Rapport définitif - Rapport No. 194, Juin 1979

1. 37. This case has been examined by the Committee in November 1978, when it submitted certain conclusions on the matter, adopted by the Governing Body at its 208th Session (14-17 November 1978). By a letter of 22 January 1979, the Economists', Sociologists' and Statisticians' Association communicated new allegations. By letters dated 24 January 1979, six Canadian trade union organisations supported this complaint. The Government forwarded its observations in a letter dated 26 April 1979.
2. 38. 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), nor the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. A. The complainants' allegations

1. 39. The original complaint, dated 9 March 1978, concerned a Bill to amend the Public Service Staff Relations Act (Bill C-28), which, according to the complainant, was in violation of Convention No. 87 in that it denied freedom of association to certain categories of higher-level government employees. In its reply, the Government had stated that Bill C.28 was no longer before Parliament and thus the grounds for the complaint no longer existed.
2. 40. Having noted this information supplied by the Government, the Committee nevertheless recalled that, by virtue of Article 2 of Convention No. 87, ratified by Canada, workers without distinction whatsoever shall have the right to establish and to join organisations of their own choosing, the only exception provided for by the Convention having regard to the armed forces and to the police.
3. 41. The Committee also referred to Article 3 of Convention No. 87 which provides that workers' and employers' organisations shall have the right to organise their administration and activities and to formulate their programme. The Committee stated that it follows from this provision that trade unions should have the right to seek, by means of collective bargaining or any other legal means, to improve the conditions of work of those they represent. At its 1978 Session, the International Labour Conference had adopted the Labour Relations (Public Service) Convention, 1978 (No. 151). According to Article 7 of this Convention, "measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and the public employees' organisations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters". However, the Committee stressed that, in accordance with Article 1, the extent to which the guarantees provided for in Convention No. 151 shall apply to high-level employees whose functions are normally considered as policy-making or managerial, or to employees whose duties are of a highly confidential nature, shall be determined by national laws or regulations.
4. 42. Subject to these considerations, and since the Bill in question was no longer on the Order Paper of Parliament, the Governing Body, in approving paragraph 68 of the Committee's 187th Report, decided that the case did not call for further examination.
5. 43. In its new allegations dated 22 January 1979, the complainant stated that a new Bill (C-22) in substantially the same terms as Bill C-28 discussed above, but even more threatening to the collective bargaining rights of public employees, had been introduced for a first reading in the Canadian Parliament on 21 November 1978. Annexed to the complainant's letter was a copy of Bill C-22 of 1978 to amend the Public Service Staff Relations Act. The complainant referred, in particular, to clauses 1(4) and (5) of Bill C-22, which in its view excludes from the right of collective bargaining any person who is employed in the Treasury Board, and would permit the exclusion of a person who:
   • "(c) has or exercises
   • (i) executive or managerial duties and responsibilities in relation to the formation, implementation, or administration of government policies or programs, or
   • (ii) effective control of employees,
6. (c.1) makes significant recommendations in relation to the functions described in paragraph (c)."
7. 44. According to the complainant, a large number of government employees, including those making recommendations to management, and programme administrators, would thus be denied the right to associate freely in a trade union for the purpose of bargaining collectively on wages and conditions of employment.
8. 45. In addition, the complainant pointed to an amendment proposed as a new section 19.1(1) of the Act and which prescribes the method of excluding certain public sector employees from collective bargaining. It claimed that the amendment would permit the immediate exclusion of these employees from collective bargaining subject to review by the Public Service Staff Relations Board.
9. 46. Finally, the complainant claimed that a proposed amendment of section 68 of the Act would rule out the right to cross-examine persons who compile the data used in the arbitration process.
10. 47. In its reply dated 26 April 1979, the Government states that the Parliament has recently been dissolved for the purpose of a general election and that consequently Bill C-22 has died on the Order Paper. Thus the grounds for this complaint no longer exist.
11. 48. Nevertheless, the Government quotes certain opinions of the President of the Treasury Board and the former Chairman of the Public Service Staff Relations Board to the effect that certain persons may find themselves in a conflict of interest situation in the context of labour-management relations. The exclusion of such persons from collective bargaining, according to the latter, rests on the premise that a line must be drawn between persons on the management side and persons not involved in management. All modern labour relations legislation enacted in Canada and the United States recognises the reed to distinguish between "management types" and "non-management types". According to the same opinion, consideration must also be given to the need of employee organisations to have identified those persons who are forbidden by law to interfere with the rights of employees. The Government emphasises that the definition in the proposed Bill speaks of "executive or managerial duties" and "effective control of employees". In addition, the reference to persons employed in the Treasury Board is simply a recognition that the Board is by statute the employer for the Public Service and that it performs this function through the efforts of its staff.
12. 49. The Government adds that it is not the intention of the Bill to exclude from collective bargaining all persons who supervise other employees. In fact, section 26(4) of the Public Service Staff Relations Act specifically allows for the establishment of a bargaining unit made up of supervisory employees; Bill C-22 does not provide for the deletion or modification of this provision.
13. 50. With respect to the procedure provided for in the Bill (concerning the designation of persons excluded from the respective bargaining unit), the Government emphasises that the Public Services Staff Relations Board, an independent quasi-judicial body, would retain the authority to ultimately rule on any exclusion put forward by the employer. This is a significant modification of the old Bill C-28.
14. 51. Regarding the allegation that the proposed Bill would not allow for the cross-examination of persons who compile data with respect to the arbitration process, the Government states that this has never been a feature of the arbitration process under the Act. The parties to arbitration have always been free to submit or contradict any data which they feel is relevant without any restriction whatsoever. The provisions of Bill C-22 would in no way limit that right. The ultimate decision as to the relevance or accuracy of the data presented by the parties will continue to be the responsibility of the arbitration board. In any case, the employee organisations would be free to opt out of the arbitration process if they find any of its features unsatisfactory.

