Rapport définitif - Rapport No. 253, Novembre 1987

Cas no 1394 (Canada) - Date de la plainte: 19-FÉVR.-87 - Clos

1. 101. The complaint of violation of freedom of association in Canada (Quebec) was presented by the Canadian Labour Congress (CLC) on 19 February 1987. The Federal Government submitted the observations of the Government of Quebec in a letter dated 27 October 1987.
2. 102. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87), but it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No.98).

A. The complainant's allegations

1. 103. In its complaint dated 19 February 1987, the CLC, on behalf of its affiliate organisation, the Quebec Federation of Labour-Construction (QFL-Construction), explains the reasons for the strike and lock-out which took place in the Quebec building industry in May and June 1986.
2. 104. The complainant explains that, until 30 April 1986, conditions of work in the building industry had been governed by a decree respecting the industry, of which it encloses a copy. It adds that negotiations with a view to renewing the collective agreement had begun around 11 March 1986 between the representative associations affiliated to the QFL-Construction and the Quebec Provincial Council of the Building Trades, which represents the vast majority of workers in the branch.
3. 105. However, the complainant continues, these negotiations failed to produce an agreement, despite the intervention of a conciliator, and a legal, peaceful and orderly strike was authorised by secret ballot. It was held on 9, 16, 19, 23, 27 and 28 May and on 2, 3 and 16 June 1986; the employers retaliated by a lock-out declared on 4, 5 and 6 June 1986.
4. 106. The provincial Parliament reacted to the situation by adopting, on 17 June 1986, an exceptional law, Act No. 106 on the resumption of construction work, completely changing the rules of the game, with the direct and immediate result of flouting the freedom of association of construction workers, explains the complainant.
5. 107. The substance of Act No. 106 deprives construction workers of the right to strike for a three-year period; under the Act, a mediator shall be appointed who may fix the working conditions of construction workers if the sides fail to conclude a collective agreement by 1 August 1986; the Act provides further that the conditions of work laid down by the former Decree are reintroduced.
6. 108. The complainant alleges that this Act deprives construction workers of the right to strike, thus running counter to the Canadian Constitution and the Quebec Charter of Rights and Freedoms and infringes freedom of association. The history and the exercise of workers' freedom of association are linked to the development of collective bargaining and the right to strike; if freedom of association is to have a real, and not merely illusory meaning, it has to include any behaviour which may be reasonably supposed to contribute to the legitimate aims of a workers association. The right to strike is thus an integral and inseparable part of freedom of association, continues the complainant.
7. 109. The complainant adds that the Act was challenged by declaratory judgement brought before the High Courts by the National Brotherhood of Carpenters, Joiners, and Forestry and Factory Workers, QFL-Construction and a number of their members.

