Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 374, Mars 2015

Cas no 3015 (Canada) - Date de la plainte: 13-MARS -13 - Clos

Allegations: The complainant alleges that several provisions of the Anti-corruption Act violate the right to freedom of association and collective bargaining of construction workers by preventing an employees’ association from affiliating to certain trade union organizations by revoking existing certification, hindering collective bargaining and allowing Parliament to interfere in the activities of an employees’ association

1. 142. The complaint is contained in a communication dated 13 March 2013 from the Canadian Office and Professional Employees Union (CTC) (hereinafter “the Canadian Trade Union”) on its own behalf and that of the Syndicat des employées et employés professionnels-les et de bureau – Québec (SEPB-Québec) and the Syndicat des employées et employés professionnels-les et de bureau, section locale 573 (SEPB CTC–FTQ (hereinafter “SEPB-573”). It is also supported by the Quebec Federation of Labour (FTQ).
2. 143. The Government of Canada submitted the observations of the Government of Quebec in a communication dated 6 February 2014.
3. 144. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but not the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 145. In its communication of 13 March 2013, the Canadian Trade Union denounces the adoption by the Quebec Parliament on 10 June 2011 of the Anti-corruption Act, L.Q. 2011, c. 17 (hereinafter “the Anti-corruption Act”) and alleges that certain of its provisions infringe the principles of freedom of association enshrined in Convention No. 87.
2. 146. The complainant wishes to note that from the outset, the trade union organizations concerned were not properly consulted during consideration of the Anti-corruption Bill as they did not have sufficient time to prepare for the consultations conducted by the Committee on Institutions. Sessions began just six days after the principle of the Bill was adopted, and no serious consultations or negotiations were subsequently held with the complainants, although the legislature was well aware when it passed the Act that the complainants were strongly opposed to many of its provisions. In the Canadian Trade Union’s view, a consultation held in good faith would have allowed the legislature and the trade unions access to all of the information necessary to adopt well-founded legislation that reflects the actual situation.
3. 147. In this regard, the Canadian Trade Union recalls the context in which the Anti-corruption Act was passed. It aimed to strengthen action to prevent and tackle corruption in public sector contracts and was adopted after scandals in the construction sector were uncovered by the Quebec media. According to the Canadian Trade Union, those scandals in no way implicated the employees of the Commission de la construction du Québec (CCQ). The Anti-corruption Act amended the Act respecting labour relations, vocational training and workforce management in the construction industry (hereinafter “Act R-20”), which governs labour relations in the construction sector by, in particular, setting up an independent audit team within the CCQ charged with conducting audits in the construction industry and providing that its members may no longer belong to the same general collective bargaining unit as all other CCQ employees. The complainant refers to extracts from debates in the National Assembly and the Committee on Institutions and emphasizes that it was the wish of the Quebec legislature for the CCQ employees appointed to the new team not to join a representative association or an organization to which a representative association is affiliated. The complainant recalls in this regard the remarks made by the Quebec Minister of Public Security, who stated that it was important to understand that, for reasons of independence, those who exercise supervision must not be members of the same trade union unit as those who are under supervision. The Canadian Trade Union contends that the legislature relied on false premises when passing the contested provisions as investigative personnel do not supervise trade union organizations and SEPB-573, which represents CCQ employees, is not affiliated to any representative association or any group of construction employees. The only role played by CCQ employees with regard to trade union organizations is to organize and supervise ballots and to ascertain the representativeness of representative associations. The Canadian Trade Union further notes that in principle the contested provisions should apply only to members of the independent audit team, to which five CCQ employees have been appointed. Yet the provisions in question concern not only these five employees but all investigative staff as well, around 300 people in total, and affect the rights of approximately 600 other CCQ employees.
4. 148. More substantially, the complainant claims that certain provisions of the Anti-corruption Act violate freedom of association and collective bargaining. It asserts that these provisions have the effect of preventing an employees’ association from affiliating to certain trade union organizations, revoking an existing trade union certification, hindering collective bargaining and allowing Parliament to interfere in the management of the activities of an employees’ association, in breach of international conventions.
