Report in which the committee requests to be kept informed of development - Report No 370, October 2013

Case No 2971 (Canada) - Complaint date: 04-JUN-12 - Closed

Allegations: The complainant alleges that Bill 33 adopted by the Government of Quebec imposes on trade unions in the Quebec construction industry overriding conditions on bargaining, representation and the right to strike which restrict and impede the lawful exercise of the rights of workers’ and employees’ associations

1. 195. The complaint is contained in a communication from the Fédération des travailleurs du Québec (FTQ-Construction) dated 4 June 2012. It is supported by the Conseil provincial du Québec des métiers de la construction (International) in a communication dated 13 September 2012.
2. 196. The Government of Canada transmitted the observations of the Government of Quebec in a communication dated 8 May 2012.
3. 197. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 198. In its communication of 4 June 2012, FTQ-Construction states that, on 2 December 2011, the Government of Quebec adopted an Bill to Eliminate Union Placement and Improve the Operation of the Construction Industry (hereinafter “Bill 33”). The complainant states that this Bill imposes on trade union associations in the Quebec construction industry conditions pertaining to bargaining, representation and acquisition of the right to strike, which restrict or impede the exercise of the rights of workers and employees’ associations. Bill 33 amends the Act Respecting Labour Relations, Vocational Training, and Workforce Management in the Construction Industry (hereinafter “Act R-20”), which governs labour relations in the construction sector. The Act provides for compulsory union membership for workers in five employees’ associations (of which FTQ-Construction is the largest, representing more than 44 per cent of all construction workers in Quebec province), collective bargaining mechanisms for certain sectors of the construction industry and a body with equal labour/management representation, the Commission de la construction du Québec. The Act also addresses, inter alia, the application of collective agreements, the right to strike, and a prohibition on holding certain trade union positions.
2. 199. The complainant contends that Bill 33 violates rights under the collective agreement, inter alia, by excluding, in its introductory provisions, forest access roads from the scope of Act R-20.
3. 200. FTQ-Construction adds that sections 43.7 and 44 of the Bill do not comply with the principles of collective bargaining, in that the Bill provides for an anti-democratic process of bargaining and adoption of collective agreements, by requiring the mandatory participation in negotiations of three of the five associations with greater than 50 per cent representation. Furthermore, FTQ-Construction states that, in view of the fact that the two main employees’ associations have an overwhelming majority of union membership among workers (of almost 75 per cent), Bill 33 in fact requires the participation of a third, minority, employees’ association in order for a collective agreement to be signed. This requirement is designed to favour certain associations which are sympathetic to the Government and which each individually represent only around 10 per cent of workers in the industry.
4. 201. In addition, the complainant submits that the Government forcibly repatriated a workforce development fund of several million dollars by entrusting the Commission de la construction du Québec with the management of the fund. However, the fund had been created and negotiated by mutual agreement between the employees and employers.
5. 202. FTQ-Construction adds that the provisions of Act R-20 as amended by Bill 33 concerning the right to strike in the construction industry violate the international standards in force, in that they make it de facto impossible to exercise the right to strike. For a strike to be lawful, the said Bill requires more than 50 per cent of the vote of the entire province for each of the five sectors. Such a right to strike does not take into account the specific nature of the trades and occupations in the context of bargaining, or any regional differences. The complainant alleges that this section, as amended by Bill 33, requires a vote of more than 50 per cent from three employees’ associations. It also notes that section 60.2 of the amended Act R-20 makes similar requirements of major construction projects.
6. 203. FTQ-Construction submits that the new Bill creates restrictions on union representation which are inconsistent with the collective agreement, in that it prohibits workers who have committed any of the offences referred to in section 26 of the amended Act R-20 from becoming a shop steward. However, the prohibition in that section refers not only to offences and serious crimes, but also to petty crimes such as common assault and anti union discrimination. The complainant objects to the State’s interference in the choice of its union representatives.
7. 204. The complainant states that section 3.2 of the amended Act R-20 provides for reduced union and employer representation on the board of directors of the Commission de la construction du Québec compared with the situation prior to the amendment, and notes that union representatives may not sit on the board of directors without Government authorization.
8. 205. The complainant also objects to section 24 of the Act, in that it empowers the Commission des relations du travail, which is responsible for the application of Act R-20, to change the union affiliation of a worker who complains of arbitrary or discriminatory conduct or acts of bad faith on the part of the association. FTQ-Construction considers that the Act may provide for prohibitions and disciplinary action, but cannot interfere in the freedom to choose a union, especially since the provision in the Act does not require the employee’s consent.
9. 206. Lastly, FTQ-Construction expresses its dissatisfaction that, under section 119.0.1 of the amended Act, associations are prohibited from providing, directly or indirectly, labour-referral services to employers in the construction industry, as they did in the past. The prohibition impedes the employees’ associations’ representation duties and infringes their rights to represent employees and to provide them with union-related services.

