Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 344, Marzo 2007

Caso núm. 2467 (Canadá) - Fecha de presentación de la queja:: 01-FEB-06 - Cerrado

Allegations: The complainant organizations allege that the Government has passed a law (Act respecting conditions of employment in the public sector, S.Q. 2005, chapter 43) imposing conditions of employment on employees in the Quebec public sector without prior bargaining or consultation; violating their fundamental right to bargain collectively; taking away their right to strike without granting them an alternative procedure for the settlement of disputes such as mediation, conciliation or arbitration. The Association of Attorney-General’s Prosecutors of Quebec (ASPGQ) further alleges that the Prosecutors Act (as amended by the Act amending the Act respecting Attorney-General’s Prosecutors and the Labour Code, L.Q. 2004, chapter 22) denies prosecutors the right to join a trade union and deprives them of protection against hindrances, reprisals or sanctions related to the exercise of trade union rights

461. The initial complaint is contained in a communication from the Association of Attorney-General’s Prosecutors of Quebec (ASPGQ) dated 1 February 2006 and was supplemented by three communications, two dated 14 February 2006 and one dated 19 October 2006. Additional allegations were filed by: the Quebec Government Professional Staff Union (SPGQ) in a communication of 24 February 2006; the Association of State Jurists (AJE) in a communication of 27 February 2006; the Confederation of National Trade Unions (CNTU) in a communication of 15 March 2006; the Nurses’ Federation of Quebec (FIIQ) in a communication of 16 March 2006; the Independent Federation of Secondary Teachers (FAC) in a communication of 30 May 2006; and jointly by the Quebec Confederation of Trade Unions (CSQ), the Quebec Workers’ Federation (FTQ), the Federation of Democratic Trade Unions (CSD), the Quebec Union of Public Servants (SFPQ), the Quebec State Teachers’ Union (SPEQ) and the Quebec Provincial Association of Teachers (APEQ) in a communication dated 1 June 2006 sent by the CSQ.

1. 462. The Government of Canada sent its reply to the complaints through the Government of Quebec on 16 January 2007.
2. 463. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). It has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), nor the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. The complainants and the background
2. to their complaints
3. 464. ASPGQ: In a communication dated 1 February 2006, the ASPGQ states that its membership covers all prosecutors in the employment of the Government of Quebec covered by section 10 of the Act respecting Attorney-General’s Prosecutors (L.R.Q. c. S-35, hereinafter Prosecutors Act) and that it is recognized as their sole representative. Under this Act, prosecutors’ chief functions are to authorize prosecutions and to represent the Attorney-General in the courts in criminal or penal matters. As prosecutors are not “employees” in the meaning of the Labour Code, their right of freedom of association, right to bargain collectively and right to strike are governed by the Prosecutors Act.
4. 465. The ASPGQ alleges that, in its capacity as the prosecutors’ bargaining agent, it negotiated in good faith with the Government of Quebec and signed an agreement governing prosecutors’ conditions of employment. This agreement was due to terminate on 31 March 2007 and, under the Prosecutors Act, bargaining should have begun on 2 October 2006. However, the Government took advantage of the passing of the Act respecting Conditions of Employment in the Public Sector, S.Q. 2005, chapter 43 (hereinafter Act 43) to impose conditions of employment on the prosecutors by amending the agreement and extending it to March 2010. This Act deprives prosecutors of the right to strike which, under the agreement, may not be exercised during the term of the agreement.
5. 466. SPGQ: In a communication of 24 February 2006, the SPGQ states that it is a professional organization of workers whose object is the study, defence and advancement of the professional, social and economic interests of its members. The SPGQ’s scope of action extends only to professional women and men in the public service of the Province of Quebec and to salaried professional women and men in enterprises or agencies directly or indirectly dependent on the Government of the Province of Quebec. The SPGQ represents 18,800 salaried professionals employed in the Quebec public service, state companies and education and health establishments.
6. 467. The SPGQ alleges that, as its collective agreement expired on 30 June 2003, it had bargained in good faith from November 2003 to December 2005 in order to reach an agreement with the Government of Quebec. According to the SPGQ, the Government of Quebec, dissatisfied with the progress of negotiations, adopted Act 43 ending the negotiations, reverting to the conditions of employment in the collective agreements which had lapsed since 30 June 2003, imposing conditions of employment and prohibiting the right to strike until March 2010.
7. 468. AJE: In a communication of 27 February 2006, the AJE states that it is an association of salaried employees in the meaning of the Labour Code and is accredited to represent the approximately 850 jurists, lawyers or notaries employed in the Quebec public service. Since its accreditation, the AJE negotiated and concluded its first collective agreement with the Government of Quebec on 30 March 2000 which was extended to 31 December 2005.
8. 469. The AJE alleges that negotiations with the Government of Quebec began on 1 July 2005 and that from that date it embarked on a process of consultation with the jurists to prepare its claims in those negotiations. At the end of the consultation, the AJE convened the jurists to a vote on 13 and 14 December 2005, so that they could decide on the draft union proposal concerning the renewal of their collective agreement. The jurists voted 75 per cent in favour of the draft union proposal. Act 43 was passed on 15 December imposing, without discussion or negotiation, the provisions of the collective agreement applicable to jurists with respect to normative and remuneration clauses, to be applicable up to 31 March 2010.
9. 470. CNTU: In a communication of 15 March 2006, the CNTU states that it is a trade union organization founded in 1921 which represents some 300,000 salaried staff belonging to over 2,700 unions affiliated to nine trade union federations based on their sector of activity. The CNTU has over 150,000 salaried staff working in the health, social services and education sectors who are directly affected by the provisions of Act 43. More specifically, the Federation of Health and Social Services (FSSS) represents over 105,000 staff in the social welfare sector, the Federation of Professionals (FP) represents over 4,000 staff in the social welfare sector, the National Federation of Teachers of Quebec (FNEEQ) represents over 12,000 staff in the education sector and the Federation of Public Service Employees (FEESP) represents over 30,000 staff in the education sector.
10. 471. The CNTU alleges that although, the collective agreements of the FSSS, FP, FEESP and FNEEQ had expired in 2002 (education) or 2003 (health), it was not until autumn of 2005 that the staff resorted to legal means of pressure, notably strike action, to express their dissatisfaction with their employers’ offers and to try to break the stalemate at the central bargaining table. The means of pressure were exerted (with due provision for essential services) peacefully and lawfully (strikes in the health service are governed by the Labour Code). No complaint to the Essential Services Council, application for an injunction, collective appeal or other penal appeal was made against these means of pressure. Furthermore, the use of rotating strikes (by region) was intended to minimize the inconvenience to the public. At no time did the means of pressure used endanger or compromise the safety of the public. On 17 November 2005, the president of the Treasury Council announced that negotiations must end before Christmas, failing which recourse would be had to a special law imposing conditions of employment. On 14 December 2005, the Prime Minister announced the calling of an emergency session of the National Assembly for the following day. At the time of that announcement, only seven sector-based agreements had been concluded between the Government and certain bargaining agents. In the 24 hours following the announcement, 23 other sector-based agreements on the regulatory provisions were concluded. According to the CNTU, no real bargaining had taken place on the salary clauses and other clauses with financial implications before Act 43 was passed.
11. 472. FIIQ: In its complaint of 16 March 2006, the FIIQ states that it is a group of employees’ associations duly accredited under the Labour Code, constituting a federation within the meaning of the law. It is made up of nurses, nursing auxiliaries, breathing therapists and staff employed as nursery nurses, transfusionists and extra-corporal circulation technicians, and represents them in the various establishments of the health system and Government of Quebec.
12. 473. As the last collective agreements negotiated and agreed by the FIIQ expired on 30 June 2002, bargaining for all the associations affiliated to the FIIQ (at that time the FIIQ only represented nurses) officially began with the submission of proposals to the employers’ side in July 2003. In June 2004, the employers tabled their offers. It was clear at that time, according to the FIIQ, that the Government had the firm intention of not deviating from the budgetary framework which it had fixed unilaterally for the total costs of the bargaining round and that it wanted to negotiate the costs of applying the Pay Equity Act (a law seeking to correct the historical pay differentials between predominantly female jobs and predominantly male jobs) within the same budgetary framework. It was thus in this restrictive framework that the bargaining was conducted and the discussions took place, first on the so-called normative clauses and then very briefly on wages. A few agreements on principle were concluded on the normative clauses before the threat of the decree and final adoption of Act 43 arose. As regards wages, apart from the Government’s announcement concerning the budgetary framework at the very beginning of the bargaining, there was no other official discussion on that subject. The FIIQ states that there was almost no real bargaining on the salaries aspect of its demands.
13. 474. FAC: In its communication of 30 May 2006, the FAC states that it is a federation of teachers’ unions and teachers working in public and private secondary colleges in Quebec. It has existed since June 1988 and now represents about 4,000 members belonging to 16 unions. Its aim is to promote and defend the interests of teachers and, on their behalf, to negotiate conditions of employment with secondary colleges. For the purposes of bargaining on the renewal of the collective agreement, the FAC is the bargaining agent for the trade unions that it represents. The employer colleges, for their part, are represented by the College Employers’ Bargaining Committee (CPNC) which comprises all the secondary colleges of Quebec for bargaining purposes.
14. 475. The FAC alleges that on 6 May 2002 it started the bargaining process for the renewal of the collective convention which was due to expire on 30 June 2002 by submitting to the CPNC a list of bargaining priorities. Between 27 November and 11 December 2002, the FAC submitted a complete and detailed set of its national sectoral demands to the CPNC. On 4 December 2003, the FAC tabled its salary claims. Not having received any offers from the CPNC, the FAC commenced legal proceedings on 11 December 2003 in order to seek an injunction in the courts requiring the CPNC to submit its offers. These were finally tabled by the CPNC on 2 February 2004, i.e. two years after the opening of negotiations.
15. 476. Between March and December 2005, the CPNC submitted other offers to the FAC and agreements were even reached. On 14 December, a meeting took place between the FAC and the CPNC at which, towards midday, the employers’ side announced that the bargaining must end by 6 p.m., failing which a special law would be passed by the Quebec Government to impose conditions of employment. In this context and under this pressure, the FAC was forced to conclude an “agreement in principle”. This agreement in principle was not, however, ratified by the teachers belonging to the FAC. On 15 December 2005, Act 43 was passed. Conditions of employment of teachers belonging to the FAC were imposed by the Quebec Government and are less favourable than the agreement in principle that was not ratified by the members.
