Rapport intérimaire - Rapport No. 194, Juin 1979

Cas no 886 (Canada) - Date de la plainte: 20-JUIL.-77 - Clos

1. 212. By communications dated respectively 20 July and 19 August 1977, the Canadian Association of University Teachers (CAUT) and the Canadian Labour Congress presented complaints of violation of freedom of association in Canada, in the province of British Columbia. The two organisations sent additional information in support of their complaint on 21 September and 6 October 1977 respectively. The Government, for its part, sent two communications to the ILO on 27 January 1978 and 27 April 1979.
2. 213. 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).

A. A. The complainants' allegations

1. 214. In their communications of 20 July and 19 August 1977, the Canadian Association of University Teachers and the Canadian Labour Congress refer to the Bill for the Notre-Dame University of Nelson Act, 1977, submitted to Parliament by the Government of British Columbia. CAUT and CLC refer in particular to section 7 of the Bill, which provides for the termination on 30 May 1977 of collective agreements between the University and the Faculty Association of Notre-Dame University (FANDU), and for the termination of the certification under the Labour Code of Notre-Dame University as bargaining agent for the employees of the University. The Bill also provides that the Province and the University shall not be liable for losses, damages or claims by reason only of the termination of the collective agreements or the certification of the organisation.
2. 215. The complainants claim that the intent and effect of the above-mentioned section will be to deny FANDU successor rights as provided under the British Columbia Labour Code. CAUT and CLC also consider that this provision infringes Convention No. 98 by terminating a collective agreement freely negotiated between FANDU and Notre-Dame University of Nelson. The chief harm to individual employees arising from the proposed legislation is that they will be denied, by retroactive legislation, their entitlement to continue employment with the successor employer.
3. 216. CAUT and CLC also submit that the Bill is in breach of Convention No. 87, in particular Article 2, which guarantees workers the right to establish and to join organisations of their own choosing. The complainant organisations attach to their communication a copy of the Bill and of a report on the effects of the Bill on FANDU, prepared by the legal adviser to the complainant organisation.
4. 217. In its communication of 21 September 1977, CAUT alleges that the Government of British Columbia has introduced a new Bill before Parliament which, in its view, is designed to prohibit the unionisation of university faculty staff and to deny them the right to bargain collectively. The legislation referred to is Bill No. 91, section 38 of which provides that the Labour Code of British Columbia does not apply to the relationship of employer and employee between a university and its faculty members. This provision, according to the complainant organisation, contravenes Conventions Nos. 87 and 98.
5. 218. In its communication of 6 October 1977, the Canadian Labour Congress states that the Government of British Columbia has withdrawn section 7 of Bill No. 68 which was the subject of its complaint. However, says CLC, new Bills, namely Bill No. 82 (Colleges and Provincial Institutes Act) and Bill No. 91 (Miscellaneous Statutes Amendment Act), contain provisions which perpetuate the intent of section 7 of Bill No. 68.
6. 219. In its communication of 27 January 1978 the Government states that the issue is at present the subject of proceedings before the Labour Relations Board and the Supreme Court of British Columbia.
7. 220. In its communication of 27 April 1979 the Government transmits the observations of the Minister of Labour of British Columbia, who confirms that section 7 of the Notre-Dame University of Nelson Act was not passed by the Legislative Assembly. Consequently, in the view of the Government of British Columbia, the complaint is unfounded.
8. 221. The Government states that the complaint relating to the amendment to the Universities Act to exclude teaching staff from the Labour Code is also without merit. It explains that university faculty members enjoy freedom of association and the right to organise, and that their exclusion from the Labour Code, particularly from its certification procedure, does not restrict the right of the university to voluntarily recognise the faculty union and initiate a collective agreement with that union. The Government adds that it is the practice of all three universities in British Columbia to recognise their respective faculty associations and to bargain with them. There is no legislation restricting the right of university employees to engage in collective bargaining.
9. 222. Finally, the Government contends that neither Convention No. 87 nor Convention No. 98 imposes an obligation on a government to grant certification rights for the purposes of collective bargaining. It considers that, for ILO purposes, the process of voluntary recognition is equivalent to the certification process. Therefore, the exclusion of professors from the Labour Code and its certification process is not in breach of Conventions Nos. 87 and 98.

B. B. The Committee's conclusions

1. 223. The Committee notes that the initial complaints related to the provisions of section 7 of Bill No. 68 to the effect that the collective agreements concluded between Notre-Dame University of Nelson and the faculty association of that university was to terminate, together with the certification of the association under the Labour Code as bargaining agent for the employees. It appears that this provision has not been adopted by Parliament. According to the Government, the complaints are thus unfounded.
2. 224. Nevertheless, according to the allegations of the Canadian Labour Congress, the Government has submitted to Parliament other Bills, including Bill No. 82 (Colleges and Provincial Institutes Act) - which perpetuate the intent of section 7 of Bill No. 68. The Committee observes that the Government has not yet sent its observations regarding this latter Bill.
3. 225. As regards the allegations respecting Bill No. 91, purporting to amend the Universities Act, which excludes teaching staff from the scope of the Labour Code, the Committee notes that, according to the Government, university staff in British Columbia enjoy freedom of association and the right to organise, and that it is the practice for universities to recognise faculty associations for the purposes of collective bargaining.
4. 226. The Committee also notes that the matters at issue in the complaints are the subject of proceedings before the Labour Relations Board and the Supreme Court of British Columbia. It considers that it would be useful for it to have at its disposal the decisions taken by these two bodies in order to enable it to reach conclusions with full knowledge of the facts.

The Committee's recommendations

1. 227. In these circumstances the Committee recommends the Governing Body:
   • (a) to note that section 7 of Bill No. 68 has not been adopted by Parliament;
   • (b) to request the Government:
   • (i) to send its observations regarding Bill No. 82 (Colleges and Provincial Institutes Act);
   • (ii) to supply the texts of the decisions of the Labour Relations Board and the Supreme Court of British Columbia regarding the matters dealt with in the complaint;
   • (c) to take note of the present interim report.