Informe provisional - Informe núm. 49, 1961

Caso núm. 211 (Canadá) - Fecha de presentación de la queja:: 02-NOV-59 - Cerrado

1. 197. The complaint is contained in a communication from the Canadian Labour Congress dated 2 November 1959; in a letter dated 23 December 1959, the I.C.F.T.U declared its support for the complaint.
2. 198. When the Committee examined the complaint at its meeting in February 1960, it had before it certain observations of the government of Newfoundland-in which province the matters raised in the complaint are alleged to have taken place-which had been forwarded by the Government of Canada. The Committee decided to request the Government of Canada to furnish further information on certain aspects of the case, and while submitting to the Governing Body the interim report contained in paragraphs 82 to 116 of its 45th Report (approved by the Governing Body on 27 May 1960, in the course of its 145th Session), adjourned its further examination of the case until such further information had been received.
3. 199. At its meeting on 20 May 1960, the Committee resumed its examination of the case As indicated in paragraph 6 of its 47th Report, which also was approved by the Governing Body on 27 May 1960, the Committee then observed that some of the information requested had been forwarded by the Government of Canada in a letter dated 13 May 1960, but that this letter had been received too late to permit of its being examined at that meeting, while some of the information previously requested was still being awaited; the Committee therefore adjourned its examination of the case until its present session.
4. 200. By a letter dated 29 July 1960, the Government of Canada forwarded the text of a new enactment adopted in Newfoundland-the Labour Relations (Amendment) Act of 5 July 1960.
5. 201. The Government of Canada has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Question as to the Position of the Government of Canada with Respect to the Matters Alleged
  202. 202 The allegations relate respectively to factual events and to the effects of legislation in force, in both cases within the confines of the province of Newfoundland. The substance of these allegations is considered subsequently.
  203. 203 When it examined the case at its meeting in February 1960, the Committee, observing that the Government of Canada, by its letter of 18 January 1960, had forwarded observations on the case prepared by the government of Newfoundland, but itself had refrained from making any observation or comments on the matter. The Committee declared that, while it appreciated the various problems that might be involved, it would appreciate receiving the comments of the Government of Canada, which is the Member of the International Labour Organisation involved, with regard to the matter.
  204. 204 The Committee went on to deal with the situation arising from the fact that Canada has not ratified the two Conventions concerning freedom of association referred to in paragraph 201 above. Paragraph 101 of the Committee's 45th Report reads as follows:
  101. 101 The Committee observes that the complainants contend that the actions of the Premier of Newfoundland contravene the principles contained in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). This Convention has not been ratified by Canada but the Committee, as it did in Case No. 102 relating to the Union of South Africa, considers it appropriate to point out that the Declaration of Philadelphia, which now constitutes an integral part of the Constitution of the International Labour Organisation and the aims and purposes set forth in which are among those for the promotion of which the Organisation exists in virtue of article 1 of the Constitution, as amended at Montreal in 1946, recognises " the solemn obligation of the International Labour Organisation to further among the nations of the world programmes which will achieve ... the effective recognition of the right of collective bargaining, the co-operation of management and labour in the continuous improvement of productive efficiency, and the collaboration of workers and employers in the preparation and application of social and economic measures ". In these circumstances, the Committee, as it did in Case No. 102, considers it appropriate " that it should, in discharging the responsibility to promote these principles which has been entrusted to it, be guided in its task, among other things, by the provisions relating thereto approved by the Conference and embodied in 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), which afford a standard of comparison when examining particular allegations, more particularly as Members of the Organisation have an obligation under article 19 (5) (e) of the Constitution to report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of its law and practice in regard to the matters dealt with in unratified Conventions, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention by legislation, administrative action, collective agreement or otherwise and stating the difficulties which prevent or delay the ratification of such Conventions". Canada is one of the governments which have complied with this obligation at the request of the Governing Body in respect of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee therefore considers that, while recognising that the provisions of the Conventions are not binding upon Canada, it should examine the allegations relating to these Conventions made in the present case with a view to ascertaining the facts and reporting them to the Governing Body.
  205. 205 A number of observations relevant to the considerations raised in paragraphs 202 to 204 above are made by the Government of Canada in its communication dated 13 May 1960.
  206. 206 In the first place, the Government explains that, under the Canadian Constitution as contained in the British North America Act, there is a division of legislative authority between the Parliament of Canada and the provincial legislatures, each being supreme in its respective legislative field of authority. Except in respect of matters enumerated in section 91 of the Act or falling outside section 92 thereof, the legislative authority in labour matters, including the regulation of labour-management relations in respect of all employers and employees, falls within the legislative authority of the provinces, this authority stemming from section 92 of the Act and coming under the head of " Property and Civil Rights ". Hence, the regulation of labour-management relations in the woods industry in the province of Newfoundland, as in all other provinces, falls within the exclusive legislative authority of the province as a matter of property and civil rights within the province; the government of the province is also responsible for the maintenance of peace and order, including the enforcement of the provisions of the Criminal Code within the province. The Government of Canada adds that no action has been instituted in the courts to contest the Constitutionality of the Newfoundland Labour Relations (Amendment) Act or the Trade Union (Emergency Provisions) Act-two legislative texts which are considered subsequently in connection with the specific allegations in respect thereof made by the complainants.