5. 149. The complainant contests in particular the following sections of the Anti-corruption Act:
   • – Section 61 amending section 85 of Act R-20. Before it was amended, this section provided that all CCQ employees would form a single collective bargaining unit for the purposes of the certification granted under the Labour Code; SEPB-573 has constituted such a unit since 1972. After its amendment on 11 June 2011 by section 61 and again in December 2011 by the Act to eliminate union placement and improve the operation of the construction industry, section 85 now states that CCQ employees who are authorized to exercise investigative powers are to constitute a separate collective bargaining unit for the purposes of the certification granted under the Labour Code, and the association certified to represent those employees may not be affiliated to a representative association or an organization to which such an association or any other group of construction employees is affiliated or otherwise linked, nor enter into a service agreement with such an association or organization.
   • – Sections 68 and 69, first paragraph, which provide that SEPB-573 will continue to represent all CCQ employees but that it may no longer represent investigative personnel in collective agreement negotiations as of 1 September 2011.
   • – Section 70, which provides that the collective agreement ceases to apply to investigative personnel six months from 1 September 2011, the date of entry into force of section 61, unless a new employees’ association is certified to represent investigative personnel, in which case the existing collective agreement, should there be one, will continue to apply until a new collective agreement is concluded. If there is no existing collective agreement, the rights won by employees cannot be transferred.
   • – Section 71, which transfers assets belonging to SEPB-573 to an association certified to represent investigative personnel, where one exists, in proportion to the number of employees that SEPB-573 no longer represents. This would disregard the provisions of the SEPB-573 constitution and rules.
6. 150. Moreover, the Canadian Trade Union submits that by passing the Act, the Quebec Government has breached its obligations under the Canadian Charter of Rights and Freedoms and the Quebec Charter of Rights and Freedoms as well as other international conventions by: (1) preventing the representation of investigative personnel by the employees’ association that they have chosen (sections 68 and 69); (2) preventing the employees’ association representing investigative personnel from affiliating to the organization of its choice (section 61); (3) forcing the break-up of the collective bargaining unit in a discriminatory fashion despite the serious impact this has on the negotiating power of investigative personnel (sections 60, 68 and 69); (4) specifying that the properly negotiated collective agreement will cease to be applicable to investigative personnel if a new association is not certified to represent them (section 70); and (5) forcing the union to hand over its funds (section 71).
7. 151. The complainant maintains that the right to negotiate conditions of work freely with the employer is an essential element of the freedom of association. The employer must recognize employees’ representative organizations for the purposes of collective bargaining. Here, sections 68 and 69 not only break up the collective bargaining unit, but they also prevent the association selected by employees (namely, SEPB-573) from representing some CCQ employees in collective bargaining. A collective bargaining process where employees do not have a choice of bargaining agent also contravenes the principles of freedom of association.
8. 152. The Canadian Trade Union explains that this Act violates employees’ freedom of association by withdrawing the existing rights of SEPB-573 arising from certification. The Canadian Trade Union adds that certification is central to enjoyment of the freedom protected by international instruments. The certified association has been suddenly and arbitrarily stripped of its status as a bargaining agent while employees have lost the power conferred by association. In practice, this is tantamount to using legislation to withdraw an existing certification, which runs contrary to the principles of freedom of association.
9. 153. Moreover, the Canadian Trade Union alleges that section 61 of the Act deprives employees of their right to found and join the organization of their choice in that it prevents the trade union certified to represent investigative personnel from affiliating to the FTQ. That affiliation is essential to allow workers, through the organization of which they are members, to promote the occupational interests of members and to further Quebec workers’ social, economic and political concerns, in addition to fighting the various forms of discrimination. The complainant recalls that the FTQ, which, through its role of representative to the Government that results from its high level of representativeness (through its affiliate unions, it has 550,000 members) in the construction sector, wields power that is vital in collective bargaining. If the association representing investigative personnel cannot affiliate to the FTQ or to another labour confederation of its choice, those employees will lose the right to become members of an association that enjoys a high degree of representativeness in the sector and vital collective bargaining power with a Quebec public authority. The complainant further asserts that that the investigative personnel’s association might also benefit from the FTQ’s greater financial resources. Hence, by banning the association representing investigative personnel from becoming members of the organization of their choice, the Government of Quebec is violating Convention No. 87.