16. 477. CSQ and FTQ: In its communication of 1 June 2006, the CSQ indicates that it is a trade union organization representing some 170,000 members. It is made up of accredited workers’ associations, which themselves are formed into federations. The CSQ chiefly represents employees in the state and parastatal sectors, with over 100,000 of its members working in the education field and over 9,000 in health and social services.
17. 478. The FTQ, for its part, is the largest trade union federation in Quebec, combining over half a million members through its affiliated unions. It has some 40 major unions affiliated to it and over 1,150 local unions. Almost two-thirds of the members of the FTQ work in the private sector and some 50,000 of them work in the education sector and health and social services.
18. 479. Bargaining for the renewal of the collective agreements of associations of employees in the state and parastatal sectors, which were due to expire on 30 June 2003, began in December 2002. In December 2003, the CSQ and FTQ submitted bargaining proposals to the representatives of the Treasury Council. On 18 June 2004, the Treasury Council tabled a text constituting the State’s financial offers and the offers relating to the pension schemes. At this meeting, the Treasury Council’s spokesman said that the offer was in line with the budgetary framework of the Government’s pay policy for all persons employed in all state and parastatal sectors, within which collective agreements must be concluded. He explained that pay scales fixed and limited the pay increase to 12.6 per cent for the next six years. Consequently, the Government was seeking to conclude collective agreements for a period of six years, i.e. a period greater than set out in the Labour Code (section 111.1). In addition, it would have made it official that the budgetary framework included adjustments arising from the application of the Pay Equity Act. In October 2004, at a bargaining meeting between the parties, a representative of the Treasury Council confirmed that this budgetary framework was not supported by any study or report.
19. 480. The CSQ and FTQ rejected the Government’s financial offer presented in June 2004, taking the view that it violated the provisions of the Pay Equity Act and the Labour Code which limited the duration of collective agreements in the state and parastatal sectors to three years. The CSQ and the FTQ then advised the Treasury Council that the salary package should exclude the question of pay equity and that the Government’s financial offer could not exceed three years. Despite that, between 18 June 2004 and 15 December 2005, the Treasury Council continued to link the conclusion of collective agreements to the imposition of its budgetary framework, as presented on 18 June 2004.
20. 481. On 22 November 2005, the employers’ side confirmed its position at a meeting with the FTQ. On 14 December 2005, a bargaining meeting took place between the CSQ and the Treasury Council in order to continue the discussions, especially on parental rights, reconciliation of work and family life and retirement. However, at the end of that meeting, the Treasury Council representatives advised the CSQ representatives that the Government was breaking off negotiations at 6 p.m. on that day and that, failing an agreement within that time it would, on 15 December 2005, adopt a law imposing the content of the collective agreements, including remuneration of employees in the state and parastatal sectors, as fixed by the budgetary framework presented on 18 June 2004.
21. 482. According to the CSQ and the FTQ, the following day the Quebec Government unilaterally broke off the current collective bargaining by passing Act 43. The complainant organizations state that, during that bargaining round which had ended with the passing of Act 43, the associations of employees affiliated to the CSQ and the FTQ exercised their right to strike in full compliance with the law.
22. 483. CSD: the CSD is composed essentially of associations of health and social services sector employees that are qualified to negotiate the renewal of collective agreements (Union of Employees in the Jewish Rehabilitation Hospital, the Saint-Maurice CSSS Workers’ Union (CSD), the Dixville Reception Centre Staff Union (CSD), the Lisette–Dupras Rehabilitation Centre Staff Union (CSD), the Democratic Worker’s Union of the Asbestos Health Centre (CSD), the Haut–Saint–Laurent CSSS Workers’ Union). The number of CSD members affected by the present complaint is 1,000.
23. 484. Between 29 June 2000 and 30 June 2002, these trade unions were covered by collective agreements between the Health and Social Services Employers’ Bargaining Committee (CPNSSS) and the CSD. On 21 June 2002, these parties reached an agreement to extend the collective agreement until 30 June 2003. This agreement also provided for an increase in salary rates and scales, and the payment of lump sums for a period of three months.
24. 485. On 18 June 2004, the Government negotiators presented to the trade unions which had concluded a collective agreement with the CPNSSS the same financial proposals as had been submitted to the other trade unions mentioned above, namely the CSQ and the FTQ. The CSD, following the CSQ line, rejected the Government’s financial proposal.
25. 486. On 22 June 2004, a meeting was held between the parties to the negotiations and both sides tabled their demands relating to the normative aspects of the collective agreement. Between July and November 2004, a few exchanges were made on the normative aspects of the collective agreement. On 19 June 2005, the CSD presented its proposed amendment of the collective agreements to the CPNSSS. This proposal included, in particular, amendments to the clauses on increases in salary rates and scales, calculated on the basis of reports published by the Quebec Institute of Statistics and seeking to preserve the purchasing power of members of the CSD.
26. 487. Between 29 June and 9 November 2005, the parties held only one or two meetings, at which only the normative aspects alone were discussed. On 10 November 2005, the employers’ side called the CSD representatives to a meeting to inform them of an ultimatum concerning the normative aspects of the collective agreement, including retention of staff, retirement, insurance schemes, arbitration procedure (arbitration expenses shared equally between the two parties) and trade union release. The CSD representatives were then advised that if they did not accept the ultimatum in its entirety, no other aspect could be discussed. Despite the threatening tone of the employers’ ultimatum, the CSD rejected the “proposal”.
27. 488. On 12 December 2005, the employers’ side again called the CSD representatives to a meeting to submit a new offer to them on the normative aspects of the collective agreement, amended in particular from the standpoint of human resources development, salaries insurance, reclassification and arbitration expenses. During this meeting, the CSD representatives were informed that, if they did not accept the proposal, the Government intended to legislate and impose even less-generous conditions of employment. On 13 December 2005, the CSD representatives submitted a counter-proposal which, despite many attempts, was rejected by the employers’ side. Thus, on 14 December 2005, the CSD representatives were forced to accept the offer on the normative aspects as formulated on 12 December 2005 by the employers’ side.
28. 489. However, although no exchange other than that of 18 June 2004 had taken place on salary issues and no agreement had so far been reached, the Government proposed, passed and then ratified Act 43 on 15 and 16 December.
29. 490. This Act takes up the salary scales announced on 18 June 2004 which had been rejected in its entirety by the various trade unions. Furthermore, it imposed a collective agreement for a period of almost seven years. During the bargaining process, up to the passing of Act 43, the members of the CSD exercised their right to strike in accordance with the legal provisions of the Labour Code.
30. 491. SFPQ: The SFPQ chiefly represents salaried staff, public servants and manual workers working in the Quebec public service and governed by the Public Service Act. The SFPQ thus represents office, technical and manual staff working for a state company or an agency whose mission is equivalent to that of a public service department. The SFPQ has 43,000 members.
31. 492. On 25 June 2003, the SFPQ presented its demands for the renewal of the collective agreements expiring on 30 June 2003 to the Treasury Council. On 24 March 2004, after only nine bargaining meetings, the Treasury Council tabled partial offers. The SFPQ accordingly requested the appointment of a mediator with a view to obtaining global employers’ offers from the Treasury Council. On 27 July 2004, the mediator submitted his final report, in which he could only note that negotiations had reached a stalemate due to the failure of the employers’ side to present global offers.
32. 493. On 18 June 2004, at a meeting with the government negotiators, the SFPQ representatives received the employers’ proposals relating to salaries and pension schemes. As mentioned above, the SFPQ representatives were then informed that the Government intended to conclude collective agreements for a period of six years and was linking its salary proposals to settlement of the pay equity issue. The SFPQ, following the line of the CSQ, rejected the financial offer and the offer relating to the duration of agreements. Between 18 June 2004 and 15 December 2005, the Treasury Council did not make any concessions on salaries and maintained the financial framework presented on 18 June 2004.
33. 494. On 9 November 2005, an agreement in principle on the normative aspects of the collective agreement was ratified by the SFPQ bargaining committee. These normative aspects concern in particular the dispute settlement procedure and arbitration, long service, provisions on career development and awards, job security, subcontracting, holidays, unpaid leave and life, health and medical treatment insurance schemes.
34. 495. However, although no agreement had so far been reached on salary issues, the Government passed Act 43 which, firstly, confirms the agreement in principle on the normative clauses of 9 November 2005 and, secondly, lays down the conditions of employment in all the areas of the collective agreement where no agreement could be reached, including wages, parental rights and pay equity. In addition, this Act imposes a collective agreement for a period of almost seven years (it is due to expire on 31 March 2010) and reverts to the salary scales announced on 18 June 2004 which had been massively rejected by the various trade unions. During the bargaining process, up to the passing of Act 43, the members of the SFPQ exercised their right to strike in accordance with the legal provisions of the Labour Code.
35. 496. SPEQ: The SPEQ is a trade union organization formed to represent teachers who are public servants within the meaning of the Public Service Act, and whose chief and usual occupation is teaching specific groups. The 853 members of the SPEQ perform their functions in music conservatories and schools of dramatic art, the Food Technology Institute, the Quebec Tourism and Hotels Institute and workplaces under the authority of the Ministry of Immigration and Cultural Communities.
36. 497. On 28 March 2003, the SPEQ presented its proposal for the collective agreement which was due to expire on 30 June 2003 to the Treasury Council. On 21 June 2004, the government negotiators tabled the employers’ proposal on salaries and pension schemes. This proposal was essentially the same as the one submitted to the other trade unions. The SPEQ rejected the Government’s financial proposal.
37. 498. On 4 November 2004, the government representatives tabled the employers’ proposals concerning the normative aspects of the collective agreement. The parties met between November 2004 and October 2005, but only the normative aspects of the collective agreement were discussed; the Government refused to deal with salary issues. On 14 December 2005, the employers’ side called the SPEQ representatives to a meeting to present them with a draft proposal on the normative aspects of the collective agreement, and specifically on leave, provisions applicable to occasional teachers and job security. At that meeting, the SPEQ representatives were informed that, if they did not accept the proposal, the Government intended to legislate and impose even less generous conditions of employment. Fearing this, the SPEQ representatives agreed at the last minute to sign the offer relating to the normative aspects on 14 December 2005. However, as no agreement had yet been reached concerning salary issues, the Government passed Act 43, thus unexpectedly putting an end to negotiations. The Government thereby ratified the agreement on the normative aspects of the collective agreement and also imposed conditions of employment in all areas of the collective agreement where agreement could not be reached, including parental rights, salaries and pay equity.
