Informe definitivo - Informe núm. 133, 1972

1. 142. The Committee examined this case at its last session (May 1972), when it submitted an interim report to the Governing Body (paragraphs 203 to 216 of the 131st Report of the Committee)."
2. 143. The complaints were contained in two communications, one dated 10 May 1972, addressed direct to the ILO by the World Confederation of Labour, and the other dated 12 May 1972, addressed direct to the ILO by the International Federation of Employees in Public Service and the World Confederation of Teachers. The WCL transmitted further allegations and additional information in a communication dated 26 May 1972. The Committee adjourned its examination of the case since the time-limit within which the complainants were allowed to furnish further information in substantiation of the complaints, namely 30 days, had not expired. The International Federation of Employees in Public Service, in a communication dated 5 June 1972, supplied further information in connection with the complaints. In communications dated 18 May and 8 June 1972 respectively, addressed direct to the ILO, complaints were submitted by the International Federation of Free Teachers' Unions and the World Federation of Trade Unions.
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. A. The complainants' allegations

1. 145. In its communication dated 10 May 1972 the World Confederation of Labour stated that 48 trade union leaders in Quebec had been arrested and sentenced for calling a strike. Among these were three presidents of federations, including Marcel Pépin, who is President of the Confederation of National Trade Unions (CSN) and Vice-President of the World Confederation of Labour. In its communication of 12 May 1972, the International Federation of Employees in Public Service and the World Confederation of Teachers referred to the arrests and sentences and protested against these acts of the Government.
2. 146. In its communication dated 18 May 1972 the International Federation of Free Teachers' Unions refers also to the 12 months' prison sentence imposed upon the three trade unionists mentioned in the preceding paragraph, namely Marcel Pépin, Yvon Charbonneau, President of the Corporation of Teachers of Quebec (CEQ) and Louis Laberge, President of the Federation of Workers of Quebec (FTQ). The complainant organisation considers that this sentence is excessive and in contradiction with the Conventions relating to freedom of association.
3. 147. In a further communication dated 26 May 1972, the World Confederation of Labour transmitted a memorandum concerning the case as well as certain other documentation in support of its allegations. The WCL explains that contracts of employment have been concluded between the Government of Quebec and the unions representing the employees in the public sector, the semi-public sector and the teaching profession. The latest contract in force, concluded for a period of three years, expired between the end of March and the end of June 1971, according to the sectors involved. The contracts cover civil servants of every grade including the staff of hospitals, clinics and psychiatric establishments and teachers.
4. 148. At the beginning of 1971, continues the WCL, the unions made proposals to the Government of Quebec for the renewal of the current agreement. On the side of the unions, three organisations constituted a " Common Front " for the public service, grouping together the unionised workers of the sectors concerned and affiliated to the Confederation of National Trade Unions (itself affiliated to the World Confederation of Labour), the Federation of Workers of Quebec (itself affiliated to the International Confederation of Free Trade Unions) and to the Corporation of Teachers of Quebec (independent). The Common Front represents 210,000 out of 250,000 workers in the public service. It is thus, states the WCL, broadly representative of the workers concerned. Within the Common Front, the Confederation of National Trade Unions is represented in the form of a committee for the co-ordination of negotiations in the public sector, and covers five occupational federations in the public service and in teaching. On the side of the Government, the Minister for the Public Service of the Government of Quebec carries out the negotiations.
5. 149. The WCL maintains that from February 1971 to March 1972, all attempts at negotiation with the Government were abortive, since the Government refused to negotiate with the Common Front for the unions generally, and accepted only to negotiate on a sectoral basis in respect of about 15 sectors in the public service. The main claims which the Common Front had put forward were for all workers in the public service in Quebec, and essentially related to a guaranteed minimum wage, guaranteed stability of employment and standard definitions and scales for skills and families throughout the public and semi-public sectors.
6. 150. Faced with the negative results of the negotiations, and after the agreement had already lapsed eight or nine months previously, the Common Front organised a vote on a strike throughout the civil service, which was carried by a very large majority on 9 March 1971. It should be noted, states the WCL, that the right of collective bargaining has been officially enjoyed by the trade unions representing the civil service for a number of years and the right to strike has been officially enjoyed by public servants since 1965.