B. B. The Committee's conclusions

1. 52. The Committee notes the information supplied by the Government and, in particular, that the new Bill is no longer before Parliament. As regards the questions of principle involved it cannot but refer to the remarks made regarding the earlier Bill as recalled in paragraphs 40 and 41 above. However, since the Government's observations do not appear to exclude the possibility of a resubmission of the same or similar legislative amendments to a new session of Parliament, the Committee feels that it might be useful for it to make some remarks on the questions which have been raised.
2. 53. As regards the allegation concerning a particular aspect of the arbitration procedure, the Committee considers that since no issue of anti-union discrimination appears to be involved, it is not called upon to express an opinion on whether or not cross-examination should be made a part of that procedure.
3. 54. As regards the other aspects of the case, it should be noted that, under the Public Service Staff Relations Act, every employee may be a member of an employee organisation and may participate in the lawful activities of the employee organisation of which he is a member (section 6). No person who is employed in a managerial or confidential capacity shall participate in or interfere with the formation or administration of an employee organisation or the representation of employees by such an organisation (section 8).
4. 55. In the Act, the expression "person employed in a managerial or confidential capacity" means any person who is employed in a position confidential to the Governor General, a Minister of the Crown or is employed as a legal officer in the Department of Justice. The definition also includes any other person employed in the Public Service who may be so designated by the Public Service Staff Relations Board, or by the employer (subject to the decision of the Board in case of objection), as being a person who has executive responsibilities in relation to the development and administration of government programmes; or whose duties include those of a personnel administrator or who is directly involved in the process of collective bargaining on behalf of the employer; or who is required to deal formally on behalf of the employer with a grievance; or who is employed in a position confidential to any such person. Bill C-22 would provide that such designation by the employer would be effective upon receipt of the notice by the Board. However, the appropriate bargaining agent would have the right to file an objection with the Board, which would then determine whether or not the designation had been correctly made. A designation incorrectly made by the employer would cease to be effective as of the date of the Board's decision. As regards other persons who, in the opinion of the Board, should not be included in a bargaining unit by reason of their individual duties and responsibilities to the employer, Bill C-22 would leave it to the Board, as in the present Act, to make regulations of general application regarding the manner in which these persons are to be designated.
5. 56. In addition, Bill C-22 would amend the Act by including in the definition mentioned above any person who is employed in the Treasury Board, as well as - on designation by the employer or the Public Service Staff Relations Board as indicated above - a person "who has effective control of employees" or "makes significant recommendations" to persons having executive, managerial or control functions.
6. 57. On the other hand, as the Government points out, section 26(4) of the Act, on which no amendment has been proposed, allows employees in an occupational group whose duties include the supervision of other employees to form a unit for collective bargaining purposes. This provision, however, does not appear to cover necessarily certain of the persons specified in Bill C-22, such as those who make significant recommendations to management. In addition, the Bill would place the whole staff of the Treasury Board, irrespective of level, in the category of persons "employed in a managerial or confidential capacity", since this agency represents the Government, as an employer, in the bargaining process.
7. 58. Collective bargaining rights being recognised to public employees in Canada, the Committee considers that the principles contained in Convention No. 151, although this instrument has not been ratified by Canada, provide a particularly appropriate guide in the matters under examination. The Committee would suggest, therefore, that if resubmission of the proposed amendments is contemplated, the Government might find it desirable to re-examine the Bill with a view to keeping the exclusions therein provided within the limits of those contemplated in Article 1, paragraph 2, of this Convention, i.e. high-level employees whose functions are normally considered as policy-making or managerial, or to employees whose duties are of a highly confidential nature.
8. 59. Finally, the Committee considers that, in case an objection is made by the representative of a bargaining unit, to the designation of a person by the employer as a "person employed in a managerial or confidential capacity", the suspension of the effect of such designation until the Public Service Staff Relations Board has decided on the objection would be an additional guarantee for the protection of the trade union rights of Public Service employees.