38. 499. The SPEQ states that at no time between June 2004 and 14 December 2005 did the employers’ side make any concession or even hold discussions with the SPEQ about its salary demands or the duration of the collective agreement. During the bargaining process, up to the passing of Act 43, the members of the SPEQ exercised their right to strike in accordance with the legal provisions of the Labour Code.
39. 500. APEQ: The APEQ has 7,000 members and represents all the employees, within the meaning of Quebec labour law, of ten Quebec school boards. The APEQ is a trade union association formed by the staff associations which are members of it. The APEQ represents employees in the state and parastatal sectors and is responsible in particular for negotiations and for the application of collective agreements.
40. 501. The APEQ concluded a collective agreement at the national level with the Employers’ Bargaining Committee for the English-Speaking School Boards, which was due to end on 30 June 2003. After a request for negotiations had been sent to the employers’ side in January 2003, the bargaining began in April 2004 and continued until 14 December 2005.
41. 502. On 14 December 2005 at about 4.30 p.m., the Minister of Education informed an APEQ representative that the parties had only another 90 minutes to reach an agreement, failing which a special law would lay down the conditions of employment of APEQ members. The parties concluded the agreement at 8.15 a.m. on 15 December 2005. Throughout the negotiating phase, the APEQ members sporadically exercised their right to strike, always in accordance with the law.
42. The law concerning conditions of employment in the public sector and the allegations relating to it
43. 503. The complainant organizations state that Act 43 applies to the whole public service, the education sector and the health and social services sector (section 2). Its purpose is set out in section 1 as being, on the one hand, to ensure the continuity of public services and, on the other, to provide for the conditions of employment of employees of public sector bodies within the limits imposed by the state of public finances. Sections 5–9 apply to all public sector employees, irrespective of the service in which they work. Sections 10–19 establish conditions of employment in the public service sector (section 10), the education sector (section 11) and the health and social services sector (sections 12–19).
44. 504. The complainant organizations first draw attention to certain irregularities in the procedure for the adoption of Act 43. They claim that the deliberations surrounding its adoption were not democratic, with no parliamentary commission or public consultation, the whole process being rushed when there was no need for urgency. The Act was presented, adopted in principle and passed on the same day, 15 December 2005; it was then ratified on 16 December 2005 and entered into force on the same day. In addition, according to the FIIQ, certain amendments were even added after the Act was ratified. The FIIQ also emphasizes that the provisions of Act 43 were void because they were adopted in violation of article 133 of the 1867 Constitution of Canada, which requires that the acts of the Quebec legislature must be printed and published in French and in English. This obligation also applies to the documents to which Act 43 refers (collective agreements and others), and which are indissociable from it and are necessary and fundamental to an understanding of the law. It is thus alleged that the failure of the Quebec National Assembly to print and publish these documents in French and English is a violation of the Canadian Constitution, which renders the law in its entirety void.
45. 505. According to the complainant organizations, the adoption of Act 43 could not be justified by an emergency situation (for example, an economic crisis). Moreover, according to the CSQ, it was impossible to evaluate the Government’s financial justification for the law, as it did not refer to any study on the question. The FIIQ indicates that there was nothing to suggest that the climate at the central bargaining table was deteriorating to the point where there might have been an industrial dispute. In December 2005, there was thus no reason, no urgency of any kind justifying the Government’s changing its role from employer to legislator in order to pass this Act during a “special session” of the National Assembly. Indeed, contrary to the explanatory notes accompanying Act 43, there was no de facto or de jure situation in the health and social services which threatened to compromise the continuity of services. According to the CNTU, the adoption of Act 43 was intended in fact to put an end to the workers’ expressions of discontent and very visible climate of protest that was tarnishing the Government’s image in the media. It was to put a stop to this situation which was handicapping it in the eyes of public opinion that the Government sought to adopt a law setting conditions of employment, making collective demands by employees and their unions and bargaining agent illegal or pointless or too discouraging.
46. 506. In order to determine the conditions of employment of the employees concerned, Act 43 renews the collective agreements which had expired and maintains them in force until 31 March 2010 (section 5). In section 6, the Act deals specifically with prosecutors and provides that “the conditions of employment of the Attorney-General’s prosecutors entered into under section 12 of the Act respecting Attorney-General’s Prosecutors … is amended to give effect to the provisions of paragraphs 11–14 of Schedule 1 until 31 March 2007. The agreement is renewed as of 1 April 2007 and, with the necessary modifications, is binding on the parties until 31 March 2010”.
47. 507. According to the complainant organizations, Act 43 violates fundamental trade union rights and infringes the principle of free and voluntary collective bargaining by unilaterally imposing the renewal of collective agreements and suppressing collective bargaining. In the first place, by providing that the collective agreements will be valid until March 2010, Act 43 gives them a duration greater than the maximum duration of three years provided for in the Labour Code for collective agreements in the state and parastatal sectors (section 111.1). Secondly, Act 43 imposes new conditions of employment which it incorporates into the renewed collective agreements (section 9 and Schedule 1). For the most part, these are conditions relating to remuneration – increase in salary rates and scales (the Act imposes an increase of 2 per cent for each of the years 2006, 2007, 2008 and 2009) and to maternity and adoption leave (Schedule 1). In addition, this Act modifies the concept of marriage and revokes certain memorandums of understanding concerning pay equity and salary relativity. The Act contains absolutely no guarantees aimed at protecting the standard of living of the persons covered by it.
48. 508. Furthermore, the collective agreements renewed by section 5 are modified where necessary to include, in addition to Schedule 1, the text of a number of agreements between the Government and certain bargaining agents (sections 10, 11 and 13). This concerns especially the FP, the FNEEQ and the FEESP. For the groups which did not conclude such agreements (notably the FSSS), and those which had not ratified their agreement before the deadline of 1 February 2006, the Act imposes a set of new normative conditions (sections 10, paragraph 2; section 11, paragraph 2; sections 14 and 44; and Schedules 2–4). Likewise, in the health and social services sector, certain normative conditions have been introduced in addition to the agreements reached with certain groups of employee (section 14 and Schedule 4, paragraph 40).
49. 509. According to the complainant organizations, especially the CNTU, in applying a sanction to a group of employee by imposing conditions of employment less favourable than those agreed in a sector-based agreement, Act 43 penalizes this group of employee because it did not conclude an agreement on conditions of employment in face-to-face bargaining. The FAC says that it is especially penalized because it had concluded an agreement in principle which it had not been possible to have ratified by its members. The CNTU believes that the employee represented by the FSSS have had less favourable conditions of employment imposed on them because of their convictions and opinions. According to the CNTU, the imposition of less favourable conditions of employment on a group because it did not conclude an agreement has no rational connection with the state of public finances. It seems at least somewhat improbable to the CNTU that the state of public finances varies according to the trade union counterpart and whether or not it was able to reach a prior agreement with the Government. The disparity of treatment of the employee covered in Schedule 4 appears to be the result of an arbitrary legislative act unrelated to the purpose of the law, which was to fix conditions of employment within the framework of the limits imposed by the state of the public finances. Act 43, according to the CNTU, is therefore an attack on the right to belong to an association and to participate in its activities without being penalized for doing so.
50. 510. In addition, according to the complainant organizations, the Act would impose restrictions on future bargaining, especially on salary scales. It would abolish any collective bargaining for the duration of the collective agreements, i.e. until 31 March 2010.
51. 511. The FIIQ alleges that, if the negotiating parties cannot agree on the text of the sector-based agreement between them (section 5 and first paragraph, section 13), Act 43 empowers the Minister of Health and Social Services to decide on the text at his discretion, which would then have the status of a collective agreement between the parties (section 19). According to the FIIQ, it is blatantly obvious that the Minister of Health and Social Services, acting as both judge and jury, does not fulfil any of the conditions of independence and impartiality that are required to act under the powers conferred on him by Law 142.
52. 512. According to the complainant organizations, the Government has not respected its obligation to negotiate in good faith. According to the CNTU in particular, by maintaining throughout the bargaining process the same rigid and intransigent position on the percentage increase in salaries and the period over which they are spread – a position which was clearly unacceptable to the trade union side – the Government made no real effort to conclude an agreement or even discuss one. Moreover, by maintaining a non-negotiable position on the duration of the collective agreement, in violation of the Labour Code, it was negotiating in bad faith. Finally, by calling on the legislative power to impose salary conditions corresponding to that same position, the Government merely confirmed its unwillingness to negotiate in good faith.
53. 513. Act 43 also violated the right to strike, according to the complainant organizations, since, by unilaterally ending the negotiations and imposing collective agreements for a specified period, Act 43 automatically takes away the workers’ right to strike for the same period, since Quebec labour law prohibits strikes while a collective agreement is in force. The law imposes an unjustified ban on strikes and other forms of direct action for as long as it is applicable, even though there was no emergency and, according to the ASPGQ, AJE and CSQ, without putting in place a dispute settlement procedure providing guarantees of independence and impartiality. Furthermore, according to the CSQ, as the provision of essential services was at no time threatened by the direct action taken during the negotiations, no emergency situation could justify such a legislative provision.
54. 514. Act 43 imposes a series of obligations and prohibitions in order to maintain the continuity of public services, which is the second purpose of the Act. Section IV of the Act (sections 22–42) withdraws the workers’ right to strike and, according to the complainant organizations, introduces a battery of repressive measures which prevent any form of pressure. Employees are required to report for work according to their regular work schedule (section 22) and to perform all the duties attached to their functions without any stoppage, slowdown, reduction or degradation of their normal activities (section 23). Declaring or pursuing a strike or participating in any concerted action in violation of sections 22 and 23 is prohibited. An association of employees must take appropriate measures to induce the employees it represents to comply with sections 22 and 23. Likewise, a group of associations must take appropriate measures to ensure that its affiliated unions comply with sections 25 and 26. Thus, associations of employees are prohibited from engaging in any strike or concerted action that might entail employees not respecting their obligation to carry out their duties (section 25). Act 43 also contains a general ban on interfering in any way with the maintenance of public services or with the performance of work by employees (section 28) and a general prohibition on hindering access to the facilities where the public services are provided (section 29).
