Rapport définitif - Rapport No. 202, Juin 1980

Cas no 931 (Canada) - Date de la plainte: 10-MAI -79 - Clos

1. 192. The complaint of the World Confederation of Labour (WCL) is contained in two letters dated 10 May and 21 June 1979 and that of the World Federation of Trade Unions (WFTU) in a letter dated 1 June 1979. The Government sent its observations by a letter received on 7 November 1979.
2. 193. Canada has ratified the Freedom of Association and Protection of the Eight 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. 194. In its complaint the WCL states that Jean-Claude Parrot, president of the Canadian Union of Postal Workers (CUPW), has been sentenced to three months' imprisonment for not having complied quickly enough with a return-to-work order based on a special Act adopted by Parliament to end a legal strike of the postal workers. The WFTU indicates that shortly after the strike by 23,000 postal workers began, the Government adopted an emergency Act withdrawing from the postal workers their right to resort to strike action. It calls for the abrogation of this Act, the annulment of the sentence passed upon Mr. Parrot, and the cessation of any action preventing the free exercise by the Canadian postal workers of their trade union rights.
2. 195. In its letter of 21 June 1979, the WCL states that Mr. Parrot has appealed his sentence, this appeal having suspensive effect. He is free on bail, but must report regularly to the police. The WCL attaches to its letter several documents in support of its allegations, including an analysis of the events preceding the strike. According to this analysis, bargaining took place for a new collective agreement to replace the one between the Canadian Government and CUPW which was due to expire on 30 June 1977. It began officially on 20 April 1977 and continued, with numerous interruptions, until 17 November of that year. As regards the method of settlement, the CUPW had opted, under the Public Service Staff Relations Act, for the procedure of conciliation involving the right to strike. In November 1977, the conciliation proceedings started and hearings before a Conciliation Board took place between 10 April and 15 July 1978; the Board's report was submitted on 5 October 1976, and, in the absence of an agreement, the union was entitled to exercise the right to strike as from 13 October 1978. The WCL points out that although the conciliation process should last only 14 days, the CUPW had agreed to the delays which took place so that a real attempt to solve the problems could be made at the bargaining table. A strike was then called from midnight 16 October. On 17 October the Government introduced in Parliament Bill C-8, the Postal Services Continuation Act, which became law two days later. The Act extended the previous collective agreement until 31 December 1979, subject to modifications to be introduced by a mediation and arbitration process set up under another section of the Act. Thus it made the postal workers' strike illegal and annulled the CUPW's choice of the procedure which it had made at the outset of negotiations.
3. 196. The WCL adds that despite this special Act, the postal workers continued their strike and picketing of post offices throughout the country. The employer notified strikers that if work was not resumed within seven days they would be considered as having abandoned their posts and new employees would be hired. Under the Public Service Employment Act, which governs relations between postal workers and management, there is no appeal from an employer's decision that an employee has abandoned his post. In view of these threatened dismissals, the strike was called off on 25 October 1978. The WCL states that during the strike the Royal Mounted Police conducted searches of trade union premises. The day after the return to work, the leaders of the union were arrested for allegedly infringing section 115 of the Criminal Code which provides that everyone who, without lawful excuse, contravenes an Act of Parliament of Canada by ... wilfully omitting to do anything that it requires to be done is ... guilty of an indictable offence and is liable to an imprisonment of two years. Their cases were heard directly without the preliminary examinations usually made in criminal cases and resulted in Mr. Parrot's sentencing and the acquittal of Frank Waldon, the director of the Western Region of the CUPW. Other cases, as well as Mr. Parrot's appeal, were to be decided later it 1979.
4. 197. The WCL further states that during the conciliation proceedings in 1978, Parliament passed another special Act (called the Postal Service Operations Act) prohibiting members of the CUPW from striking during federal elections. This Act does not apply to other postal trade unions; the letter carriers' union in fact held a short strike in September 1978 before the CUPW strike. The WCL attaches to its communication a copy of a letter from the then Prime Minister of Canada to the Montreal Labour Council in which this Act is described as merely delaying a strike. Further anti-union discrimination is evidenced, according to the WCL, by the ten dismissals and hundreds of suspensions of union members after the CUPW strike.
5. 198. Finally, the WCL states that the mediator-arbitrator appointed by virtue of the Postal Services Continuation Act rendered an award covering some of the outstanding issues between the parties and went as far as withdrawing some of the rights which the postal workers had acquired in the collective agreement.