B. The Government’s response

1. 207. In its communication dated 13 September 2012, the Government transmits a communication from the Provincial Government of Quebec, in which it states that Act R 20 governs labour relations in the Quebec construction industry and establishes the Commission de la construction du Québec, which is responsible for the administration of the Act. The Government states that Bill 33 is the result of consultations with various stakeholders on the functioning of the construction industry conducted by a group of independent experts commissioned by the Minister of Labour. This committee received around sixty memos and took statements from representatives of trade unions, employers’ associations, contractors and their associations in the construction industry. The consultations took place in June and July 2011. In its analysis, the committee also took into account some twenty documents transmitted by organizations or individuals connected with the construction industry.
2. 208. The Government adds that, at the end of these consultations, the committee recommended that it legislate on the matter, while still retaining the guidelines pertaining to the Quebec construction industry: equal labour/management representation, mandatory unionization, trade union pluralism, legal framework of the bargaining process, and the role of the Commission de la construction du Québec in the governance of the industry and the application of collective agreements. The committee also recommended certain changes it considered essential to end the intimidatory and discriminatory practices in the construction industry. The Government emphasizes that Bill 33, which was based on the committee’s report, was subsequently reviewed by a parliamentary committee of the Quebec National Assembly, in which all parties concerned could participate by presenting or submitting a paper.
3. 209. The Government emphasizes that, despite the complainant’s claims concerning the exclusion of forest access roads from the scope of Act R-20, the law will apply to them as long as they have not been the subject of a special regulation, under the conditions of that regulation. The Government argues that no such regulation has been adopted. Furthermore, during the adoption process of a regulation, all interested persons may submit their comments. Moreover, even if forest roads were no longer to be subject to Act R-20, they would remain subject to the general regime set out in the Labour Code.
4. 210. The Government further submits that the amendments introduced by Bill 33 do not weaken the collective bargaining regime, but grant all trade union associations the right to participate in collective bargaining. It also states that the Bill retains the obligation to represent an absolute majority (50 per cent plus one) of workers in order to sign a collective agreement, and that that majority of workers must come from a majority of unions. The Government adds that these provisions strengthen trade union pluralism within the construction industry and ensure that the smallest organizations may participate effectively.
5. 211. The Government goes on to state that the administration of workforce training and development funds had already been entrusted to the Commission de la construction du Québec, even though in practice they were managed by independent committees of that body, comprised of both union and employer members.
6. 212. The Government explains that, as for the exercise of the right to strike, the requirement of a strike ballot at provincial level already existed prior to the amendments. What is new is that the strike must be voted for by a majority of 50 per cent plus one of workers coming from a majority of trade unions, which promotes greater trade union democracy.
7. 213. The Government then turns to the restrictions on union representation and states that the prohibitions on workers who have committed certain criminal offences such as common assault or discrimination from becoming shop stewards were intended to guarantee the probity and integrity of trade union representatives.
8. 214. As regards the appointment of persons from trade union or employer associations to the board of directors of the Commission de la construction du Québec, the Government states that such appointments have always been made by the Government after consultation with the organizations concerned. It explains that equal representation is maintained: four independent members (from neither the employers nor the unions) are members of the board of directors. This is a long-standing situation: only the selection criteria for the members of the organization’s board of directors have been amended. The trade union and employer members remain in the majority and in equal numbers.
9. 215. The Government states that workers may lawfully choose their union affiliation and that after making a complaint, a worker may not change union in an arbitrary or discriminatory manner merely on the pretext that the trade union association acted in bad faith. The worker must provide evidence of such before the Commission des relations du travail, which will authorize the change if it considers that the union was at fault. It is then the worker, not the Commission, who chooses the new affiliation.
10. 216. The Government submits that the labour-referral system by the trade union associations has always existed, but that, from now on, referrals will be made via a centralized system which enables trade unions to be informed of and respond to labour needs. This enables all workers who meet the job requirements to be referred, no matter which union they belong to.

