Definitive Report - Report No 392, October 2020

Case No 3362 (Canada) - Complaint date: 10-JUN-19 - Closed

Allegations: The complainant alleges that through public statements by its Prime Minister, the Government of Quebec impeded legitimate activities in defence of workers’ interests and failed in its obligation to respect and promote freedom of association and the effective recognition of the right to collective bargaining

1. 406. The complaint is contained in a communication dated 10 June 2019, transmitted by United Steelworkers. The Canadian Labour Congress (CLC), IndustriALL Global Union and the Quebec Federation of Labour (FTQ) supported the complaint in communications dated 18 June and 17 July 2019, respectively.
2. 407. The Government of Canada transmitted the observations of the Government of Quebec dated 23 December 2019 in a communication dated 9 January 2020.
3. 408. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 409. In its communication dated 10 June 2019, the complainant organization alleges that, through public statements made by its Prime Minister between 1 April and 3 June 2019, the Government of Quebec impeded legitimate activities in defence of workers’ interests and failed in its obligation to respect and promote freedom of association and the effective recognition of the right to collective bargaining.
2. 410. The complainant organization explains that Aluminerie de Bécancour, Inc. (hereinafter “the enterprise”) is an employer active in primary aluminium production in an establishment located in the town of Bécancour (province of Quebec). The enterprise is owned by two multinational enterprises, Alcoa (74.9 per cent) and Rio Tinto (25.1 per cent). It employs more than 1,200 workers in its establishment, approximately 1,030 of which are unionized workers covered by three collective agreements. In 2018, the main owner of the enterprise recorded a total revenue for all their establishments of US$13.4 billion.
3. 411. The complainant organization also explains that United Steelworkers (called le Syndicat des Métallos in Quebec) has approximately 800,000 members on the continent of North America, including 60,000 workers in Quebec spread over more than 600 workplaces. United Steelworkers Local 9700 (hereinafter “the union”) is the recognized legal representative of all unionized workers at the enterprise in question in the negotiations for the renewal of three collective agreements that expired on 22 November 2017.
4. 412. According to the complainant organization, on 22 December 2017, while negotiations were going well, the enterprise decided to break them off by submitting a final and comprehensive offer for the renewal of the collective agreements to be presented to the workers for a vote. On 9 and 10 January 2018, the offer was presented to the unionized workers in an assembly and was rejected. On 11 January 2018, the enterprise imposed a lockout, thus depriving all unionized workers in the enterprise of their jobs. Despite its decision to close two of the three potlines at its aluminium smelter immediately, the enterprise nevertheless continued to operate, at least partially, using the services of managerial staff and, in violation of the applicable legal provisions, of strike-breakers.
5. 413. According to the complainant organization, while the laws applicable in Quebec require the enterprise to negotiate in good faith, it has instead sought to inflexibly impose its conditions and positions aimed at degrading the working conditions of the unionized workers. Not only did the enterprise withdraw its offer of December 2017, but it also informed the union that it was reneging on all the agreements reached following the negotiations held before the lockout. Consequently, the subsequent offers submitted to the union proved to be more unfavourable than the offer that it had already refused, with the enterprise demanding many further concessions from the union.
6. 414. The complainant organization alleges that the balance of power in the negotiations was also severely affected as a result of the advantages granted to the enterprise by an agent corporation of the Government of Quebec, Hydro-Québec (hereinafter “the Crown corporation”). In fact, a Government of Quebec decree fixes the tariffs and contractual terms for the distribution of electricity between the enterprise and the Crown corporation. This decree grants preferential tariffs to the enterprise in exchange for its obligation to buy a certain reserved volume of electricity. However, the decree specifically stipulates that the enterprise is exempt from this obligation in the event of force majeure, this notion being defined in the decree as including lockouts. Unlike for other situations of this kind, the decree does not impose on the employer the obligation to act reasonably in order to limit the effects of the lockout. Thus, the Government of Quebec, through the contract binding its agent, the Crown corporation, to the enterprise in question, financed, just for the year 2018, the labour dispute imposed by the employer to the tune of 165 million Canadian dollars.
7. 415. The complainant organization states that it requested the Government of Quebec to convince the enterprise, which was violating its legal obligations in its host country, to return to the negotiating table. Given the magnitude of the labour dispute and its repercussions on the entire economy of the region where the enterprise is located, the Government, through its head and official representative, the Prime Minister of Quebec, held, on 1 April 2019, short private meetings with the parties, but separately. At the time of those meetings, the lockout imposed by the enterprise had been going on for almost 15 months.
