Report in which the committee requests to be kept informed of development - Report No 337, June 2005

Case No 2277 (Canada) - Complaint date: 09-JUN-03 - Closed

Allegations: The complainant organization alleges that the provincial government significantly altered the rights to organize and to bargain collectively of health-care sector employees, through the speedy adoption of legislation, without proper consultations with trade unions

343. The Committee examined this case at its March 2004 meeting, where it presented an interim report to the Governing Body [see 333rd Report, paras. 240-277].

1. 344. The complainant provided further information in a communication dated 25 October 2004.
2. 345. The Government sent some observations in communications dated 16 April 2004 and 6 January 2005.
3. 346. Canada has ratified the Freedom of Association and Protection of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). It has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), nor the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 347. At its March 2004 meeting, the Committee made the following recommendations [see 333rd Report, para. 277]:
2. (a) The Committee requests the Government to amend rapidly the legislative provisions depriving nurse practitioners of the right to establish and join organizations of their own choosing, and to keep it informed of developments.
3. (b) The Committee requests the Government to ensure that, in future rounds of negotiations, only workers of the health sector providing essential services in the strict sense of the term may be deprived of the right to strike and that they enjoy adequate, impartial and speedy conciliation and arbitration proceedings, in accordance with freedom of association principles.
4. (c) The Committee requests the Government to keep it informed of developments concerning the severance pay dispute involving workers at the Alberta Mental Health Board, and to provide it with the arbitration decision thereon.
5. (d) Recalling that where a Government seeks to alter bargaining structures in which it acts directly or indirectly as employer, it is particularly important to follow, before the introduction of legislation, an adequate consultation process conducted in good faith and where social partners should have all the necessary information, the Committee notes the alleged lack of adequate consultations in this instance, prior to the Government’s decision to change functional and regional bargaining structures and requests the complainant organization to provide additional information on the practical consequences of these changes.
6. (e) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
7. B. The complainant’s additional information
8. 348. In its communication of 25 October 2004, the complainant AUPE provides the following information and allegations, in reply to the Committee’s request (333rd Report, paragraph 277(d)). AUPE states that the labour relations turmoil it had predicted in its initial allegations, as a result of the run-off votes mandated by Bill 27 has now become a reality. Members of one union have become members of another union for no other reason than the “winner takes all” scenario imposed by the Government. Even though AUPE was ultimately successful in these votes, it had to expend a great deal of time, effort and resources to ensure that result. AUPE has to train new shop stewards and has to deal with an incredible backlog of grievances, arbitrations and hearings inherited from other unions.
9. 349. The complainant adds that the difficult task of merging collective agreements has begun. Employers have already taken the position that benefits in existing collective agreements will not simply be rolled over into the new merged contracts, and that these benefits must be renegotiated; members thus stand to suffer if benefits are rolled back. In addition, legislative amendments took away the right to strike from some members. AUPE will continue to do everything it can to prevent employers from doing this, but efforts made to maintain benefits that have already been agreed upon affect the union’s ability to enhance wages and working conditions for members.
10. 350. In its communication of 26 June 2003, the complainant had indicated that Bill 27 would nullify severance provisions in existing collective agreements, and made reference in particular to the position taken by the Alberta Mental Health Board (AUPE is in a bargaining relationship with that employer) that it did not have to pay severance pay to AUPE members under the applicable collective agreement. AUPE filed a grievance against that decision and the arbitrator ruled in favour of the employer (the complainant attaches a copy of the arbitrator’s decision).
11. 351. The complainant states in summary that the changes resulting from the adoption of Bill 27 have meant that AUPE and other surviving unions are faced in practice with employers eager to re-write collective agreements to the detriment of members. Some of the more regressive outcomes may not be known until collective agreements have been settled, a process that is still in the making.
12. C. The Government’s reply
13. 352. In its communication of 16 April 2004, the Government states:
14. – as regards recommendation (a), that nurse practitioners, like other independent professionals, already have the right to establish and join professional associations of their own choosing;
15. – as regards recommendation (b), that it supports these principles. Health-care employees who provide essential services are covered by the Labour Relations (Regional Health Authorities Restructuring) Amendment Act, which establishes a fair, objective and transparent common means to resolve labour disputes. The Compulsory Arbitration Board is a recognized and accepted means of dispute resolution, and has been used on a regular basis by health-care workers, fire, police and other providers of essential services;
16. – as regards recommendation (c), that there are currently several arbitration processes under way with a few employees of the Alberta Mental Health Board who were subject to a particular collective agreement with anomalous severance pay provisions. These have not been resolved yet; the Government will report on the outcomes once the arbitration process is completed.
17. 353. In a communication dated 6 January 2005, the Government indicated that it did not have any additional comment to make on the complainant’s supplementary information and allegations.