7. 151. The WCL adds that on notifying the Government of the outcome of the vote on the strike, the organisations making up the Common Front undertook to embark on an immediate discussion of the procedures needed for essential services. These procedures had already been resorted to and had been effective for the first time in 1966 during a three-week strike in the civil service and in semi-public services, including hospitals. Furthermore, continues the WCL, the Confederation of National Trade Unions organised and posted emergency medical teams to meet certain urgent and unforeseen requirements arising during the strike.
8. 152. The managements of several hospitals, nevertheless, refused to accept notice of the strike, declined to bargain with the Common Front on the organisation of essential services and deliberately dramatised the situation. The managements of other hospitals demanded that the entire staff should be called on for essential services. The hospitals in their entirety, states the WCL, were clearly encouraged to adopt this intransigent attitude by the Government of Quebec, which encouraged them " not to yield to the threat to call a strike ".
9. 153. After notice of the strike had been delivered, i.e. after 9 March, the Government of Quebec agreed to embark on the over-all negotiations requested by the Common Front, but, according to the WCL, the negotiations proved fruitless.
10. 154. On 28 March 1972, continues the WCL, the Common Front organised a warning strike of 24 hours, which was followed by virtually all members of the civil service. Since this warning strike had no positive effect on the negotiations, the Common Front decided to call a general strike throughout the public and semi-public sectors. This strike, states the WCL, became effective on 11 April 1972.
11. 155. As regards the hospitals, where the strike was also effective, the WCL claims that no problem arose where the managements had accepted to discuss procedures for the maintenance of essential services. Incidents occurred in those where such procedures had to be improvised, but, the WCL adds, with or without agreement from the managements, the Common Front maintained essential services in all hospitals, providing an average of one third of the staff normally employed, in addition to the senior staff and medical practitioners, who all remained at work.
12. 156. On 12 April, the WCL continues, the Government resorted to the injunction procedure, which, according to the WCL, normally enables it to order a resumption of work by any persons needed to protect public safety, ensure supplies, etc. In this case, however, states the WCL, the Government applied this procedure to all the staff employed in 61 hospitals, clinics and health centres throughout the Province of Quebec. The WCL adds that, in a number of hospitals, the trade union representatives refused to comply with the injunction, since it very considerably exceeded the purpose for which the procedure had been instituted.
13. 157. The WCL states that on 21 April 1972 the National Assembly of Quebec hastily adopted Bill No. 19, entitled " An Act to ensure the resumption of services in the public sector ". This Act ordered persons employed in the civil service to resume work the following day (22 April) and contained various other provisions of a coercive nature.
14. 158. The WCL draws particular attention to the following aspects of this enactment: (a) that it deprives workers of the right to strike that they normally enjoy (section 6); (b) that the Parliamentary Committee on the Civil Service will receive information on the negotiation of collective agreements from workers' and employers' associations (section 8); (c) that, in the absence of a collective agreement between workers and employers before 1 June 1972, the Lieutenant-Governor (in other words the Government of Quebec) will by order determine the conditions of employment of workers until 30 June 1974 (section 10); (d) that this order must respect the most recent offers made to the trade unions by employers (section 10 (2) and section 5), but is stated to have the effect of an arbitration award; (e) that it imposes heavy fines on individual workers and trade unions failing to comply with the Act (sections 11, 13 and 14); (f) that the Act provides for no possibility of appeal for workers or trade unions who happen to be convicted.
15. 159. It is clear, continues the WCL, that the provisions of Act No. 19 are-(1) in formal contradiction with the previously existing legislation, which granted trade unions in the civil service the right to bargain and to strike; (2) in formal contradiction with the principles of the ILO Constitution and the Declaration of Philadelphia, to which the Government of Canada has subscribed; (3) contrary to the letter and spirit of International Labour Convention No. 87, which was recently ratified by the Federal Government of Canada.
16. 160. On 22 April 1972, continues the WCL, all members of the civil service resumed work. The Government immediately brought charges, firstly, against 150 trade union representatives for contempt of court, i.e. for having ignored the injunction made by the magistrates on 12 April, and, secondly, against the three presidents of the organisations making up the Common Trade Union Front for the Civil Service, namely Marcel Pépin, President of the CSN, Louis Laberge, President of the FTQ, and Yvon Charbonneau, President of the CEQ, for having encouraged the workers to disregard the injunction.
