Informe definitivo - Informe núm. 208, Junio 1981

1. 20. The complaint of the Canadian Labour Congress (CLC) is contained in a letter dated 30 April 1980; additional information was sent on 23 December 1980. The Government sent its observations in letters dated 19 August 1980 and 9 March 1981.
2. 21. 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).

A. Allegations of the complainant

1. 22. In its letter of 30 April 1980, the CLC alleges that Bill No. 98 of the Provincial Government of Nova Scotia, which amends the Trade Union Act, 1972, contravenes Articles 2, 8, 10 and 11 of Convention No. 87 and Article 4 of Convention No. 98. The Bill became law on 28 December 1979.
2. 23. The complainant explains that the passage of the Bill developed out of an attempt in 1978 by its affiliate, the United Rubber Workers, Local 1028 (URW), to create a union in the plants of the Michelin Tire Canada Limited in two Nova Scotia towns. The Michelin Company argued against the Local's application for certification stating that the appropriate bargaining unit was all the employees at the two plants. The labour Relations Board dismissed Michelin's argument and found that one individual plant in one town was an appropriate unit for collective bargaining. The URW lost the consequent representation vote but re-applied for certification in October 1979. The Government of Nova Scotia then introduced Bill No. 98, having retroactive effect so as to render without basis the URW's application.
3. 24. According to the complainant, the offending section 24A of Bill No. 98 provides that employers with more than one business location can only be certified for collective bargaining purposes on a multi-location or multi-plant basis; that is, a union must organise all employees of a company within Nova Scotia before an application for certification can be made to the Nova Scotia Labour Relations Board. The complainant states that with the passage of the new provision the labour law of Nova Scotia is contrary to the present situation in the other Canadian jurisdictions which are moving towards the certification of individual units where multiunit organisation is not possible; it cites a decision of the Canada Labour Relations Board concerning the certification of banks by branch basis, and decisions of the Ontario and British Columbia Boards, in support of this claim.
4. 25. According to the complainant, the new provision violates Article 2 of Convention No. 87 in that the workers are prohibited from creating bargaining units of their own choosing; the new provision could also have the effect of imposing a union on the operations of a company, for example, where an employer has two plant operations, one with 100 employees the other with 30, and a union signs up 80 employees in the larger plant it would become certified as the bargaining agent for both plants, thus limiting the freedom of association of the employees in the smaller plant. To support this allegation, the complainant cites the views of the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations to the effect that, while it may be in the interests of workers to avoid a multiplication of trade unions, a unified trade union movement should not be imposed through state intervention by means of legislation.
5. 26. The CLC claims that Article 8 of the Convention is violated because the new provision impairs the guarantees of freedom of association provided for in Article 2. (Article 8 reads "The law of the land shall not be such as to impair, nor shall it be applied as to impair, tae guarantees provided for in this Convention".) The CLC states that Article 10 (which reads "In this Convention the term organisation means any organisation of workers and employers for furthering and defending the interests of workers and employers") is violated because the inability to form small and representative bargaining units severely restricts the ability of a trade union to further and defend the interests of its members. Article 11 (which reads "Each Member of the ILO for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely their right to organise") is violated, according to the CLC, because the new provision attempts to prevent the unionisation of large multi-plant operations in Nova Scotia by forcing unions to disperse their recruiting campaign over a number of plants during an organising drive. The complainant also refers to Article 4 of Convention No. 98 as being infringed by the new provision because it will not promote voluntary negotiations and the reaching of collective agreements.
6. 27. In its letter of 23 December 1980, the complainant makes the general allegation that the Michelin Company, aided by the Nova Scotia Government through the retroactive amendment to the Trade Union Act, is preventing unionising of its plants in this Province. It encloses a letter from its affiliate stating that the URW's appeal of the dismissal of its certification application to the Supreme Court was rejected in October 1980. The URW's letter states that since 1970, when Michelin started constructing plants in Nova Scotia, the Nova Scotia Government has taken various anti-union actions. For example, when the Building Trades Union workers threatened to strike at one Michelin plant construction site, strikes were outlawed in that county; in 1973, the Operating Engineers Union applied for certification of the operating engineers at the same plant, but an order in Council was introduced to prevent carving out of a bargaining unit with retroactive effect resulting in the dismissal of the application; in 1978 the URW filed unfair labour practices charges against Michelin in which it was successful, but immediately after the Nova Scotia Labour Relations Board decision was handed down its chairman was replaced.