8. 416. The complainant organization states that, on at least nine occasions in only two months, the Government of Quebec, through its Prime Minister, publicly sided with the enterprise, stressing that the positions that the complainant had adopted in the negotiations opposing it to the multinational enterprise were unreasonable and exaggerated, while spreading inaccurate information regarding the issues involved in the negotiations between the parties. Furthermore, it states that the Prime Minister explicitly suggested that the union should bear responsibility for the loss of jobs and the negative implications for the region in the event of a possible closure of the enterprise. The complainant organization refers to the following statements made by the Prime Minister (see National Assembly of Quebec, Journal des débats, Vol. 45):
   • • On 1 April 2019, two days prior to the resumption of negotiations and following his meeting with the parties, the Prime Minister stated, through the Twitter platform, that “the trade union had to make compromises”.
   • • On 2 April 2019, at a press briefing, the Prime Minister said: “I think it is important to be reasonable and, at the moment, I do not think that the union is being reasonable. When one sees a union that is making too many demands, there is the risk of losing jobs to the tune of 92,000 dollars per year.” According to the complainant organization, this statement is incorrect in that these demands aim specifically to avoid the loss of these jobs to cheap subcontracting. It is also of the view that, since the very start of the negotiations, it is not the complainant that is making demands, but rather the enterprise that is demanding numerous concessions to employees’ working conditions as compared to the conditions they enjoy under prevailing collective agreements.
   • • On 3 April 2019, the same day the parties attended a conciliation meeting, the Prime Minister said at a press briefing: “In my view, they are currently playing with fire. … They are demanding 10,000 hours of trade union release, the company is offering 7,500 hours. I think it is unreasonable to ask for 10,000 hours. They are asking the employers to contribute at a rate of 12.6 per cent to the pension fund instead of 12 per cent while the employees contribute 8 per cent. So, that means that the employer is already contributing 60 per cent. They don’t think that’s enough.” The complainant organization points out that these statements are incorrect because the issues of trade union release and the pension plan do not constitute demands made by the union, but rather concessions demanded by the enterprise in comparison to prevailing conditions under the current collective agreements. According to the complainant organization, at the time these statements were made, the union had in fact already agreed to a considerable reduction in hours of trade union release and had agreed to modify the defined benefit plan, where the risk is borne by the employer, to a member-funded pension plan, where the risk is rather borne by the employees.
   • • On 4 April 2019, in the context of the public debates held in the National Assembly of Quebec, in response to the leader of the second opposition group, the Prime Minister repeated the same remarks: “… I met both parties, I listened carefully to the union, listened carefully to the management. I came to the conclusion that there is a problem on the union side. And I think that one has a responsibility, when one is in a role … such as mine, to help to move these matters along, because, the Quebecers, in this case, jobs to the tune of 92,000 dollars … , this is (sic) jobs that we want, and the demands that the union is currently making are unreasonable. And if, one day, it is the employer who is being unreasonable, then I’ll say so, but, in the present case, it is the union that is being unreasonable. … Yes, wages, both parties agree: 92,000 dollars per year. But the trade union releases, frankly, I find it excessive to demand 10,000 hours.”
   • • On 17 April 2019, in the context of the Committee on Institutions at the National Assembly of Quebec, the Prime Minister stated in particular that “… we are in a situation … where I honestly have to say that I think the United Steelworkers are exaggerating in their negotiations. They should be compromising more … if 92,000 dollars are being demanded, with 60 per cent of the pension fund being paid for by the employer, which is virtually unmatched anywhere else, 10,000 hours of trade union release per year, if one exaggerates on all the demands, well, there is a risk that these jobs, they will be scary.” The complainant organization explains that these comments were made on the same day that the Minister of Labour submitted a settlement proposal to the parties, casting serious doubts on the objectivity of the proposal. According to the complainant organization, as well as constituting a replica of the employer’s offer in many ways, this proposal by the Government of Quebec was even more generous to the employer regarding the possibility of using subcontractors.
   • • On 7 May 2019, while hundreds of employees travelled to Pittsburgh (United States) to demonstrate on the occasion of the shareholders’ meeting of a majority owner of the enterprise, during the public debates held at the National Assembly of Quebec and again replying to the representative of the official opposition, the Prime Minister once more compared the labour costs in the manufacturing sector in the United States and stressed the importance of being competitive, particularly if one wanted to “attract the best, including company presidents”. In particular he said: “And, at some point, one must face the facts – yes, the United Steelworkers are perhaps exaggerating … it is also important to be reasonable. Consequently, I expect the next negotiations to be conducted in a spirit where everyone should be reasonable.”
