Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 327, Mars 2002

1. 260. Education International (EI) presented a complaint of violations of freedom of association against the Government of Canada (Ontario) in a communication dated 3 July 2001 on behalf of the Canadian Teachers’ Federation (CTF), the Ontario Teachers’ Federation (OTF) and the Elementary Teachers’ Federation of Ontario (ETFO).
2. 261. In a communication dated 27 September 2001, the Federal Government transmitted the reply of the Government of the Province of Ontario.
3. 262. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), nor the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants' allegations

1. 263. The Elementary Teachers' Federation of Ontario (the "Federation") represents approximately 65,000 workers, including teachers and education support workers employed in Ontario public elementary schools. In particular, the Federation represents approximately 2,100 elementary school teachers employed by the Hamilton-Wentworth District School Board (the "School Board"), a public school board established under the provisions of the Education Act.
2. 264. This complaint concerns measures taken by the Government of Ontario to end a labour dispute over the employment terms and conditions of teachers employed by the School Board. In October 2000, the teachers were locked out by the school board. In November 2000, the Government of Ontario passed the Back to School Act (Hamilton-Wentworth District School Board), 2000 ("Bill 145"), which ended the lockout, required teachers to return to work, prohibited strike activity under pain of prosecution and imposed compulsory arbitration to settle the terms of the collective agreement. Bill 145 required, inter alia, that the arbitration board be governed by funding regulations established by the Government of Ontario and placed other restrictions and governmental criteria on the operation of the arbitration board which interfered with its independence and impartiality and undermined the parties’ confidence in its operation.
3. 265. The complainants allege that Bill 145 contravenes ILO Convention No. 87 concerning freedom of association and protection of the right to organize (1948), which Canada has ratified in that: (a) it interferes with the right of teachers to bargain collectively; (b) it interferes with the right of teachers to engage in lawful strikes under applicable legislation; and (c) it impairs the independence and impartiality of interest arbitrators and the integrity of the arbitration process. For the same reasons, Bill 145 also contravenes ILO Convention No. 98 concerning the right to organize and collective bargaining (1949), Convention No. 151 concerning labour relations (public service) (1978), and Convention No. 154 concerning the promotion of collective bargaining (1981).
   • Background of the dispute
4. 266. In normal circumstances, collective bargaining for teachers in Ontario is governed by the Education Act, which provides for notice to negotiate and imposes an obligation to bargain in good faith. The parties are entitled to resolve their disputes by collective bargaining, and have a statutory right to strike or lockout where such strike or lockout is otherwise timely and where the strike has been approved by a strike vote conducted among members of the bargaining unit.
5. 267. The Federation and the School Board were bound by a collective agreement which expired on 31 August 2000. In March 2000, the Federation served notice to bargain on the School Board and negotiations commenced on 23 March 2000. However, the parties were unable to reach a collective agreement and, on or about 23 June 2000, a request was made for the appointment of a Conciliation Officer. A "No-Board Report" was requested on 4 October 2000 and issued on 9 October 2000. The Federation conducted a strike vote on 17 October 2000, which resulted in 96.5 per cent support for strike action commencing after 27 October, when the Federation was in a lawful position to strike.
6. 268. The Federation determined to undertake a one-day shutdown on 30 October 2000, to be followed by a series of rotating strikes which were geographically based and which would take place from 31 October to 3 November. Further strike action would be determined at the conclusion of that week. However, after the Federation had publicized its plans, the School Board announced on 26 October, that it would not permit rotating strikes and would instead lockout all members of the bargaining unit effective 31 October 2000. The lockout continued from 31 October to 22 November, the day after Bill 145 received Royal Assent.
7. 269. On 17 November 2000, the School Board requested that a final-offer vote be conducted pursuant to the provisions of section 42 of the Labour Relations Act, On 24 November 2000, 98.2 per cent of those who cast a ballot rejected the School Board’s final offer.
8. 270. On 20 November 2000, the Education Relations Commission (the "Commission") issued a jeopardy advisement as required under the Education Act. However, the advisement did not find that the school year of students was in jeopardy at that time, but rather predicted that, should the labour dispute continue, the students’ educational year would be in jeopardy at some uncertain date in the future. While the Commission recommended the introduction of back-to-work legislation which provided for compulsory arbitration, it did not recommend that the jurisdiction of the arbitration board under that legislation be limited in anyway. Prior to issuing its report, the Commission did not advise the Federation of its intention to make the jeopardy advisement and recommendations and did not provide the Federation with an opportunity to make any submissions as to whether such an advisement should be issued.