B. The Government's reply

1. 28. By letter of 19 August 1980, the Government transmits the Nova Scotia Government's reply to the allegations. The Provincial Government disagrees with the complainant's interpretation of Bill No. 98, a copy of which it supplies. It states that the legislation applies solely to employers who are engaged in manufacturing at interdependent plants and permits an application to be made to the Labour Relations Board for a determination as to whether all the plants owned by such an employer are the appropriate unit for collective bargaining. The definition of interdependent manufacturing location in the new provision is "a manufacturing location of an employer in the Province, the continued operation of which is primarily dependent on the continued normal operation of another manufacturing location(s) of the employer in the Province". Moreover, the Government states that all jurisdictions recognise various factors to be considered in determining the appropriate bargaining unit, for example section 24(14) of the Nova Scotia Trade Union Act provides that regard shall be had to the community of interest of the workers in such matters as work location, hours of work, working conditions and methods of remuneration.
2. 29. The Government also states that Article 2 of Convention No. 87 has not been violated; the concept of trade union unity as opposed to trade union pluralism has not been raised by the legislation. The right of workers to establish and join organisations of their own choosing remains enshrined in section 12 of the Nova Scotia Trade Union Act: "Every employee has the right to be a member of a trade union and to participate in its activities". The Government continues that in consequence of this argument, there is also no violation of Article 8 of the Convention. The Government sees Article 10 of the Convention as a definition section which cannot be the subject of "violations" as substantive Articles may be. As regards the allegation that Article 11 of the Convention has been infringed, the Government states that the wishes of the majority of the workers can be freely canvassed and their wishes are paramount because the legislation requires a mandatory vote of all employees to determine their wishes with respect to certification, and their vote is normally taken within five days after receipt by the Labour Relations Board of the application for certification by the union. The Government goes on to state that manufacturing done by one employer is in many instances part of an over-all chain of activity and that the employer and the workers in such an interdependent manufacturing operation are part of a single workplace community. Thus the bargaining entity is the collective entity rather than many fragmented parts of the activity, even where factors require a physical separation of parts of the activity. Fragmentation would preclude the rule by the majority of the workers. The Government points out that the Trade Union Act provides various safeguards to ensure the free choice of representative trade unions: certification is made by an independent body; the representative organisation is to be chosen by a majority vote of the employees in the unit concerned; the right of an organisation which fails to secure a sufficiently large number of votes to ask for a new election after a stipulated period.
3. 30. Lastly, the Government states that the rights provided for in Article 4 of Convention No. 98 are ensured by section 28 of the Trade Union Act, which has not been affected by the new provision. According to the Government, the total legislation in Nova Scotia is directed towards bringing the employers and trade unions together on a mutually co-operative basis.
4. 31. By letter of 9 March 1981, the Government transmits the Provincial Government's reply to the complainant's additional allegations. It points out that the statements regarding Michelin and lobbying are irrelevant and that the Trade Union Act contains the fundamental freedoms and principles necessary to ensure the rights enshrined in the ILO Conventions. The Government points out that the legislation and its application to the employer concerned are the subject of an appeal before the courts.

C. Conclusions of the Committee

1. 32. This case concerns the adoption by the Government of Nova Scotia of an amendment to the Trade Union Act which reads as follows:
2. 24A(2). An employer claiming to be engaged in manufacturing and carrying on its operation at two or more interdependent manufacturing locations in the Province may make application to the Board for a determination that the unit appropriate for collective bargaining is the unit consisting of all employees of the employer at all such interdependent manufacturing locations, subject only to the exclusion of such positions as the Board may determine would otherwise normally be excluded.
3. 33. According to the complainant, this amendment, adopted following a series of anti-union actions for the benefit of a particular employer in the Province, would constitute a violation of the workers' right to establish organisations of their own choosing and of the right to free collective bargaining. On the other hand, the Government considers that the new legislation does not touch on trade union unity and states that freedom of association and collective bargaining remain guaranteed in the Trade Union Act.
4. 34. As regards the right to establish organisations of their own choosing, the Committee notes that the provisions of the Trade Union Act on the free establishment of organisations have not been amended and that the right in question is recognised in section 12 of that Act. Therefore it does not appear that the new legislation imposes a system of trade union unity.
5. 35. As for the right to bargain collectively, the Committee notes that the legislative amendment in question aims at allowing an employer who owns several interdependent industrial establishments to request the Labour Relations Board to decide whether all the establishments in question constitute an appropriate collective bargaining unit. In this regard the complainant considers that in permitting the formation of too large a bargaining unit, section 24A prohibits unions from organising the workers and thus interferes with the conclusion of collective agreements.
6. 36. Thus the problem raised by the adoption of the amendment is essentially one of the level of collective bargaining. The most appropriate procedure for preserving the independence of the parties involved in collective negotiation would of course be to allow them to decide by common agreement as to the level on which it should take place. Nevertheless, it appears that in many countries this question is left up to a body apart from the parties themselves. The Committee considers that in such cases the body concerned should be truly independent. In the present case, the decision to determine the level of collective bargaining still rests with the Labour Relations Board, a body made up of independent members who must take an oath of office before a judge (section 15(11) of the Trade Union Act). Moreover, the Board may request the opinion of the Supreme Court regarding a question of law (section 18(2)). (It should be noted that the complainant's affiliate union did lodge an appeal against the Board's decision to dismiss its certification request, which it lost, and that the Government states that the legislation in question and its application to one particular employer is the subject of an appeal before the Courts.) It therefore does not appear that the possibility open to employers under the new legislation of requesting the Labour Relations Board fur a determination of the level of collective bargaining within an enterprise constitutes an infringement of the right to free collective bargaining.