   • • On 1 May 2019, again in the context of public debates in the National Assembly of Quebec, the Prime Minister replied, inter alia, as follows, to the representative of the official opposition regarding the labour dispute: “… In Quebec the average wage is approximately 49,000 dollars per year. It would have to be increased to 53,000 dollars to catch up with Ontario, to start to receive less equalization, to be less dependent on the wealth of the rest of Canada. … Yet, there’s a problem, currently when we look at labour costs, in some manufacturing enterprises, labour costs are higher than in the United States. Consequently, I think we will have to call on the unions, including the United Steelworkers, to be more reasonable. When a union exaggerates, I think it is my duty to say so. On the other hand, in a private enterprise, it will be for the workers, for the employees to decide. It is a private dispute, … but I think that it is the role of a government to give an indication.” In this regard, the complainant organization alleges that the Prime Minister failed to mention that the enterprise has the lowest labour costs per ton of aluminium across all the establishments in North America held by its largest owner.
   • • On 22 May 2019, at a media scrum in Pittsburgh, the Prime Minister repeated his remarks, publicly making the following request: “I ask the trade unions to be reasonable. It is not just the workers, there are also the implications of 500 million dollars for Mauricie, there are the suppliers, the subcontractors.”
   • • On 3 June 2019, once again at the National Assembly of Quebec, the Prime Minister, commenting on the conclusion of the collective agreement of another factory belonging to a primary owner of the enterprise established in the province of Quebec, said: “Let’s hope that the Bécancour people will be as open.”
9. 417. The complainant organization alleges that the Prime Minister of Quebec, as head and official representative of the Government, failed to fulfil his obligations stipulated in the ILO Declaration on Fundamental Principles and Rights at Work (1998) and the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (MNE Declaration), and also in Convention No. 87, in particular the obligations to refrain from any interference which would impede legitimate activities in defence of the interests of a workers’ organization. According to the complainant organization, the Government also failed to comply with its obligation to respect and promote freedom of association and the effective recognition of the right to collective bargaining of a workers’ organization, which includes the possibility for it to claim, freely and on the basis of equality of opportunity, the best possible wages and conditions of work.
10. 418. According to the complainant organization, at the time when the Prime Minister met the parties in private for the first and only time, an attempt to resume negotiations was nonetheless envisaged, with the aim of reaching a negotiated agreement. Yet, rather than correcting the situation of imbalance notably caused by the exemption it granted the enterprise for its electricity contract with the Crown corporation, the complainant organization states that the Government simply sabotaged the attempt to resume collective bargaining. The complainant organization considers that the statements made by the Prime Minister certainly encouraged the enterprise, at the meeting on 3 April 2019, to consolidate its position and to wholly reject the proposal that it had submitted on 21 March 2019, without opening the door to further negotiations. According to the complainant, the Government thus violated its obligation to take all necessary and appropriate measures to ensure that workers may exercise freely the right to organize, as established in Article 11 of Convention No. 87.
11. 419. The complainant organization alleges that the Government of Quebec sought to discredit it by implying to the public that the negative implications of the labour dispute were and would be solely attributable to its alleged unreasonable demands. Not only does it consider this statement to be false but, furthermore, it maintains that its claims aimed specifically to ensure the retention of well-paid jobs in the face of increasingly invasive employer demands in respect of subcontracting. According to the organization, the Government cannot interfere in and impede collective bargaining by manipulating the facts in favour of one party when it is being requested to correct an imbalance stemming from rules that it has imposed. While annual wages were not among the issues involved in the negotiations between the parties, trade union release and the pension plan were the focus of considerable demands by the enterprise for concessions, in respect of which the complainant had already made serious compromises. The complainant organization considers that the representative of the Government cannot publicly accuse it of exaggerating about inexistent claims without failing in their obligations with respect to freedom of association and the effective recognition of the right to collective bargaining. The union states that the Government of Quebec significantly reduced the balance of power that should exist between the parties and in this way voluntarily impeded the exercise of the right recognized in Article 3 of Convention No. 87. The balance of power seen in the collective bargaining was consequently heavily skewed in favour of the enterprise.
12. 420. According to the complainant organization, despite the fact that the enterprise never, either publicly or in the framework of the negotiations, discussed moving its operations away from the country, the Government of Quebec hinted at that possibility by demanding compromises from the union so as not to “lose everything” in a context where labour costs would be lower in the United States. Yet, on the contrary, the enterprise in question is the establishment belonging to the majority owner in North America where labour costs are the lowest per ton of aluminium produced. Furthermore, the Government also suggested that employees should agree to pay cuts, notably without the employer having made any such request. In so doing, the Prime Minister encouraged the enterprise, which had never demanded such concessions, to significantly reduce the working conditions of its employees.