9. 271. The Government introduced Bill 145 on 20 November 2000, which received third reading and Royal Assent on 21 November 2000. The Government did not consult with the Federation prior to introducing the legislation and blocked all attempts to have the legislation subject to Committee hearings where public submissions could be received. As a result, there was no meaningful consultation with the Federation either prior to the introduction of the legislation or during its enactment. On 20 April 2001, an award was issued by the arbitrator appointed under Bill 145.
   • The provisions of Bill 145
10. 272. Under section 3 of Bill 145, the lockout was terminated as soon as the Bill was proclaimed in force, the Federation and the bargaining unit members were required to terminate any strike and bargaining unit members were required to report to work and perform their duties. Under sections 5 and 6 of the Bill, bargaining unit members are precluded from exercising their right to strike under the Education Act and persons are prohibited from calling or authorizing a strike by any members of the bargaining unit. No official or agent of the Federation can counsel, procure, support or encourage a strike by members of the bargaining unit. Any strike or lockout can take place only after the parties execute a new collective agreement and then only in accordance with the Education Act. As a result, strikes are precluded not only in respect of entering into the new collective agreement but also until the expiry of the collective agreement imposed by arbitration.
11. 273. Any contravention of the provisions related to strikes or lockouts constitutes an offence and subjects individuals to a fine of up to $2,000 for each day of contravention. The Federation is subject to a fine of $25,000 per day for such contravention. In addition, even though a strike or counselling of a strike would be otherwise be lawful under the Education Act, Bill 145 deems strikes to be unlawful under the Labour Relations Act, thereby giving the Ontario Labour Relations Board jurisdiction to order the end of a strike or lockout, to require damages to be paid in respect of a strike and to permit prosecutions under the Labour Relations Act in respect of a strike (sections 4 to 8).
12. 274. Sections 10 to 12 of Bill 145 provide that, if the School Board’s offer is rejected and if the parties do not reach a collective agreement within seven days after the Bill is proclaimed in force, the terms of the new collective agreement shall be determined by mediation-arbitration. Bill 145 further provides that, in determining the provisions of the collective agreement, the board of arbitration would have to comply with the following requirements:
    • (a) the arbitrator’s award must be consistent with the Education Act and regulations, including the funding regulations, and must be able to be implemented without causing the School Board to incur a deficit (section 18(1));
    • (b) the arbitrator would be prevented from making any award which would interfere with the scheduling of pupils’ instruction, the length of instructional programmes provided to pupils on school days and the length of pupils’ instructional period (section 18(2)); and
    • (c) if the arbitrator were to award any increase in compensation, he or she must justify the award in a written statement which explained how the School Board could meet the costs of the award without incurring a deficit (sections 18(3) and (4)).
13. 275. In addition, section 19 of the Bill provides that, if the arbitrator awards a collective agreement for a period longer than one year, the agreement can be reopened at the instance of either party in the event new funding regulations are promulgated under the Education Act for one or more fiscal years. A new board of arbitration may then be constituted to deal solely with the issue of wages and benefits for "the relevant period". It is not clear how these provisions are intended to operate, but it can be observed that the Government has given itself a great deal of power to revise, or interfere with, the effect of any arbitrated award simply passing by new funding regulations which alter the existing legislative grants and thus trigger a further arbitration.
    • Violations of ILO Conventions
14. 276. The complainant submit that Bill 145 infringes the essential components of freedom of association under Convention No. 87, including the right of workers to organize their activities and to formulate their programmes, the primacy of collective bargaining as a means of resolving disputes and the prohibition on the state from interfering with the right to strike, by: (a) prohibiting teachers employed by the School Board from engaging in a lawful strike as otherwise permitted under the terms of the Education Act; and (b) subjecting individuals and trade unions to prosecution and fines for counselling or engaging in strike activity which would otherwise be lawful under Ontario law.