  207. 207 The Government declares that it was not feasible for the Government of Canada to accept the obligations consequent upon ratification of 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), because of the divided legislative jurisdiction between the Parliament of Canada and the legislatures of the provinces in respect of the matters covered by those Conventions, although it reported to the I.L.O, when requested by the Governing Body, on the state of the law and practice in Canada in relation to the subject-matter of both Conventions.
  208. 208 Finally, the Government of Canada declares that, by acting as an intermediary between the I.L.O and the government of Newfoundland in connection with the complaint "against the government of Newfoundland ", it does not assume any responsibility for the acts or omissions of the government of Newfoundland of a legislative or executive character in connection with provincial labour-management relations or the maintenance of local law and order in Newfoundland. But Canada, concludes the Government, while fulfilling all its international obligations, cannot assume the international obligations flowing from the ratification of Conventions such as the Freedom of Association and Protection to Organise Convention, 1948 (No. 87), which would involve encroachment on the legislative and executive fields of authority falling, Constitutionally, within the exclusive jurisdiction of the provinces.
  209. 209 The Committee, while taking note of the considerations raised by the Government of Canada in its letter dated 13 May 1960, considers that it contains nothing to cause it to modify its earlier conclusion that the Government responsible for furnishing observations in the case, as a Member of the International Labour Organisation, is the Government of Canada, or to preclude the Committee from examining the allegations made in the light of the generally accepted principles relating to freedom of association, taking the provisions of the said Conventions Nos. 87 and 98 as a standard of comparison, with a view to ascertaining the facts and reporting them to the Governing Body.
  210. 210 In the same communication the Government of Canada deals with the question of the Petition of the Canadian Labour Congress to the Governor-General in Council of Canada to disallow the Newfoundland Trade Union (Emergency Provisions) Act, 1959, and the Newfoundland Labour Relations (Amendment) Act of 6 March 1959.
  211. 211 At its meeting in February 1960, when it considered the allegations made with respect to these enactments, the Committee did not formulate recommendations to the Governing Body because the Petition for disallowance mentioned above was pending and the Committee wished to await the outcome of that proceeding. The Committee therefore requested the Government of Canada to be good enough to inform the Committee whether it had any statement to make concerning the request of the complainants that the Government of Canada should exercise the power to disallow the enactments in question.
  212. 212 In its communication dated 13 May 1960, the Government of Canada states that the Governor-General in Council, after careful consideration of the Petition of the Canadian Labour Congress, decided against the exercise of discretionary powers of disallowance vested in the Governor-General in Council by the British North America Act to disallow the Trade Union (Emergency Provisions) Act, 1959, or the Labour Relations (Amendment) Act, 1959. The Government declares that any suggestion that the power of disallowance should be used for the purpose of imposing federal policy views on a provincial legislature in respect of a law that has no operation or effect outside the provincial sphere shows a lack of understanding of the history and traditions of the Canadian Constitution as well as of the interpretation that has been placed by the courts on the British North America Act, 1867.
  213. 213 In these circumstances the Committee recommends the Governing Body:
       • (a) to note that the statements contained in the letter from the Government of Canada dated 13 May 1960 contain nothing to cause the Committee to modify the conclusion expressed in its 45th Report that the government responsible for furnishing observations in the case, as a Member of the International Labour Organisation, is the Government of Canada, or to preclude the Committee from proceeding, on the grounds indicated in paragraph 101 of its 45th Report, to examine the allegations made in the light of the generally accepted principles relating to freedom of association, taking the provisions of 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) as a standard of comparison, with a view to ascertaining the facts and reporting them to the Governing Body;
       • (b) to take note of the explanation given by the Government of Canada, in its letter dated 13 May 1960, as to why it was not considered appropriate, from the Constitutional point of view, to entertain the Petition addressed to the Governor-General in Council for the disallowance of the Newfoundland Trade Union (Emergency Provisions) Act, 1959, and the Newfoundland Labour Relations (Amendment) Act of 6 March 1959.
  214. Allegations relating to the Labour Relations (Amendment) Act of 6 March 1959
  214. 214 The allegations, which relate to specific provisions of this Act, are analysed separately below. First of all, however, one or two observations require to be made on the general aspects of the matter.
  215. 215 At its meeting in February 1960 the Committee made a preliminary analysis of the allegations relating to different provisions of the Act in paragraphs 86 to 94 of its 45th Report. In paragraphs 101 to 109 of that report, the Committee drew attention to some of the generally accepted principles that it would have to bear in mind when examining the separate points raised in the allegations, many of which principles have been embodied in Articles 2, 3, 4, 5, 6 and 8 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee decided to request the Government to furnish observations with regard to the allegations, set forth in detail in the complaint and in the Petition of the Canadian Labour Congress and other accompanying documents, with respect to the effects of the provisions of the Labour Relations (Amendment) Act, 1959, and especially sections 6A, 11, 43 and 52A of that Act. The Committee's request was conveyed to the Government of Canada by the Director-General in a letter dated 24 March 1960.