C. The Committee’s conclusions

1. 217. The Committee notes that, in this case, the complainant alleges that, by promulgating Bill 33, the Government of Quebec has amended the labour relations regime of the construction industry, which is governed by the Act Respecting Labour Relations, Vocational Training, and Workforce Management in the Construction Industry, which has consequently amended and impeded the exercise of workers’ trade union rights. In this regard, the Committee notes that the Government states that consultations with various stakeholders in the industry, including representatives of employer and trade union associations, were conducted by a committee of independent experts prior to the adoption of the bill, and that that committee’s report was reviewed by a parliamentary committee of the Quebec National Assembly, in which all parties concerned could participate by presenting or submitting a paper.
2. 218. The Committee notes that the complainant states that the Government forcibly repatriated within the Commission de la construction du Québec a workforce development fund which had been created during previous negotiations together with the employers and which was managed by employers and trade unions. In this regard, the Committee notes the Government’s response that the administration of this fund is entrusted to the aforementioned Commission under Act R-20 and that it was only in practice that the management of the fund had been entrusted to independent committees of the Commission, whose members came from both the trade union and the employer spheres. The Committee also notes that the training regime is regulated within the Commission de la construction du Québec, in particular by the board of directors and the Committee on Vocational Training in the Construction Industry, which comprises 13 members, with equal numbers of employer and union members (five of each). The Committee notes that the complainant is represented on that committee.
3. 219. The Committee observes that, according to the allegations before it, the amendments to the Act result in the exclusion of forest access roads from its scope. In this regard, the Committee notes the Government’s response stating that the Act applies to these roads as long as they are not subject to a special regulation, in the preparation of which all interested parties may make comments. The Committee also notes the Government’s statement that no such regulation has been adopted to date, and that, even if the forest access roads were no longer subject to the special provisions of Act R-20, they would remain subject to the Labour Code, which codifies the overall labour relations regime. In these circumstances, the Committee will not pursue its examination of this allegation any further.
4. 220. The Committee notes that the complainant alleges that the amendments to the Act require the participation of three out of five employees’ associations whose representativeness is over 50 per cent of workers in order to initiate and conclude a collective bargaining process, whereas the two main associations currently represent 75 per cent of workers in the industry. The Committee notes that the Government responds to this statement by stating that the collective bargaining regime in the construction industry is not weakened by Bill 33 and that it maintains the requirement for an absolute majority of workers represented by the majority of trade unions to sign a collective agreement in the sector. The Government adds that the new provisions strengthen trade union pluralism within the industry and ensure the effective participation of smaller organizations. The Committee notes that, under section 44, “[i]n order to be considered as the collective agreement applicable in a sector, an agreement respecting the conditions of employment ... must be made by at least three associations whose representativeness is more than 50 per cent ...”. The Committee recalls that collective bargaining systems which give exclusive rights to the most representative trade union, and systems that enable several trade unions to participate in collective bargaining, are both compatible with the principles of freedom of association. However, in the case at hand, the Committee considers that, given the trade union representation as described by the complainant, the double threshold prescribed by the legislation – that is, a majority of 50 per cent plus one and the obligation to have a third organization when two trade unions would have been sufficient to attain the majority of workers – might impede the signing of the collective agreement in the sector. The Committee requests the Government, in consultation with all of the relevant social partners, to consider amending section 44 of Act R-20 so as to ensure that the signing of the collective agreement is not obstructed, taking into account the overall representativeness of the unions. The Committee requests the Government to keep it informed in this respect.