15. 277. In enacting the back-to-work legislation, the Government failed to make out a disruption in essential services. Even assuming such considerations could otherwise amount to the disruption of essential services, the Government acted prior to any finding that the educational year of students was in any jeopardy and solely on the basis of a prediction that jeopardy would occur at some point in the future if the labour dispute continued with no reasonable prospect for a negotiated settlement.
16. 278. Further, the Government did not abide by the principle of consultation of affected parties in that it entirely failed to give the Federation any opportunity to make submissions to the Education Relations Commission prior to the Commission’s issuance of its jeopardy advisement and failed to consult the Federation with respect to the enactment of Bill 145.
17. 279. The complainants also submit that the legislative imposition of fiscal limitations on the jurisdiction of the board of arbitration, as well as the other restrictions on the arbitrator’s powers and jurisdiction, interferes with the independence of the board of arbitration, undermines confidence in the arbitration process, imposes wage restraints through the arbitration process, and infringes the right of teachers to bargain freely with their employer with respect to terms and conditions of employment. Moreover, the Government’s interference with the arbitration process undermines the ability of the arbitration process to be an effective means of compensating the affected teachers for the unjustified loss of the right to strike. As a result of the imposition of these criteria on the interest arbitrators constituted under Bill 145 violates fundamental principles of freedom of association. Interest arbitrators in Canada, as well as international bodies, have recognized that the independence of the arbitration process is fatally compromised by legislative provisions, such as those contained in Bill 145, which impose mandatory financial constraints that dictate or effectively determine the result of an arbitration. Indeed, historically, arbitrators have consistently rejected government-imposed financial limitations precisely because of the adverse effect such limitations have upon arbitral independence and impartiality.
18. 280. One of the most important principles governing interest arbitration, in light of the withdrawal of workers’ right to strike to which the procedure applies, is that it should attempt as closely as possible to replicate the results of free collective bargaining. Pursuant to that goal, the traditional criterion used by arbitrators to determine wages in public sector collective agreements in Ontario, as in other Canadian jurisdictions, has been comparable with: employee performing similar work for the same employer; employees performing similar work for other employers in the public sector; and employees performing similar work for employers in the private sector. This "comparability" criterion ensures that wages for employees governed by interest arbitration in the public sector follow freely negotiated collective agreements in those sectors where the parties have the right to strike or lockout. While the employer’s ability to pay (or affordability) may have legitimacy in private sector bargaining, it has been consistently and repeatedly rejected as an irrelevant criterion in the public sector by arbitrators in Ontario, and across Canada, over a period of several decades.
19. 281. The paramount importance of independent boards of arbitration in a context where compulsory arbitration has replaced the right to strike or lockout has also been recognized in international law. Both the ILO Committee of Experts and the Freedom of Association Committee have consistently ruled that, where restrictions are imposed on the right to strike in essential services, the interest arbitration process must be impartial so as to safeguard the interests of workers who have been denied the right to strike. Moreover, these bodies have held that it is not only essential that tribunals entrusted with interest arbitration functions be strictly impartial, but also that they should appear to be impartial both to the employers and the workers concerned. In this respect, the ILO has also recognized that the government’s interest in managing the economy often carries with it an interest in seeking to influence collective bargaining settlements in the public sector. Thus, there is widespread acknowledgment, both in Canadian law and international law, that state-imposed criteria which dictate that an arbitrator must arrive at a pre-determined result significantly compromise the independence and integrity of the arbitral process, and the confidence of the parties to that process, and converts the arbitrator from an independent decision-maker who may be required at most to "have regard" to certain criteria, into an arm of government for the purpose of imposing governmental policy. Since governments have a stake in the outcome of the arbitration process, the establishment of binding governmental criteria builds into the legislation a bias in favour of one of the parties affected by the outcome. This bias is heightened where, as here, such criteria can be based upon funding determinations made exclusively by cabinet on an ad hoc basis. Consequently, the provisions of Bill 145, and in particular sections 15(6), 18 and 19, are not consistent with international requirements of independence and impartiality.