  216. 216 While no observations on the specific allegations raised with respect to this enactment have been received, the Government of Canada has forwarded the text of a further amending enactment-the Newfoundland Labour Relations (Amendment) Act of 5 July 1960. The situation has been modified in certain respects by this enactment and account is taken of such modification in the following paragraphs, in the course of which the specific allegations relating to different provisions of the Act of 1959 are considered. The sections of the Act relevant to these allegations, in the order in which they may most conveniently be examined, are sections 52A, 11, 6A and 43A (l) (a).
  217. 217 It is alleged that section 52A of the Labour Relations Act, as amended in 1959, makes trade unions suable (but not able to sue) not merely for tortious acts committed by or on behalf of the union, but for tortious acts merely " alleged " to have been so committed.
  218. 218 In view of the fact that section 52A has now been repealed by the Labour Relations (Amendment) Act, 1960, the Committee considers that no useful purpose would be served by pursuing further this aspect of the allegations.
  219. 219 Section 11 of the Labour Relations Act, as amended in 1959, read as follows:
  11. 11 (1) Where:
      • (a) in the opinion of the Board:
      • (i) a certified bargaining agent no longer represents the majority of employees in the unit in which it was certified;
      • (ii) a certified bargaining agent has ceased to be a trade union; or
      • (iii) the employer has ceased to be the employer of the employees in the unit in which it was certified;
      • (b) any officer, agent or representative of a certified bargaining agent has been convicted of an offence against the Criminal Code in connection with a trade dispute and continues as such officer, agent or representative;
      • (c) a certified bargaining agent or any officer, agent or representative of it has been convicted of an offence against this Act and continues as such officer, agent or representative;
      • (d) an employer has been excluded generally or specifically from section 12 of this Act;
      • (e) an injunction other than an interim injunction has been granted against a certified bargaining agent or any officer, member, agent or representative of it in connection with a trade dispute; or
      • (f) a judgment has been entered against a certified bargaining agent or any officer, member, agent or representative of it in respect of any tortious act committed by or on behalf of the bargaining agent in connection with a trade dispute,
  12. the Board of its own motion or upon application may revoke the certification of the certified bargaining agent and thereupon notwithstanding anything contained in this Act the employer shall not be required to bargain collectively with the bargaining agent but subject to subsections (2) and (3) nothing in this subsection shall prevent the bargaining agent from making an application under section 7.
  2. (2) Notwithstanding anything contained in this Act and whether or not the Board on its own motion or on application has under consideration the revocation of the certification under subsection (1), the Lieutenant-Governor in Council may after due inquiry revoke the certificate of a certified bargaining agent.
  3. (3) Where the Lieutenant-Governor in Council has revoked a certification under subsection (2), the Board shall not without the consent of the Lieutenant-Governor in Council receive, consider or determine an application under section 7 or grant certification under section 9.
  4. (4) Where a certification has been revoked under subsection (1) or (2), an agreement entered into and in force at the date of the revocation between the certified bargaining agent and the employer is not and shall not be deemed to be as from that date a collective agreement for the purposes of this Act.
  220. 220 With respect to the provisions of section 11 of the Labour Relations Act, as amended by the Act of 1959, the complainants pointed out that, prior to the amendment, certification of a collective bargaining agent could be revoked only if the Labour Relations Board was satisfied that " the collective bargaining agent no longer represented the majority of employees in the unit in which it was certified "-this question as to representativeness also being the only criterion when a certificate was granted. The effect of the new section 11, contended the complainants, was " drastically and improperly to widen the grounds for revoking certification of trade unions "; the new section 11 (1) (a) (iii) permitted revocation where in the opinion of the Board " the employer has ceased to be the employer of the employees in the unit in which it was certified ". This, in the view of the complainants, would encourage any unscrupulous employer to avoid his obligations under a collective agreement by farming his work out to subcontractors, or by selling the business or changing the name of the owner. The complainants went on to allege that the new section 11 (1) (e) empowered the Labour Relations Board to revoke certification " where an injunction other than an interim injunction has been granted against any member " of a certified bargaining agent, regardless of whether he was or was not acting on behalf of the bargaining agent and of whether he obeyed the injunction or broke it, while section 11 (2) conferred on the Lieutenant-Governor in Council powers to revoke certification without any due process at all, without any hearing, without giving any grounds and, in this respect, to supersede the Board and oust its jurisdiction. Section 11 (3) forbade the Board to grant certification to any trade union whatever in any bargaining unit once the Lieutenant-Governor in Council has revoked a particular trade union's certificate in a particular bargaining unit, except by the permission of the Lieutenant-Governor in Council. In these respects, contended the complainants, the Lieutenant-Governor in Council, with greater powers, had superseded the administrative tribunal set up under the principal Act.
  221. 221 When it examined the case at its meeting in February 1960, the Committee observed that the allegations relating to subsections (2) and (3) of section 11 would require to be examined in the light of the generally accepted principle that refusal of certification or revocation of certification should never be within the discretion of the public authorities and should in all cases be subject to a right of appeal to the ordinary courts.
  222. 222 In these respects, substantial changes have now been made by the Labour Relations (Amendment) Act of 5 July 1960. Subsections (1) (a) (iii), (1) (e), (2) and (3) of section 11 have been repealed.