5. 221. The Committee observes that the complainant submits in its allegations that the Government’s amendments to Act R-20 prevent the effective exercise of the right to strike, in that a lawful strike must now receive more than 50 per cent of the vote at the sectoral level by three out of five employees’ associations in order to be adopted, whereas the two main associations alone represent 75 per cent of construction workers. The Committee notes that the Government states that the requirement of a ballot at the provincial level has always been necessary to call a strike, and that the reason for the new requirement that three associations participate is based on the need to promote greater trade union democracy. The Committee observes that under the amended section 45.4, “[a] strike is permitted ... provided that it is called for all the employees working in the sector and that it has been authorized, by secret ballot, by a majority of the voting members of at least three associations whose representativeness is 50 per cent or more”. The Committee requests the Government, in consultation with all of the relevant social partners, to consider amending this provision so as to ensure that recourse to strike action is also possible at the enterprise level. Furthermore, given the fact, that in the current context, under the amended section the two workers’ organizations representing 75 per cent of workers may be prevented from calling a strike, the Committee requests the Government and the unions concerned to seek a mutually acceptable solution in order to ensure that the workers’ right to strike is not impeded. The Committee requests the Government to keep it informed in this respect.
6. 222. The Committee observes that the complainant alleges that the new composition of the board of directors of the Commission de la construction du Québec has reduced union and employer representation, and that the union representatives may sit on the board only after receiving the Government’s permission. In this respect, the Committee notes the Government’s response stating that it has always made appointments to the board of directors after consultation with the organization concerned. The Committee in fact notes that under the amended section 3.2, with the exception of the Chairperson, the 15 members of the board of directors are appointed as follows:
7. 223. The Committee also notes that, according to the complainant, the amendments to Act R-20 prevent employees’ associations from providing, directly or indirectly, labour-referral services to employers in the construction industry, as they had done previously. In this regard, the Committee notes the Government’s indication that it is still possible for workers’ associations to provide labour referrals, but that they must do so via a centralized system enabling all trade unions to be informed of and respond to labour needs. The Committee considers that such a system enabling all unions in the sector to participate does not restrict the trade union organizations’ means for action and representation.
8. 224. The Committee notes that the complainant alleges a violation of the right to choose a union freely, in that the amendments to Act R-20 allow the Commission des relations du travail to order a worker who submits a complaint against his or her association to change affiliation in certain circumstances. The Committee notes in this regard that the Government assures the Committee that a worker’s union affiliation may be changed only after he or she has proved that the union has acted in bad faith or in an arbitrary or discriminatory manner towards him or her. It is subsequently the worker, not the Commission, who decides on the new affiliation. The Committee observes that the wording of the corresponding legislative provisions seems to confirm the Government’s response:

   Act R-20

   • Art. 27 ...
   • However, section 47.2 of the [Labour] Code applies to such an association, with the necessary modifications. An employee who believes that the association that represents the employee has contravened that section may, within six months, file a complaint with the Commission des relations du travail and request that it exercise the powers granted under section 47.5 of the Code. In addition to the powers entrusted to it by the Code, the Commission des relations du travail may allow an employee to elect a new representative association within 30 days of the Commission’s decision, in accordance with the procedure established by regulation under section 35.2 of this Act.