20. 282. The complainants submit that Bill 145 undermines the ability of an arbitration board to replicate the conditions of free collective bargaining, contrary to Convention No. 98. In addition, the effort to impose wage constraints through the arbitration process contravenes Convention No. 98 requirement that conditions be established to promote voluntary negotiations with a view to regulating the terms and conditions of employment by means of collective bargaining. The Government’s intervention in the negotiation and arbitration process and its attempt unilaterally to terminate collective bargaining and impose a pre-determined wage increase do not give priority to collective bargaining. The Government’s recourse to compulsion alters the essentially voluntary nature of collective bargaining and undermines the autonomy of the parties.
21. 283. The Government’s interference with the collective bargaining and arbitration process and its attempt unilaterally to impose terms and conditions of employment also contravene Convention No. 151. In this regard, Bill 145 fails to promote the full development and utilization of machinery for negotiating terms and conditions of employment between the School Board and the Federation. Further, Bill 145 undermines both the teachers’ statutorily recognized right to strike and the arbitration process as an independent and impartial means for settling disputes established in such a manner as to ensure the confidence of the parties.
22. 284. Finally, the complainants submit that the method adopted by the Government of Ontario for dealing with disputes over the terms and conditions of employment of teachers employed by the School Board does not promote collective bargaining as mandated by Convention No. 154.
23. 285. The complainants submit that, in outlawing strikes in respect of its dispute with the School Board, the Government has violated the fundamental principles underlying freedom of association and the right of employees to engage in strikes in protection of their interests.
24. 286. Further, the complainants submit that, in seeking to unilaterally determine the terms and conditions of employment by requiring the board of arbitration established under Bill 145 to be governed by governmental funding regulations, and providing for the award to be reopened and subject to further arbitration based on the introduction of additional funding regulations in the future, the Government has: (a) interfered with the impartiality and independence of the board of arbitration; (b) undermined the parties’ confidence in the arbitration process; (c) vitiated the adequacy of the arbitration process as a replacement for the ability to strike; and (d) undermined the process of free collective bargaining.
25. 287. Finally, the complainants submit that by introducing back-to-work legislation in a precipitous manner and without adequate consultation, and by constraining the powers and jurisdiction of the board of arbitration, the Government has undermined the right of public sector workers to bargain collectively and failed to promote collective bargaining.
26. 288. In support of their allegations and submissions, the complainants quote numerous sections of the relevant Conventions as well as references from the Digest of decisions and principles of the Freedom of Association Committee, ILO, 1996. They submit that the Government of Ontario must review its legislation to ensure compliance with ILO Conventions.
27. 289. Since this complaint is the most recent in a series of complaints concerning infringements of the collective bargaining process, the Committee on Freedom of Association should recommend that an ILO mission be sent to Canada to review the process of collective bargaining in the education sector, since it has already dealt with complaints against the governments of the Provinces of Quebec, Ontario, Yukon, Prince Edward Island, Nova Scotia and Manitoba.

B. The Government's reply

1. 290. In its communication of 27 September 2001, the Government submits that the complainants ignore the circumstances that required the introduction of the Back to School Act, mischaracterizes the nature of the legislation, and that the Act does not violate Conventions Nos. 87, 98, 151 and 154. The Government provides the following background and summary of the Acts:
   • - The collective agreement between the Hamilton-Wentworth District School Board (the "School Board") and the Elementary Teachers’ Federation of Ontario (the "Federation") expired on 31 August 2000.
   • - Conciliation and mediation provided by the Government were unsuccessful and the negotiations between the parties had reached an impasse.
   • - The Federation engaged in a strike on 30 October 2000 and the School Board, citing safety concerns, locked the teachers out on 31 October 2000.
   • - On 17 November 2000, the School Board requested a "final-offer vote"on the last offer it had presented to the Federation.
   • - On 20 November 2000, the Education Relations Commission ("ERC") provided a "jeopardy advice" to the Lieutenant Governor in Council.
   • - The Back to School Act was introduced on 20 November 2000 and received Royal Assent and became law on 21 November 2000.
2. 291. The key features of the Act were as follows:
   • - The School Board was required to resume normal operation of the schools and the teachers were required to report to work and perform their duties.
   • - Further lockouts and strikes were prohibited only in connection with the current round of negotiations.
   • - Failure to comply with the Act was punishable by fine.
   • - In an effort to provide a further opportunity for the parties to reach their own agreement, the "final-offer vote" process was permitted to continue.
   • - In addition, the parties were provided with an additional seven days to reach an agreement on their own or to mutually agree to the appointment of a mediator-arbitrator, to settle their outstanding differences.