  223. 223 The Committee considers, therefore, that no useful purpose would be served by pursuing further the examination of the allegations relating to section 11 of the Labour Relations Act, as amended.
  224. 224 Section 6 A (1) of the Labour Relations Act, as amended in 1959, read as follows:
  6. 6A. (1) Notwithstanding anything contained in this Act or in any other statute or law, where it appears to the Lieutenant-Governor in Council that a substantial number of the superior officers, agents or representatives of a trade union or any body, group or organisation of trade unions outside the province have been convicted of any heinous crime such as trafficking in narcotics, manslaughter, extortion, embezzlement or perjury and any or all of them remain as officers, agents or representatives of the trade union or body, group or organisation of trade unions, the Lieutenant-Governor in Council may as from such date as he sees fit dissolve any trade union in the province which is a branch, local or affiliate of that other trade union or body, group or organisation of trade unions.
• Such dissolution entailed revocation of any certification granted to the union as a collective bargaining agent (section 6 A (3)), while any collective agreement to which it was a party ceased to have the status of a collective agreement within the meaning of the Act (section 6 A (5)).
  225. 225 In the view of the complainants, as set forth in their Petition to the Governor-General in Council to disallow the enactment, the new section 6 A (1) placed every national or international trade union in the province at the mercy of the Lieutenant-Governor in Council of Newfoundland. The complainants pointed out that no proof was required-it merely needed to " appear " that the persons described had been convicted as specified; that there was no provision for any hearing; that the interpretation of " substantial " and " superior " was left to the discretion of the Lieutenant-Governor in Council. They went on to state that the Canadian Labour Congress, to which all the national or international unions in Newfoundland are affiliated, has thousands of " agents " or " representatives ", so that " it need only appear to the Lieutenant-Governor in Council that a substantial number of the agents or of the representatives of the Canadian Brotherhood of Railway, Transport and General Workers, or of the United Steelworkers of America, or of the Canadian Labour Congress, outside the province, have been convicted of any of the crimes specified, and every branch, local or affiliate of any of these bodies in Newfoundland is dissolved.... The branch, local or affiliate, even if it were given a hearing (for which there is no provision) and even if it could produce proof (which the Lieutenant-Governor in Council would be perfectly entitled to disregard) that its parent union or organisation outside the province had rid itself of all but one " of the persons described and convicted as specified " could not save itself from dissolution ". According to one possible interpretation of the words, " outside the province ", contended the complainants, a purely Newfoundland union, unaffiliated with any body outside the province, would be totally unaffected by section 6 A " even if all its superior officers, agents or representatives had been convicted of every crime in the calendar ". Hence, concluded the complainants, the section was also discriminatory, in that it did not apply at all to purely Newfoundland trade unions but did apply to national and international unions, which it might completely exclude from the province.
  226. 226 At its meeting in February 1960, the Committee did not examine this part of the allegations in full detail, as it did not have before it any comments by the Government and the consideration of the Petition for disallowance of the Act was still pending. The Committee did, however, point out, when it requested the Government of Canada to furnish observations on these allegations, that when it examined them further in substance the generally accepted principle that workers' and employers' organisations should not be liable to be suspended or dissolved by administrative authority, the importance of which the Committee has emphasised in a number of cases in the past, was one of the principles in the light of which the provisions of section 6 A of the Act would have to be examined.
  227. 227 Section 6 A (1) has now been further amended by the Labour Relations (Amendment) Act of 5 July 1960, so that, with the addition of new paragraphs 6 A (1 A) and (1 B), it-reads as follows:
  1. (1) Notwithstanding anything contained in this Act or in any other statute or law, where upon the application of the Attorney-General of Newfoundland, the Supreme Court is satisfied that a substantial number, in the opinion of the Court, of the superior officers, agents or representatives of a trade union or any body, group or organisation of trade unions, outside the province have been convicted of any crime such as trafficking in narcotics, manslaughter, extortion, embezzlement or perjury and any or all of them remain as officers, agents or representatives of the trade union or body, group or organisation of trade unions, the Court shall order that on the expiration of three months from the date of the order any trade union in the province which is a branch, local or affiliate of that other trade union or body, group or organisation of trade unions shall be dissolved unless within that time the trade union in the province ceases to be a branch, local or affiliate of that other trade union or body, group or organisation of trade unions.
  1. (1A) In an application under subsection (1) the Court may direct that any person interested or, where there is a class of persons interested, any one or more persons as representative of that class, shall be notified of the hearings and the persons notified are entitled to be heard.
  1. (1B) The form and procedure to be followed, the proof to be adduced and all other matters relating to an application under subsection (1) shall be such as the Court may determine.
  228. 228 The Committee notes that the order of dissolution can now be pronounced only by the Supreme Court. Consequently, the Committee, while again emphasising the importance which it attaches to the generally accepted principle that workers' and employers' organisations should not be liable to be suspended or dissolved by administrative authority -a liability to which they appear to have been exposed under the Labour Relations (Amendment) Act of 1959-considers that it need not consider the matter further in the light of this particular principle in view of the new provision in the Labour Relations (Amendment) Act of 1960 cited above. Nor, in view of the provisions of section 6 A (1 A) and (l B) introduced by the Act of 1960, would it seem necessary to consider further the point made by the complainants that dissolution can be pronounced even without the organisation concerned or its representatives being heard.