B. The Government's reply

1. 199. In its letter, received on 7 November 1979, the Government confirms the complainants' description of the events which led to the October 1978 strike by the postal workers, but it attributes the slowness of negotiations and conciliation, and the ill-feeling surrounding these events, to intransigence on the part of the CUPW. For example, the Government states that from January to November 1977 the employer made numerous attempts to meet with the union to negotiate a new collective agreement, but only met with refusals to meet, cancellations of agreed meeting dates or failure to appear.
2. 200. The Government provides a copy of the Postal Services Continuation Act, which entered into force on 19 October 1978. The Act required the employee organisation (the CUPW) forthwith to give notice to the employees that any direction to go on strike given before the coming into force of the Act had become invalid by reason of the coming into force of the Act; every employee was to continue or resume the duties of his employment, and no employee was to be discharged or disciplined by reason of his having been on strike before the coming into force of the Act. In addition, the Act extended the previous collective agreement to 31 December 1979 and provided for the appointment of a mediator-arbitrator who was to report to the Minister of Labour within a period of 90 days.
3. 201. According to the Government, after the entry into force of the Act, the National Executive of the CUPW encouraged its members to defy the legislation and continue their strike. On 20 October 1976 a letter from the Deputy Postmaster General was delivered to Mr. Parrot advising him of the duty of the union officers to rescind previous strike declarations and requesting his to take the steps prescribed by law. It was not until 25 October, after a second notice had been issued by the Deputy Postmaster General, that the CUPW executive ordered its members back to work. Furthermore, on 23 and 24 October, the Attorney-General for Canada sought and was granted injunctions in several large cities restraining CUPW members from picketing postal facilities in those cities. Again the National Executive of the CUPW encouraged its members to disregard the terms of the injunctions.
4. 202. The Government states that even when the mediator-arbitrator was appointed to settle the issues between the parties, the CUPW did not participate fully or willingly in the mediation process. It was this process which settled the terms of the contract between the parties by 31 March 1979.
5. 203. Regarding the reasons for the back-to-work legislation, the Government states that in view of the awkward and protracted negotiations, the lack of agreement after the efforts of the Conciliation Board and the serious hardship that would be caused to the national community by a long strike, Parliament decided to legislate the strikers back to work. It states that as social assistance cheques, service industry billing and many other business operations rely on mail services, thus every Canadian business and every Canadian individual feels the impact of a cessation of postal services it cites the strike declared by the CUPW from 20 October to 2 December 1975 as proof of the disastrous effects that can be wrought upon businesses and citizens as a consequence of a long strike, and attaches to its letter independent reports indicating the financial losses, lay-offs, etc. attributable to the 1975 strike.
6. 204. The Government attaches to its letter a copy of the remarks of the Chief Justice of the High Court of Ontario upon the sentencing of Mr. Parrot. According to this statement, the jury had found him guilty of wilful defiance of the law and of challenging the authority of Parliament. Having exercised a right of appeal, Mr. Parrot was free on bail. The decision of the appeal court was expected to be handed down during November 1979.
7. 205. The Government points out that the postal service is a public service and stresses that the back-to-work legislation had been introduced only as a last resort in circumstances which indicated that the parties were so far from agreement that there could be no hope of a resolution of the dispute and a consequent end to the strike in the foreseeable future, and in the face of evidence that a protracted strike would cause grave damage to the Canadian public and to the Canadian economy. Parliament gave the postal workers the protection of a collective agreement, reinstating the one which had expired on 33 June 1977, to the end of 1979, to give the union and the employer an opportunity to settle their disputes again, this time with a mediator-arbitrator. Under the Act, the parties were given the means of an impartial and speedy solution: the mediator-arbitrator was required to endeavour forthwith to mediate all matters which had been referred to the Conciliation Board and which remained in dispute; where no agreement could be reached by mediation, the mediator-arbitrator was to render an arbitral decision. Thus, states the Government, it cannot be said that such a suspension of the right to strike violated principles respecting the right to organise and to bargain collectively or the principle of freedom of association.
8. 206. Regarding the search of trade union premises, the Government attaches to its letter a copy of the warrant issued on 24 October 1978 by a Justice of the Peace in and for the Judicial District of Ottawa-Carleton authorising the police to enter into the office premises of the CUPW to search for records or copies of certain decisions of the CUPW officers, believed to constitute evidence of the commission of specified offences.