10. 154. Furthermore, the complainant maintains that the break-up of the collective bargaining unit constitutes discriminatory treatment under Article 2 of Convention No. 87 as other employees working for ministries or organizations who are appointed to audit or investigative teams by the Government are not forbidden to belong to general collective bargaining units or to become members of them, with the exception of peace officers. As an example, the Canadian Trade Union cites the fact that employees of the Ministry of Revenue and the Régie du bâtiment, who cooperate with the Anti-corruption Commissioner in the same way as CCQ investigative personnel, are not subject to any restriction. Similarly, several state employees with investigative powers are members of collective bargaining units alongside other employees who do not have those powers and may join the trade union organizations of their choice with no statutory prohibition. Thus, for instance, inspectors of the Commission de la santé et de la sécurité du travail (CSST) may legally be members of the same unit as all of that organization’s staff. In the Canadian Trade Union’s view, this constitutes a flagrant inconsistency proving that employees responsible for tackling corruption do not necessarily and urgently need to belong to separate collective bargaining units or to be restricted in their association’s choice of affiliation.
11. 155. The complainant moreover asserts that, by stating in section 70 of the Anti-corruption Act that the properly negotiated collective agreement may cease to apply to investigative staff unless the staff designate another association to represent them, the legislature potentially grants itself the power to revoke unilaterally the conditions of work that have been negotiated by SEPB-573 since 1972. This is a serious and irreparable infringement of the right to a collective bargaining process.
12. 156. The complainant also claims that, by impelling SEPB-573 to transfer funds pursuant to section 71, the legislature is improperly interfering in the management and functioning of the employees’ association in breach of the principles of freedom of association, which require the public authorities to refrain from interfering in the management of employees’ associations. This interference is in no way warranted as the SEPB-573 constitution makes the necessary provision for the union’s funds in situations of this kind.
13. 157. Lastly, the complainant argues that a state of emergency alone could justify the institution of the contested provisions. However, it notes that there has been no state of emergency that would justify their adoption. Furthermore, the legislature itself postponed their entry into force by several months, thus indicating that their application was by no means urgent. The complainant recalls that the CCQ already implemented measures to ensure employees’ independence, in particular through strict policies on the impartial handling of information and the duty to submit a declaration of interests form.
14. 158. In the light of the foregoing, the complainants request the Committee to find that sections 61, 68, 69, 70 and 71 of the Anti-corruption Act violate the applicable conventions and the principles of freedom of association, and to recommend that they are repealed or amended so as to bring them into line with those conventions and principles.

B. The Government’s reply

1. 159. In its communication dated 6 February 2014, the Government of Canada submitted a reply from the Government of Quebec, in which the latter maintains that the contested provisions of the Anti-corruption Act have not affected or infringed workers’ rights of association, including, among others, the rights recognized under Convention No. 87. It states that in essence, the Anti-corruption Act aims to strengthen action to prevent and fight corruption with respect to public sector contracts. The Government of Quebec emphasizes that to this end, the Act amends Act R-20 among other legislation so as to establish an independent audit team within the CCQ that is charged with carrying out audits of the construction industry and to which approximately 300 investigators employed by the CCQ have been attached. The Act specifies that members of the Commission’s personnel assigned to the independent team must exercise their functions on an exclusive basis and are to belong to a separate collective bargaining unit with a view to ensuring their complete independence.