B. The Government’s reply

1. 421. In its communication of 9 January 2020, the Government of Canada transmitted the observations of the Government of Quebec dated 23 December 2019. The Government of Quebec submits that the statements referred to in the complaint did not violate the rights of workers and of their organizations and do not constitute a failure to comply with its obligations under the international Conventions applicable in this case. It considers that it respected the principles established by the ILO, including freedom of association, and submits that the complaint does not call for further examination.
2. 422. The Government of Quebec explains that in Canada freedom of association is expressed in a constitutional manner in subsection 2(d) of the Canadian Charter of Rights and Freedoms and, in Quebec, in a quasi-constitutional manner, in section 3 of the Charter of Human Rights and Freedoms. This right is characterized by a worker’s freedom to join a union of his or her choice, by the right to bargain collectively and by the right to strike. Subsection 2(d) of the Canadian Charter protects the right to associate with a view to achieving labour-related objectives through a meaningful process of collective bargaining that offers employees sufficient freedom of choice and independence to enable them to decide on their collective interests and defend them. The freedom of choice required by the Canadian Charter for collective bargaining purposes corresponds to the freedom of choice that enables employees to participate in a meaningful way in choosing the collective objectives that their association should pursue. The independence required by the Canadian Charter for collective bargaining purposes is defined as independence that ensures a correlation between the activities of the association and the interests of its members. A bargaining process will not be meaningful if it prevents the employees from pursuing their objectives. The Supreme Court of Canada has however clarified that:
   • Subsection 2(d) of the Charter does not protect all aspects of the associational activity of collective bargaining. It protects only against “substantial interference” with associational activity. … It follows that the state must not substantially interfere with the ability of a union to exert meaningful influence over working conditions through a process of collective bargaining conducted in accordance with the duty to bargain in good faith. (Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007)
3. 423. The Government of Quebec further underlines that, according to the Supreme Court of Canada, it should be assumed that the Canadian Charter grants protection at least as great as the international instruments ratified by Canada in the field of human rights. In the event of the violation of these constitutional or quasi-constitutional guarantees, the parties can use the redress mechanisms laid down in the Charters before a court of competent jurisdiction.
4. 424. In Quebec law, the Labour Code is the legislation of general application that regulates the right of association. Section 3 of the Code outlines the capacity of employees to form associations, change representative, and establish or change objectives relating to working conditions. This section should consequently be read as a series of guarantees of freedom of association offered by the Canadian and Quebec Charters. The collective exercise of freedom of association is also protected by the Code. Section 12 provides that the parties shall not “dominate, hinder or finance the formation or the activities of any association of employees” or of employers. Sections 52 and 53 deal with the protection of this freedom during the negotiation process, the free and voluntary nature of the negotiations, and the obligation to negotiate in good faith. In order to help the parties to conclude agreements or to reach an outcome in the event of unsuccessful negotiations, the Minister of Labour, Employment and Social Solidarity (hereinafter “the Minister”) has the authority, under sections 54, 74 and 77 of the Code, to appoint a conciliation officer or an arbitrator. The first paragraph of section13 of the Act respecting the Ministère du Travail also allows the Minister to designate a person to help the parties, in particular in their negotiations.
5. 425. The Government of Quebec provides a chronological reminder of the facts surrounding the labour dispute in this case:
   • • On 22 November 2017, the collective agreements concluded between the enterprise and the union expired. Conciliation meetings were held from this time onwards.
   • • On 11 January 2018, the employer imposed a lockout. In the days preceding the activation of the lockout, the members of the union refused the employer’s last final and comprehensive offer and voted for a strike mandate.
   • • On 9 February 2018, the minister responsible for labour at the time met the parties concerned.
   • • At the end of April 2018, the same minister appointed a special mediator. She mentioned that, despite the fact that the dispute was in the private domain, the Government was doing everything in its power to ensure that the parties reached a negotiated agreement as soon as possible.
   • • In September 2018, a meeting was held in Pittsburgh, the city where the headquarters of the majority owner of the enterprise was located, between the managers of the company, the union and the special mediator to discuss the positions of each party and to explore settlement options.
   • • On 1 October 2018, a new Government came to power following general elections. A new Minister of Labour, Employment and Social Solidarity was appointed in the following weeks.
