Informe definitivo - Informe núm. 268, Noviembre 1989

1. 46. In a communication dated 25 April 1988, the Canadian Labour Congress (CLC) and the Postal, Telegraph and Telephone International (PTTI) jointly submitted on behalf of the Canadian Union of Postal Workers (CUPW) a complaint against the Government of Canada, alleging that it had violated ILO standards on freedom of association and collective bargaining rights. The Government sent its observations in a letter dated 11 October 1989.
2. 47. 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. The complainants' allegations

1. 48. The complainants allege that the Government breached basic ILO principles, and particularly those embodied in Convention No. 98, by enacting Bill C-86, the Postal Services Continuation Act, 1987, to end a legal strike of the postal workers, although no emergency existed. The events leading to the adoption of Bill C-86 may be summarised as follows.
2. 49. In June 1986, an overwhelming majority of CUPW members ratified a "Programme of Demands" drafted by their union, focusing on job security, job creation, subcontracting of jobs and service, and resisting major concessions demanded by the employer, Canada Post Corporation (CPC), which had embarked on a programme to eliminate the Post Office deficit through staff reduction, increased productivity, contracting out and franchising of some postal operations.
3. 50. The legal process leading to the renewal of collective agreements is set out in Part V of the Canada Labour Code. Within three months preceding the expiry of an agreement, either party may serve notice that it wishes to commence collective bargaining. After a period of direct bargaining, either party may file a notice of dispute with the Minister of Labour, who then has a number of options, but usually appoints a conciliation officer to assist the parties. If they cannot conclude an agreement at this stage, the Minister may extend the conciliation phase by appointing a conciliation commissioner or a conciliation board, or terminate conciliation, thus placing the parties in a legal strike/lock-out position. The parties have the right to strike or lock-out seven days after the end of conciliation. The Minister also has the discretion to appoint a mediator at any time to assist the parties, which he normally does when they indicate that mediation would help in their negotiations.
4. 51. In the present case, the parties bargained during 15 months, but could not conclude a collective agreement. The conciliation commissioner released his report on 22 September 1987; the CUPW was therefore legally entitled to call a strike on 29 September 1987, which it did by initiating rotating strikes. Meanwhile, Canada Post employed "replacement workers" to process the mail; according to the employer's own figures, the vast majority of mail was getting through. Thus, there clearly did not exist any emergency justifying back-to-work legislation. Yet, as early as the third day of the rotating strikes, the Labour Minister threatened back-to-work legislation, thus removing all pressure from CPC to reach agreement with the union.
5. 52. On the seventh day of the strike, the Labour Minister announced that the Government was ready to introduce a Bill to resolve the dispute. In response, the CUPW officially requested that the Labour Minister appoint a mediator to assist the parties in solving the impasse in negotiations. Instead, the Government proceeded the next day to table Bill C-86 in the House of Commons. Most of Canada's media condemned this action by the Government and, in an unprecedented move, both opposition parties refused to grant leave to the Government to deal with the legislation in an emergency debate.
6. 53. Turning to Bill C-86 itself, sections 3 and 7 of Bill C-86 terminated a legal strike, which had been governed by the rules established in the Canada Labour Code. In exchange for ordering employees back to work, section 7 provided for the Minister of Labour to appoint a mediator/arbitrator. Section 7(2)(b) further provided that should mediation fail and an arbitrated settlement be imposed, the mediator/arbitrator had to "give cognizance to the report of the conciliation commissioner that was released ... on September 22, 1987". The CUPW was thereby deprived of equal protection and benefit of the law. Denial of the right to strike occurred during a rotating strike, in which the Corporation declared that normal operations were carried out, and the request for a mediator had been refused. Similar circumstances in the past had not given rise to back-to-work legislation for other unions. The right to free collective bargaining and the right to strike to further economic well-being for CUPW members were removed and substituted with an arbitration process that violates basic principles of fundamental justice, since its result was pre-ordained by the Government in the form of the conciliation commissioner's report.
7. 54. Section 4(1) infringes on freedom of association by ordering the union "and each officer and representative of the union" to inform employees they must resume work or be subject to the penalities in sections 10 and 11. Since union officers and representatives felt the legislation was unfair and unduly harsh, forcing them to assist the Government in enforcing the legislation meant they were required to act against their beliefs. Further, freedom of expression involves the right not to speak - a right denied by this legislation. Finally, by using the officers and the CUPW to end the strike, to "take all necessary steps to ensure that employees comply with paragraph 3(b)" and to "refrain from any conduct that may encourage employees not to comply with paragraph 3(b)" (paragraph 3(b) being the provision under which employees are obliged to continue or resume work), the Government was using the union, lawfully on strike, as a pawn for effecting its determination to end the strike. This is not consistent with the most basic elements of freedom of association.
8. 55. Section 6 prohibits any strikes during the life of the imposed settlement, thereby overriding the Canada Labour Code which covers other workers under the jurisdiction of the Labour Code. The CUPW is thus denied equal protection and benefit of the law, since the Code grants the right to strike over technological change during the life of a collective agreement (section 153).
9. 56. Section 10 enacts financial penalties which are different and harsher than those provided by the Canada Labour Code for similar or identical offences, and does not require the consent of the Canada Labour Relations Board to initiate a prosecution, as is required by the Code. The CUPW and its members, as a result, are being treated in a discriminatory and unequal fashion, since they are not subject to the same penalties for the same conduct.
10. 57. Section 11 is, without a doubt, the most reprehensible and repressive section of Bill C-86, massively interfering in the internal conduct of the union. Section 11 is a penalty clause aimed at union representatives who, if convicted of an offence under Bill C-86, would lose their right to be elected to union office or to be employed by the union in any capacity for a period of five years. This cuts to the heart of freedom of association, since it denies postal workers the right to freely and democratically choose the officers of the union. It interferes with the liberty of individuals to hold a democratically elected office and would deprive individuals of economic security without regard to fundamental justice. The penalty is automatic and of a blanket nature, in which there can be no mitigating circumstances. Not only are the penalties enacted in sections 10 and 11 outrageous on their own, but when taken together they provide for multiple penalties to the union, its officers and its representatives for the same offence. Again, sections 10 and 11 single out members of the CUPW as the only Canadians subject to this kind of punishment.
11. 58. The CLC and the PTTI ask the ILO Freedom of Association Committee and the Governing Body:
    • (a) to declare that Bill C-86 is contrary to the fundamental standards of the ILO and that its passing violated the principles of freedom of association and the right to bargain collectively, guaranteed by the relevant ILO Conventions;
    • (b) to urge the Government of Canada to refrain in future from dealing with industrial disputes in this manner in contravention of ILO standards.