   • - If the parties were unable to reach an agreement and failed to agree to the appointment of a mediator-arbitrator, the Minister of Labour would appoint one.
   • - Any award issued by a mediator-arbitrator had to be consistent with the Education Act and capable of being implemented in a manner that would not cause the School Board to incur a deficit.
3. 292. The Government’s policy is that negotiations by the parties is the most desirable means of resolving labour disputes. In the ordinary course, the Government acts to support the collective bargaining process as a neutral facilitator through its arms-length conciliation and mediation services. Only as a last resort, in circumstances where vital public interests are at stake, will the Government intervene directly by way of legislation. In the fall of 2000, the absence of teachers from their classrooms in the Hamilton-Wentworth district interrupted the education of students. The conditions that justify back-to-work legislation in this context were clearly present:
   • - The parties had made extensive use of the conciliation and mediation services offered by the Government without success or even a sign of imminent breakthrough.
   • - Negotiations between the parties were at an impasse.
   • - No further negotiations between the parties were scheduled.
   • - There appeared to be no reasonable likelihood of a negotiated settlement.
   • - Children have a statutory right to attend school in the province of Ontario.
   • - Students had been out of school for three weeks and their education was being seriously and adversely affected by the labour disruption.
   • - The ERC had issued a "jeopardy advice" pursuant to the Education Act.
     • With respect to the final point, the Government points out the nature and functions of the ERC, which is an expert, arms-length body, responsible for monitoring the effect of labour disruptions in the education sector. More specifically, the ERC is responsible for advising the Government when, in the opinion of the Commission, the continuation of a strike, lockout or closing of a school would jeopardize the completion of courses of affected pupils. The Government did not act until after it had received advice from the ERC concerning the effects of the labour disruption.
   • 293. Having regard to all the circumstances, the interests of students, parents and the broader community demanded that the Government act decisively, regardless of how generally reluctant it is to intervene in labour relations matters. For the Government not to act to protect the public interest in these circumstances would have been an abdication of its responsibility. Decisions to remove legislatively the right to strike and lockout for a limited period of time must be made on a case-by-case basis within a flexible and contextual framework that permits the Government to be responsive to the public interest.
4. 294. It is the policy of the Government of Ontario to permit and indeed encourage the collective bargaining process to run its course. As a general rule, parties are responsible for negotiating their own collective agreement and are provided with every opportunity to do so. The Ministry of Labour’s conciliation and mediation services were made available to the School Board and the Federation, as is ordinarily the case. The Government did not intervene in the labour dispute immediately with the introduction of legislation. Rather, the Government exercised restraint and allowed the labour disruption to influence bargaining positions in the hope that the parties would freely negotiate their own agreement. However, after almost three months without a collective agreement and three weeks of labour disruption, during which time students in Hamilton-Wentworth were denied their statutory right to attend school, the Government decided, having regard to all the circumstances, that the interests of Ontario’s students in resuming their education had to prevail over the right to strike and lockout.
5. 295. The Government submits that the complainant’s allegation that the Government "failed to give the Federation any opportunity to make submissions to the Education Relations Commission" ignores the arms-length nature of the ERC. The ERC independently monitors the effects of labour disruptions in the education sector and provides advice to the Government. With respect to consultations more generally, prior to the introduction of education reforms in Ontario, education stakeholders and the general public are able to express their views about reforms both by direct communications with the Government and through the legislative process.
6. 296. As regards the allegations relating to the fiscal restrictions imposed upon the mediator-arbitrator, the Government submits that these are matters of educational policy. The Committee on Freedom of Association has accepted that a distinction may be drawn between matters that are essentially or primarily concerned with management and operation of business, which can be regarded as outside the scope of bargaining, and matters relating to conditions of employment, which should be subject to collective bargaining. The Committee has further acknowledged that issues that can be considered closely linked to educational policy may be excluded from the scope of collective bargaining. School boards in Ontario provide a vital public service. They have a duty to operate schools for approximately 2 million pupils in Ontario who have a statutory right to an education. The operation of schools as a workplace must be consistent with the broader public policy framework in which quality education is paramount. It is, therefore, reasonable to require that arbitrators fashion their awards in a manner that is consistent with the Education Act and which recognize the unique duties of school boards that demand responsible fiscal management.