B. The Government's reply

1. 110. The Federal Government of Canada, in its reply of 27 October 1987, indicates that the Government of Quebec does not deny having intervened in this dispute, but considers that its intervention enabled the parties to come together and reach an understanding on the terms of a new collective agreement. In a situation of crisis, states the Government, it assumed its responsibility towards the population of Quebec and, as far as possible, respected the construction workers' fundamental rights.
2. 111. More specifically, the Government explains that in the light of the three decisions handed down by the Canadian Supreme Court in April 1987, which it encloses, Act No. 106 is not incompatible with the Canadian Charter of Rights and Freedoms contained in the Canadian Constitution, or with the Quebec Charter of Rights and Freedoms, and is therefore in conformity with Canadian law. It adds that the complainant, QFL-Construction, which had contested the validity of Act No. 106 before the Quebec Supreme Court, dropped its appeal after the three decisions were handed down.
3. 112. The Government reiterates its adherence to the principle that the right to bargain freely with employers with respect to conditions of work constitutes an essential element of freedom of association, and that it recognises that the right to strike is one of the essential means through which workers and their organisations may promote and defend their economic and social interests; it affirms that the Act on labour relations in the building industry guarantees unrestricted exercise of freedom of association.
4. 113. The Government further admits that in March 1986 management and labour began negotiations with a view to renewing the conditions of work of construction workers. However, despite having resorted to conciliation, the parties failed to reach an agreement and construction work was interrupted by repeated strikes and lock-outs in May 1986. Despite a final bargaining attempt with the assistance of a conciliator, negotiations reached a deadlock and the trade union decided to hold an indefinite general strike.
5. 114. However, continues the Government, prolonged interruption of construction work throughout Quebec was likely to jeopardise seriously the national community. It was thus compelled to resort to exceptional measures to encourage settlement of the dispute. The Government refrained, however, from immediately imposing conditions of work on these workers, and provided in Act No. 106 for continued bargaining through mediation machinery to enable the parties to reach an agreement. These measures bore fruit because the employers' association and the representative trade union associations, including QFL-Construction, concluded an agreement soon afterwards. The parties signing the collective agreement even requested the Quebec Minister of Labour to extend the agreement to the entire building industry in accordance with the Act on labour relations in the industry.
6. 115. The Government admits that Act No. 106 was an exceptional and temporary measure, but states that its effect had been terminated by Decree No. 1190-87 adopted on 29 July 1987.
7. 116. After providing a detailed day-by-day account of the dispute, the Government states that its intervention was justified for three reasons: firstly, the impact of a prolonged interruption of construction work on the Quebec economy as a whole; secondly, the social consequences of the dispute, and particularly the atmosphere of violence which surrounded it; and lastly, the attitude of confrontation between the parties which made it unlikely, if not impossible, that the dispute would be settled within a reasonable time, despite the repeated use of pressure by both sides and the constant efforts of a conciliator who had been approved by both sides.
8. 117. As regards the economic impact, the Government explains that the building industry is different from most other industries in that collective bargaining takes place at the branch level for the entire province of Quebec, since this industry plays a vital role in the Quebec economy as a whole. It follows that a dispute in this branch affects not only the parties involved, but also the Quebec economy as a whole. According to a study carried out in April 1987, the activities of the construction branch account for about ten per cent of the entire demand for goods and services in Quebec.
9. 118. Moreover, disputes in the building industry affect all other economic activities in Quebec. Lastly, in addition to the consequences for related industries, the Government states that at the time of the dispute, construction was under way on 15,000 to 20,000 apartments, many of which were due to be finished by 1 July 1986. A great many families who were to move into the new housing were thus homeless for a time because of this labour dispute. Thus, the delay in completing new buildings would have had very serious consequences if the interruption of construction work had continued.
10. 119. Furthermore, continues the Government, the interruption of work could, taken on a yearly basis, entail a loss of income of $3,000 million for the Quebec Government and $1.7 million for the Canadian Government. It explains further that the Canadian economy, like other Western economies, is gradually recovering from the recession of the early eighties, and that losses on this scale could result in an increase in the already considerable budget deficits and destabilise Quebec's economic growth, which was still very precarious in 1986.
11. 120. Moreover, continues the Government, the effect of an interruption of construction work would become increasingly irreversible as the dispute continued. When a dispute is short-lived, there is reason to believe that the work may be caught up to a certain extent, mitigating the consequences on closely related industries and on the economy as a whole, but a long-lasting dispute may have irreversible effects: for example, suppliers face an increase in financing costs, storage expenses and a forced reduction in manpower. As for users, enterprises wishing to invest suffer from the delay in releasing the product on the market; families whose new housing cannot be delivered on time face additional expenses (rise in prices, storage costs, etc.) and have to seek temporary accommodation. In the medium and long term, therefore, a long-lasting dispute in the construction industry leads to a reduction in investment and loss of the investors' trust.
