Rapport intérimaire - Rapport No. 45, 1960

Cas no 211 (Canada) - Date de la plainte: 02-NOV. -59 - Clos

1. 82. The complaint is contained in a communication dated 2 November 1959 addressed directly to the I.L.O by the Canadian Labour Congress. In a letter dated 23 December 1959 the International Confederation of Free Trade Unions expressed its support for the complaint of the Canadian Labour Congress. The Government of Canada, by a letter dated 18 January 1960, forwarded observations prepared by the Government of Newfoundland, in which province the matters raised in the complaint are alleged to have taken place.

A. A. The complainants' allegations

1. 83. It is alleged that the International Woodworkers of America (I.W.A), an organisation affiliated to the Canadian Labour Congress, started an organisational drive among the loggers employed by two pulp and paper companies in Newfoundland early in 1956. A first application by the I.W.A for certification as bargaining agents for the loggers in question was rejected by the Newfoundland Labour Relations Board in March 1957; this application, it is claimed, was rejected by the Labour Relations Board because, although it was supported by 87 per cent of the employees, the union did not meet the technical requirements of the Newfoundland Labour Relations Act. In June 1957, it is alleged, another application was made and an election of the employees of one of the two companies in question, the Anglo-Newfoundland Development Company, gave the union a vote of 86.4 per cent. On 1 May 1958 the union was certified as the bargaining agent for the loggers concerned. Negotiations for a collective agreement began in June 1958, but no progress was made. In accordance with the law, a conciliation board was appointed. On 9 December 1958, it is alleged, the board (including a representative of the company) recommended unanimously an immediate wage increase of three cents an hour and a reduction of the 60-hour week. It is alleged that the conditions of the loggers in Newfoundland are far inferior to those in the rest of Canada, where the I.W.A has 45,000 members. But the company rejected the recommendations in which the employers' representative had concurred and refused to bargain further on the matter. After a 98.4 per cent vote in favour, the loggers began a strike on 31 December 1958, this being endorsed by the Canadian Labour Congress on 21 January 1959. In the early days of the strike, it is alleged, the authorities tried to break the strike by declaring that where loggers held I.W.A membership cards they and their families would be ineligible for public welfare, but that the widespread resentment at the policy of using welfare to oppose a union in a labour dispute led to the restriction being lifted. The complainants declare that incidents of violence were few but that, after the organisation of the picket lines, the employers (the Anglo-Newfoundland Development Co.) attempted to take men from the fishing villages to take the jobs of the loggers; this led to some incidents, but not many, when loggers went into the camps to persuade the men to leave. AS a result, declare the complainants, nearly 200 charges were laid-for obstruction, theft of company's food and public mischief-and the Attorney-General made a public statement in effect directing magistrates to be stiff with these cases ; fines of from 150 to 300 dollars were imposed and, by the first week of March, 67 strikers were in gaol and many more were awaiting trial.
2. 84. At this point, it is alleged, the Premier of Newfoundland launched a campaign of abuse against the union and tried to deprive it of the collective bargaining rights it had secured by scrupulous adherence to the legal processes, calling on the loggers to leave the union and join a union which the Government would sponsor under the leadership of a member of the Parliament, Mr. Max Lane. Then, it is alleged, the Premier organised a union, the Brotherhood of Newfoundland Woodworkers, under the presidency of Mr. Lane. In this connection, it is alleged, the Premier established himself in the premises of the employers concerned in the dispute (the Anglo-Newfoundland Development Co.) and publicly invited workers to come there, at his expense and to enjoy food and drink provided by him, if they would sign application forms to join his union-the complainants state that something like 87 loggers in all came to join that union.
3. 85. The complainant adduces as evidence the text of a public speech alleged to have been made on 12 February 1959 by the Premier of Newfoundland. In the course of this speech he is reported as saying that he had sent out people to various parts of Newfoundland and had written to a great many clergymen and officers of religious denominations for confidential reports on the opinions of people regarding the I.W.A and the strike. Then, it is alleged, he went on to say: " I am going to outline a course that I think the loggers should take and take without a moment's delay ... First send the I.W.A about their business. Send them out of Newfoundland. Tell them never to come back here again, write or better still telegraph at once to the I.W.A telling them that you are no longer a member of that organisation. Second, form a brand new union for all the loggers of Newfoundland ... give careful consideration then to banding all the fishermen and all the loggers together in one great Newfoundland union. You could then go to the Federation of Fishermen and ask them if they would unite their Federation with the new union of loggers ... Now, I have talked all this business over with... Max Lane, the General Secretary of the Fishermen's Federation ... I said to Max Lane that I thought it was his duty as a Newfoundlander to get into this thing and launch a great new loggers' union. I would be delighted to give you every bit of help in my power and I would be able to bring in many good helpers with me. Mr. Lane as you know is a Member of the House of Assembly ... The Government don't want the I.W.A. The Government will never work with the I.W.A, will never talk to them, will never answer a letter or telegram from them, will never have anything to do with the I.W.A.... How dare these outsiders come into this decent Christian province and by such desperate, such terrible methods try to seize control of our province's main industry."