2. 160. The Government of Quebec recalls the origins of and justification for the Anti-corruption Act. The Act was passed against a backdrop of fraud and irregularities presumed to implicate, among others, top-ranking officials of the City of Montreal and several Quebec municipalities in tendering and contract awards in the construction industry, with possible links to organized crime. The Government of Quebec explains that the ban on investigative personnel belonging to the same collective bargaining unit as other construction sector employees in essence sought to ensure integrity and transparency and to avoid the emergence of any conflicts of interest, so it would be inconsistent and contrary to the public interest to allow investigators assigned to the new independent audit team to belong to the same union as other employees who may be targeted by an investigation. The Government of Quebec underlines that this practice is not new: as regards accountancy audits, for example, the Auditor General Act stipulates that the Quebec Auditor General, whose duties include ensuring parliamentary oversight of public funds and other public property, is answerable to the National Assembly rather than the Government of Quebec. Furthermore, this measure is one of a series of other broader measures ordered by the Government of Quebec to shed light on the situation and resolve it. It was against this background that it was decided to set up the Commission of Inquiry on the awarding and management of public contracts in the construction industry, charged with investigating possible collusion and corruption involving government bodies and enterprises, as well as the Anti-corruption Squad, an elite unit responsible for coordinating the Government’s forces and expertise in the fight against corruption.
3. 161. The Government of Quebec further maintains that the establishment of a separate collective bargaining unit for employees with investigative powers complies with the objectives of the United Nations Convention against Corruption, which Canada has ratified. The Government recalls that, under Article 6 of that Convention, each state party is to ensure the existence of a body or bodies that prevent corruption and to grant these bodies the independence necessary to protect them from any undue influence. Furthermore, Article 7 of the same Convention obliges each state party to endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest. Hence, in setting up a separate collective bargaining unit for employees of the Commission de la construction du Québec who exercise investigative powers, the Government of Quebec was pursuing precisely the objectives outlined by the United Nations Convention against Corruption.
4. 162. The Government of Quebec cites the following decisions handed down by the Quebec courts. In a decision of 25 August 2011 on an action in nullity of the six contested sections of the Anti-corruption Act lodged by SEPB-573 on the same grounds as the complaint to the Committee, the Superior Court of Quebec recognized that the implementation of the Act would disadvantage the union and some of its members. However, on reviewing the Act’s history and objectives and applying the balance of convenience test, the Court prioritized the wider objective of the Act, namely, the protection of the public by shielding investigative personnel from undue influence from pernicious elements liable to interfere with construction sector trade unions. In the Court’s view, the public interest must trump the right of investigators of the Commission de la construction du Québec to join a trade union.
5. 163. The Government of Quebec adds that the same position was reiterated by the Commission des relations du travail (CRT), an independent judicial body set up under the Labour Code and charged with regulating industrial relations in Quebec. In a decision of 24 September 2012 on two applications for certification lodged at the same time on 1 September 2012 by SEPB-573 and section locale 611 of the Syndicat des employées et employés professionnels-les et de bureau to allow them to represent all CCQ employees (including investigative personnel), the CRT acknowledged that the status and role conferred on investigators under the Act would be likely to create conflicts of interest jeopardizing their independence if they were allowed to belong to a bargaining unit that included other employees who could be subject to an investigation.
6. 164. An application for judicial review of that CRT decision was filed to the Superior Court. In a judgment of 9 January 2013, the Court found that the Anti-corruption Act did not infringe the right of association recognized under the Canadian and Quebec Charters of Rights and Freedoms but rather adapted it to the role of the employees concerned: “In order for a measure to violate the right of freedom of association, it is therefore not sufficient that it restrict access to one trade union in particular: it must be shown above all that the measure has significant repercussions on the collective bargaining process in that it compromises workers’ right to associate with a view to achieving common objectives”. Here, the employees concerned were not subject to any restriction in that regard since their freedom to join forces so as to establish a position of strength in collective bargaining was in no way compromised.
7. 165. The Government of Quebec indicated that an application for leave to appeal the Superior Court’s decision was granted and proceedings were ongoing before the Quebec Court of Appeal.
