Rapport définitif - Rapport No. 214, Mars 1982

1. 235. The Canadian Labour Congress (CLC) presented its complaint in a communication dated 6 July 1981. The Government sent its reply in a communication of 25 January 1982.
2. 236. 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. 237. In its communication of 6 July 1981, the CLC alleges that the Ontario Crown Employees Collective Bargaining Act, 1972, violates Convention No. 87 as it bans strikes and prohibits the negotiation of certain terms and conditions of employment of crown employees. The Act applies to employees of the Crown in right of Ontario, including agencies of the Crown, and they are excluded from the operation of the Labour Relations Act which does not prohibit strikes except to the extent that they occur before the exhaustion of conciliation proceedings. Thus, in addition to the employees of the various government ministries, the Crown Employees Collective Bargaining Act covers employees of the liquor Licence Board, the Liquor Control Board, the Niagara Parks Commission, the Housing Corporation and the Workmen's Compensation Beard. According to the complainant, hospital employees, other than those who are crown employees, are subject to the Labour Relations Act and to the Hospital Labour Disputes Arbitration Act which prohibits strikes. Employees of school boards are governed by the School Boards and Teachers Collective Negotiations Act which permits strikes in certain circumstances.
2. 238. The CLC cites sections 25 and 27 of the Crown Employees Collective Bargaining Act as containing an absolute prohibition on strikes by individual employees or their unions. In addition, it points out that section 1(1)(o) defines a strike as including a slowdown or other concerted activity on the part of employees designed to restrict or interfere with work or services.
3. 239. The complainant states that while the Act does provide for mediation (section 9) and arbitration of interest disputes (sections 10 and 11) through the Public Service Labour Relations Tribunal, an ad hoc board of arbitration and a permanent Grievance Settlement Board, and while lockouts are also prohibited by the Act (section 27), it is concerned that the legislation prohibits strikes by employees who cannot in any sense be considered as engaged in essential services. It stresses that the right to strike is recognised in respect of public service employees in most other Canadian jurisdictions, e.g. employees of federal crown agencies may strike legally, crown employees in Manitoba and Saskatchewan enjoy no restrictions on strikes.
4. 240. Lastly, the complainant refers to section 18(1) of the Crown Employees Collective Bargaining Act which states that every collective agreement is to provide that it is the exclusive function of the employer to manage. It defines the management function to include two types of matters: those relating to employment discipline and classification and those relating to the merit system, training, appraisal and superannuating, the distinction being that while items in neither category are subject to collective bargaining or interest arbitration, the governing principles of items in the second category are subject to review by the employer with the bargaining agent. The CLC admits that some items mentioned in section 18 relate primarily to the management of government business but states that other items are strictly related to conditions of employment. It does not accept that such vitally important terms and conditions of employment as discipline, dismissal, suspension, classification and superannuation should be excluded from the scope of collective bargaining.