12. 121. The Government recognises that strikes are aimed at exerting economic pressure on the employer and the effects of a strike generally extend beyond the enterprise. Where competition is available, suppliers or users can generally offset the effects of a dispute by resorting to other enterprises. But in the case of the building industry, where the dispute occurs throughout Quebec, users and suppliers whose business is conducted exclusively in Quebec cannot seek alternatives and are forced to suffer the consequences of the dispute, over which they have no control.
13. 122. These irrevocable consequences of a lasting dispute in the building industry on other branches and on the Quebec economy as a whole, placed the Government, faced with a strike which had already lasted several days and which was likely to continue for an indefinite period, in an exceptional emergency situation which, according to the Government, justified the adoption of extraordinary measures to bring about settlement of the dispute.
14. 123. The Government considers that the social consequences of a lasting interruption of construction work throughout Quebec made its intervention necessary and imperative. It feared a serious outbreak of violence throughout the country. With each passing day of the strikes and lock-outs, the Government noted growing resistance on the part of some employers to the interruption of work. Between 9 May and 3 June 1986, this situation had provoked several acts of violence related to the dispute. During this period, both parties had entrenched themselves and the possibility of reaching a settlement in the near future was becoming remote.
15. 124. Moreover, because of the vital part played by construction in the Quebec economy, a prolonged dispute would have resulted in the loss of a great many jobs in industries with which it has direct or indirect links. At a time when the unemployment rate fluctuated around ten per cent, a considerable proportion of workers in Quebec would suffer severe consequences, not only economically, but also socially.
16. 125. As regards the climate of confrontation between the parties, the Government adds that, despite the intervention of a conciliator whose competence was unanimously recognised by everyone involved, no significant progress had been made towards an agreement during three months' intense negotiations from March to June 1986. As bargaining continued, the parties stuck to their initial positions, so that at the beginning of June 1986, negotiations had reached a deadlock.
17. 126. The Government had hoped that a degree of understanding would be reached between the sides as a result of the pressure exerted and the intense negotiations. However, it had to face the fact that the sides had not come any closer to an agreement since the beginning of June 1986, and that the dispute could not be solved in the near future: the parties came to the bargaining table not to seek a compromise, but on the contrary, to engage in a confrontation which could only end in one side fully submitting to the demands of the other.
18. 127. In view of the effect of the dispute on a great many enterprises and individuals who had no control over its outcome, the Government considers that it was duty-bound to intervene and find a way to resolve the crisis. It did not lay down the terms of a new collective agreement itself, but chose to appeal to the parties' sense of responsibility by giving them the opportunity to continue bargaining with the assistance of a mediator.
19. 128. This measure produced the positive result aimed for, since the parties resumed negotiations in a new spirit of compromise. With the assistance of the mediator appointed in accordance with Act No. 106, they finally succeeded in concluding an agreement. A new collective agreement was signed on 29 August 1986 by the Association of Construction Entrepreneurs of Quebec, on the employers' side, and the Quebec Provincial Council of the Building Trades and QFL-Construction, on the workers' side. The parties then requested, in accordance with the law, that a decree be adopted to extend the conditions of work provided for in the collective agreement to the entire construction industry of Quebec. A draft decree was published in the Quebec Official Gazette on 5 December 1986, and Decree No. 172-87 of 4 February 1987 on the building industry, was published in the Official Gazette of 18 February 1987.
20. 129. The Government considers that Act No. 106 is an exceptional and temporary measure aimed only at encouraging the parties to reach an understanding and to conclude a new collective agreement. As provided in section 18 of Act No. 106, the Government consequently officially put an end to its provisions by Decree No. 1190-87 of 29 July 1987.
21. 130. In conclusion, the Government considers that the legislation of Quebec provides that construction workers' conditions of work are negotiated at the branch level by employers and trade unions whose respresentativity has been established democratically. This process gives concrete expression to the trade union right of collective bargaining; in fact, it gives a labour dispute in the building industry throughout Quebec a scope which is not to be found in most other sectors. The negotiations to obtain new working conditions for construction workers had reached a deadlock in Spring 1986; no one could foresee a settlement in the near future since both parties held fast to their positions despite conciliation efforts. In this context, it was the responsibility of the Government of Quebec to find a way of breaking the deadlock. In view of the impact of the dispute on the economy of Quebec as a whole and on its population, the Government had no choice but to intervene in order to avert the irreversible consequences of prolonged interruption of construction work. It had refrained from imposing a new collective agreement and had chosen to set up machinery enabling the sides to reach an agreement.