   • • On 5 October 2018, the special mediator announced the suspension of negotiations, in view of the disparate positions of the employer and the union.
   • • At the end of October and the beginning of November 2018, the Minister met the employer side and the trade union side separately. Some days later, he also went to meet the senior management of the enterprise in Pittsburgh.
   • • At the beginning of November 2018, a mediation council was set up by the Minister in accordance with section 13 of the Act respecting the Ministère du Travail to help the parties to conclude their collective agreements. This procedure revealed a common will by the various stakeholders to resume negotiations with a view to reaching an agreement.
   • • At the end of November, the council’s mandate was extended until 21 December 2018.
   • • In January 2019, the Minister established a working group to identify all the services that could support the parties in resolving their differences. This group of experts worked on the basis of the parties’ negotiating objectives of increasing operational flexibility, improving productivity, ensuring job stability, ensuring the long-term future of the factory and improving labour relations.
   • • At the end of February 2019, the Minister again met the parties separately and indicated his intention to submit a settlement proposal.
   • • Also at the end of February 2019, the union asked to meet the Prime Minister. In addition, on 1 March 2019, locked out workers demonstrated outside the offices of the Prime Minister, the Minister, and two members of Parliament from the regions of Mauricie and Centre-du-Québec, respectively.
   • • In March 2019, the enterprise submitted a written offer to the union, which was refused by its members. A counter-offer was submitted by the union to the employer. The Minister withheld the submission of his settlement proposal, leaving the employer to react to the union’s counter-proposal.
   • • On 1 April 2019, following the parties’ requests to that effect, the Prime Minister of Quebec met the employer and union parties. The Minister also attended these meetings.
   • • On 3 April 2019, the employer indicated that it considered the union’s counter-offer to be unacceptable, as it did not respond adequately to the elements necessary for the long-term improvement of the aluminium smelter. Then, on 17 April 2019, in an attempt to resolve the deadlock between the parties, the Minister submitted a settlement proposal to the two parties. This measure was part of a desire to reconcile the parties in order to reach a negotiated agreement. The settlement proposal was drafted in accordance with objective criteria recognized by Canadian jurisprudence. It sought a balance between the employer’s and the workers’ interests and to retain the objective of ensuring the sustainability of the factory.
   • • The employer welcomed the settlement proposal, while the union refused to present it to its members in a general assembly.
   • • At the end of April 2019, in the days following the submission of the settlement proposal, the Minister met each of the parties separately. During an economic mission held in New York and Washington in May 2019, the Prime Minister was able to meet the Chief Executive Officer of the company that is the majority owner of the enterprise in question.
   • • On 26 June 2019, the employer submitted a final and comprehensive offer, including a return-to-work protocol, to the union. The trade union side committed to present the offer to its members.
   • • On 2 July 2019, the members of the union, meeting in a general assembly, voted in favour of the employer’s offer. The return to work began on 26 July 2019.
6. 426. According to the Government of Quebec, some of the statements made by the Prime Minister of Quebec, that the complainant organization puts forward to substantiate its arguments, should be placed into context. The Government of Quebec stresses that, as the complainant organization itself recalls, it is the complainant that asked the Government of Quebec to participate in resolving the labour dispute at the enterprise in question. This request was reiterated by the locked out workers who travelled, on foot, to the National Assembly to ask the Prime Minister to participate in negotiations between the employer and the union. Lastly, the official opposition and the leader of the second opposition group at the National Assembly also called on the Prime Minister of Quebec to put an end to the labour dispute. The Government of Quebec submits that the statements referred to in the complaint are replies to questions asked either during the oral questions and answers period at the National Assembly, or by journalists. They are the logical and predictable consequence of the request made by the complainant organization which cannot, a posteriori, denounce their very existence.