7. 297. The complainants’ allegation that the imposition of restrictions on the arbitration undermines the ability of the arbitration process to be an effective means of compensating the affected teachers for the loss of the right to strike and the suggestion that the "state imposed criteria ... dictate that arbitrator must arrive at a predetermined result ..." are inaccurate characterizations of the provisions of the Back to School Act. The primary purpose of the fiscal restrictions included in the Back to School Act is to ensure that any arbitrated agreement, just like any negotiated agreement, complies with the Education Act (including the funding formula regulation) which applies to all schools boards in the province of Ontario. It is also important to consider the nature of the funding formula established by regulation under the Education Act. The formula is drafted so as to comply with Canadian constitutional standards respecting religious denominational School rights and minority language education rights. Furthermore, the Education Act requires that the regulations governing education funding must operate in a "fair and non-discriminatory manner" in this regard.
8. 298. The Government concludes that, when considered in context, the Back to School Act did not violate ILO Conventions Nos. 87, 98, 151 or 154.

C. The Committee's conclusions

1. 299. The Committee notes that the allegations in this case arise from the adoption of the Back to School Act (Bill 145) in November 2000, requiring Ontario elementary teachers to return to work after three weeks of a lawful strike and lockout, since the parties had been unable to conclude a new collective agreement. The main provisions of Bill 145 are as follows:
   • (a) section 3 required the School Board to resume normal operation, and the teachers to report to work and perform their duties;
   • (b) sections 5 and 6 prohibited any further strike or lockout;
   • (c) sections 10 to 12 permitted the “final-offer vote” process to continue, to give the parties a further opportunity to reach their own agreement and, if the School Board’s offer was rejected and the parties did not reach an agreement within seven days of the proclamation of the Bill, the terms of the new collective agreement would be determined by mediation-arbitration;
   • (d) section 18 imposes constraints on the mediator-arbitrator, both financial ones and others concerning the instruction of pupils.
2. 300. The Committee cannot but note at the outset the striking parallel between the present complaint and Case No. 2025 [320th Report, paras. 374-414]. Both cases involve practically the same parties; the complainants’ allegations are almost identical; the Government’s observations and arguments are essentially the same; and both cases raise similar issues: (a) violation of the right to strike; (b) imposition of an arbitration process which fails to meet the requirements of independence and impartiality, and improperly restricts the scope of the arbitrator’s jurisdiction; and (c) lack of consultation prior to the adoption of the Act. Whilst emphasizing the seriousness of these violations, the Committee considers that little purpose would be served by reiterating at length its comments and recommendations, most of which can be applied here mutatis mutandis, and will limit itself to recalling well-established freedom of association principles.
   • Right to strike
3. 301. The complainants allege that the Government violated their statutory right to engage in strikes to further their interests; they point out that the strike was timely and had been approved by a vote of the bargaining unit members. The Government replies that it did not intervene in the labour dispute immediately but instead exercised restraint and allowed it to influence bargaining positions in the hope that the parties would freely negotiate their own agreement; it maintains that the legislation was justified in order to protect the public interest, in particular the interests of students in resuming their education, which had to prevail over the right to strike and lockout.
4. 302. Noting that the complainants had fulfilled all the legal requirements to exercise their right to take industrial action, the Committee recalls that the right to strike is one of the legitimate and essential means through which workers and their organizations may defend their economic and social interests [Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 474-475] subject to certain limited exceptions, and that the education sector does not fall within these exceptions [Digest, op. cit., para. 545].
5. 303. While the Committee recognizes that unfortunate consequences may flow from a strike in a non-essential service, these do not justify a serious limitation of the right to strike unless they become so serious as to endanger the life, personal safety or health of the whole or part of the population [Digest, op. cit., para. 541]. Also, in examining a previous complaint involving the education sector, the Committee stated that the possible long-term consequences of strikes in the teaching sector did not justify their prohibition [Case No. 1448, 262nd Report, para. 117]. In the present case, while appreciating that the continuation of the dispute might have affected students, the Committee is not convinced that there existed, in the circumstances and at this stage of the dispute, a situation which warranted the legislative action taken by the Government. The Committee deeply deplores that the Government should have decided, twice in two years (the Back to School Act complained of in Case No. 2025 was adopted in September 1998) to adopt such an ad hoc legislation which creates a situation where education workers theoretically have a legal right which, in practice however, is taken away from them when they exercise it. The Committee considers that repeated recourse to such legislative restrictions can only in the long term destabilize the labour relations climate, if the legislator frequently intervenes to suspend or terminate the exercise of rights granted to workers and their unions by the general legislation. The Committee therefore requests once again the Government to take measures to ensure that teachers in Ontario are entitled to exercise the right to strike and, in future, to avoid having recourse to back-to-work legislation. The Committee requests the Government to keep it informed of developments in this respect.