8. 166. In support of its argument, the Government of Quebec also quotes the principle established by the Freedom of Association Committee that a group of workers may be denied the right to belong to the same trade unions as other workers on two conditions: (1) that they have the right to set up their own organizations; and (2) that this category of workers is not defined too broadly.
9. 167. The Government of Quebec underscores that these two conditions are completely met in the case at issue. Firstly, investigative personnel have the right to set up their own organization and have in fact done so as the CRT certified the Syndicat du personnel d’enquête de la CCQ on 29 May 2013. Secondly, as membership of this bargaining unit is reserved for investigators alone, and is hence restricted, the second condition according to which the category of staff must not be defined too broadly has also been satisfied.
10. 168. As regards the allegation that the Anti-corruption Act was adopted without proper consultation of the unions concerned, the Government of Quebec points out that the complainants had the opportunity to participate in and file and present their submissions to the parliamentary commission set up to consider the bill.
11. 169. In conclusion, the Government of Quebec submits that the measures instituted by the Anti corruption Act do not breach Convention No. 87 in that these measures primarily seek to protect the public interest by shielding investigative personnel from any undue influence and by securing a minimum of transparency, neutrality, rigour and independence in the investigations system at the same time.

C. The Committee’s conclusions

1. 170. The Committee notes that the complainant alleges that certain provisions of the Anti corruption Act promulgated by the Government of Quebec infringe the rights to freedom of association and collective bargaining of construction workers. The Committee notes that in response, the Government of Quebec maintains that the Anti-corruption Act was passed against a backdrop of suspected corruption and fraud in the construction industry involving the highest authorities of the City of Montreal with a possible link to organized crime, and that the aim pursued was to protect the public interest by shielding investigative personnel charged with conducting audits in the construction sector from any undue influence.
2. 171. The Committee notes that the complainant avers that from the outset, the trade union organizations concerned were not properly consulted by the Government of Quebec, having just six days to prepare for consultations conducted by the Commission on Institutions tasked with considering the Anti-corruption Bill. In this respect, the Committee notes that the Government of Quebec maintains that the complainants had the opportunity to participate in and to file and present their submissions to the parliamentary commission set up to examine the bill in question.
3. 172. The Committee observes that, according to the complainant, sections 68 and 69 of the Anti-corruption Act have the effect of breaking up the collective bargaining unit, thereby preventing the organization chosen by the employees (SEPB-573) from representing some CCQ employees in collective bargaining. In this regard, the Committee takes note of the response of the Government of Quebec, stating that as part of efforts to strengthen action to prevent and combat corruption in public sector contracts, it was decided, among other measures, to create within the Commission de la construction du Québec an independent audit team to which some CCQ staff members would be appointed and would exercise their functions on an exclusive basis, thereby necessitating the creation of a separate collective bargaining unit in order to ensure their complete independence. According to the Government of Quebec, it would be inconsistent and contrary to the public interest to allow investigators attached to this team to belong to the same union as persons who may be targeted by an investigation.
4. 173. The Committee takes note of the various judicial decisions cited by the Government of Quebec in its response. The Committee notes the decision of the Superior Court of Quebec of 25 August 2011 which, when hearing the action in nullity of the contested sections of the Anti-corruption Act, prioritized “the wider objective of the Act, that is, the protection of the public by shielding investigative personnel from undue influence from pernicious elements liable to interfere with construction-sector trade unions” (paragraph 85 of the Judgment). Although it recognized that the implementation of the Act would have some drawbacks, the Court considered that public interest must trump the right of CCQ investigators to belong to trade unions and hence found that “the balance of convenience favours the upholding of the contested provisions” (paragraph 86 of the Judgment).
5. 174. The Committee further takes note of the Decision of the CRT of 24 September 2012 to reject a certification application filed by SEPB-573 seeking to represent all CCQ employees, including investigative personnel. The CRT acknowledged that the status and role conferred on investigators under the Act would be likely to create conflicts of interest jeopardizing their independence if they were part of a bargaining unit that included other employees. Moreover, “even should the freedom of association of the latter be infringed” (paragraphs 78 and 218 of the Decision), this violation is justified in view of section 1 of the Canadian Charter of Rights and Freedoms and section 9.1 of the Quebec Charter of Rights and Freedoms, which allow the rights that they recognize to be restricted within reasonable limits.