4. 86. Next, it is alleged, the Premier, his union drive having failed entirely, introduced in the legislature of Newfoundland a resolution condemning the International Woodworkers of America and urging loggers to withdraw from that union and to enrol in a new one. Two laws were introduced in the Newfoundland Parliament. One provides for the decertification of the union and stipulates that it may not again apply for certification without the consent of the Lieutenant-Governor in Council. The other Bill, declares the complainant, provides for the dissolution of certain unions and the confiscation of their funds where " it appears " that certain circumstances obtain.
5. 87. The Canadian Labour Congress has applied to the Governor-General in Council, by presenting a petition, to disallow the legislation in question, but no action has yet been taken by the Canadian Government.
6. 88. With regard to one of these legislative texts, the Newfoundland Labour Relations (Amendment) Act of 6 March 1959, the complainant makes the following comments. Under section 6 A (1) added to the principal Statute (ch. 258 of the Revised Statutes of Newfoundland, 1952) by the amending Act, " where it appears to the Lieutenant-Governor in Council that a substantial number of the superior officers, agents or representatives of a trade union or any body, group or organisation of trade unions outside the province have been convicted of any heinous crime such as trafficking in narcotics, manslaughter, extortion, embezzlement or perjury and any or all of them remain as officers, agents or representatives of the trade union or body, group or organisation of trade unions, the Lieutenant-Governor in Council may as from such date as he sees fit dissolve any trade union in the province which is a branch, local or affiliate of that other trade union or body, group or organisation of trade unions ". Such dissolution entails revocation of any certification granted to the union as a collective bargaining agent (section 6 A (3)) and immediate termination of any subsisting collective agreement to which it was a party (section 6 A (4)), while the Lieutenant-Governor in Council " may make regulations providing for the disposition of the assets of a union dissolved in accordance with subsection (1) " (section 6 A (5)).
7. 89. In the view of the complainants, as set forth in their petition to the Governor-General in Council to disallow the enactment, the new section 6 A places every national or international trade union in the province at the mercy of the Lieutenant-Governor in Council. The complainants point out that no proof is required--it merely needs to " appear " that the persons described have been convicted as specified ; that there is no provision for any hearing ; that the interpretation of " substantial " and " superior " is left to the discretion of the Lieutenant-Governor in Council. The complainants go on to state that the Canadian Labour Congress, to which all the national or international unions in Newfoundland are affiliated, has thousands of " agents " or "representatives ", so that "it need only appear to the Lieutenant-Governor in Council that a 'substantial number of the agents' or of the representatives' of the Canadian Brotherhood of Railway, Transport and General Workers, or of the United Steelworkers of America, or of the Canadian Labour Congress, outside the province, have been convicted of any of the crimes specified, and every branch, local or affiliate of any of these bodies in Newfoundland is dissolved .... The branch, local or affiliate, even if it were given a hearing (for which there is no provision) and even if it could produce proof (which the Lieutenant-Governor in Council would be perfectly entitled to disregard) that its parent union or organisation outside the province had rid itself of all but one " of the persons described and convicted as specified " could not save itself from dissolution ". Section 6 A (5), continue the complainants, gives the Lieutenant-Governor in Council, the power, after having arbitrarily dissolved a union, to seize and dispose of its assets at his pleasure-he could give them to the Treasury, the employers or the Salvation Army or " distribute them among the members of the Executive Council or of the Legislative Assembly". According to one possible interpretation of the application of the words " outside the province ", a purely Newfoundland union, unaffiliated with any body outside the province, would be totally unaffected by section 6 a declare the complainants, " even if all its superior officers, agents or representatives had been convicted of every crime in the calendar ". The section, conclude the complainants, is also discriminatory, in that it does not apply at all to purely Newfoundland trade unions but does apply to national and international unions, which it might completely exclude from the province.