17. 161. The Supreme Court of the Province of Quebec, states the WCL, acted with extraordinary speed and gave its judgement within a few days. On 6 May, the Court sentenced 46 unionised workers to a total of 241 months' imprisonment and $193,600 in fines and 15 trade unions to $206,350 in fines; these figures relate solely to the trade unions and workers belonging to the CSN. Other sentences were expected on 10, 12 and 15 May on eight trade unions and 53 unionised workers, all of them once again belonging only to the CSN. In addition, states the WCL, other sentences were expected on the trade unions and workers belonging to the FTQ and CEQ.
18. 162. The WCL adds that when unionised workers were informed of the sentences passed upon them, they were ordered, as a condition of their being released, to sign a commitment, whereby each trade union representative against whom a charge was made undertook-(a) not to go on strike before 9 June 1972; (b) not to encourage anyone to go on strike and to advise members of the union to continue to work for their employers; (c) to cancel any orders or recommendations made for the purpose Of calling a strike (in so far as they related to their organisation). The WCL attaches a copy of this undertaking to its communication.
19. 163. This commitment, contends the WCL, consequently deprived the 46 trade union representatives on whom sentences had been passed of any possibility of acting in their representative capacity, even where their organisation, or they themselves, considered that a strike was the last possibility open to them of obtaining satisfaction for the workers' claims. The commitment was signed by the 46 trade union representatives on whom sentences had been passed.
20. 164. The WCL states that the proceedings instituted by the Government against the three presidents of the trade union federations, namely Marcel Pépin, Louis Laberge and Yvon Charbonneau, were also conducted with remarkable speed and that all three were sentenced on 8 May to a year's imprisonment. They were imprisoned on 9 May. All three refused to appeal, the opportunity that they were offered to do so being made, according to the WCL, subject to such conditions that they would no longer be able to discharge their responsibilities as presidents of trade union federations freely and effectively within the new framework created by Act No. 19.
21. 165. On 12 May, continues the WCL, 34 of the 46 convicted representatives who had been released denied that the commitment which they had signed was valid, observing that, in practice, this commitment made it impossible for them to carry on their duties as trade union representatives in a normal manner and in fact deprived them of any freedom of action. They spontaneously placed themselves at the disposal of justice and were immediately imprisoned. In solidarity, the members of the civil service and all the other occupations involved spontaneously went on strike throughout Quebec from 13 May, but resumed work on 18 May after a promise had been given that the trade union representatives and presidents who had been imprisoned would be released and after an undertaking had been given that over-all negotiations for the civil service would be resumed. By 23 May, however, adds the WCL, none of the representatives held in custody had been released.
22. 166. The WCL states that it presented a complaint by telegram on 10 May 1972 to the International Labour Office against the Federal Government of Canada and protested to the Government of Quebec. The Secretary-General of the WCL, Jean Brück, was in Quebec from 18 to 20 May, and on 18 May asked by telegram to meet the Prime Minister of Quebec, Mr. Bourassa, in an endeavour to seek a solution to the conflict which would restore respect for freedom, peace and social progress. At the same time, he requested the Minister of Labour of the Federal Government of Canada, Mr. O'Connell-(1) to confirm whether the provincial governments, and particularly the Government of Quebec, had given prior consent to the ratification of Convention No. 87 by the Federal Government; (2) to give his opinion at the earliest possible moment on the extent to which the Government of Quebec was bound by Convention No. 87, which has been ratified by the Canadian Government; (3) to indicate how far Act No. 19 of Quebec was compatible with Convention No. 87.
23. 167. According to the WCL, by 20 May 1972 the Prime Minister of Quebec had not found time to arrange for the meeting that had been requested and the Minister of Labour of the Federal Government had not made any reply to the telegram that had been sent to him.
24. 168. The WCL states that its Secretary-General was allowed to visit the three presidents in the prison at Orsainville, Quebec, on 18 May, but on 20 May 1972 he was refused permission to visit the other trade union representatives in prison by the Minister of Justice of Quebec, Mr. Choquette, despite the reason indicated for the visit, namely to obtain information from the workers directly concerned in the matter on how the problem of essential services in hospitals had been handled during the strike.