55. 515. According to the complainant organizations, the sanctions that Act 43 provides for in the event of associations of employees and individuals not complying with these obligations and prohibitions are out of all proportion. Thus, the deduction of an association of employees’ dues at source can be suspended merely by the employer declaring that there has been an infringement of the Act, for a period of 12 weeks for each day or part of a day that the infringement is observed (section 30). According to the CSQ, this sanction violates, in particular, the principles of freedom of association in that it interferes with the right of the associations of employees concerned to organize their management and their activities, by depriving them of the resources essential for the purpose. Moreover, according to the FIIQ, should a trade union organization appeal to a court to claim its members’ dues, section 31 could provide its members with the means of suspending the payment of those dues. This last sanction, coupled with the non-payment of time spent on trade union release (section 34, examined below) in the event of a failure to comply with the Act, could compromise the duty of fair representation imposed by the law (section 47.2 of the Labour Code).
56. 516. As for the employees, their salary is reduced by an amount equal to the salary they would have received for any period during which they infringe the Act, in addition to not being paid during that period (section 32). In addition, any employees who are on trade union release during a period when their association of employees is in breach of its obligations not only are not paid during that period and have their salary reduced by an equivalent amount, but also have their salary suspended for 12 weeks for every day or part of a day that they were on trade union release (section 34). Lastly, the Government may, by simple decree, amend, replace or delete any clause of the collective agreement in order to ensure the provision of services in a public sector organization. Section 37 carries, for the association, a civil liability vis-à-vis third parties in the event of damages caused by employees in breach of section 22 or 23. The same applies to a group of associations. Furthermore, section 38 greatly facilitates class actions against an association of employees in the event of an infringement of the Act. This latter measure could only be explained, according to the FAC, by the Quebec Government’s total contempt for the right to strike, which is an established trade union right. It is purely and simply an invitation to public condemnation of trade unions. Taken together, according to the FAC, these severe sanctions against offenders are aimed at stifling trade unions’ legitimate means of action.
57. 517. Finally, according to the complainant organizations, severe penal sanctions may be imposed in the event of an infringement of the Act. The penalties envisaged, by day of the contravention or part thereof, are $100–500 for employees and natural persons in general, $7,000–35,000 for executives, employees and representatives of an association of employees, and $25,000–125,000 for associations, groups or bodies (sections 39–41). These measures may not be deferred, cancelled or reduced by agreement. All these provisions on continuity of services are effective until 1 April 2010, i.e. the day following the expiry of the collective agreements as renewed (section 49).
58. 518. The complainant organizations (CSQ, FIIQ, FAC, ASPGQ) allege that, even where restrictions on the right to strike may be considered justified, the sanctions imposed in the event of an infringement of the law must not be disproportionate to the intended purpose. Act 43, however, would impose clearly disproportionate sanctions. According to the FIIQ, if these penal and administrative sanctions were applied, they would seriously compromise the viability, if not the very existence, of the trade unions covered by that Act.
59. 519. According to the CNTU, the Quebec Government is no novice when it comes to passing special laws to force its employees to return to work. Between 1964 and 2001, no fewer than 34 special laws on returning to work – almost one a year – were passed to put a stop to industrial disputes, 23 of which were legal.
60. 520. Observing that the Act is in violation of the ILO’s Conventions and principles concerning trade union matters, the complainant organizations are asking that the principles of freedom of association and their right to bargain collectively be respected, and that the Quebec Government establish dispute settlement machinery jointly with the trade unions. Three organizations (AJE, CNTU and FIIQ) are requesting ILO technical assistance. One organization, the SPGQ, is asking the Committee to declare Act 43 unconstitutional. Finally, the CNTU and the CSQ are asking the Government to repeal Act 43.
61. Additional allegations of the ASPGQ
62. 521. The ASPGQ further indicates that the Prosecutors Act (as amended by the Act amending the Act respecting Attorney-General’s Prosecutors and the Labour Code, L.Q. 2004, chapter 22) denies prosecutors the right to join a trade union and deprives them of protection against hindrances, reprisals or sanctions related to the exercise of trade union rights.
63. 522. In its two communications of 14 February, the ASPGQ raises points that are not related to the other complaints submitted by the complainant organizations. Following the adoption of the amending Act, the ASPGQ withdrew a complaint submitted to the Committee, although the amendments to the Prosecutors Act did not bring the latter into line with international standards on freedom of association. The ASPGQ thus informed the Committee that: (1) the legislative provisions applicable to prosecutors prohibits them from concluding a service agreement with a trade union or from joining such an organization; and (2) prosecutors are still deprived of any protection against interference, hindrance, reprisals or any sanctions related to the exercise of the right of association.
64. 523. Concerning the first point, the ASPGQ alleges that the new section 10.1 of the Prosecutors Act provides that it cannot conclude a service agreement with a trade union organization or be affiliated to such an organization. Before the adoption of that section, the ASPGQ had negotiated in good faith with the Government and signed an agreement governing prosecutors’ conditions of employment which provides that for the years 2004, 2005 and 2006, the pay scale for prosecutors would follow the same general parameters applied to the pay scales of state and parastatal sector employees, with the exclusion of any adjustment due to pay equity or salary relativity (clause 7-1.04).
65. 524. The ASPGQ indicates that traditionally, in Quebec, certain conditions of employment of state and parastatal sector employees, such as pay scales and basic social benefits, were negotiated at a central bargaining table around which sat several federations or trade union groupings representing a large number, if not the majority, of employees in those sectors. Thus, the “pay scales of state and parastatal sector employees” to which clause 7-1.04 refers are negotiated by trade union organizations to which the ASPGQ does not have the right to affiliate and with which it does not have the right to conclude a service agreement under section 10.1 of the Prosecutors Act. The real effect of section 10.1, therefore, is to impose conditions of employment on prosecutors following a bargaining process in which it does not have the right to participate.
66. 525. According to the ASPGQ, section 10.1 of the Prosecutors Act constitutes an attack on the prosecutors’ fundamental trade union rights. Specifically, it breaches Articles 2, 5 and 8 of Convention No. 87 by prohibiting prosecutors from joining the workers’ organization of their choice. Furthermore, the ASPGQ alleges that the effect of section 10.1 of the Prosecutors Act is to deprive prosecutors of their fundamental right to bargain collectively by making their remuneration subject to a bargaining process in which they do not have the right to participate.
67. 526. With regard to the second point (set out by the complainant organization in a third communication sent on 13 February), the complainant organization denounces the lack of protection granted to prosecutors against hindrance, reprisals or any sanction related to the exercise of the right of association. Workers subject to the Labour Code enjoy such protection (the ASPGQ describes certain sections concerning protection against interference by employers in an association of employees, prohibition of intimidation and threats to persuade someone to join, not to join or cease to be a member of an association of employees, prohibited constraints, reinstatement, burden of proof). However, the ASPGQ recalls that prosecutors are not subject to the Labour Code and that the Prosecutors Act does not provide for any protection in these areas. According to the ASPGQ, the lack of protection of prosecutors against reprisals for exercising the right of association has become of even greater concern following the Government’s adoption of Act 43. This Act prohibits recourse to strikes or any other means of pressure and the incitement to such actions by workers’ organizations and prohibits any hindrance to the maintenance of normal services. Draconian administrative measures, including the withholding of salaries, are envisaged for employees who breach these prohibitions. The effect of this Act is that prosecutors are likened to employees in the meaning of the Labour Code for the purposes of reprisals for certain prohibited trade union activities, but do not enjoy the protection accorded to other employees under the same Code.
68. 527. Finally, in a communication of 19 October 2006, the ASPGQ indicates that a notice of non-agreement was sent on 25 September 2006 to the Quebec Ministry of Justice concerning the withdrawal of the priority right to use premises for the ASPGQ’s activities, a right embodied in the agreement on the working room (4,150) in the office of the Quebec Attorney-General’s Prosecutors. The ASPGQ states that the situation denounced by this appeal is an eloquent illustration of the attacks on freedom of association authorized by the Government in the absence of provisions to protect prosecutors from hindrance, reprisals or sanction related to the right of association.
69. 528. The ASPGQ request the Committee to make the necessary recommendations to ensure that prosecutors may enjoy the right to bargain collectively in the meaning of the international labour Conventions.
70. B. Reply of the Government of Quebec
71. 529. In its communication of 16 January 2007, the Government maintains that it acted in compliance with the principles of freedom of association established by the ILO to achieve its aims and objectives. The measures introduced by Act 43, such as the extension of the negotiated collective agreements but with salary increases, were necessary for a reasonable period, were kept to the minimum and were accompanied by appropriate guarantees to protect workers’ standards of living. The Government maintains that state employees’ freedom of expression was in no way affected by Act 43, which did not have the effect of muzzling the trade unions as the publication in the media of the trade unions’ positions clearly shows.
72. 530. The Government states that its observations relate to the overall conformity of Act 43 with international principles of freedom of association. It also states that the SPGQ cannot request the Committee to pronounce on the constitutional validity of Act 43, as only the domestic courts are qualified to pronounce on conformity with the charters of Canada and Quebec.
73. 531. The Government draws a general picture of the bargaining system in place in Quebec, which it says was in no way modified by Act 43. The Government explains that, subject to certain adaptations, the Labour Code applies to the state and parastatal sectors (which include the Government, its ministers and departments, and public health, social service and public education establishments). Thus, the principle of the monopoly of trade union representation, the compulsory deduction of trade union dues for all employees, whether or not members of a trade union, and the ban on replacing striking employees apply to trade unions in both the private and the state and parastatal sectors.
74. 532. The Government emphasizes that in the state and parastatal sectors in Quebec, where the services provided to the public constitute essentially a monopoly and where employees have a high degree of job security, there is very little machinery for regulating competition. Convincing people that the State’s ability to pay has reached or even exceeded its limit is more difficult since, unlike the situation in the private sector, the threat of closure, bankruptcy or receivership is not really an option.
75. 533. The Government explains that the collective agreements of the majority of state employees are negotiated on a sectoral basis. There are two levels of bargaining, one national and one local. The provisions of collective agreements on salaries and salary scales are negotiated at the national level, at the central bargaining table, by the Government and the principal workers’ associations. Other matters which may have important financial implications, such as pension schemes, may also be negotiated at the central bargaining table. Other points are negotiated at the various sectoral tables with each association of employees. This procedure is adapted to the peculiarities of the state and parastatal sectors. It differs from the general system set out in the Labour Code whereby, in principle, bargaining takes place at the level of each company.
76. 534. The Government points out that the remuneration of 520,000 state employees is by far its largest expenditure item (in 2005–06 it accounted for over 56 per cent of expenditure to that). Given the size of the sums allocated to the remuneration of state employees, any increase in remuneration inevitably has a major impact on the Government’s financial resources and, therefore, on its ability to finance other categories of expenditure to meet the needs of the population.