6. 175. The Committee observes that this Decision by the CRT was submitted for judicial review by the Quebec Superior Court. In contrast to the CRT, the Superior Court ruled solely on the second paragraph of section 85 of Act R-20 as amended. In a Decision of 9 January 2013, it found that this provision did not infringe the right of association recognized in the Canadian and Quebec Charters but rather adapted it to the distinctive duties of the employees concerned: those employees were still at liberty to join forces so as to establish a position of strength in collective bargaining on their conditions of work. The Court further considered that “even presuming a violation of the freedom of association, this violation would be justified in the light of section 1 of the Canadian Charter and section 9.1 of the Quebec Charter” (paragraph 179 of the Judgment).
7. 176. In this respect, the Court recalled that, where it is established that a right or freedom guaranteed by the Charter is violated, this violation is considered justified if it is shown that: (a) the aim of the act is urgent and real; (b) a rational connection links the aim to the means chosen by the legislature to achieve that aim; (c) the contested act minimally infringes the right or freedom guaranteed; and (d) there is proportionality between the aim of the act and the measures that it specifies. In the Court’s view, “it clearly appears that the general aim of the act is to combat corruption, which undermines democracy by attacking its very functioning. The aim pursued by the legislature, namely, to institute measures to curb and prevent it, and not just to punish perpetrators, constitutes a real and urgent aim.” (paragraphs 127 and 158 of the Judgment). Secondly, when determining if a rational connection existed between that aim and the means chosen by the legislature to achieve it, the Court considered that “the existence of a rational connection is obvious: severing links is apt to prevent conflicts of interest” (paragraph 161 of the Judgment).
8. 177. The Court later examined whether it had been shown that the means chosen by the legislature only minimally infringed the right in question and that those means had been carefully adapted to the aim pursued. In this regard, the Court recalled that “as the Supreme Court has stated, the task of the tribunal is not to choose the method that is absolutely the least detrimental, but to ensure that the method chosen by the legislature is one of various reasonable solutions available. In the instant case, the means chosen by the legislature – the establishment of a separate bargaining unit and the prohibition of affiliation to an association representing the construction sector – are possibly the only means among those suggested that could create the necessary distance between investigative personnel and those whom they supervise. The introduction of a code of ethics, for example, would not be certain to prompt an inspector, for instance, to resist undue pressure exerted by a representative of the same family of trade unions, any more than would disciplinary measures implemented after the fact. Further, the method chosen by the legislature applies solely to investigative personnel and not to all CCQ staff, and therefore is less prejudicial than that alternative. The claimant SEPB-573 would have preferred other measures with a more restricted effect, applicable, for instance, to the employees of the independent team alone. However, the Court takes the view that this solution would not have fulfilled the aims of the act, which are far wider than the claimant would suggest. Thus, the measure chosen by the legislature is one of various reasonable solutions available to it and, consequently, the criterion of minimal prejudice is met” (paragraphs 170–174 of the Judgment).
9. 178. As to the last criterion of proportionality between the aim of the act and the measures it specifies, the Court stated that “it is at this stage that the achievement of the aim may be weighed up against the effect on the right in question” (paragraph 175 of the Judgment). Having established firstly the positive effects of section 85, which forms part of efforts to tackle corruption by isolating some of the people most likely to be confronted by this phenomenon and, secondly, the advantage conferred by affiliation, the Court found that “the balance tips in favour of the act” (paragraph 178 of the Judgment), since members of the claimant SEPB-573 maintain the same rights as other workers and may even become members of the association of their choice, save the five associations that represent the sector in which they act as supervisors and investigators. Thus, in the Superior Court’s view, even had the freedom of association been infringed, this violation would have been justified in light of section 1 of the Canadian Charter and section 9.1 of the Quebec Charter.