25. 169. Finally, the WCL states that it considers itself justified in reaching the following conclusions-(1) that all the measures taken by the Government of Quebec, i.e. its recourse to the injunction procedure, its adoption of Act No. 19 and its sentencing and imprisoning of trade union representatives were in formal contradiction with the legal provisions in force at the time the conflict arose; (2) that the presidents and the trade union representatives could not be sentenced retroactively for having exercised a right to which they were legally entitled; (3) that the trade unions and workers had made the necessary arrangements for the maintenance of essential services and that, where such services were not organised, it was due to the refusal of the employers to negotiate them; (4) that the measures taken by the Government of Quebec were in contradiction with the letter and spirit of the Constitution of the International Labour Organisation, the Declaration of Philadelphia and Convention No. 87, to which the Federal Government of Canada has subscribed; and (5) that the Provincial Government of Quebec cannot evade the undertaking given on behalf of the whole of Canada by the Federal Government.
26. 170. The WCL consequently urges the ILO-(a) to endorse the above conclusions; (b) to draw the attention of the Federal Government of Canada to the need to respect the principles of freedom of association and the right to bargain and to strike; and (c) to request the Federal Government of Canada to use all Constitutional means within its power to oblige the Government of Quebec to repeal Act No. 19, to quash all the sentences passed on the trade unionists in question and also on the unions, and, in general, to cancel all measures restricting or withdrawing the right to collective bargaining and the right to strike enjoyed by workers in Quebec as represented by the Common Front for the Civil Service.
27. 171. In a communication dated 18 May 1972 the International Federation of Free Teachers' Unions made reference to the imprisonment of the three trade union leaders referred to above, alleging that the sentence was excessive and amounted to a violation of trade union rights.
28. 172. In two communications dated 12 May 1972 and 5 June 1972 the International Federation of Employees in the Public Service and the World Confederation of Teachers jointly associated themselves with the complaint submitted by the World Confederation of Labour. These organisations transmitted a number of documents in support of the allegations made.
29. 173. The World Federation of Trade Unions, in a communication dated 8 June 1972, also referred to the imprisonment of the three trade union leaders concerned, and stated that, notwithstanding the fact that they had now been released on bail, it wished to lodge a vehement protest against the violations of civil and trade union rights and of the right to strike.
30. 174. The Government transmitted its replies to the allegations in a communication dated 26 May 1972 in which it enclosed a copy of a letter from the Government of the Province of Quebec containing relevant information.
31. 175. The Government states that the general strike held in the public and semi-public sectors in Quebec in April 1972 and the action taken by the courts were both in full conformity with the provincial legislation currently in force. The Civil Service Act and the Labour Code contain provisions guaranteeing that workers in these sectors enjoy the right to strike. The Labour Code lays down the procedure for exercising this right in the public sector, specifying that the association of employees concerned must give at least eight days' prior written notice to the Minister of the time when it intends to have recourse to a strike.
32. 176. The Government adds that section 99 of the Labour Code, however, provides that " whenever in the opinion of the Lieutenant-Governor in Council a threatened or actual strike in a public service endangers the public health or safety, he may appoint a board of inquiry to ascertain the facts ". The same section adds that " upon the petition of the Attorney-General after the appointment of a board of inquiry, a judge of the Superior Court, if he finds that the strike imperils the public health or safety, may grant such injunction as he deems appropriate to prevent or terminate such strike ". The Government emphasises that the purpose of an injunction is not to deprive employees permanently of their right to strike but rather to suspend it for a specified period of 80 days.
33. 177. The Government states that in accordance with these provisions the Government of Quebec applied for an injunction ordering the resumption of work by employees in certain sectors, such as mental hospitals, nursing homes and homes for the aged. These injunctions were sent to the employees and their trade union leaders. According to the Government, however, some trade union leaders not merely refused to comply with the order from the Superior Court, but actually encouraged and even ordered employees to disregard the injunction.
