Rapport définitif - Rapport No. 277, Mars 1991

Cas no 1547 (Canada) - Date de la plainte: 11-SEPT.-90 - Clos

1. 99. In communications dated 11 September and 16 October 1990, the Canadian Association of University Teachers (CAUT) submitted a complaint against the Government of Canada/British Columbia, alleging violations of ILO standards on freedom of association. The Federal Government transmitted, in a letter dated 11 January 1991, the observations made by the government of British Columbia.
2. 100. 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), or the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant's allegations

1. 101. The CAUT submits that the provisions of the University Act of British Columbia, specifically section 80, are in direct contravention with ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise Convention, 1948, since they remove its members from the ambit of the Industrial Relations Act of British Columbia.
2. 102. Section 80 of the University Act reads as follows:
   • The Industrial Relations Act does not apply to the relationship of employer and employee between a university and its faculty members.
   • The complainant alleges that the above provision directly contravenes Article 2 of Convention No. 87, in that it prevents university faculty from exercising their right to organise, if they so wished, under the provisions of the Industrial Relations Act. In addition, Article 3 has been breached as well, in as much as faculty associations are restricted in organising their administration and formulating their programmes, and the authorities are interfering with the otherwise lawful activities of employee organisations. Finally, Article 8(2) which requires that "the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention" has also been violated. Of Canada's ten provinces, only British Columbia has this sort of regressive legislation.
3. 103. In its communication of 16 October 1990, the CAUT stresses that its complaint is based on the fact that the legislation is a violation of international labour standards, and not that particular actions of the Government constitute such a violation. It adds that the legislation has considerable impact. At the time it was passed (1977), there was a relatively insignificant involvement in collective bargaining by faculty members across Canada; in the 13 years since its introduction, the situation has changed markedly in all of those provinces except British Columbia. In Canada's other nine provinces faculty members are entitled to engage in collective bargaining under provincial labour legislation. Faculty members at most of Canada's universities have exercised that option so that it is now clearly the predominant mechanism by which faculty members regulate their employment relationship in Canada. The one clear exception is British Columbia, where the legislation prohibits the freedom of faculty members to associate and engage in collective bargaining under a legislative framework. For example, faculty members at the four universities in Alberta, at the two universities in Saskatchewan and at the four universities in Manitoba engage in collective bargaining under the respective provincial legislations. In Ontario, faculty members at the majority of that province's 15 universities likewise engage in collective bargaining under the provincial legislation; the situation is similar in Quebec and the four Atlantic provinces.
4. 104. The complainant also points out that a distinction is drawn within the province of British Columbia between the teaching staff in the universities and teaching staff in the community colleges; the latter can and do engage in collective bargaining under provincial legislation. Finally, the complainant states that the provincial organisation of the faculty associations in the British Columbia universities, the Confederation of University Faculty Associations of British Columbia (CUFA, which is a member of CAUT), has repeatedly requested that the provincial government introduce legislation to repeal this provision, to no avail. The complainant estimates that some 3,000 faculty members have been denied their right to freedom of association and to engage in collective bargaining because of this restriction in the legislation.