8. 90. The complainants then go on to review the text of section 11 of the principal Act as substituted by the amending Act. They point out that hitherto certification of a collective bargaining agent could be revoked only if the Labour Relations Board was satisfied that " the collective bargaining agent no longer represented the majority of employees in the unit in which it was certified "-this question as to representativeness also being the only criterion when a certificate was granted. The effect of the new section 11, contend the complainants, " is drastically and improperly to widen the grounds, for revoking certification of trade unions". The new section 11 (1) (a) (iii) permits of revocation where in the opinion of the Board " the employer has ceased to be the employer of the employees in the unit in which it was certified ". This, according to the complainants, encourages any unscrupulous employer to avoid his obligations under a collective agreement by farming his work put to subcontractors, or by selling the business or changing the name of the owner.
9. 91. The new section 11 (1) (e), declare the complainants, empowers the Labour Relations Board to revoke certification "where an injunction other than an interim injunction has been granted against any member" of a certified bargaining agent, regardless of whether he was or was not acting on behalf of the bargaining agent and of whether be obeyed the injunction or broke it, while section 11 (2) confers on the Lieutenant-Governor in Council powers to revoke certification without any due process at all, without any hearing, without giving any grounds and, in this respect, to supersede the Board and oust its jurisdiction. Section 11 (3) forbids the Board to grant certification to any trade union whatever in any bargaining unit once the Lieutenant-Governor in Council has revoked a particular trade union's certificate in a particular bargaining unit, except by permission of the Lieutenant-Governor in Council. In these respects, the Lieutenant-Governor in Council, with greater powers, has superseded the administrative tribunal set up under the principal Act.
10. 92. The new section 43 A (1) (a) provides that " No trade union and no body, group or organisation of trade unions and no officer, member, agent or representative of a trade union or body, group or organisation of trade unions shall authorise, counsel, procure, aid or abet any person to and no person shall engage in or encourage any person to engage in a concerted refusal to use, manufacture, transport or otherwise handle or work on any goods or materials or to perform any service with a view to requiring any employer or other person to cease using, selling, handling, working on, transporting or otherwise dealing in the products of or to cease doing business with any other person ". How, asks the complainant, could any trade union or its members strike without " a concerted refusal to manufacture " (in a manufacturing industry), to " transport " (in a transport industry), to " work on any goods or materials " (in any industry other than a service industry), or " to perform any service " " with a view to requiring " their employer or employers " to cease ... selling, handling, working on, transporting or ... to cease doing business with " all the employer's or employers' customers ? In the complainant's view, " this provision of the Act makes a legal strike a sheer impossibility within the jurisdiction of the Legislature of Newfoundland ".
11. 93. The new section 52A, continue the complainants, makes trade unions suable (but not able to sue) not merely for tortious acts committed by or on behalf of the union, but for tortious acts merely " alleged " to have been so committed.
12. 94. In their petition, the complainants cite considerable jurisprudence to show that the Act contains provisions which have led to other legislation being disallowed, that it destroys the workers' fundamental rights and that it is contrary to Dominion policy and the public interest of Canada.
13. 95. The other enactment criticised by the complainants is the Trade Union (Emergency Provisions) Act, No. 2, of 6 March 1959, whereby the certification of the I.W.A is revoked. The Act also provides that the union shall not again apply for certification without the consent of the Lieutenant-Governor in Council and that the Labour Relations Board shall not grant certification without like consent.
14. 96. The complainant declares that the actions of the Newfoundland Premier and his Government have denied to workers the right to belong to unions they have freely chosen to represent them and that the Premier has organised a government-sponsored union, with which the companies have now concluded collective agreements. The said actions, declares the complainant, are contrary to the principles enunciated in the Declaration of Philadelphia and directly contravene both the letter and the spirit of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
15. 97. A number of documents-extracts from speeches, copies of the legislation referred to above, a copy of the union's petition to disallow the legislation, press clippings, etc.-are adduced by the complainant.
16. 98. In his reply dated 4 January 1960 the Minister of Labour of Canada informed the Director-General that he had advised the Premier of Newfoundland that he would be glad to receive the views which the Premier might wish the Minister to transmit on his behalf in respect of the complaint, and that he was now transmitting a copy of the observations received from the Premier of Newfoundland.
17. 99. The Committee observes that, while the Government of Canada has transmitted to the Director-General the observations on the case of the Government of Newfoundland, the Government of Canada itself has refrained from making any observations or comment on the matter. While appreciating the various problems that may be involved, the Committee would appreciate receiving the comments of the Government of Canada, which is the Member of the International Labour Organisation involved, with regard to the matter.