7. 427. The Government of Quebec considers that the statements must also be understood in the context of the other statements made by the Prime Minister and other members of the Government. In February and March 2019, when the opposition parties were demanding in the National Assembly that the Prime Minister intervene in the labour dispute, the Minister repeated on a number of occasions that it was important to let the parties negotiate the resolving of their differences themselves, while recalling their duty to bargain in good faith:
   • We must not take on the burden of settling, it is the parties that must negotiate … the renewal of their collective agreement. We have no intention of interfering in the management rights of an employer. Neither do we have any intention of interfering in the decision-making authority of the trade union. (Quebec, National Assembly, Journal des débats, 42nd leg., 1st Session, 25 (27 March 2019))
8. 428. The Government indicates furthermore that the Prime Minister and the Minister asked the two parties to make concessions to help to resolve the differences between them. Ultimately, the Prime Minister recalled that, despite his public statements, it is for the parties to a labour dispute in the private sector to make their own decisions and to resolve their differences:
   • … I have at times spoken of certain employers to say that, in some cases, they exaggerate. I will continue to do so. When a trade union exaggerates, I think that it is my duty to say so. However, in a private enterprise, it will be for the workers, for the employees to decide. It is a private dispute, so the employees will have to vote on whether or not to accept the employer’s proposal. Consequently, at the end of the day, it is the employees who will decide, but I think that it is the role of a government to give an indication. (Quebec, National Assembly, Journal des débats, 42nd leg., 1st Session, 37 (1 May 2019))
   • ... it is a private dispute. At the end of the day, it will be for the employees to decide whether or not to accept the employer’s offer. But I said what I thought of it and I hope, Mr President, that this dispute will be settled as soon as possible. (Quebec, National Assembly, Journal des débats, 42nd leg., 1st Session, 53 (11 June 2019))
9. 429. With regard to the statements to which the complaint relates, the Government of Quebec submits that they were not “interference” within the meaning of paragraph 2 of Article 3 of Convention No. 87 and would not restrict or impede the lawful exercise of the right provided for in the first paragraph of Article 3 of Convention No. 87. It states that, while within its usual meaning a statement could constitute “interference”, paragraph 2 of Article 3 of Convention No. 87 aims solely to prohibit interference that “would restrict the right provided for in paragraph 1 or would impede the lawful exercise thereof”. In this regard, it stresses that it did not in any way restrict or impede the activities chosen and carried out by the union during the labour dispute, including in particular: several marches; a demonstration in front of the National Assembly; participation in several international trade union meetings; and the publication of trade union news on the internet. According to the Government, non-binding public statements are a long way from the interpretation given in the framework of the ILO to the word “interference”. It indicates that the purpose of Article 3 of Convention No. 87 can be found in the preparatory reports for the adoption of this Convention. These remarks, which help to provide a clear understanding of the purpose of paragraph 2 of Article 3 of Convention No. 87, liken the notion of “interference” solely to legislative and other measures that prevent organizations from governing themselves as they wish. Furthermore, the Government states that the Committee on Freedom of Association has never described non-binding public statements by a Government or a member of a Government as “interference”.
10. 430. The Government of Quebec submits that the statements referred to in the complaint respect freedom of association, the right to organize and the right to free collective bargaining. It maintains that the statements made following the meeting of 3 April 2019 cannot have encouraged the enterprise to consolidate its position and to wholly reject the union’s proposal since they took place following that decision. According to the Government of Quebec, to assume that an employer which voluntarily imposed a lockout 13 months earlier could reject a proposal by the union simply by reason of public statements lacking any power to bind the parties is also speculative. It considers that both statements made prior to 3 April 2019 cannot have weakened a balance of power established over the preceding 13 months or sabotaged the attempt to resume collective bargaining, incidentally encouraged by the Government.
11. 431. The Government of Quebec indicates that it met the trade union officials only when they so requested, that it was attentive to the union’s demands, that the union maintained that it was satisfied, and that it was only when it asked the two parties to compromise in order to reach a negotiated settlement that the union expressed disappointment and was critical of it. Referring to previous conclusions by the Committee, the Government contends that it is not contrary to Conventions Nos 87 and 98 for a minister to urge the social partners, within the framework of the encouragement and promotion of the full development and utilization of collective bargaining machinery, to find a mutually acceptable solution to a conflict.
12. 432. The Government of Quebec states that its role, in the context of a collective bargaining process in the private sector, consists of establishing an enabling environment for collective bargaining and refraining from any interference which would restrict or impede the lawful exercise of freedom of association, including the right of a trade union to organize its activities and to formulate its programme of action. In the present case, it would be necessary for the statements referred to in the complaint to impede substantially the ability of the employees to participate in the choice of collective objectives pursued by the union and the correlation between the activities of the association and the interests of its members, in order to be able to conclude that there had been an infringement of the right to bargain collectively protected by freedom of association in accordance with subsection 2(d) of the Canadian Charter. The Government of Quebec submits that the complainants fail to prove that the statements referred to in the complaint correspond to such a degree of impediment.
13. 433. The Government of Quebec indicates that, throughout the labour dispute it encouraged free bargaining and the establishment of a healthy negotiating environment, providing voluntary mediation services when the parties requested them. According to the Government, every possible opportunity was given to the parties to bargain freely for as long as necessary and with the support of voluntary mediation and conciliation services. It called upon the parties to return to the negotiating table, to adopt an attitude of openness, to make concessions and to agree on new collective agreements to put an end to a long labour dispute detrimental to the interests of the workers, the employer and Quebec society. Furthermore, it stresses that its participation was limited to satisfying the joint demands of the parties.