34. 178. This attitude on the part of the trade union leaders, continues the Government, meant that the matter was no longer one of labour relations; it became an offence both under section 51 of the Code of Civil Procedure and under section 761 of this Code, which provides for penalties to be imposed for refusal to comply with an injunction, an offence treated as contempt of court. As the maximum penalty, this section institutes a fine of $50,000, with or without a term of imprisonment not exceeding one year.
35. 179. The Government adds that the conviction of the three leaders of the central trade union organisations and the other trade union officials for contempt of court is therefore not merely a question of labour law but rather a decision taken under the ordinary law of the Province of Quebec. The Government emphasises that the legislation is entirely in conformity with the requirements of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), as the Hon. Jean-Jacques Bertrand wrote in a letter to the Hon. Pierre Elliott Trudeau in 1969. The Government refers to Article 8 of Convention No. 87, which states that " ... workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land ".
36. 180. The Government transmits copies of the Labour Code and Civil Service Act and the text of the sentence passed on the three trade union leaders, as published in Le Devoir on 10 May 1972.
37. 181. In a further communication dated 2 June 1972, the Government stated that it had no observations to make beyond those already communicated. On 30 October 1972, the Government transmitted a letter from the Government of the Province of Quebec containing additional information concerning the matter.
38. 182. In its communication dated 30 October 1972 the Government states that, following negotiations over the past months, a collective agreement covering the majority of the employees concerned (some 140,000) has been signed and that only the teachers (some 70,000) have been unsuccessful in reaching agreement with the Government on the terms of a new contract. The Government adds that, in this connection, a decree laying down terms and conditions of work should be promulgated under Special Act No. 19 of 21 April 1972 in cases where no agreement has been reached. However, states the Government, although this decree could have been in force since 15 October 1972, it is not intended to publish it before the beginning of December, thus giving the parties the opportunity to reach agreement by negotiation, and avoiding the necessity of promulgating a decree. As for the three union leaders who have been sentenced, the Government states that they have lodged appeals against their sentences and that the procedures are taking their normal course.

B. B. The Committee's conclusions

1. 183. The Committee notes that section 99 of the Labour Code, 1964 (Ch. 141), prohibits strikes by employees in the public service (including hospitals, sanatoria and institutions for the mentally ill) unless the association of employees concerned has acquired the right to strike under section 46 of the Labour Code, and has given at least eight days' prior written notice to the Minister of the time when it intends to have recourse to a strike. Section 44 of the Labour Code provides that if the intervention of the conciliation officer has been unsuccessful, the right to strike or lock-out shall accrue 60 days, or, in the case of the making of a first agreement, 90 days after the Minister has received notification of disagreement about the negotiations, unless the parties submit their dispute to a council of arbitration.
2. 184. In addition, section 99 of the Labour Code lays down that when, in the opinion of the Lieutenant-Governor in Council, a threatened or actual strike in a public service endangers the public health or safety, he may appoint a board of inquiry, which shall have the powers of a council of arbitration, to inquire into and report upon the dispute, save that it shall not pronounce any decision or make recommendations, but confine itself to ascertaining the facts in compliance with sections 69 to 78 of the Labour Code.
3. 185. The Committee further notes that the same section provides that, upon the petition of the Attorney-General after the appointment of a board of inquiry, a judge of the Superior Court, if he finds that the strike imperils the public health or safety, may grant such injunction as he deems appropriate to prevent or terminate such strike, provided that such injunction must cease not later than 20 days after the expiry of the delay of 60 days within which the board of inquiry must file its report, and that such delay cannot be extended.
4. 186. In the present case, the Committee notes that the facts as outlined by the complainants are not disputed by the Government. It remains, therefore, for the Committee to examine whether the action taken in the present circumstances by the Government of the Province of Quebec, first in obtaining an injunction for breach of which certain trade unionists were imprisoned and, subsequently, in adopting Act No. 19 on 21 April 1972, constituted an infringement of trade union rights.
5. 187. From the provisions of section 99 of the Labour Code it is clear that, subject to the fulfilment of certain conditions, employees in the public service may have recourse to strike action, provided that certain essential services and the manner of maintaining them are determined by prior agreement between the parties or by decision of the Labour Court (section 75 of the Civil Service Act, 1965). The Committee also notes that the Labour Code makes provision for conciliation and voluntary arbitration in the event of labour disputes.