77. 535. The Government goes on to discuss the negotiations which took place with, among others, the complainant organizations. According to the Government, the last collective agreements on conditions of employment for almost all state employees were concluded in 1998. After having been extended for a year, again by agreement between the employers’ and workers’ sides, they were due to expire on 30 June 2003. As regards the prosecutors, the agreement that serves as a collective agreement was due to end on 31 March 2007. As to the AJE collective agreement, concluded on 30 March 2000, that had been extended to 31 December 2005.
78. 536. On 15 December 2003, the major trade union associations representing almost all the state employees tabled their demands relating to the renewal of the collective agreements. These demands covered various aspects of the employees’ conditions of employment (indexation of salaries, increase in retirement benefits, increase in insurance, payment of parental rights and holidays, review of classifications, etc.) but, according to the Government, did not contain any proposals concerning adjustments related to pay equity. On 15 June 2004, the Government responded to the demands tabled by the trade unions by announcing that, for the first time, it was setting itself a budgetary framework for its overall policy of remuneration of state employees (the Pay Policy).
79. 537. At a press conference held on that date, the President of the Treasury Council and the Minister responsible for Government Administration (the Minister) announced to the trade unions and the general public that the Government intended to limit the increase in state employees’ unit pay from 2003–04 to 2009–10 to 12.6 per cent, or $3.25 billion of additional expenditure on remuneration, and that this would encompass all increments agreed to by the State, including the salary adjustments resulting from the Pay Equity Act. This budgetary framework reflected the Quebec’s taxpayers’ capacity to pay and set the limits within which the Government intended to exercise its budgetary responsibilities towards the population as a whole. Finally, the Government indicated that the distribution of the global increase over time and its distribution among the groups covered by the Pay Policy or to resolve the various remuneration problems could be determined by negotiation with the trade union associations representing state employees.
80. 538. The Government indicates that responsible management of the public finances required such a measure, given the economic situation and the Government’s difficult budgetary situation at the time. Since the outlook for economic growth in Quebec was poorer than in previous years, the slowdown in the growth of the Government’s autonomous revenues would limit the resources available to pay state employees. Moreover, expenditure on government programmes was relatively high compared with the general wealth of the people of Quebec and other North-American societies. Although it was then forecast that budget equilibrium would be achieved in 2004–05, a shortfall of $1.6 billion remained to be absorbed in 2005–06 in order to meet the requirements of the Budget Balancing Act (L.R.Q. c. E-12.00001), which requires the Government to maintain a balanced budget. Against that background, it was essential for the Government to keep very tight control of its spending, including its expenditure on remuneration. The Government had in fact mentioned the precarious state of public finances on various occasions since 2003, in particular in a speech by the Minister of Finance on 16 December 2003, and when presenting the budgets for the financial years 2003–04 and 2004–05.
81. 539. On 18 June 2004, the government negotiators presented offers to the principal trade union associations, proposing a series of increases within the budgetary framework of the Pay Policy. As explained to the trade union associations, the Government’s proposals included, inter alia, salary increases of 2 per cent for each of the financial years 2006–07, 2007–08 and 2008–09, leaving the salary increases for the financial years 2004–05, 2005–06 and 2009–10 to be determined. At the time of the presentation of these offers to the trade union associations, the government negotiators explained to the representatives of the principal associations the basis, parameters and above all the limits of the budgetary framework of the Pay Policy.
82. 540. During the months that followed, numerous bargaining meetings took place without the parties being able to reach agreement on the renewal of the collective agreements. At a press conference held on 9 February 2005 to report on the status of negotiations, the Minister stated that the Government wished to reach an agreement with its employees, but that there could be no question of exceeding the budgetary framework which had been fixed, taking into account the state of the public finances and the citizens’ capacity to pay. Also at that press conference, the Minister observed that the trade unions’ demands in respect of salary adjustments alone (excluding the pay equity adjustment) – an increase of 12.5 per cent over three years – was double the increase proposed by the Government. Despite the explanations given by the Government regarding the Quebec people’s capacity to pay and the intense efforts it made to find common ground, no agreement was reached.
83. 541. During August 2005, the government offers were improved, in particular to allow an additional salary increase of 2 per cent for the financial year 2009–10, but the total increases proposed were still within the budgetary framework established in June 2004. In September 2005, the Minister and the Minister of Finance met the leaders of the principal trade union associations to explain to them why it was impossible for the Government to increase the employers’ offers over and beyond the budgetary framework fixed in June 2004. At those meetings, the trade union leaders concerned were informed of the fragility of public finances (due to the rise in oil prices, the budget deficit to be absorbed, the lack of government resources) and the harmful consequences on public finances of failing to respect the budgetary framework set by the Government. The Government states that it also explained that the target for expenditure on programmes that the Government had established for financial year 2006–07, which had had to be increased by 2.6 per cent to 3.6 per cent in the 2005–06 budget mainly in order to meet the additional cost of the pay equity adjustments and the renewal of the collective agreements, could not be set any higher without increasing the tax burden on taxpayers and harming economic growth or falling back into a deficit situation. Later, in September 2005, Ministry of Finance officials also met the economists of the principal trade union associations to give them the same information.
84. 542. In addition, the monitoring of government financial balances in the financial year 2005–06 shows overspending on programmes of over $800 million, which calls for a further major effort to reduce expenditure in ministries and government agencies, mainly by a credit freeze. The information given to the trade union leaders and economists concerning the fragility of Quebec’s public finances and the consequences of increasing the government offers beyond the budgetary framework fixed in June 2004 was made public by the Minister of Finance at a press conference on 27 September 2005.
85. 543. A comparative analysis of the government offers and the trade union demands was also presented by the Minister in a press release of 29 September 2005. According to the Government’s calculations, the trade unions’ demands would, in the long run, entail an increase in annual remuneration of over $6.8 billion for financial year 2009–10, more than double the increase of $3.2 billion for the same period envisaged in the budgetary framework. After stating the magnitude of the gulf between the parties, the Minister reiterated the Government’s budgetary position and appealed to the social conscience of the trade unions in order to reach an agreement. Repeatedly, during November and December 2005, the Minister outlined the Government’s position and called on the parties to step up negotiations so as to reach final agreements before the holiday season.
86. 544. However, despite the numerous representations by various ministers on behalf of the Government, the salary demands of the trade unions representing state employees, with the exception of the FIIQ, did not change and several trade union associations even announced their intention of intensifying the pressure they had already brought to bear to force the Government to give in to their demands. By way of example, revolving strikes of 24-96 hours were announced on 13 December 2005 for several regions of Quebec in the education and health and social services sectors. These means of pressure were in addition to numerous revolving strikes that actually took place in these sectors between 10 November and 15 December 2005 and the strikes and other direct action by government employees between May and December 2005, which cause serious disruptions for both the Government and the public.
87. 545. Since the announcement of the budgetary framework in its Pay Policy on 18 June 2004, the Quebec Government has taken part in 56 negotiation meetings at the central bargaining table to try and reach agreement with the principal trade unions (CNTU, CSQ, FTQ and, occasionally, FIIQ, SFPQ and SPGQ). It also took part in over 1,400 bargaining meetings at various sectoral tables.
88. 546. On 14 December 2005, the Government announced that, faced with the manifest stalemate in the negotiations, the National Assembly had been convened for the following day to table and adopt Act 43. The Minister said at the time that she thought that the bargaining process had produced all that it could; that, while further progress in closing the gaps might still be possible with other trade union groups concerning normative matters, the gap between the proposals and demands on salaries could not be bridged; that the salary demands of the trade unions involved in the negotiations were irreconcilable with the taxpayers’ ability to pay and the fragility of Quebec’s public finances; that, although they were legal, the direct action and strikes which had been multiplying for some time must cease, since the disruption of services did nothing to help improve public finances or increase taxpayers’ ability to pay; that it was with a strong sense of responsibility and a profound conviction of acting in the general interest, and out of respect for the citizens and taxpayers of Quebec, that legislative measures would be presented the following day in the National Assembly that were designed to set the salary scales of employees in the state and parastatal sectors. If it were to accede to the trade unions’ salary demands, the Government would find itself forced to increase taxes, cut public services or plunge into deficit. The Minister said she was convinced that the public did not want anything to do with those options and that they were altogether impracticable, and she appealed to the social conscience of the trade union leaders to recognize that the Government could not ignore the budgetary facts and mortgage future generations.
89. 547. In short, Act 43 gives effect to the Pay Policy that the Government presented to the trade unions. It is framed within the budgetary framework for salaries that the Government had announced a year earlier. It was impossible to increase the salary proposals so as to meet the trade union demands without raising taxes to finance the additional expenses and, by so doing, harming Quebec’s economic growth, or without significantly cutting public services, for example, mainly in the health and education sectors, or without reverting to a deficit situation which, as well as placing a heavy burden on future generations, would have risked downgrading Quebec’s rating on the financial markers and thus reduced its access to bond markets and increasing the cost of government borrowing. The Government could not contemplate any of these options without seriously compromising the priorities to which it had committed itself vis-à-vis the people of Quebec namely, health, education and increased economic prosperity. It is against this background that the Government decided to cease negotiations which, given the parties’ respective positions, were clearly doomed to failure and, thereby, to bring the resulting climate of uncertainty and instability to an end.
90. 548. In the hours preceding the adoption of Act 43, bargaining continued and led to the signing of numerous agreements with the trade unions associations, bringing to 35 the total number of agreements covering over 365,000 state employees. These agreements, which are listed in sections 10–13 of Act 43, cover normative aspects of work, some of which have financial implications. Of the complainant trade unions, the SPGQ, the FIIQ, the unions affiliated to the CNTU, the FAC, the unions affiliated to the CSQ, the FTQ, the CSD, the SFPQ, the SPEQ and the APEQ all concluded agreements with the Government which were fully respected by Act 43.
91. 549. Parallel to the negotiations for the renewal of the collective agreements which the Government ended with the adoption of Act 43, the discussions on pay equity continued and various exchanges took place in this regard. A number of agreements were reached between December 2005 and June 2006 on the payment of annual pay equity adjustments which in due course, i.e. in 2009–10, will amount to $825 million. These adjustments were also within the budgetary framework fixed by the Government in June 2004.
92. Act 43
93. 550. The purpose of Act 43 is to ensure continuity of public services and to provide conditions of employment of employees of public sector bodies within the limits imposed by the state of public finances (section 1). An analysis of the historical, social and economic background of Act 43 confirms and explains these objectives namely, the legislator’s desire to put an end to a climate of uncertainty about the Government’s ability to deliver responsible budget planning and continuity of public services in a manner compatible with the state of public finances.