14. 434. The Government of Quebec indicates that the objective of the statements to which the complaint relates was not to put the complainants under any form of pressure, intimidation, harassment, threat or to discredit them. The statements constitute replies to questions asked at the National Assembly and by the media. The purpose of these replies was to inform the population of Quebec about a situation of public interest and to further negotiations between the parties with a view to finding a mutually acceptable solution to the labour dispute.
15. 435. The Government of Quebec stresses that it did not take any legislative action concerning the labour dispute in question and no applications were made or claims lodged before the judicial and administrative courts of Quebec concerning the public statements in question. Lastly, the parties to the labour dispute came to an understanding freely and concluded new collective agreements in July 2019.
16. 436. With regard to the ILO Declaration on Fundamental Principles and Rights at Work, the Government of Quebec refers to the International Labour Conference, which indicated that it does not have the scope of a standard-setting instrument, does not add to the existing obligations of Member States, does not constitute an interpretation of the Constitution which is legally binding for the Member States, and is not intended to subject them to new commitments. The Government of Quebec consequently considers that it cannot autonomously establish an obligation that can be violated, and that a similar reasoning must be adopted with regard to the MNE Declaration. The Government of Quebec reiterates the importance that it attaches to the principles, including freedom of association, contained in both the Constitution and in the Conventions, Recommendations and Declarations of the ILO. Nevertheless, according to the Government, each ILO instrument should be given the attributes and legal consequences that the Member States intended.
17. 437. With regard to the MNE Declaration, the Government of Quebec submits that the statements to which the complaint relates do not legitimize practices that it denounces. First of all, the Government states that the allegations do not relate to freedom of association, to a legal principle of the ILO, to a right of workers or workers’ associations, or to any of its obligations. Nevertheless, it states that it attaches no less importance to the principles set out in the abovementioned Declaration because of their declaratory nature and it willingly respects them. It explains that the first of the complainant’s allegations, concerning the operations of an enterprise being moved away from the country, refers to paragraph 59 of the MNE Declaration. In this regard, the Government of Quebec submits that it has never wanted the enterprise to transfer its operations outside Quebec and that, on the contrary, it has repeatedly said that it wishes to promote the creation and retention in Quebec of well-paid jobs, such as those of the enterprise’s workers. In response to the second allegation, relating to the offer of the best wage possible, the Government of Quebec indicates that a full reading of paragraph 41 of the MNE Declaration shows that, where comparable employers exist in the host country, which is the case here, wages, benefits and conditions of work offered should be in line with these, without being less favourable to the workers.
18. 438. Finally, the Government of Quebec stresses that the parties to the labour dispute came to an understanding freely without any legislative action being taken by the Government of Quebec, which was the case throughout the labour dispute, which lasted more than 18 months. Furthermore, no applications were made or claims lodged before the judicial and administrative courts of Quebec concerning the statements to which the complaint relates. The Government of Quebec submits, in this case, that the decision of the complainant organization not to have recourse to the remedies available in Quebec with respect to the statements to which the complaint relates must be taken into consideration by the Committee on Freedom of Association.
19. 439. In conclusion, the Government of Quebec states that the statements to which the complaint relates did not infringe upon the principle of freedom of association nor upon the rights and freedoms of workers and their organizations. It maintains that it did not fail in its obligations stipulated in the Constitution and the Conventions of the ILO and that it respected, promoted and implemented the principles of freedom of association and the effective recognition of the right to collective bargaining. The Government of Quebec considers that the complaint does not call for further examination and invites the Committee to communicate this to the Governing Body.

C. The Committee’s conclusions

1. 440. The Committee notes that, in the present case, the complainant organization, United Steelworkers, alleges that, through public statements by its Prime Minister, the Government of Quebec impeded legitimate activities in defence of workers’ interests and failed in its obligation to respect and promote freedom of association and the effective recognition of the right to collective bargaining.
2. 441. The Committee notes that the complainant organization alleges a violation of the ILO Declaration on Fundamental Principles and Rights at Work and that the Government of Quebec, for its part, states that it does not have the scope of a standard-setting instrument and does not add to the existing obligations of Member States. The Committee recalls that its mandate is not linked to the 1998 ILO Declaration – which has its own built-in follow-up mechanisms – but rather stems directly from the fundamental aims and purposes set out in the ILO Constitution [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 13.] The same considerations apply to the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy. It is in this spirit that the Committee intends to pursue its examination of the present complaint.