  229. 229 But the essence of the provisions criticised in these particular allegations still holds. Under section 6 A (1) as it now stands, if the Supreme Court is satisfied that a " substantial number "--not otherwise defined-of the " superior officers, agents or representatives of a trade union or any body, group or organisation of trade unions outside the province " have been convicted of any of the offences specified and " any or all of them " remain as officers, etc., the Court shall order that any trade union in the province which is a branch, local or affiliate of that other trade union or body, group or organisation of trade unions shall be dissolved. Under the provision in the 1960 Act, the situation has been changed to the extent that the dissolution need not take place for up to three months and that the trade union in the province may escape dissolution if, within that time, it ceases to be a branch, local or affiliate of the said other trade union or body, group or organisation of trade unions.
  230. 230 Under a number of legal systems persons are disqualified from being elected to or remaining in trade union office in the event of their being convicted of certain serious penal offences of a non-political nature, such as those specified in the Act of 1960. In such cases the trade union must take steps, within a prescribed reasonable time, to remove the person concerned from his union office, on pain of sanction which may vary in nature-fine, de- certification as a bargaining agent, or even dissolution, provided that the dissolution has to be ordered by the ordinary courts following a procedure attended by all the guarantees afforded by due process of law. If a union in such a case is dissolved by the courts because it has not, within a reasonable time, removed one of its officers following such a conviction, a government might be able to argue that this did not necessarily constitute an infringement of the principle that workers' organisations should have the right to elect their representatives in full freedom and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof or of the principle that the law of the land should not be such as to impair, nor should it be so applied as to impair, the right to elect representatives in full freedom. It may also be defensible to enact legal provisions to the effect that where a parent organisation is dissolved by law because it has maintained a convicted person in office in such cases, its branches or locals may also be dissolved, or that, if the dissolved parent organisation is a federation or international union, its constituent unions or affiliated unions shall cease to belong-as they would automatically in fact-to the dissolved federation or international union.
  231. 231 The legal provisions under review, however, appear to go much farther than this. Under the federal legislation of Canada there is no provision requiring the dissolution of a national organisation, such as the Canadian Labour Congress, if it has in office a person convicted of one of the crimes specified. It would seem to be extremely anomalous that a union in Newfoundland which is affiliated to the Canadian Labour Congress or which, even, is a branch or local of it, should be liable to be dissolved on grounds which do not render its parent organisation liable to any penalty at all--namely the retention in office of a convicted officer of whose conviction, offence or even existence the provincial union or its members may not even be aware. The scope of section 6 A here seems to be so far-reaching as seriously to bring into question the application of the principles referred to in paragraph 230 above. The fact that the union may escape dissolution if it severs all connection with the parent union may mitigate the effect of the legal provisions but would not seem to alter the fact that they appear to be anomalous and not in full harmony with those principles in any event.
  232. 232 There is a further serious point to be considered-that of alleged anti-union discrimination. The Canadian Labour Congress argues that this legal provision is part of a campaign directed against that organisation by the Premier of Newfoundland. It states that these legal provisions are aimed against it because, in fact, it is itself the organisation to which all the unions of Newfoundland are affiliated-a point on which no observation in denial has been put forward. The complainant argues that the provisions are also discriminatory because of the use of the words " outside the province ". According to the section as it now stands it would appear that only the conviction of an officer of a union " outside the province " is covered by the legislation and that a provincial unaffiliated trade union suffers no penalty under this law whatever crimes may be laid against its own officers. This would appear to involve a discrimination against unions in Newfoundland which are branches or affiliates of unions outside as compared with independent unions operating solely within the province. There would also seem to be another possibility of abuse by reason of the fact that proceedings for dissolution of a union can be instituted only on the application of the Attorney-General for Newfoundland. Under the law, therefore, it would seem to be open to the Attorney-General, in his discretion, to take proceedings against a union in Newfoundland affiliated to the Canadian Labour Congress if the latter maintained a single convicted officer, agent or representative, whereas, in the case of a Newfoundland union which might affiliate with some other organisation outside the province, he could refrain from instituting proceedings even though all the officers of that organisation were convicted criminals.
  233. 233 The Committee considers that these discriminatory provisions, especially those involving preferential treatment for unions in Newfoundland having no connection with unions outside the province, may exercise pressure on workers to join a purely provincial union without ties rather than another and are not in harmony with the generally accepted principle that workers should have the right to form and join organisations of their own choosing, and that the law of the land should not be such as to impair, nor should it be so applied as to impair, the exercise of this right.
  234. 234 The discriminatory provisions might also impose pressure on trade union organisations in Newfoundland to cause them to remain purely provincial organisations because, if they federate or affiliate with organisations outside the province, they may, through this fact alone, run the risk of dissolution in the event of the organisation outside the province retaining a convicted person as an officer, agent or representative. These provisions would not, therefore, seem to be compatible with the principle that workers' organisations should have the right to establish and join federations and Confederations of their own choosing and that such organisations, federations or Confederations should have the right to affiliate with international organisations of workers.
