements in the public and parapublic sectors and the party has
309. given a prior notice of at least 7 clear juridical days in writing to the
310. Minister and to the other party, and to the Council in the case of an
311. establishment, indicating when it intends to resort to a strike or to a
312. lock-out.
313. Where the parties have reached an agreement on all the clauses negotiated and
314. agreed at the national level except salaries and salary scales, the 20 day
315. period after which a strike or lock-out may be declared shall run from the
316. date of the agreement.
317. .............................................................. ....
318. 91. Sections 111.12 to 111.15 of the said Code, enacted by sections 14 and 15
319. of Chapter 37 of the Statutes of 1982, are replaced by the following sections:
320. 111.12 In the case of an establishment, no strike may be declared by a
321. certified association unless an agreement or a list has been approved by the
322. Council or unless a list or agreement is considered to be approved under
323. section 111.10.7 and unless the list or agreement has been transmitted to the
324. employer not less than 90 days previously.
325. .............................................................. ....
326. 111.14 Strikes and lock-outs are prohibited in respect of a matter defined as
327. pertaining to clauses negotiated and agreed at the local or regional level or
328. subject to local arrangements pursuant to the Act respecting the process of
329. negotiation of the collective agreements in the public and parapublic sectors
330. as well as in respect of the determination of the salaries and salary scales
331. provided for in the second paragaph of section 52 and in sections 53 to 55 of
332. the said Act.
333. 92. The said Code is amended by adding, after Division III of Chapter V.1,
334. the following:
335. DIVISION IV
336. REMEDIAL POWERS
337. 111.16 In public services and in the public and parapublic sectors, the
338. Conseil des services essentiels (Essential Services Council), of its own
339. initiative or at the request of an interested person, may inquire into a
340. lock-out, a strike or a slowdown that is contrary to law or during which the
341. esential services provided for in a list or agreement are not rendered.
342. The Council may also endeavour to bring the parties to an agreement or
343. entrust a person it designates with attempting to bring them to an agreement
344. and reporting on the situation.
345. 111.17 The Council, if it considers that the conflict is or is likely to be
346. prejudicial to a service to which the public is entitled or that the essential
347. services provided for in a list or agreement are not rendered during a strike,
348. may, after giving the parties the opportunity to submit their views, make an
349. order to ensure that a service to which the public is entitled is available,
350. or require compliance with the law, a collective agreement or an agreement or
351. list on essential services.
352. The Council may:
353. (1) enjoin any person involved in the conflict or any category of these
354. persons it determines to do what is required to comply with the first
355. paragraph of this section, or abstain from doing anything in contravention
356. thereof;
357. (2) require from any person involved in the conflict to remedy any act or
358. omission done or made in contravention of the law, of an agreement or of a
359. list;
360. (3) order in respect of a person or group of persons involved in a conflict,
361. taking into consideration the conduct of the parties, the application of the
362. measures of redress it considers best appropriate, including the establishment
363. of a fund for the benefit of the users of the service that has been adversely
364. affected, and the terms and conditions governing the administration and use of
365. that fund;
366. (4) order every person involved in the conflict to do or abstain from doing
367. anything that it considers reasonable in the circumstances in view of
368. maintaining services for the public;
369. (5) order, where that is the case, that the grievance or arbitration
370. procedure under a collective agreement be accelerated;
371. (6) order a party to make known publicly its intention to comply with the
372. order of the Council.
373. .................................................... .............