10. 179. The Committee notes that this decision of the Superior Court was the subject of an appeal lodged by SEPB-573 with the Quebec Court of Appeal, which dismissed it in a decision of 25 February 2014. First, the Court of Appeal analysed the relevant Canadian jurisprudence, and, relying on several international conventions ratified by Canada, including Convention No. 87, came to the conclusion that “section 85, second paragraph of Act R-20 (as amended) violates the freedom of association” (paragraph 76 of the Judgment). Next, applying the test developed by the Supreme Court in R. v. Oakes, the Court of Appeal determined that the violation of that right was justified. It found, as had the Superior Court, that in the instant case “the violations of the Canadian Charter are reasonable and justifiable in a free and democratic society” (paragraph 79 of the Judgment). Like the Superior Court, the Court of Appeal recalled that “the employees are free to become members of any union: they may join associations other than the five associations representing the sector for which they act as supervisors and investigators” (paragraph 108 of the Judgment).
11. 180. The Committee considers that, in the case at hand and having regard to the aim of preserving the investigators’ independence, it is not necessarily incompatible with the provisions of Article 2 of Convention No. 87 and Article 4 of Convention No. 98 to have created a special collective bargaining unit with a restriction on the choice of unions which the investigators may join, on the condition that they have the right to set up their own organization. The Committee observes that, in the present case, the investigative personnel could indeed establish their own organization, as on 29 May 2013, the CRT approved a certification application submitted by the Syndicat du personnel d’enquête de la CCQ.
12. 181. The Committee further takes note of the allegation submitted by the complainant that the Government of Quebec has interfered in the management and functioning of SEPB-573 by forcing it, pursuant to section 71 of the Anti-corruption Act, to transfer funds belonging to the union. The Committee notes that, according to the complainant, its constitution contains provisions specifying what should become of the union’s funds in such circumstances. Noting that the Government of Quebec has not provided a response to this allegation, and in light of the foregoing, the Committee considers that the redistribution of union property prescribed by the third paragraph of section 71 is fair.
13. 182. The Committee takes note of the complainant’s allegations that section 61 of the Anti corruption Act infringes the right of a workers’ organization to affiliate to a federation of its choice in that it prevents the union certified to represent investigative personnel from affiliating to the FTQ. According to the complainant, the FTQ, owing to its size (550,000 members of unions affiliated to it) and its status as representative to the Government of Quebec, is a formidable negotiating partner with a strong bargaining position, and affiliation would assist the association representing investigative personnel in promoting the social, economic and political interests of the workers that it represents. The Committee notes the response of the Government of Quebec, which submits that there must be a completely “watertight separation” between employees who exercise investigative powers and other construction workers in order to ensure the integrity of those investigators and the transparency, neutrality and independence of the investigations system, thus avoiding the emergence of any conflicts of interest. The Committee recalls the general principle according to which a workers’ organization must have the right to affiliate to the federation or confederation of its choice, subject to the constitution of the organization concerned, without prior authorization. It is for federations and confederations themselves to decide whether or not to accept the affiliation of a trade union, in accordance with their own constitutions and rules. [See Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paragraph 722.] While taking note of the abovementioned judicial decisions, the Committee notes with concern that section 85 of Act R-20, as amended by section 61 of the Anti-corruption Act, restricts the right of the Syndicat du personnel d’enquête to affiliate to the federation of its own choice and to ensure its effective representation at a higher level. Given that the importance of guaranteeing independence by setting up a separate collective bargaining unit with its own representative unit should not be of such nature as to impede the right of investigators to affiliate to a higher level organization, the Committee requests the Government to obtain information from the Government of Quebec on the manner in which the right of the Syndicat du personnel d’enquête to affiliate to the federation of its choice is ensured in practice and to keep the Committee informed in this regard.

The Committee’s recommendation

1. 183. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to obtain information from the Government of Quebec on the manner in which the right of the Syndicat du personnel d’enquête to affiliate to the federation of its choice is ensured in practice and to keep the Committee informed in this regard.