  235. 235 Section 6 A (5) of the Labour Relations Act, as amended in 1959, provides that the Lieutenant-Governor in Council may make regulations providing for the disposition of the assets of a union dissolved in the circumstances indicated earlier.
  236. 236 The complainants allege that this gives the Lieutenant-Governor in Council power to seize and dispose of the assets of a dissolved union at his pleasure and that he could give them to the Treasury, the employers or the Salvation Army or " distribute them among the members of the Executive Council or of the Legislative Assembly ".
  237. 237 When the Committee examined this aspect of the case at its meeting in February 1960, it recalled that, among other principles which it has enumerated in respect of such cases, it has emphasised that when an organisation is dissolved its assets should temporarily be sequestrated and finally distributed among its members or transferred to its successor organisation.
  238. 238 No observations have been received from the Government concerning this allegation. Section 6 A (5) of the Labour Relations (Amendment) Act, 1959, has not been altered by the amending Act of 1960.
  239. 239 Section 43 A (1) (a) of the Labour Relations Act, as amended in 1959, reads as follows:
  1. (1) No trade union and no body, group or organisation of trade unions and no officer member, agent or representative of a trade union or body, group or organisation of trade unions shall authorise, counsel, procure, aid or abet any person to and no person shall engage in or encourage any person to engage in a concerted refusal to use, manufacture, transport or otherwise handle or work on any goods or materials or to perform any services with a view to forcing or requiring
     • (a) any employer or other person to cease using, selling, handling, transporting or otherwise dealing in the products of or to cease doing business with any person.
  2. This provision has not been affected by the amending Act of 1960.
  240. 240 The complainants allege that " this provision of the Act makes a legal strike a sheer impossibility within the jurisdiction of the Legislature of Newfoundland ". How, ask the complainants, could any trade union or its members strike without " a concerted refusal to manufacture " (in a manufacturing industry), to " transport " (in a transport industry), to " work on any goods or materials " (in any industry other than a service industry) or to " perform any service " " with a view to requiring " their employer or employers " to cease ... selling, handling, working on, transporting or ... to cease doing business with " all the employer's or employers' customers?
  241. 241 When it examined the case at its meeting in February 1960 the Committee decided, before examining this aspect of the case in substance, to request the Government of Canada to furnish its observations on the allegations of the complainants, as set forth in the complaint and in their Petition to the Governor-General in Council and other accompanying documents, with respect to the effects of section 43 A (l) (a) of the Labour Relations Act, as amended in 1959. This request for information was conveyed to the Government of Canada by the Director-General in his letter dated 24 March 1960. No observations on this matter have been received.
  242. 242 In these circumstances the Committee recommends the Governing Body:
       • (a) to note that the Labour Relations (Amendment) Act, 1959, on which the allegations are based, has been further amended by the Labour Relations (Amendment) Act of 5 July 1960, which has repealed or amended a number of the provisions complained against in the allegations-notably, section 52 A of the Labour Relations Act which restricted the extent of trade union immunity from actions in respect of torts, and subsections 1 (a) (iii), (1) (e), (2) and (3) of section 11 relating to the certification and revocation of certification of bargaining agents have been repealed, while section 6 A has been amended so as no longer to permit of the dissolution of trade unions by administrative authority;
       • (b) to decide, therefore, that no useful purpose would be served by pursuing further the examination of the allegations relating to sections 11 and 52 A of the Labour Relations Act, as amended;
       • (c) to draw the attention of the Canadian Government, and request it to draw the attention of the Newfoundland government, to the fact that certain other provisions of the Act do not appear to be fully compatible with the generally accepted principles concerning freedom of association and, in particular:
       • (i) to draw attention to the importance which the Governing Body has always attached to the principles that workers should have the right to form and join organisations of their own choosing, that workers' organisations should have the right to elect their representatives in full freedom, that workers' organisations should have the right to establish and join federations and Confederations of their own choosing and that such organisations, federations and Confederations should have the right to affiliate with international organisations of workers and that the law of the land should not be such as to impair, nor should it be so applied as to impair, the exercise of the foregoing rights;
       • (ii) to express its view that, for the reasons indicated in paragraphs 229 to 234 above, the provisions of section 6 A (l) of the Newfoundland Labour Relations Act, as amended, appear to be incompatible with the principles set forth in subparagraph (i) above;
       • (iii) to draw attention to the importance which the Governing Body has always attached to the principle than when an organisation is dissolved its assets should temporarily be sequestrated and finally distributed among its members or transferred to its successor organisation;
       • (iv) to express its view that the provisions of 6 A (5) of the said Act do not appear to be compatible with the principle set forth in subparagraph (iii) above;
       • (d) to request the Government to furnish its observations on the allegations made with respect to the effects of section 43 A (1) (a) of the Newfoundland Labour Relations Act, as amended, which are analysed in paragraph 240 above.