   Labour Code

   • 47.2. A certified association shall not act in bad faith or in an arbitrary or discriminatory manner or show serious negligence in respect of employees comprised in a bargaining unit represented by it, whether or not they are members.
9. 225. The Committee notes that the complainant alleges that the amendments to Act R-20 violate international labour standards in that they prevent a member of a trade union association who has committed certain offences from being elected as a shop steward. In this regard, the Committee notes that the Government states that the prohibition on workers who have committed certain criminal offences from becoming shop stewards is intended to safeguard the integrity of union representatives. The Committee notes the criminal convictions set out in section 26 of Act R-20:
   • (1) A person convicted, in Canada or elsewhere, of common assault, mischief, assault causing bodily harm, theft, intimidation, intimidation of justice system participants, an offence against freedom of association, criminal harassment, uttering threats, uttering threats and retaliating, drawing a document without authority, offering or accepting secret commissions, trafficking in substances under the Controlled Drugs and Substances Act (SC 1996, c.19), importation, exportation or production under that Act, conspiracy to commit any of those acts or a criminal offence under sections 467.11 to 467.13 of the Criminal Code (RSC 1985, c. C-46) or, if related to the activities the person carries out in the construction industry, an offence against a fiscal law or a criminal offence other than those listed in subsection 2, may not hold a management or representation position in or for an association listed or described in any of subparagraphs (a) to (c)(2) of the first paragraph of section 1 or an association of employees affiliated with a representative association, or be elected or appointed as job site steward, or be a member of the board of directors of the Commission or of a committee established under this Act.
   • Except where the person convicted is granted a pardon under the Criminal Records Act (R.S.C, 1985, c. C-47), the disqualification provided for above shall subsist for five years after the term of imprisonment fixed by the sentence; in the case of a sentence to a fine only or in the case of a suspended sentence, the disqualification shall subsist for five years from the date of the conviction.
   • (2) A person convicted, in Canada or elsewhere, of murder, attempted murder, manslaughter, robbery, extortion, arson, breaking and entering, fraud, kidnapping or aggravated assault, or of conspiracy to commit any of those acts, may not hold a management or representation position in or for an association listed or described in any of subparagraphs (a) to (c)(2) of the first paragraph of section 1 or an association of employees affiliated with a representative association, or be elected or appointed as job site steward, or be a member of the board of directors of the Commission or of a committee established under this Act.
10. The Committee recalls that freedom of association implies the right of workers to elect their representatives in full freedom [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 388]. While observing that some of the offences leading to the convictions above are of extreme seriousness and are likely to call into question the ability of a person to lead and manage an organization, the Committee notes that some other convictions, which may prohibit access, for a period of five years, to union positions on the grounds of criminal conviction may not be such as to call into question an individual’s ability or integrity necessary to hold a trade union office. The Committee therefore requests the Government, in consultation with all relevant social partners, to review this provision so as to ensure that conviction on account of offences, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions, does not constitute grounds for the disqualification from holding trade union office [see Digest, op. cit., para. 422]. It requests the Government to keep it informed in this respect.

The Committee’s recommendations

1. 226. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government, in consultation with all of the relevant social partners, to consider amending section 44 of Act R-20 so as to ensure that the signing of the collective agreement is not impeded, taking into account the overall representativeness of the unions. The Committee requests the Government to keep it informed in this respect.
   • (b) The Committee requests the Government, in consultation with all of the relevant social partners, to consider amending section 45.4 of Act R-20 so as to ensure that strike action is also possible at the enterprise level. Furthermore, taking account of the fact that in the current context, under the amended legal provision, the two workers’ organizations representing 75 per cent of workers may be prevented from calling a strike, the Committee requests the Government and the unions concerned to seek a mutually acceptable solution to ensure that the right to strike is not impeded. The Committee requests the Government to keep it informed of developments.
   • (c) The Committee requests the Government, in consultation with all of the relevant social partners, to review section 26 of Act R-20 so as to ensure that conviction on account of offences, the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions, does not constitute grounds for the disqualification from holding trade union office. It requests the Government to keep it informed in this respect.