C. The Committee's conclusions

1. 131. The complaint of the Canadian Labour Congress is based on the adoption by the Quebec Parliament on 17 June 1986 of an exceptional law, Act No. 106 concerning the resumption of construction work, under which striking construction workers were obliged to resume work immediately and which suspended the right to strike in this sector for a three-year period.
2. 132. The complainant's and the Government's versions of this matter are, in part, contradictory.
3. 133. According to the complainant, in view of the failure of negotiations held since 11 March 1986 to renew the collective agreement, the workers held a legal, peaceful and orderly strike on 9, 16, 19, 23, 27 and 28 May 1986 and on 2, 3 and 16 June 1986, and employers declared a lock-out on 4, 5 and 6 June 1986. In the middle of negotiations, however, the Quebec Parliament adopted exceptional Act No. 106 on 17 June 1986, which suspended construction workers' right to strike for three years and appointed a mediator to help the sides to conclude a collective agreement by 1 August 1986, failing which the Government could issue a decree laying down conditions of work for construction workers.
4. 134. According to the Government, on the other hand, while it is true that Parliament had adopted the exceptional Act on resumption of construction work, the reasons for this intervention, which is temporary in nature, arose from the violent atmosphere surrounding the dispute and the atmosphere of confrontation between the parties which made it unlikely, if not impossible, that the dispute would be settled within a reasonable time, despite the constant efforts of a conciliator approved by both sides. Another reason was the impact of a prolonged interruption of construction work on the Quebec economy as a whole.
5. 135. The Government adds that its intervention enabled the sides to reach an understanding and to conclude, with the mediator's assistance, a collective agreement on 29 August 1986, which, at the request of both sides, was extended by decree to the entire construction industry. It also adds that on 29 July 1987 the right to strike was restored.
6. 136. The Committee notes the Government's statement that, in the light of the three decisions handed down by the Canadian Supreme Court in April 1987, Act No. 106 is not incompatible with the Canadian Charter of Rights and Freedoms or the Quebec Charter of Rights and Freedoms and that, consequently, it is in conformity with Canadian law.
7. 137. The Committee notes that Act No. 106 respecting resumption of construction work provides, in Division II (section 2), that the workers who had stopped working because of a strike or lock-out must return to work on 17 June 1986 and in Division VI (section 18), that Division II will cease to have effect as from a date to be fixed by government decree or, at the latest, on 30 April 1989. It provides further, in Division IV (sections 8-11), that bargaining between the sides shall continue, that a mediator shall be appointed by the Minister of Labour to assist the parties in concluding an agreement, that he must report to the Minister on the stage reached in negotiations by 1 August 1986, and that, if the sides fail to reach an agreement, after the mediator has made his report, the Government shall fix by decree the workers' conditions of work for a period to be determined by the Government, which may extend to 30 April 1989.
8. 138. The Committee therefore points out with concern that this text imposed temporarily, but initially for a three-year period, a prohibition on strikes in the construction industry. The Committee recalls the importance which it has always attached to the principle that the right to strike is one of the essential means through which workers and their organisations may promote and defend their occupational interests.
9. 139. The Committee notes the Government's argument that the duration of the dispute, which had continued for three months and which seemed impossible to resolve, justified its action. The Committee does not accept this argument since, as the Government itself admits, the effects of the long-lasting dispute were essentially economic and social. The strike in the construction industry did not endanger the life, personal safety or health of the whole or part of the population.
10. 140. The Committee notes further the Government's argument relating to the climate of violence which pervaded the strike. On this point, the Committee recalls that trade unionists, like other persons, must respect the law of the land and that it is for the legal authorities of the country concerned to deal with any acts of violence within the framework of the proper administration of justice. However, if such acts do occur, they should not give rise to a general prohibition on the right to strike for the entire sector concerned, in this case the construction industry.
11. 141. Noting that a collective agreement was drawn up on 29 August 1986 with the assistance of the mediator, and extended by decree, at the request of both sides, to the entire province of Quebec on 18 February 1987, and noting further that the right to strike was restored in this sector on 29 July 1987 by Decree No. 1190-87 respecting the date on which Division II of the Act on the resumption of construction work ceases to have effect, the Committee considers that there is no reason to continue its examination of the matter.

The Committee's recommendations

1. 142. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation: The Committee draws the Government's attention to the importance attached to the principle that the right to strike is one of the essential means through which workers and their organisations may promote and defend their occupational interests.