  243. Allegations relating to Acts Stated to Have Been Committed by or at the Instigation of the Premier of Newfoundland
  243. 243 These allegations were analysed in detail in paragraphs 83 to 85 of the Committee's 45th Report, at its meeting in February 1960. Certain observations thereon, made by the Premier of Newfoundland and transmitted to the I.L.O by the Government of Canada, were examined in paragraph 100 of its 45th Report. The Committee decided to request the Government of Canada to furnish further information on certain aspects of the specific allegations made, in particular, observations concerning: (a) the reasons for the rejection in March 1957 of the first application for certification by the International Woodworkers of America (I.W.A.); (b) the allegation that I.W.A members and their families were discriminated against after the woodworkers' strike had been called at the end of 1958; (e) the contents of the speech alleged to have been made by the Premier of Newfoundland on 12 February 1959; (d) the allegation that the Premier sponsored the formation of a new union and took an active part in its formation as described in the complaint; (e) the allegations relating to the adoption of a resolution condemning the I.W.A by the Legislature of Newfoundland. In addition, the Committee requested further information concerning the violence and illegal acts stated in the communication from the Premier of Newfoundland, forwarded on 18 January 1960 by the Government of Canada, to have been committed by the I.W.A and its members in the course of the strike. The Committee's request for the above information was conveyed to the Government of Canada by the Director-General in a letter dated 24 March 1960. No further observations on these matters have been received from the Government of Canada.
  244. 244 In these circumstances the Committee recommends the Governing Body to request the Government of Canada to be good enough to furnish further information on the points referred to in paragraph 243 above.
• Allegations relating to the Decertification of the International Woodworkers of America in Newfoundland
  245. 245 The complainants allege that when the union drive of the Premier of Newfoundland had entirely failed, he introduced certain legislation in the Parliament of Newfoundland. Parliament enacted the Trade Union (Emergency Provisions) Act, No. 2, of 6 March 1959, whereby the certification of the I.W.A. Locals 2-254 and 2-255 as bargaining agents was revoked and provision was made that the unions shall not without the consent of the Newfoundland Lieutenant-Governor in Council apply for certification under the Newfoundland Labour Relations Act and that the Labour Relations Board shall not without the like consent grant certification under the Act. Another section provided that the revocation of the certification rendered void any subsisting collective agreements to which the unions concerned were parties. The complainants declare that this enactment constitutes a denial of the right of workers to belong to unions they have freely chosen to represent them, stating that in the case of the local representing employees of the Anglo-Newfoundland Development Company 86.4 per cent of the employees concerned voted in favour of the union in the election preceding its certification in May 1958.
  246. 246 At its meeting in February 1960, the Committee had before it the observations prepared by the government of Newfoundland and forwarded to the Office on 18 January 1960 by the Government of Canada. In those observations the Premier of Newfoundland, after making his comments on the events which had taken place (see paragraph 100 of the Committee's 45th Report), declared: " The decertification of the I.W.A meant merely the ending, by the Legislature, of the monopoly they had enjoyed of the right to negotiate with the employers on behalf of their members. The right to organise, to operate as a union, to negotiate with the employers, to conclude agreements with the employers, and generally to conduct themselves as a trade union in Newfoundland has not been affected at all." He went on to state that a new union had been organised and had negotiated contracts with the employers.
  247. 247 The Committee pointed out in paragraph 104 of its 45th Report, that it has on several occasions emphasised the importance which it attaches to the principle that workers should have the right to establish and join organisations " of their own choosing " and that it would have to examine the allegations regarding the decertification of the I.W.A in the light of this generally accepted principle. The Committee also recalled that, in Case No. 20 (Lebanon), it had recommended the Governing Body to draw attention to the fact that the right of workers to establish and join organisations of their own choosing without previous authorisation " is " one of the foundations of freedom of association ", and that it would have to have regard to this principle also when examining the legal requirement under the Trade Union (Emergency Provisions) Act as to prior approval for recertification of the I.W.A, as well as to the principle that refusal of certification or revocation of certification should never be within the discretion of the public authorities and should in all cases be subject to a right of appeal to the ordinary courts. Finally, the Committee pointed out, the said provisions respecting certification and decertification of trade unions would have to be considered in the light of the principle that workers and their organisations should have the right to elect their representatives in full freedom, the importance of which the Committee has emphasised on a number of occasions.
  248. 248 At that meeting the Committee did not formulate recommendations on these allegations to the Governing Body because the complainants had petitioned the Governor-General in Council of Canada to disallow the enactment in question and the Committee wished to wait until it was informed as to the outcome of this application, but it requested the Government of Canada to furnish observations with regard to the allegations, set forth in detail in the complaint and in the Petition of the Canadian Labour Congress and other accompanying documents, with respect to the effects of the Trade Union (Emergency Provisions) Act.
  249. 249 This request for observations was conveyed to the Government of Canada by the Director-General in his letter dated 24 March 1960. No further observations on these allegations have been received.
  250. 250 Under the Labour Relations Act of Newfoundland, as amended, a union which is certificated as a bargaining agent enjoys considerable advantages. Under section 10 (a) the union certificated in respect of a given unit has " exclusive authority to bargain collectively on behalf of employees in the unit and to bind them by a collective agreement". Under section 11 (1) a certificate can be revoked only if a bargaining agent no longer represents a majority of the employees in the unit concerned. Under section 11 (2) revocation of certification of a union deprives any existing agreement to which it is a party in respect of the employees in the unit of the status of a collective agreement. Any union may apply for certification under the Act without previous authorisation by the public authorities. Only certified unions have the right to require employers to negotiate (section 12) or, indeed, to conclude collective agreements within the meaning of the legislation.