3. 442. The Committee takes note of the following chronology of events according to the information provided by the complainant organization and the Government. On 22 November 2017, the collective agreements concluded between the enterprise and the union expired. On 22 December 2017, the enterprise broke off negotiations and submitted a final and comprehensive offer for the renewal of the collective agreements. On 9 and 10 January 2018, the offer was presented to the unionized workers in an assembly and was rejected. On 11 January 2018, the employer imposed a lockout. On 9 February 2018, the minister responsible for labour met the parties concerned and appointed a special mediator at the end of April. On 1 October 2018, a new Government came to power following general elections; a new Minister of Labour, Employment and Social Solidarity was appointed in the following weeks. On 5 October 2018, the special mediator announced the suspension of negotiations, in view of the disparate positions of the employer and the union. At the end of October and the beginning of November 2018, the Minister met the employer side, the trade union side and the senior management separately. At the beginning of November 2018, a mediation council was set up by the Minister to help the parties to conclude their collective agreements. In January 2019, the Minister established a working group to identify all the services that could support the parties in resolving their differences. At the end of February 2019, the Minister again met the parties separately and indicated his intention to submit a settlement proposal; the union then asked to meet the Prime Minister. On 1 March 2019, the locked out workers demonstrated outside the offices of the Prime Minister, the Minister and two members of Parliament. In March 2019, the enterprise submitted a written offer to the union, which was refused by its members; a counter-offer was then submitted by the union to the employer. On 1 April 2019, the Prime Minister met the employer and union parties separately. On 3 April 2019, the employer indicated that it considered the union’s counter-offer to be unacceptable. On 17 April 2019, the Minister submitted a settlement proposal to the parties. At the end of April 2019, the Minister met each of the parties separately. On 26 June 2019, the employer submitted a final and comprehensive offer, including a return-to-work protocol, to the union. On 2 July 2019, the members of the union, meeting in a general assembly, voted in favour of the employer’s offer. The return to work began on 26 July 2019.
4. 443. The Committee notes that the complainant organization states that, on at least nine occasions, between 1 April and 3 June 2019, the Government of Quebec, through its Prime Minister, publicly sided with the enterprise: (i) by stating that the positions it adopted in the negotiations opposing it to the multinational enterprise were unreasonable and exaggerated; (ii) by spreading inaccurate information regarding the issues involved in the negotiations between the parties; and (iii) by explicitly suggesting that the union should bear responsibility for the loss of jobs and the negative implications for the region in the event of a possible closure of the enterprise. According to United Steelworkers, these statements had the effect of discrediting it in the eyes of the public and shifting the balance of power in the collective bargaining process in favour of the enterprise. The complainant organization considers that these statements constitute interference in the exercise of the activities of the trade union.
5. 444. The Committee notes that, according to the Government of Quebec, which does not deny them, the statements to which the complaint relates are not “interference” within the meaning of paragraph 2 of Article 3 of Convention No. 87. The Government indicates that: (i) these statements constitute replies to questions asked either at the National Assembly or by journalists; (ii) the Prime Minister and the Minister asked the two parties to make concessions to help to resolve the differences between them; and (iii) every possible opportunity was given to the parties to bargain freely for as long as necessary and with the support of voluntary mediation and conciliation services. The Committee also notes the Government’s indication that the parties to the labour dispute ultimately came to an understanding freely without any legislative action being taken and that, in its view, it is speculative to assume that the employer could reject a proposal by the union simply by reason of public statements lacking any power to bind the parties. The Committee also notes that, according to the Government of Quebec, no complaints have been lodged with Quebec courts concerning the public statements in question, despite the fact that freedom of association is protected, at the national level, by the Canadian Charter of Rights and Freedoms, the Charter of Human Rights and Freedoms, and the Labour Code.
6. 445. The Committee observes the efforts made by the Government of Quebec to support and encourage the parties to resolve their differences, including by providing for the assistance of conciliators and mediators to conclude a negotiated agreement without having recourse to legislative action. The Committee recalls in general terms that it is not contrary to Conventions Nos 87 and 98 for a minister to urge the social partners, within the framework of the encouragement and promotion of the full development and utilization of collective bargaining machinery, to find a mutually acceptable solution to the conflict [see Compilation, para. 1468.] However, the Committee has no capacity or means to evaluate the meaning and assess the impact of the public statements alleged in this case and therefore will not pursue its examination.

The Committee’s recommendation

1. 445. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.