18. 100. In these observations, the Premier of Newfoundland confirms that the International Woodworkers of America acted lawfully up to and including the calling of the strike. Thereafter, he contends, the union called on the strikers to break the law and " for more than five weeks a veritable reign of terror was conducted " by the union. In order to counter the violence encouraged and organised by the union, declares the Premier of Newfoundland, legislation was enacted to decertify the union and to take away its monopoly of the right to negotiate with the employers on behalf of their members. He goes on to state: " the right to organise, to operate as a union, to negotiate with the employers, to conclude agreements with the employers, and generally to conduct themselves as a trade union " have not been affected, but a new union, the Newfoundland Brotherhood of Woodworkers, has been organised and has negotiated contracts and has more members than had the International Woodworkers of America. The Premier considers that his action to decertify the union was almost unanimously approved by Parliament and by public opinion, the violence of the union having shown it to be unfit to enjoy a monopoly in representing the loggers. In conclusion, he would be prepared to give every assistance if the I.L.O should choose to send experts to Newfoundland to make an impartial inquiry into the matter.
19. 101. The Committee observes that the complainants contend that the actions of the Premier of Newfoundland contravene the principles contained in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). This Convention has not been ratified by Canada but the Committee, as it did in Case No. 102 relating to the Union of South Africa, considers it appropriate to point out that the Declaration of Philadelphia, which now constitutes an integral part of the Constitution of the International Labour Organisation and the aims and purposes set forth in which are among those for the promotion of which the Organisation exists in virtue of Article 1 of the Constitution, as amended at Montreal in 1946, recognises " A he solemn obligation of the International Labour Organisation to further among the nations of the world programmes which will achieve ... the effective recognition of the right of collective bargaining, the co-operation of management and labour in the continuous improvement of productive efficiency, and the collaboration of workers and employers in the preparation and application of social and economic measures ". In these circumstances, the Committee, as it did in Case No. 102, considers it appropriate " that it should, in discharging the responsibility to promote these principles which has been entrusted to it, be guided in its task, among other things, by the provisions relating thereto approved by the Conference and embodies in the Freedom of Association and Protection of the Right to Organise Convention (No. 87), 1948, and the Right to Organise and Collective Bargaining Convention (No. 98), 1949, which afford a standard of comparison when examining particular allegations, more particularly as Members of the Organisation have an obligation under Article 19 (5) (e) of the Constitution to report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of its law and practice in regard to the matters dealt with in unratified Conventions, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention by legislation, administrative action, collective agreement or otherwise and stating the difficulties which prevent or delay the ratification of such Conventions ". Canada is one of the governments which have complied with this obligation at the request of the Governing Body in respect of the Freedom of Association and Protection of the Right to Organise Convention (No. 87), 1948. The Committee therefore considers that, while recognising that the provisions of the Conventions are not binding upon Canada, it should examine the allegations relating to these Conventions made in the present case with a view to ascertaining the facts and reporting them to the Governing Body.
20. 102. The allegations made in the present case raise questions as to the application of a number of principles enshrined in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). Article 2 of the Convention embodies the principle that workers should have the right to establish, and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation. Article 3 embodies the principle that workers' organisations should have the right to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. The principle that workers' organisations should not be liable to be dissolved or suspended by administrative authority is enunciated in Article 4. Under Article 5, workers' organisations should have the right to establish and join federations and Confederations and, by virtue of Article 6, the foregoing principles applicable in the case of workers' organisations should apply equally in the case of federations and Confederations. Finally, Article 8 embodies the principle that, while in exercising the rights provided for in the Convention workers and their organisations, like other persons or organised collectivities, should respect the law of the land, the law of the land should not be such as to impair, nor should it be so applied as to impair, the guarantees provided for in the Convention.
21. 103. These are among the principles which the Committee would have to bear in mind, as it already has done in a great many cases, irrespective of whether the above Convention has been ratified by the State concerned or not, in its examination of the substance of the allegations made.
22. 104. The Committee, for example, has on several occasions emphasised the importance which it attaches to the principle that workers should have the right to establish and join organisations " of their own choosing". In the present case it would have to examine the allegations as to the provisions in Newfoundland regarding dissolution of organisations and the decertification of the I.W.A in the light of this generally accepted principle.
23. 105. In Case No. 20 (Lebanon), the Committee recommended the Governing Body to draw attention to the fact that the right of workers to establish and join organisations of their own choosing " without previous authorisation " is " one of the foundations of freedom of association ". It would seem that the legal requirement as to prior approval for certification of the I.W.A, as well as various others of the matters alleged, calls for examination in the light of this among other generally accepted principles, including also the principle that refusal of certification or revocation of certification should never lie within the discretion of the public authorities and should in all cases be subject to a right of appeal to the ordinary courts.