94. 551. As regards sections 5–9 and Schedule 1, on the one hand, and section IV and section 49, on the other, these are more specifically aimed at ensuring the maintenance and continuity of services to the public and are essential to the application of and compliance with Act 43. These objectives are clearly related to urgent and real concerns for the elected Government and for the population of Quebec as a whole.
95. 552. The Government has explained its concerns. In addition, it adds that, as collective agreements covering over 500,000 people had expired over two-and-a-half years previously and all the exchanges between the Government and its employees had been focused on their renewal, it was becoming increasingly difficult for the Government to take decisions, especially in relation to health and education. The Government, as guardian of the interests of the population of Quebec as a whole, felt duty bound to propose the adoption of Act 43. To act otherwise would have endangered the continuity of public services and harmed the economic growth of Quebec by the very damaging effect it would have on the state of public finances. Act 43 was intended to ensure uniformity, consistency and stability in collective employment relations between the Government and its employees.
96. 553. It is from this standpoint that the Government of Quebec considers that the Pay Policy must be approached. In the interests of transparency and fairness vis-à-vis all the people of Quebec, the Government lay down the basis for negotiations on salaries. Despite the “imperative” economic reasons presented by the Government, the trade unions refused to negotiate within that financial framework and the Government accordingly proposed the adoption of Act 43.
97. 554. According to the Government, the trade union associations representing the state employees were warned of the limits of the Government’s budgetary framework and were called on to collaborate with the Government in finding a negotiated solution. Apart from the agreements signed prior to the adoption of Act 43, which were respected, the trade unions’ position on salary issues remained unchanged, which goes some way to showing how necessary Act 43 was.
98. 555. Act 43 is a response to specific objectives and concerns. Contrary to what is alleged by certain complainant trade unions, it is not one of a series of special laws. Act 43 is not the successor of other laws, some of which have been examined by the Committee. Likewise, the Government reiterates that Act 43 embodies the agreements reached on the normative aspects of employment – some of which have financial implications – concluded with 35 associations of employees. Since the adoption of the Act, the FSSS, affiliated to the CNTU, has concluded an agreement with the Government, as has the SPGQ. Negotiations are still continuing with other associations, which shows that the Government is still willing to negotiate with associations of employees.
99. 556. Finally, the penal and administrative provisions contained in Act 43 are the normal and necessary result of the means chosen by the legislator to achieve the objectives set. Indeed, the importance of one of these objectives, i.e. to maintain services to the public, especially in the health and education sectors, required the adoption of adequate administrative and penal measures to ensure full compliance with the Act.
100. 557. In the circumstances, extending the collective agreements negotiated to 2010 was reasonable and necessary to provide a stable, medium-term horizon for expenditure on state employees’ remuneration so as to enable the Government to plan a responsible budget that was compatible with the state of public finances. The Government emphasizes that it is thus following a trend in Quebec towards the long-term renewal of collective agreements in all sectors of the economy and especially in large companies. Such agreements meet the needs of trade unions and employers, both of which want a stable and predictable environment to govern their relations.
101. 558. In addition, the Government emphasizes that Quebec’s credit rating rose in June 2006, largely because of the stability resulting from the adoption of Act 43 and, more generally, from the economic and budgetary policy pursued by the Government. The Government is thus in a position to pay off its debt without having to reduce the services to the public.
102. 559. The salary increases provided for in Act 43 should maintain the standard of living and purchasing power of all state employees. When it laid down its Pay Policy, the Government was keen to provide its employees with a remuneration that compared favourably on average with that paid to employees in the Quebec private sector and was in keeping with the State’s ability to pay.
103. 560. In 2002, a study concluded that the salaries paid by the Quebec Government were on average higher than those paid in the private sector. Encouraged by this, the Government drew up its Pay Policy in such a way as to follow the overall growth of salaries in the economy. Basing itself on the finding that the average salary of Quebec workers had grown at a rate similar to that of consumer prices in recent years, the Government established a policy aimed at granting similar salary increases throughout the public sector. It was with these salary figures in its possession that the Government adopted the responsible policy of ensuring that the costs of production of government services do not exert inflationary pressure and do not increase the tax burden on taxpayers. The combined impact of the annual increase of 2 per cent for salaries from 2006, pay equity adjustments retroactive to November 2001, promotions and upgrading means that Act 43 will maintain the purchasing power of all employees in the Quebec public sector.
104. 561. Through its Pay Policy, the Government has shown its determination to achieve internal equity by reserving part of its budgetary envelope for state employees to correct the salary differentials caused by discrimination in the past, under the heading of pay equity adjustments. Employees in predominantly female work categories, often among the most vulnerable, thus benefit from salary increases resulting from the pay equity adjustments, as well as the increases provided for in Act 43.
105. 562. In June 2006, the Government concluded a historic agreement on pay equity for the health and education sectors and the Quebec public service. Under this agreement over 360,000 people, mostly women, will benefit from salary adjustments. In the health and education sectors, the average salary adjustment is equivalent to 5.97 per cent, while for the public service, the average is 5.04 per cent. The salary adjustments are retroactive to 21 November 2001.
106. 563. In the difficult budgetary context in which it found itself, the Government, acting responsibly, established a Pay Policy which allowed it to allocate in the long term, as from 2008, an additional $3.25 billion of expenditure on the annual remuneration of its employees. The Government admits that it could have offered higher salary increases to all its employees, but it would not then have been in a position to make the required adjustments in respect of its most vulnerable employees without being irresponsible in its management of public finances. Faced with this choice, the Government and the legislator chose the salary adjustment which the most vulnerable employees were entitled to expect, in accordance with the principles of justice, fairness and equality characteristic of Quebec society.
107. 564. The Government considers that Act 43 constituted an exceptional and purely circumstantial effort to ensure the necessary stability of public finances. The Government and the legislator took pains to limit the new law to essentials, to restrict it to a reasonable period and to accompany it with appropriate guarantees to protect employees’ standard of living. Salary scale increases are maintained, job security also, and employees benefit from salary adjustments under the Pay Equity Act. The Government of Quebec maintains that it respects the ILO’s instruments concerning freedom of association to which it has subscribed. It requests the Committee on Freedom of Association to refrain from making recommendations with respect to the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154). The Government of Quebec also requests the Committee on Freedom of Association and the ILO Governing Body to conclude that Act 43 is in conformity with international labour standards and to consider that the complaints contained in Case No. 2467 do not call for further examination.

C. The Committee’s conclusions

1. 565. The Committee notes that the complainant organizations allege that the Government has passed a law, Act 43, imposing conditions of employment on employees in the Quebec public sector without prior bargaining or consultation, thus violating their fundamental right to bargain collectively, and taking away their right to strike without granting them an alternative procedure for the settlement of disputes such as mediation, conciliation or arbitration. The ASPGQ further alleges that the Prosecutors Act (as amended by the act amending the Act respecting Attorney-General’s Prosecutors) denies them the right to join a trade union and deprives them of protection against hindrances, reprisals or sanctions related to the exercise of trade union rights.
2. Act 43
3. 566. With regard to Act 43, the Committee notes the often very detailed complaints submitted by the complainant organizations which raise several questions concerning: (1) certain irregularities in the procedure for the adoption of this Act; (2) the extension of collective agreements; (3) the imposition of conditions of employment; (4) the violation of the obligation to bargain in good faith; (5) the violation of the right to strike; and (6) the imposition of disproportionate sanctions in the event of non-compliance with the provisions prohibiting recourse to strikes or means of pressure.
4. 567. The Committee also notes the Government’s detailed reply in which it emphasizes that Act 43 is the solution that was judged necessary by the legislator to achieve objectives that are in the public interest, namely to put an end to the climate of uncertainty regarding the Government’s ability to deliver responsible budgetary planning and to ensure the continuity of public services in a manner compatible with the state of public finances. The Government maintains that it acted in accordance with the principles of freedom of association established by the International Labour Organization. The Committee notes that the Government stresses certain facts: (1) the conditions of employment of state employees are better than those in the private sector; (2) the renewed collective agreements had been freely negotiated; (3) the economic situation was precarious and did not allow the trade unions’ salary demands to be met; (4) numerous meetings had taken place with a view to renewing the collective agreements; (5) the legal strikes by the employees had caused serious disruption and the parties’ positions were irreconcilable; (6) consultations had taken place before the adoption of Act 43; (7) the extended collective agreements provided for salary increases to maintain the employees’ standard of living; and (8) the extension was for a reasonable period. The Committee notes the Government’s arguments of an economic order and notes its observation as to Quebec’s credit rating, which had risen since the adoption of Act 43.
5. 568. Concerning the procedure followed for the adoption of Act 43, the Committee notes with concern the description of the circumstances of its adoption set out by the complainant organizations. According to them, the deliberations surrounding the adoption of Act 43 were not democratic, with no parliamentary commission or public consultation, the whole process being rushed through a special session of the National Assembly when there was no apparent emergency. Certain amendments were even added after the law had been ratified. The Committee, however, notes discrepancies between the versions of the facts submitted by the complainant organizations and by the Government, the latter alleging that many consultations had taken place before the adoption of the Act. The Committee cannot express an opinion on the specifics of the adoption of Act 43 and its conformity with the normal domestic procedure, but it remains concerned by the allegations relating to the haste and absence of consultation preceding its adoption, and recalls that any limitations on collective bargaining on the part of the public authorities should be preceded by consultations with the employers’ and workers’ organizations in an effort to obtain their agreement [see Digest of decisions and principles of the Committee on Freedom of Association, fifth edition, 2006, para. 999].
6. 569. Furthermore, the complainants allege that the provisions of Act 43 are said to be void because they were adopted in contravention of article 133 of Canada’s Constitution of 1867, which requires that the laws of the legislature of Quebec should be printed and published in French and in English. As these are arguments of a constitutional order, the Committee considers that it is not competent to formulate an opinion on the compatibility of this legislation with the Canadian Constitution, which is a matter within the purview of the domestic courts. For these reasons, the Committee will similarly not express an opinion on the request of the SPGQ to pronounce itself on the unconstitutionality of Act 43.