D. The Committee’s conclusions

1. 354. The Committee notes the complainant’s additional information, and the Government’s reply.
2. 355. As regards its recommendation that the law depriving nurse practitioners of the right to establish and join organizations of their own choosing be amended, the Committee notes the Government’s statement that these workers already have the right to establish and join professional associations of their own choosing. The Committee must emphasize that the issue here is not the possibility to join professional associations, but the right to establish and join workers’ organizations (trade unions); recalling its previous comments in this respect [see 333rd Report, para. 273] and stressing once again that the only possible exceptions provided for in Convention No. 87 are police and armed forces, the Committee urges once again the Government to repeal as soon as possible the legislative provisions that deprive nurse practitioners of the right to establish and join organizations of their own choosing.
3. 356. Regarding its recommendation that essential services workers deprived of the right to strike should enjoy adequate, impartial and speedy conciliation and arbitration proceedings, the Government states that the employees in question are covered by the Labour Relations (Regional Health Authorities Restructuring) Amendment Act, which establishes a fair, objective and transparent common means to resolve labour disputes, and that the Compulsory Arbitration Board is a recognized and accepted means of dispute resolution, which has been used on a regular basis by health-care workers, fire, police and other providers of essential services. The Committee notes that information.
4. 357. As regards its request to be kept informed of developments concerning ongoing severance pay disputes at the Alberta Mental Health Board, the Committee notes the ruling issued by the arbitrator (6 August 2004), who decided that the employees in question were not entitled to severance pay as there was no termination of employment, and that the change of employer did not constitute such a termination.
5. 358. Based on the additional information provided by the complainant on the practical effects of the major restructuring brought about by Bill 27, the Committee notes the substantial difficulties faced by the complainant and other unions as a result of that change, and those resulting from the ongoing merger of collective agreements. The Committee notes in particular that some employers have already taken the position that benefits in existing collective agreements would not be rolled over into the new merged contracts but should be renegotiated, which the Government does not deny. Noting that this situation (the regrouping in different bargaining units, which in turn entailed a renegotiation of collective agreements) was an indirect consequence of government legislative intervention, the Committee strongly recommends that the Government ensure that all efforts are made by said employers in upcoming negotiations so that workers are not detrimentally affected under new collective agreements. The Committee requests the Government to keep it informed of developments in this respect.
6. 359. Noting that the right to strike was taken away from some workers, the Committee recalls its previous recommendation that only workers providing essential services in the strict sense of the term may be deprived of the right to strike, provided furthermore that they enjoy adequate, impartial and speedy conciliation and arbitration proceedings, in accordance with freedom of association principles.

The Committee's recommendations

1. 360. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges once again the Government to repeal as soon as possible the legislative provisions that deprive nurse practitioners of the right to establish and join workers’ organizations of their own choosing.
   • (b) The Committee strongly recommends that the Government ensure that all efforts are made by the employers concerned in upcoming negotiations so that workers are not detrimentally affected under new collective agreements.
   • (c) The Committee requests the Government to ensure that only those workers providing essential services in the strict sense of the term may be deprived of the right to strike, provided that they enjoy adequate, impartial and speedy conciliation and arbitration proceedings, in accordance with freedom of association principles.
   • (c) The Committee requests the Government to keep it informed of developments in these respects.