B. The Government's reply

1. 241. The reply of the Provincial Government, attached to the Government's communication of 25 January 1982, points out that the Crown Employees Collective Bargaining Act, when adopted, incorporated the recommendations of a commission on collective bargaining for crown employees headed by a judge in 1969. It states that the Act recognises the integrity and independence of employee bargaining agents. It allows any union to organise provincial employees. It provides bargaining rights to employees of crown agencies and boards that had not theretofore enjoyed such rights. It provides for certification rights and revocation procedures as well as safeguards with respect to employer involvement in union formation or operation.
2. 242. According to the Government, the independent Public Service Labour Relations Tribunal set up under the Act is given exclusive authority to make final decisions in matters arising out of the normal operation of the Act to ensure the long-term protection of employee interests. The Tribunal has powers, which include hearings and investigations, to issue certification covering bargaining rights of unions, to appoint mediators and interest arbitration boards and to inquire into and issue directives with respect to unfair labour practices. If any dispute arises as to what matters are negotiable and arbitrable, the Tribunal is the final authority in these questions. The Government states that the provisions of the Act reflect the conviction of the Ontario provincial legislature that normally acceptable private sector dispute resolution techniques are not appropriate in the public sector context in Ontario. If the parties are unable to resolve these differences during the direct negotiation process, both mediation and arbitration mechanisms are available under the jurisdiction of the Tribunal. Arbitration is available as a final step in the process to resolve outstanding matters, except for a limited number of items relating to employer functions and responsibilities which are not deemed to be appropriate for determination by a third party. The Government is of the opinion that it must continue to fulfil adequately its responsibilities to the public thus it has the decision-making responsibility in respect of the workforce size, organisation, deployment and allocation.
3. 243. The Government admits that the Act places a general prohibition on strike and lockout for crown employees and that the existing legislation in other public jurisdictions varies from no specific prohibition, to qualified right to strike, to total prohibition. It points out however that the Act in question provides for timely dispute resolution mechanisms and it considers that such dispute resolution mechanisms have well served the long-term interests of its employees and the public of Ontario. As regards the allegation that the Act is in violation of Convention No. 87, the Government states that it is satisfied that there is no customary international law to the effect that public servants have the right to strike and is further satisfied that a prohibition on strikes, as contained in the Act, constitutes neither in whole nor in part a violation of Canada's international legal obligations.
4. 244. As regards the scope of collective bargaining, the Government explains that under the Act certain exclusive functions to manage shall not be the subject of collective bargaining, nor come within the jurisdiction of a board: employment, appointment, complement, organisation, assignment, work methods and procedures, kinds and location of equipment and classification of positions (the classification and job evaluation system is a negotiable matter and is currently under negotiation). Other matters such as merit system, training and development, appraisal and superannuation are subject to review by the employer with bargaining agents. According to the Government, the Act further provides that employees may complain against any disciplinary action, appraisal or improper classification and all terms and conditions of employment as contained in collective agreements. Final resolution of any such grievances are within the jurisdiction of the Crown Employees Grievance Settlement Board, whose decisions are final and binding upon the employer, union and employees. The Government asserts that such normal management rights are essential to the conduct and well-being of the public and are the responsibility of the Government as an employer.

C. The Committee's conclusions

1. 245. The Committee notes that this case concerns alleged violation of Convention No. 87 by the Provincial Government through its civil service legislation which bars strikes in the sector and prohibits negotiation of certain terms and conditions of employment of civil servants.
2. 246. Firstly, the Committee would point out that this case is similar to an earlier Canadian case (No. 893), examined in November 1978, concerning public service anti-strike legislation in a different province. Accordingly the Committee would recall its reasoning in that case: that while recognising that freedom of association does not necessarily imply the right to strike in the case of all public officials, whenever that right is denied adequate guarantees to safeguard fully the interests of the workers thus deprived of an essential means of defending their occupational interests must be provided. These guarantees include speedy and impartial conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards are binding in all cases on both parties. These awards, once they have been made, should be fully and promptly implemented.
3. 247. In the present case, the Committee notes the Government's statement that there is no customary international law to the effect that public servants have the right to strike and that timely dispute resolution procedures exist which compensate for the absence of that right. In this connection, the Committee must recall that the right to strike - generally recognised as deriving from Article 3 of Convention No. 87, ratified by Canada - could be restricted in the civil service or in essential services in the strict sense of the term, i.e. services whose interruption would endanger the existence or well-being of the whole or part of the population. The ban on strike activity for employees of the Ontario Liquor Licence Board, Liquor Control Board, Niagara Parks Commission, the Housing Corporation and Workmen's Compensation Board appears to the Committee to go far beyond this criterion. It accordingly would suggest that the Government consider the possibility of introducing an amendment to the legislation so that strikes are prohibited only in undertakings which provide essential services in the strict sense of the term. As for the employees to whom the right to strike justifiably does not apply, the Committee notes that the Act in question provides for mediation and arbitration before an independent Public Service Labour Relations Tribunal and a permanent Grievance Settlement Board. It is the Committee's understanding of the Act that these procedures adequately safeguard the interests of the workers in question.
4. 248. As regards the complainant's second allegation that the Act limits the items which may be the subject of collective bargaining, the Committee notes that section 18 of the Act does exclude from negotiation certain important items which relate directly to conditions of employment of public employees. It understands that the Government may decide unilaterally on these matters so that the employees covered by the Act, who are also deprived of the right to strike, are unable to seek to have such matters determined by negotiation. In this connection, the Committee would point out that there are certain matters which clearly appertain primarily or essentially to the management and operation of government business; these can reasonably be regarded as outside the scope of negotiation. It is equally clear that certain other matters are primarily or essentially questions relating to conditions of employment and such matters should net be regarded as outside the scope of collective bargaining conducted in an atmosphere of mutual faith and trust. It would accordingly request the Government, in the light of the foregoing principles and considerations, to consider the possibility of extending the scope of matters that may be referred to arbitration or negotiation so as to include those matters which relate directly to conditions of employment of public employees.