7. 570. The Committee notes that Act 43 has the effect of unilaterally extending collective agreements which had expired or were about to expire, when the parties were still in the middle of negotiations. The Committee emphasizes, first of all, the fundamental importance that it attaches to the right to bargain collectively. The Committee recalls, in general, that the right to bargain freely with employers with respect to conditions of employment constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. Any such interference would appear to infringe the principle that employers’ and workers’ organizations should have the right to organize their activities and to formulate their programmes [see Digest, op. cit., para. 881]. In addition, the Committee has had occasion to express its opinion specifically on the extension of collective agreements and is of the view that any action involving, as it did, intervention in the collective bargaining process should be taken only in cases of emergency and for brief periods of time [see Digest, op. cit., para. 1023]. According to the Government, the urgency was due to the irreconcilable positions of the parties, the strike situation and, given the economic circumstances, the impossibility for the Government to change its offer relating to salaries. According to the information provided by the complainant organizations, there was no emergency situation and certain parties were still in the middle of negotiations. According to the FIIQ, there was nothing to suggest that the climate at the central bargaining table was deteriorating to the point where there was a prospect of industrial conflict. The Committee notes in particular that, according to the complainant organizations, the collective agreements of certain organizations, such as the ASPGQ or the AJE, had not yet expired and that negotiations on their renewal had just begun. As to the strikes, the CNTU, for example, only resorted to strike action in autumn of 2005, a few months before the adoption of Act 43. Moreover, the fact that all the strikes by the complainant organizations were legal is not in dispute.
8. 571. The Committee recalls that, while certain workers concerned by the complaints are employees engaged in the administration of the State whose right to negotiate may be subject to restrictions, that is not the case of teachers or health service employees. The Committee observes moreover that, in Quebec, the right to bargain collectively exists for all categories of workers. The Committee recalls in this regard that, in so far as the income of public enterprises and bodies depends on state budgets, it would not be incompatible with the principles of Convention No. 98 – after wide discussion and consultation between the concerned employers and employees’ organizations in a system having the confidence of the parties – for wage salary ceilings to be fixed in state budgetary law neither would it be a matter for criticism that the Ministry of Finance prepare a report prior to the commencement of collective bargaining with a view to ensuring respect of such ceilings [see Digest, op. cit., para. 1036]. However, the Committee is of the opinion that it is vital for workers and their organizations to have the possibility of participating fully and significantly in the determination of this wider bargaining framework. That would mean their having access to all financial, budgetary or other information to allow them to assess the situation in full knowledge of the facts.
9. 572. The Committee notes the allegations that the extension of the collective agreements to 2010 is of an excessive duration, especially since the Labour Code limits the duration of collective agreements to three years. The Committee recalls that the duration of collective agreements is primarily a matter for the parties involved, but if government action is being considered any legislation should reflect tripartite agreement [see Digest, op. cit., para. 1047] and, in particular, a three-year period of limited collective bargaining on remuneration within the context of a policy of economic stabilization constitutes a substantial restriction, and the legislation in question should cease producing effects at the latest at the dates mentioned in the Act, or indeed earlier if the fiscal and economic situation improves [see Digest, op. cit., para. 1025]. Moreover, the Committee has in the past considered a restriction on collective bargaining lasting three years and nine months to be excessive [see 330th Report, Case No. 2166, para. 293]. The Committee considers that, bearing in mind that the extension was imposed unilaterally by means of legislation, the effect of Act 43 on the duration of certain collective agreements is unreasonable and that the conditions required by the Committee for an extension to be acceptable are not fulfilled.
10. 573. The Committee notes that collective agreements in force were amended by Act 43. This is particularly the case of the agreement negotiated by the ASPGQ which was due to expire on 31 March 2007 and which was amended and renewed by Act 43 in December 2006. The Committee emphasizes that a legal provision which allows the employer to modify unilaterally the content of signed collective agreements, or to require that they be renegotiated, is contrary to the principles of collective bargaining [see Digest, op. cit., para. 942].
11. 574. Furthermore, conditions of employment were imposed by Act 43, specifically with regard to salaries, or can be imposed. The Committee is of the opinion that if, as part of its stabilization policy, a government considers that salary rates cannot be settled freely through collective bargaining, such a restriction should be imposed as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period, and it should be accompanied by adequate safeguards to protect employees’ living standards [see Digest, op. cit., para. 1024]. The Committee expressed its opinion on the reasonable duration above. As regards guarantees to protect employees’ living standards, the Committee again notes the discrepancy between the allegations of the complainant organizations and the Government’s reply. The complainant organizations consider that no measure has been taken to protect the living standards of the employees, who will suffer a loss of purchasing power as a result of Act 43 in so far as the percentage salary increase of 2 per cent, imposed for each of the years 2006, 2007, 2008 and 2009 is lower than the forecast for increases in the cost of living and entails a salary freeze for 2004 and 2005. The Government alleges, on the other hand, that it decided on the salary increases after carrying out a study and that the employees’ standards of living are protected. The Committee requests the Government to review the restriction on the salary increase with the social partners, if possible requesting a study by an independent person who has the confidence of all the parties.
12. 575. Act 43 takes into account certain agreements concluded prior to its adoption. However, the Committee notes that, according to the allegations, some of the agreements were concluded at the last minute, under the threat of the adoption of a bill imposing less favourable conditions. Those agreements were concluded between the Government and the representatives of the FNEEQ, FEESP, FP, CSD and SPEQ, who signed agreements on 13 and 14 December following the statements by the Government of Quebec concerning the imminent adoption of Act 43. The Committee also notes that APEQ was forced to accept the employers’ offer relating to normative aspects after being informed by the Government, at about 4.30 p.m. on 14 December, that the parties had only another 90 minutes to reach an agreement, failing which a special law would lay down the conditions of employment of APEQ’s members. The parties concluded the agreement at 8.15 a.m. on 15 December 2005. The Committee is concerned at the manner in which these agreements were concluded and considers that collective bargaining, if it is to be effective, must assume a voluntary character and not entail recourse to measures of compulsion which would alter the voluntary nature of such bargaining [see Digest, op. cit., para. 926]. The Committee considers that the agreements concluded in a precipitate manner, under the threat of the adoption of a law providing lesser guarantees and without their exact terms being known, are not voluntary in character and do not respect the obligation to negotiate in good faith.
13. 576. The Committee wishes to recall here the fundamental obligation to bargain in good faith. The Committee notes that the trade union and government parties appear to have refused to compromise over the provisions on salaries and recalls that both employers and trade unions should bargain in good faith and make every effort to come to an agreement, and satisfactory labour relations depend primarily on the attitudes of the parties towards each other and on their mutual confidence [see Digest, op. cit., para. 936] and that, while the question as to whether or not one party adopts an amenable or uncompromising attitude towards the other party is a matter for negotiation between the parties, both employers and trade unions should bargain in good faith making every effort to reach an agreement [see Digest, op. cit., para. 938]. The Committee requests the Government, who also acts in this case as the employer, to ensure respect for these principles in the future.
14. 577. As regards the right to strike, the Committee notes that under the rule in Quebec labour law prohibiting strikes during the term of a collective agreement, Act 43, by unilaterally putting an end to negotiations and imposing collective agreements for a determined period, thereby deprives employees of the right to strike for that same period. The Committee recalls the fundamental importance that it attaches to the right of workers to have recourse to strike action and that it has always maintained that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests [see Digest, op. cit., para. 522].
15. 578. The Committee underlines, however, that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population [see Digest, op. cit., para. 576]. The Committee notes the Government’s comments according to which the strikes would have caused serious disruption both for the Government and the people of Quebec. The Committee emphasizes that, whenever a total and prolonged strike in a vital sector of the economy might cause a situation in which the life, health or personal safety of the population might be endangered, a back-to-work order might be lawful, if applied to a specific category of staff in the event of a strike whose scope and duration could cause such a situation. However, a back-to-work requirement outside such cases is contrary to the principles of freedom of association [see Digest, op. cit., para. 634]. Furthermore, the Committee emphasizes that, where the right to strike is restricted or prohibited in certain essential undertakings or services, adequate protection should be given to the employees to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services [see Digest, op. cit., para. 595]. However, according to the information available to the Committee, regrettably no compensation was granted in the form of conciliation or arbitration and, with respect to salaries and certain other conditions of employment, Act 43 essentially imposes the employers’ offer.
16. 579. The complainant organizations allege that the sanctions in the event of an infringement of the provisions prohibiting recourse to strike action or means of pressure are severe and disproportionate. The Act provides in particular that the deduction at source of trade union dues may be suspended merely by the employer declaring that there has been an infringement of the Act, for a period of 12 weeks for each day or part of a day that the infringement is observed (section 30). In the view of the Committee, the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided [see Digest, op. cit., para. 475]. In the event of an infringement of the ban on resorting to strike action, the employees’ salary is reduced by an amount equal to the salary they would have received for any period during which they infringe the Act, in addition to not being paid during that period. In addition, any employees who are on trade union release during a period when their association of employees is in breach of its obligations also have their salary suspended for the time during which they are on trade union release, at a rate of 12 weeks for each day that they infringe the Act. The Committee is of the opinion that salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles [see Digest, op. cit., para. 654], but it recalls that, when the deductions of pay are higher than the amount corresponding to the period of the strike, the imposition of sanctions for strike action is not conducive to harmonious labour relations [see Digest, op. cit., para. 655]. Moreover, section 38 greatly facilitates class actions against an association of employees in the event of an infringement of the Act by reducing the conditions required by the Civil Procedures Code for such an action. In the view of the Committee, there is no reason to treat this type of class action differently from others and it sees no justification for this difference of treatment. Finally, severe penal sanctions may be imposed in the event of an infringement of the Act – up to the considerable sum of $35,000 per day of the contravention for natural persons and up to $125,000 per day of the contravention for associations. The Committee is of the opinion that the sanctions laid down in Act 43 are excessive and not conducive to developing harmonious relations between the parties or to encouraging the conduct of fruitful negotiations. The Committee therefore requests the Government to review the sanctions provided for in Act 43 in order to ensure that they will be applied only in cases where the right to strike may be limited in accordance with the principles of freedom of association and that they are proportionate to the infringement committed.
17. 580. The Committee recalls its conclusions in another Canadian case concerning legislative intervention in the state and parastatal sectors [see 330th Report, Case No. 2166, para. 294], and it concludes here too that Act 43 violates freedom of association principles inasmuch as it does not respect the autonomy of the bargaining parties and legislatively imposes terms and conditions of employment by means of legislation, without the employees being able to submit the dispute to mutually and freely chosen independent and impartial arbitration. The Committee urges the Government to amend Act 43 to bring it in line with the principles embodied in Conventions Nos. 87 and 98 and to avoid, in the future, having recourse to such legislative intervention without full and frank consultations with the parties concerned and to consider submitting, in case of a conflict, disputes to impartial and independent arbitration. The Committee expects that the next round of negotiations will be held in accordance with the principles mentioned above. In the meantime, the Committee recommends that the Government adopt a flexible approach, should the parties be willing to modify the so-called “presumed agreement”, which is in fact a settlement imposed by legislation. The Committee requests to be kept informed of developments in this respect.