6. 188. The Committee has always taken the view that allegations relating to the right to strike are not outside its competence so far as they concern the exercise of trade union rights. In this connection, it can be considered that the right of the Lieutenant-Governor in Council to appoint a board of inquiry in cases of an actual or threatened strike endangering the public health or safety and the right to request the Superior Court in such cases to grant an injunction to prevent or terminate such a strike for a period of up to 80 days do not constitute infringements of trade union rights.
7. 189. The Committee observes that the injunction granted on 1 April 1972 applied exclusively to approximately 14,500 workers in some 50 hospitals for the chronic or mentally sick, and that it prohibited these workers from taking strike action before 9 June 1972. According to the judgement of the Superior Court nearly all the hospital workers involved refused to obey the terms of the injunction and, as a result of the deterioration in hospital services caused by the strike, the Attorney-General decided to institute contempt proceedings against certain trade union leaders and against the unions themselves, as a result of which certain trade unionists were arrested and, after trial, imprisoned.
8. 190. As regards the arrest and imprisonment of trade unionists, the Committee has, in the past, emphasised the importance which it has attached to the principle of prompt and fair trial by an independent and impartial judiciary in all cases, including cases in which trade unionists are charged with political or criminal offences which the Government consider have no relation to their trade union functions, In the present case, the Committee notes in particular that the three trade union leaders mentioned in the complaints were tried and sentenced by the Superior Court for the District of Quebec for breach of the injunction granted on 1 April 1972. No information has been supplied by the complainants to indicate that the three trade union leaders in question did not receive the benefit of a fair and speedy trial with proper representation throughout, and the Committee, therefore, recommends the Governing Body to decide that this aspect of the case calls for no further examination.
9. 191. Act No. 19 of 21 April 1972 was, the Committee observes, enacted for the purpose of putting an end to the acute strike in the public sector and it ordered all the workers in this sector to return to work the following day. In addition, this enactment provided that the parliamentary civil service commission should sit from 25 April 1972 to hear the representations of the parties to the dispute and report thereon by 15 May 1972. Further, the Committee notes that the Act provided that, in the event of no agreement's being reached between the unions and the employers before 1 June 1972, the Government should, not later than 30 June 1972, lay down statutory conditions of work for the period to 30 June 1974. In the meantime, until the conditions of work were established, either by agreement or by statute, Act No. 19 prohibited the right to strike until 30 June 1972.
10. 192. The Committee notes from the latest information supplied by the Government that negotiations did take place between the Government of Quebec and the unions in question, and that a collective agreement was signed covering some 140,000 employees in the public service. The Committee also notes that only the teachers (about 70,000) have so far failed to reach agreement, but that it is hoped that negotiations will lead eventually to agreement being reached, thereby avoiding the necessity of promulgating a decree in accordance with Act No. 19, to lay down the terms and conditions of work for this branch of the public sector.
11. 193. The Committee notes that, as a result of the adoption of Act No. 19, workers in the public sector were precluded from taking strike action until 30 June 1972, and that, in the event of failure of the parties to settle the dispute and to reach agreement, the Government would lay down statutory terms and conditions of work not later than that date.
12. 194. Recognition of the principle of freedom of association in the case of public officials does not necessarily imply the right to strike. The Committee has, however, emphasised the importance which it attaches, whenever strikes in essential services or in the civil service are forbidden or subject to restriction, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests; it has also pointed out that the restriction should be accompanied by adequate, impartial and speedy 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 made, should be fully and promptly implemented.,
13. 195. In this connection, the Committee takes the view that the Government's action in enacting Act No. 19 in itself involved no infringement of trade union rights. The Committee would emphasise, however, that where, as under Act No. 19, the right to strike of public servants is restricted or prohibited, such restriction or prohibition should be accompanied by adequate guarantees, and in particular impartial arbitration machinery to safeguard to the full the interests of the workers. In the present case no recourse was made to the statutory arbitration procedure, which is in any event voluntary, and no provision was made in Act No. 19 for the settlement of the dispute by an impartial arbitration procedure. In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to the above considerations, and to stress the importance which it attaches to the principles set forth in paragraph 194.