   • Compulsory arbitration
6. 304. The complainants allege that the Government has interfered with the independence and impartiality of the arbitration process and undermined the process of free collective bargaining by limiting the scope of the arbitrator’s jurisdiction, in particular, by imposing mandatory financial constraints that dictate or effectively determine the result of arbitration. The Government states that the fiscal restrictions imposed upon the arbitrator are matters of educational policy, which can be regarded as outside the scope of collective bargaining.
7. 305. As regards the compulsory nature of the arbitration process, the Committee recalls that bodies appointed for the settlement of such disputes should be independent, that recourse to these bodies should be on a voluntary basis [Digest, op. cit., para. 858] and that recourse to compulsory arbitration in cases where the parties do not reach agreement through collective bargaining is permissible only in essential services in the strict sense of the term [Digest, op. cit., para. 860].
8. 306. Regarding the restrictions imposed upon the mediator-arbitrator, the Committee considers that, while financial considerations may be taken into account in cases such as the present one, thus recognizing that the special characteristics of the public service justify some flexibility in applying the principle of autonomy of the parties to collective bargaining, Bill 145 imposes in practice on arbitrators a financial straightjacket which goes beyond what is acceptable under the principles of freedom of association. The Committee recalls that in mediation and arbitration proceedings, it is essential that all the members of bodies entrusted with such functions should not only be strictly impartial but, if the confidence of both sides is to be gained and maintained, they should also appear to be impartial both to the employers and workers concerned [Digest, op. cit., para. 549]. The Committee therefore urges once again the Government to ensure in future that recourse to arbitration for the settlement of disputes be voluntary and that arbitration, once freely chosen by the parties to settle their disputes, be truly independent and in line with freedom of association principles. The Committee requests to be kept informed of developments in this respect.
   • Lack of consultation
9. 307. The complainants also allege that the Government has undermined the process of free collective bargaining by introducing back-to-work legislation in a precipitous manner and without adequate consultation. The Government states that education stakeholders and the general public are able to express their views about education reforms both by direct communications with the Government and through the legislative process.
10. 308. The Committee recalls in this respect the importance that it attaches to the holding of full and frank consultations on any question affecting trade union rights [Digest, op. cit., para. 927], and that such consultation is essential and particularly valuable during the preparation and formulation of legislation [Digest, op. cit., para. 929]. The Committee requests the Government to ensure that in future, full consultations in good faith are undertaken in such circumstances so that the parties have all the information necessary to make informed decisions.
    • Final considerations
11. 309. The Committee notes the complainant’s request that an ILO mission be sent to Canada to review the process of collective bargaining in the education sector, as this case is the most recent in a series of complaints concerning infringements of the collective bargaining process in various provinces.
12. 310. The Committee notes with increasing concern that the violations of freedom of association in the present case constitute an almost exact repetition of those at issue in a very recent case, a mere two years after it. Furthermore, as already pointed out by the Committee [Case No. 2025, 320th Report, paras. 412-413] these involve a long series of legislative reforms in Ontario, where the Committee has pointed in each case to incompatibilities with freedom of association principles [Case No. 1900, 308th Report; Case No. 1943, 310th Report; Case No. 1951, 311th and 316th Reports; Case No. 1975, 316th Report]. The Committee stresses the seriousness of the situation and points out that repeated recourse to statutory restrictions on freedom of association and collective bargaining can only, in the long term, have a detrimental and destabilizing effect on labour relations, as it deprives workers of a fundamental right and means of defending and promoting their economic and social interests. The Committee suggests once again the Government to have recourse to the technical assistance of the Office.