24. 106. A substantial part of the allegation brings into question the application of the principle that workers and their organisations should have the right to elect their representatives in full freedom, the importance of which the Committee has emphasised on a number of occasions. Thus, among the allegations to be considered in the light of this and other principles are those relating to the speech made by the Premier of Newfoundland in February 1959 and to subsequent action taken against the I.W.A, to the legislation respecting certification and decertification of trade unions.
25. 107. In a number of cases, the Committee has emphasised the importance which it attaches to the generally accepted principle that workers' and employers' organisations should not be liable to be suspended or dissolved by administrative authority, in the light of which principle the provisions relating to dissolution contained in the new legislation in Newfoundland would seem to require to be examined.
26. 108. In relation to the allegations relating to the disposal of assets of dissolved organisations, the Committee recalls that, among other principles which it has enunciated in respect of such cases, it has emphasised that when an organisation is dissolved its assets should temporarily be sequestrated and finally distributed among its members or transferred to its successor organisation.
27. 109. It would seem further that the allegations relating to the measures taken to form a new loggers' union and to the part stated to have been played in this operation by the Premier and Government of Newfoundland would call for examination in the light of a number of the principles enunciated above - e.g. the right of workers to join organisations of their own choosing, the right to elect representatives in full freedom, the principle that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. And the case as a whole, or at least a very substantial part of it, would seem to call for examination in the light of the principle that the law of the land should not be such as to impair, nor should it be so applied as to impair, the various generally accepted rights and principles which have been enunciated in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
28. 110. Nevertheless, it appears to the Committee that, before it is in a position to proceed further to examine the various complex and technical matters raised in the allegations now before it, it is necessary to seek further information on a number of the questions raised in the allegations. Moreover, in accordance with the practice which it has always followed of requesting governments which have referred in general terms in their replies to violence or unlawful acts on the part of complaining organisations or their members to be good enough to furnish more detailed information as to such violence or unlawful acts, the Committee considers that it should seek fuller information concerning the violence and illegal acts stated in the reply of the Premier of Newfoundland to have been committed by the I.W.A and its members in the course of the strike.
29. 111. One matter of fundamental importance to the examination of the complaint appears to be still pending-the complainant has petitioned the Governor-General in Council of Canada to disallow the legislation which embodies the provisions to which some of the most important allegations directly relate.
30. 112. In previous cases, the Committee has followed the practice of not proceeding to examine matters which were the subject of pending judicial proceedings, provided that these proceedings were attended by proper guarantees of due process of law, because the pending judicial decision might make available information of assistance to the Committee in appreciating whether or not allegations were well founded.
31. 113. In the present case, there are no legal proceedings pending in the usual sense of the term, but the complainants have requested the Government of Canada to exercise a Constitutional power, and the attending circumstances, from the point of view of the Committee in relation to the availability of information important to its consideration of the case, are parallel to those by which it was influenced in taking the decisions referred to in paragraph 112 above. In one of the cases mentioned, in particular, that relating to the Saar (Case No. 51), the parallel was even closer, the Committee having adjourned its examination pending the result of the decision of the Constitutional Committee of the Diet with respect to the Constitutionality of an Act, the provisions of which were the subject of the allegations made.
32. 114. In the present case, the Committee considers that, before it examines the substance of the allegations, it should request the Government of Canada to be good enough to inform the Committee whether it has any statement to make concerning the request of the complainants that the Government of Canada should exercise the power to disallow the Newfoundland legislation.

B. B. The Committee's conclusions

1. 115. The Committee wishes to express its keen appreciation of the action of the Premier of Newfoundland in suggesting that it might be advisable for the I.L.O to send highly qualified persons to Newfoundland to conduct an investigation into the subject matter of the complaint and to note with special satisfaction his assurance that he " would be happy to assist " such persons " in the making of a thoroughgoing, impartial enquiry into all these matters ". The Committee however, considers that before it gives any advice to the Governing Body concerning the conditions under which such an invitation might be accepted it would be desirable that it should be informed whether the Government of Canada has any further statement to make upon the matter and should have before it fuller information on a number of matters raised in the allegations which it would be necessary to consider in the course of any such investigation. In this connection, the Committee, having regard to the fact that it is the federal Government of Canada which assumes international responsibility in the relations between Canada and the International Labour Organisation, has decided to request the Government of Canada to be good enough to furnish or to obtain from the Government of Newfoundland their comments concerning the specific allegations contained in the complaint and analysed in paragraphs 82 to 96 above, in the light of the general principles recapitulated in paragraphs 102 to 109 above, and fuller information concerning the violence and illegal acts stated in the Premier's reply to have been committed by the I.W.A and its members in the course of the strike.

The Committee's recommendations

1. 116. Pending the receipt of such further information, the Committee recommends the Governing Body to note the present interim report.