C. Conclusions of the Committee

1. 207. The complainants alleged that the right to strike of Canadian postal workers was infringed by the passing of the Postal Services Continuation Act. In addition, the complainants refer specifically to the sentencing of the president of the Canadian Union of Postal Workers (CUPW) who had been charged under the Criminal code for failure to comply with the Act, to searches by the police of trade union, premises, and to disciplinary measures taken against trade union members after the strike.
2. 208. The Committee notes that the complainants and the Government generally agree on the description of the events which led to the October 1978 strike by the postal workers, albeit the Government blames the union for the lack of progress in the bargaining process. From the information available, the Committee observes that the collective agreement between the CUPW and the Canadian Government was due to expire on 30 June 1977. Negotiations for renewal of the agreement took place between April and November of that year. In November the conciliation procedure was instituted; a Conciliation Board was appointed and conducted hearings until October 1978 when it reported that no agreement had been reached by the parties, whereupon the CUPW became entitled to resort to strike action. The CUPW launched a strike on 16 October and the Government immediately introduced in Parliament the Postal Services Continuation Act which became law three days later.
3. 209. The complainants allege that the Act unfairly restricts the right to strike of members of the Canadian Union of Postal Workers. On the other hand, the Government is of the view that the special legislation was warranted by the inability of the parties to resolve the dispute and the threat of very serious hardship to the community and to the citizens which would result from a long strike. The workers concerned in this case are government employees whose relations with management are governed by the Public Service Employment Act.
4. 210. The Committee has had occasion several times in the past to examine allegations concerning the right to strike. Whilst recognising that the right to strike is a legitimate means of defending workers' occupational interests, it has agreed that this right could be restricted or even prohibited in the civil service or in essential services, if these limitations are accompanied by corresponding guarantees, because a strike there could cause serious hardship to the rational community.& In all the cases where strikes may be prohibited for civil servants and persons engaged in essential services, the Committee has underlined the importance of providing sufficient guarantees to these workers in order to safeguard their interests, such as adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned can participate at all stages and in which the awards are binding on both parties and are fully and promptly implemented.
5. 211. In the present case, the Government has supplied information on the serious losses to the economy and other consequences including lay-offs caused by an earlier postal strike in 1975, and states that it was to avoid similar hardships that the special legislation in issue was passed. It also states that the Postal Services Continuation Act merely suspended the right to strike for the period of the extension of the previous collective agreement; moreover, according to the Government, the Act provided adequate, speedy and impartial arbitration procedures through the mediation-arbitration process which resolved the issues in dispute between the parties by March 1979. On the other hand, the complainants point out that the October 1978 postal strike was called in accordance with the provisions of the Public Service Staff Relations Act. Furthermore, the Committee notes that the strike had been under way for three days when the Postal Services Continuation Act became law. The latter Act restricted, with an immediate application to a strike already called in accordance with the law, the right to strike granted to postal workers under the Canadian legislation and at the same time introduced a procedure for the settlement of that particular strike which, following the normal legislation, the CUPW exercising the right that it had under that Act had not chosen but opted for the right to strike. In all these circumstances, and despite the fact that certain guarantees were provided, the Postal Services Continuation Act of 1978 does not appear to be conducive to sound industrial relations, which should be founded on a predictable and stable framework and on permanent legislation respecting the principles of freedom of association. The Committee would therefore like to be kept informed of the industrial relations situation in the postal service as they have developed after the promulgation of the Postal Services Continuation Act.
6. 212. Regarding the arrest and prosecution of trade union leaders, the Committee notes that Mr. Parrot was convicted under the Criminal Code and sentenced to three months, imprisonment for contravening an Act of Parliament, but was at liberty pending the hearing of his appeal. The Committee further notes that the court decision in the case of other CUPW executive members was still being awaited. In this connection, the Committee considers it important to recall that the development of labour relations may be impaired by the adoption of an inflexible attitude in the application of excessively severe sanctions for strike action. Before examining this aspect of the matter, the Committee would like to be kept informed of the outcome of Mr. Parrot's appeal and of the proceedings against the other CUPW executive members, including the substance of the decisions and the reasons adduced therefore.
7. 213. Regarding the complainants' allegation that anti-union measures, including ten dismissals and hundreds of suspensions, were taken against the strikers, the Committee notes that the Government has not provided specific observations in this connection. The Committee would like to be kept informed of any measure which might be taken- in favour of the dismissed or suspended workers.
8. 214. Regarding the search of trade union premises, the Committee has stated on many occasions that while trade unions, like other associations or persons, cannot claim immunity from a search of their premises, such a search should only be made following the issue of a warrant by the ordinary judicial authority when there are reasonable grounds for believing that evidence exists on the said premises material to a prosecution for an offence under the law. The Government in this case has supplied a copy of the warrant authorising a search of the union's premises, issued by the judicial authority in conformity with the principle just indicated.

The Committee's recommendations

1. 215. In these circumstances, the Committee recommends the Governing Body:
   • (a) (i) to note that the strike in question had been declared in accordance with the Act which was then in force and that the Postal Services Continuation Act was adopted with a view to ordering postal workers back to work to prevent hardship, according to the Government, to the community, since lengthy conciliation proceedings had failed to settle the dispute acceptably to the two parties;
   • (ii) to note that the same Postal Services Continuation Act provided for an extension of the previous collective agreement, but imposed for the settlement of that particular dispute a mediation-arbitration procedure which, under the Public Service Employment Act, the union had previously not opted for, and to draw the Government's attention to the considerations regarding sound industrial relations set out in paragraph 211 above;
   • (iii) to ask the Government to keep the Committee informed of the industrial relations situation in the postal sector after the promulgation of the Postal Services Continuation Act, as well as of any measure which might be taken in favour of the dismissed or suspended workers;
   • (b) regarding the arrest and prosecution of trade union leaders, to note that the president of the Canadian Union of Postal Workers, Mr. Parrot, was at liberty pending the hearing of his appeal scheduled for November 1979, to draw the attention of the Government to the principle set out in paragraph 212 above and to request the Government to keep the Committee informed of the outcome of tail appeal and on the proceedings concerning other executives of the Canadian Union of Postal Workers, including the substance of the decisions and the reasons adduced therefore;
   • (c) to note that the search of trade union premises was carried out with the requisite judicial authorisation, based on reasonable grounds for believing that evidence existed on the said premises material to a prosecution for an offence under the law, and to decide that this aspect of the case does not call for further examination.