18. 581. Finally, the Committee requests the Government to take into consideration the possibility of establishing a bargaining procedure that has the confidence of the parties concerned and allows them to settle their differences, especially by having recourse to conciliation or mediation and by voluntarily calling on an independent arbitrator to resolve their differences, on the understanding that the arbitration decisions are binding on both parties and are fully and swiftly executed.
19. Additional allegations of the ASPGQ
20. 582. The Committee notes, according to the allegations of the ASPGQ: (1) that the legal provisions applicable to prosecutors prohibits them from concluding a service agreement with a trade union organization or affiliating to such an organization; (2) that prosecutors are deprived of any protection against interference, hindrance, reprisals or any sanction related to the exercise of the right of association; and (3) the Government’s decision to withdraw from the prosecutors the priority right of use of a room.
21. 583. Despite the absence of any comment by the Government on these questions, the Committee considers that, judging from the Act, prosecutors or the ASPGQ do not have the right to join the organization of their choice. Considering that this contravenes Articles 2 and 5 of Convention No. 87, the Committee recalls that the principle laid down in Article 2 of Convention No. 87 that workers and employers shall have the right to establish and join organizations of their own choosing implies for the organizations themselves the right to establish and join federations and confederations of their own choosing [see Digest, op. cit., para. 710]. The Committee requests the Government to ensure that prosecutors and the ASPGQ have the right to join the organization of their choice and to keep it informed in that regard.
22. 584. As regards the second point in this complaint, the Committee emphasizes that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions [see Digest, op. cit., para. 769], and that legislation should lay down explicitly remedies and penalties against acts of anti-union discrimination in order to ensure the effective application of Article 1 of Convention No. 98 [see Digest, op. cit., para. 813]. The Committee calls on the Government to ensure that prosecutors enjoy legislative protection against any act of anti-union discrimination, and to keep it informed in that regard.
23. 585. As regards the allegation by the ASPGQ that the Government withdrew its priority right, established by agreement, to use a room in the Courts of Justice building for its activities and removed all the articles which were in those premises, without its consent, the Committee first recalls that agreements should be binding on the parties [see Digest, op. cit., para. 939]. The Committee requests the Government to respect agreements that have been negotiated voluntarily and to cease all action contrary to such agreements without first engaging in negotiations with the parties concerned. The Committee requests the Government to review this matter with the ASPGQ and to keep it informed in that regard.
24. 586. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case, especially with respect to the various allegations of the ASPGQ.

The Committee's recommendations

1. 587. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to amend Act 43 to bring it in line with the principles embodied in Conventions Nos. 87 and 98. The Committee urges the Government to avoid in future having recourse to legislative intervention imposing conditions of employment without full and frank consultations with the parties concerned and to consider submitting, in case of a conflict, disputes to impartial and independent arbitration. The Committee expects that the next round of negotiations will be held in accordance with the principles mentioned above. In the meantime, the Committee recommends that the Government adopt a flexible approach, should the parties be willing to modify the so-called “presumed agreement”, which is in fact a settlement imposed by legislation. The Committee requests to be kept informed of developments in this respect.
   • (b) Given the restrictions on negotiations relating to salaries and the fact that they are so lengthy, the Committee requests the Government to review the restrictions with the social partners, if possible by requesting a survey by an independent person who has the confidence of all the parties.
   • (c) The Committee requests the Government to review the excessive sanctions provided for in Act 43 in order to ensure that they will be applied only in cases where the right to strike may be limited in accordance with the principles of freedom of association and that they are proportionate to the infringement committed. In addition the Committee considers that there is no reason to treat class actions against an association of employees differently from other class actions in the Civil Procedures Code.
   • (d) The Committee requests the Government to establish a bargaining procedure that has the confidence of the parties concerned and allows them to settle their differences, especially by having recourse to conciliation or mediation and by voluntarily calling on an independent arbitrator to resolve their differences, on the understanding that the arbitration decisions are binding on both parties and are fully and swiftly executed.
   • (e) As regards the Attorney-General’s Prosecutors of Quebec, the Committee calls on the Government to ensure that prosecutors and the ASPGQ have the right to join the organization of their choice and enjoy legislative protection against any act of anti-union discrimination, and to keep it informed in that regard. The Committee requests the Government to respect agreements that have been negotiated voluntarily and to cease all action contrary to such agreements without first engaging in negotiations with the parties concerned. The Committee requests the Government to review this matter with the ASPGQ and to keep it informed in that regard.
   • (f) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case, especially with regard to the various allegations of the ASPGQ.

Annex

1. Extract of Bill 142
2. An Act respecting conditions of employment
3. in the public sector
4. The Parliament of Québec enacts as follows:
5. Division I
6. Purpose and scope
7. 1. The purpose of this Act is to ensure the continuity of public services and provide for the conditions of employment of employees of public sector bodies within the limits imposed by the state of public finances.
8. …
9. Division II
10. Conditions of employment
11. §1. – General provisions
12. 5. The latest collective agreement between a public sector body and an association of employees representing employees in its employ which, on 16 December 2005, has expired, is renewed and, with the necessary modifications, is binding on the parties until 31 March 2010.
13. A collective agreement between a public sector body and an association of employees representing employees in its employ that expires on 31 December 2005 is renewed as of 1 January 2006 and, with the necessary modifications, is binding on the parties until 31 March 2010.
14. 6. The agreement on the conditions of employment of Attorney General’s prosecutors entered into under section 12 of the Act respecting Attorney General’s prosecutors (R.S.Q., chapter S-35) is amended to give effect to the provisions of paragraphs 11 to 14 of Schedule 1 until 31 March 2007.
15. The agreement is renewed as of 1 April 2007 and, with the necessary modifications, is binding on the parties until 31 March 2010.
16. 7. The latest agreement between the Minister of Health and Social Services and:
17. (1) the association of employees representing residents in medicine, entered into under section 19.1 of the Health Insurance Act (R.S.Q., chapter A-29),
18. (2) the body representing pharmacists working in institutions and the body representing clinical biochemists, entered into under section 432 of the Act respecting health services and social services (R.S.Q., chapter S-4.2), and
19. (3) the body representing midwives entered into under section 432.1 of the Act respecting health services and social services,
20. is renewed and, with the necessary modifications, is binding on the parties until 31 March 2010.
21. 8. For the purposes of section 9, Division IV and section 46, the agreements referred to in sections 6 and 7 are considered to be collective agreements and the persons covered by them are considered to be employees. For the purposes of the second paragraph of section 10, the same applies to the agreement referred to in section 6.
22. 9. The conditions of employment stipulated in collective agreements renewed by sections 5 to 7 are modified to give effect to the provisions of Schedule 1.
23. The same applies to the conditions of employment of medical physicists stipulated in the Regulation respecting the terms of employment of medical physicists working for institutions operating a hospital centre, made by Ministerial Order 2003-002 dated 10 February 2003 (2003, G.O. 2, 964).
24. …
25. Division IV
26. Obligations regarding the continuity
27. of public services
28. §1. – Delivery of normal services
29. 22. Employees must, as of 00:01 a.m. on 16 December 2005, report for work according to their regular work schedule and other applicable conditions of employment.
30. The first paragraph does not apply to employees not reporting for work because they have tendered their resignation, unless they have done so as part of concerted action, or because they have been fired or suspended or have exercised their right to retire.
31. 23. Employees must, as of 00:01 a.m. on 16 December 2005, perform all the duties attached to their respective functions, according to the applicable conditions of employment, without any stoppage, slowdown, reduction or degradation of their normal activities.
32. 24. A public sector body, its executives and its representatives must, as of 00:01 a.m. on 16 December 2005, take the appropriate measures to ensure that normal services are provided.
33. 25. No association of employees may call or continue a strike or participate in concerted action if the strike or concerted action involves a contravention of section 22 or 23 by employees.
34. Similarly, no public sector body may declare a lock-out if the lock-out involves such a contravention.
35. …
36. §2. – Administrative measures if obligations
37. not fulfilled
38. 30. On noting that its employees are not complying with section 22 or 23 in sufficient number to ensure that normal services are provided, a public sector body must suspend withholding any union assessment or dues or amount in lieu thereof from the wages paid to the employees represented by an association of employees.
39. The suspension is effective for a period equal to 12 weeks per day or part of a day during which it is noted by the public sector body that the employees are not complying with section 22 or 23 in sufficient number to ensure that normal services are provided.
40. 31. Despite any clause of a collective agreement or of an agreement, employees represented by an association referred to in section 30 are not required to pay an assessment or dues, a contribution or an amount in lieu thereof to the association or to a third party for the benefit of the association for the duration of the suspension under section 30.
41. 32. No employee who contravenes section 22 or 23 may receive remuneration for the contravention period.
42. In addition, if the contravention consist in absence from work or participation in a work stoppage, the salary to be paid to the employee under the applicable collective agreement for work performed after the absence or work stoppage is reduced by an amount equal to the salary the employee would have received for each period of absence or work stoppage.
43. …
44. 38. Any person who suffers damage by reason of an act in contravention of section 22 or 23 may apply to the competent court to obtain compensation.
45. Despite article 1003 of the Code of Civil Procedure (R.S.Q., chapter C-25), if a person brings a class action under Book IX of that Code by way of a motion under the second paragraph of article 1002 of that Code, the court authorizes the class action if it is of the opinion that the person to whom the court intends to ascribe the status of representative is in a position to adequately represent the members of the group described in the motion.
46. §4. – Penal proceedings
47. 39. A person that contravenes any provision of section 22, 23, 24, 27, 28 or 29 is guilty of an offence and is liable, for each day or part of a day during which the offence continues, to a fine of:
48. (1) $100 to $500 if the person is an employee or a natural person other than a person referred to in paragraph 2;
49. (2) $7,000 to $35,000 if the person is an executive, employee or representative of an association or group, or if the person is an executive or representative of a body; and
50. (3) $25,000 to $125,000 if the person is an association, group or body.
51. 40. An association of employees that contravenes the first paragraph of section 25 is guilty of an offence and is liable to the fine prescribed by paragraph 3 of section 39 for each day or part of day during which the offence continues. The same applies to a public sector body that contravenes the second paragraph of section 25.