B. The Government's reply

1. 105. The provincial government submits in substance that section 80 is an appropriate and necessary feature of the University Act, given the unique functioning relationships that are in existence between the universities and their faculty members, and that this section does not violate those important freedom of association principles enunciated in Convention No. 87 of the ILO. Section 80 neither prevents the faculty associations from organising, nor prohibits them from participating in meaningful collective bargaining.
2. 106. As regards the faculty-university relationship, the Government states that the basic reason for the section 80 exclusion is the unique and distinctive relationships that exist between the parties, both historically, and at the present time. The model of faculty-university relationships which exist in British Columbia is based on four basic premises:
   • (a) collegiality/joint management, whereby there exists a shared responsibility for the day-to-day affairs of the university;
   • (b) the concept of tenure, which ensures that faculty members have the basic job security necessary to enable them to make an independent contribution to the university and to their profession;
   • (c) academic freedom, or a right to an independence of thought and action, which allows individual faculty the freedom they require to make a contribution to the university, to the academic community as a whole and to society; and
   • (d) pursuit of excellence, which is a long-standing and underlying goal of both the university and its faculty members.
     • The combination of these four premises makes the university structure unique, and provides the principal differences which exist in these institutions, with respect to the faculty-university relationships, and between the more traditional employer-employee relationship that exists elsewhere.
   • 107. University faculty do have a significant involvement in making the key ongoing decisions as to the day-to-day and the long-term operation of the university. This collegial style of university operation is legislatively mandated, by provisions of the University Act which create the structure and duties of the University Board of Governors and of the Senate, to include major faculty participation. The composition of the Senate ensures faculty control of the Senate, as faculty have two times as many faculty members as "administrators". In addition, peer review is an essential ingredient in assessing the performance of academic colleagues; it is the judgement of peers that carries the most weight in all merit issues. The Government considers that this existing co-operative university model would not be well-suited to, and in fact might be inconsistent with, the application of the adversarial employer/employee model which the Industrial Relations Act is structured to govern. Similarly, the Government considers that the freedom and independence of thought and action that has been the traditional hallmark of the university environment could seriously suffer if the collective rule of the majority principles of the Industrial Relations Act, were to apply. Faculty do have a substantial independence in conducting their academic and research pursuits and in managing their own resources. This important attribute of the universities is best maintained under the present structures.
3. 108. Secondly, the Government stresses that the University Act in no way impinges on faculty members' rights or freedom to form associations or to participate in meaningful collective bargaining. This fact is substantially borne out by the evidence that each of the three universities within British Columbia does have well-established faculty associations (listed as such in the Ministry of Labour Directory of Labour Organisations) and that they do engage in meaningful negotiations with their respective universities with regard to salaries and working conditions. While recognising that their exclusion from the Industrial Relations Act does prohibit the formal certification of these groups under that Act, the Government stresses that this lack of a formal certification procedure does not restrict the individual faculty member's basic freedoms of association as outlined in Articles 2 and 3 of Convention No. 87. That is, they are not in any way prohibited from establishing organisations of their own choosing, nor does the Government intervene in any way with the constitution, rules or operations of these organisations.
4. 109. As regards the collective bargaining process itself, the Government considers that section 80 of the University Act is not restrictive and does permit the parties freely to negotiate items of their own choosing and in a manner they feel is appropriate, which is borne out by recent and past experience.

C. The Committee's conclusions

1. 110. The complainant alleges in this case that the exclusion mentioned in section 80 of the University Act violates Articles 2, 3 and 8(2) of Convention No. 87, since university faculty members cannot exercise their right to organise under the Industrial Relations Act, their associations are restricted in organising their administration and formulating their programmes, and the authorities are interfering with their otherwise lawful activities. The Provincial Government replies that this exclusion is justified in view of the unique relationship which exists between universities and faculty; it adds that, in practice, faculty members have the right freely to establish organisations of their own choosing without any intervention by the authorities, and that they do engage in meaningful collective bargaining.
2. 111. While it may be true that in past and recent years, university faculty associations in fact existed and have been able to bargain freely, as the Provincial Government submits, the Committee notes the emphasis put by the CAUT in its communication of 16 October 1990, namely "... that the legislation (section 80 of the University Act) is a violation of international labour standards and not that particular actions of the British Columbia Government pursuant to its legislation constitute such a violation".
3. 112. The Committee cannot but observe that section 80 of the University Act (R.S.B.C., c. 419) clearly excludes university teachers from the ambit of the Industrial Relations Act (Labour Code; 1979, R.S.B.C., c. 212; as amended by the Industrial Relations Reform Act; 1987, S.B.C., c. 24). As the Provincial Government readily admits, their associations cannot be considered as "trade unions" or certified as "bargaining agents" within the meaning of article 1 of the Industrial Relations Act, even though they are listed as faculty associations in the Directory of Labour Organisations. Consequently, these workers and their associations are not legally entitled by statute to the various traditional union rights and protections flowing from that Act and granted to all other workers and their organisations, such as: recognition as trade union, s. 1; certification as bargaining agent, ss. 39-60; collective bargaining procedures, ss. 61-78; right to strike, picketing, ss. 79-92; arbitration procedures, ss. 93-113; etc.
4. 113. Concerning the rationale for the section 80 exclusion, the Provincial Government argues essentially that the unique relationship between the parties explains and justifies a departure from the adversarial model found in the Industrial Relations Act. The CAUT, the CUFA and the associations concerned obviously do not share that opinion, nor do they agree with the Government that they are allowed freely to bargain collectively. Whatever the situation may be in practice (the conflicting statements are not substantiated by evidence on either side), the fact remains that the exclusion established by section 80 of the University Act, in addition to leaving the labour relations regime of university faculty members in a legal vacuum from the statutory point of view, creates a distinction based on professional occupation between university teachers and other workers, which is not compatible with the clear wording of Article 2 of Convention No. 87: "Workers ... without distinction whatsoever ... shall have the right to establish ... organisations of their own choosing ...". The Committee therefore considers that section 80 of the University Act is not in conformity with the principles of freedom of association and should be repealed.

The Committee's recommendations

1. 114. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee considers that section 80 of the University Act, which excludes university faculty members from the ambit of the Industrial Relations Act, is inconsistent with the principles of freedom of association and should be repealed. To this end, it requests the federal Government to transmit this recommendation to the Government of British Columbia.
   • (b) The Committee draws this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.