  251. 251 As the locals of the International Woodworkers of America have been decertified, it appears to the Committee that these organisations, elected as they were by majorities of the employees in the units concerned, have been decertified without reference to the question whether they had ceased to represent majorities of the employees in their units - and no contention is put forward that they had done so-and, unlike other unions, cannot apply for certification again according to the provisions of the Labour Relations Act unless they have the permission of the Lieutenant-Governor in Council. They cannot conclude collective agreements, within the meaning of the Act, because the exclusive right to do so is reserved to certified unions. The Committee finds it difficult to understand how the cumulative effect of the provisions of the Labour Relations Act and the Trade Union (Emergency Provisions) Act are to be reconciled with the statement of the Premier of Newfoundland that, as a result of the revocation of certification, " the right to organise, to operate as a union, to negotiate with the employers, to conclude agreements with the employers and generally to conduct themselves as a trade union in Newfoundland has not been affected at all ".
  252. 252 In these circumstances the Committee recommends the Governing Body to request the Government to furnish, in the light of the observations made in paragraphs 247, 250 and 251 above, observations with regard to the allegations, set forth in detail in the complaint and in the Petition of the Canadian Labour Congress and other accompanying documents, with respect to the effects of the Trade Union (Emergency Provisions) Act, 1959.

The Committee's recommendations

1. 253. In all the circumstances the Committee recommends the Governing Body:
   • (a) to note that the statements contained in the letter from the Government of Canada dated 13 May 1960 contain nothing to cause the Committee to modify the conclusion expressed in its 45th Report that the Government responsible for furnishing observations in the case, as a Member of the International Labour Organisation, is the Government of Canada, or to preclude the Committee from proceeding, on the grounds indicated in paragraph 101 of its 45th Report, to examine the allegations made in the light of the generally accepted principles relating to freedom of association, taking the provisions of 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), as a standard of comparison, with a view to ascertaining the facts and reporting them to the Governing Body;
   • (b) to take note of the explanation given by the Government of Canada, in its letter dated 13 May 1960, as to why it was not considered appropriate, from the Constitutional point of view, to entertain the Petition addressed to the Governor-General in Council for the disallowance of the Newfoundland Trade Union (Emergency Provisions) Act, 1959, and the Newfoundland Labour Relations (Amendment) Act of 6 March 1959;
   • (c) to decide, with respect to the allegations relating to the Labour Relations (Amendment) Act of 6 March 1959:
   • (i) to note that the Labour Relations (Amendment) Act, 1959, has been further amended by the Labour Relations (Amendment) Act of 5 July 1960, which has repealed or amended a number of the provisions complained against in the allegations - notably, section 52 A of the Labour Relations Act, which restricted the extent of trade union immunity from actions in respect of torts, and subsections (1) (a) (iii), (1) (e), (2) and (3) of section 11 relating to the certification and revocation of certification of bargaining agents have been repealed, while section 6 A has been amended so as no longer to permit of the dissolution of trade unions by administrative authority;
   • (ii) to decide, therefore, that no useful purpose would be served by pursuing further the examination of the allegations relating to sections 11 and 52 A of the Labour Relations Act, as amended;
   • (iii) to draw the attention of the Canadian Government, and request it to draw the attention of the Newfoundland government, to the fact that certain other provisions of the Act do not appear to be fully compatible with the generally accepted principles concerning freedom of association and, in particular:
2. (1) to draw attention to the importance which the Governing Body has always attached to the principles that workers should have the right to form and join organisations of their own choosing, that workers' organisations should have the right to elect their representatives in full freedom, that workers' organisations should have the right to establish and join federations and Confederations of their own choosing and that such organisations, federations and Confederations should have the right to affiliate with international organisations of workers and that the law of the land should not be such as to impair, nor should it be so applied as to impair, the exercise of the foregoing rights;
3. (2) to express its view that, for the reasons indicated in paragraphs 229 to 234 above, the provisions of section 6 A (1) of the Newfoundland Labour Relations Act, as amended, appear to be incompatible with the principles set forth in subparagraph (1) above;
4. (3) to draw attention to the importance which the Governing Body has always attached to the principle that when an organisation is dissolved its assets should temporarily be sequestrated and finally distributed among its members or transferred to its successor organisation;
5. (4) to express its view that the provisions of 6 A (5) of the said Act do not appear to be compatible with the principles set forth in subparagraph (3) above;
   • (iv) to request the Government to furnish its observations on the allegations made with respect to the effects of section 43 A (1) (a) of the Newfoundland Labour Relations Act, as amended, which are analysed in paragraph 240 above;
   • (d) to request the Government to be good enough to furnish observations, in respect of the allegations relating to acts stated to have been committed by or at the instigation of the Premier of Newfoundland, on the specific points referred to in paragraph 243 above;
   • (e) to request the Government to be good enough to furnish, in the light of the observations made in paragraphs 247, 250 and 251 above, observations with regard to the allegations, set forth in detail in the complaint and in the Petition of the Canadian Labour Congress and other accompanying documents, relating to the effects of the Trade Union (Emergency Provisions) Act, 1959.