B. The Government's reply

1. 59. By way of background, the Government explains that the Canada Post Corporation was established by Act of Parliament and began operations on 16 October 1981. Labour relations between the new Corporation and trade unions representing postal employees then became subject to the Canada Labour Code, Part V. Previously, the Canada Post Office had been a department of government and its employees were federal public servants.
2. 60. Through the Canada Labour Code, the Government of Canada supports the right of workers to organise and bargain collectively. The Preamble to the Code contains a statement of the Government's policy in this regard:
   • Whereas there is a long tradition in Canada of labour legislation and policy designed for the promotion of the common well-being through the encouragement of free collective bargaining and the constructive settlement of disputes;
   • And whereas Canadian workers, trade unions and employers recognise and support freedom of association and free collective bargaining as the bases of effective industrial relations for the determination of good working conditions and sound labour-management relations;
   • And whereas the Government of Canada has ratified Convention No. 87 of the International Labour Organisation concerning Freedom of Association and Protection of the Right to Organise and has assumed international reporting responsibilities in this regard;
   • And whereas the Parliament of Canada desires to continue and extend its support to labour and management in their co-operative efforts to develop good relations and constructive collective bargaining practices, and deems the development of good industrial relations to be in the best interests of Canada in ensuring a just share of the fruits of progress to all ...
3. 61. The provisions of the Canada Labour Code give effect to certain fundamental principles. These are:
   • - the right to organise and be represented by a trade union;
   • - the certification of bargaining agents by a competent authority (the Canada Labour Relations Board), and the granting of exclusive bargaining rights;
   • - prohibition of strikes over the issue of recognition;
   • - requirement for good faith bargaining between employers and trade unions;
   • - provision of conciliation and mediation assistance to resolve bargaining disputes;
   • - requirement that collective agreements contain a procedure for settling disputes that arise during the term of a collective agreement, without work stoppage;
   • - itemisation of prohibited practices ("unfair labour practices").
4. 62. Taken in their entirety, the provisions of the Canada Labour Code are intended to establish a stable framework for collective bargaining and to encourage labour and management to use this process to resolve their disputes and differences. In practice, the federal collective bargaining system works very well. Each year, between 350 and 500 collective agreements are negotiated or renewed, over 95 per cent of them without any stoppage of work. Work stoppages are thus not a common occurrence in the federal jurisdiction, but the experience has been that, once initiated, strikes and lock-outs in this country tend to be of longer duration than in the European experience. For example, during fiscal year 1987-88, there were 33 work stoppages, with an average duration of 28 working days each.
5. 63. The requirement for intervention by the Government into the bargaining process for the purpose of imposing settlements is relatively uncommon. It is only when every avenue of dispute resolution has been exhausted and the continuation of a particular dispute would have severe consequences for the national interest that Parliament gives consideration to ad hoc emergency legislation. When circumstances of this nature arise, the objective of the legislation is not only to terminate the work stoppage, but to provide a mechanism to achieve a final settlement of all outstanding differences.
6. 64. The Government then explains the history of collective bargaining between Canada Post and CUPW pointing out that from 1975 to 1987, the CUPW launched three strikes (1975: 43 days; 1978: 2 days, ended by back-to-work legislation; 1981: 42 days), and the parties concluded a collective agreement without work stoppage in 1980 and 1985.
7. 65. During the 1970s, Canadians grew increasingly frustrated with the postal system with its increasing labour strife and interruptions to postal services. Several studies were launched in an attempt to find a solution to the problems encountered by the Post Office and one of the more comprehensive reports was one undertaken by three senior government officials, who examined the ramifications of Crown corporation status for the Post Office. The study gave extensive coverage to the labour relations implications of such a change in status and received submissions from both the Canadian Union of Postal Workers and the Letter Carriers Union of Canada. The Canada Post Corporation was established by an Act of Parliament and began operations on 16 October 1981 as the successor to the Post Office Department. The objects of the new Corporation, set out in the Canada Post Corporation Act, were, inter alia, "to establish and operate a postal service for the collection, transmission and delivery of messages, information, funds and goods both within Canada and between Canada and places outside Canada" (section 5(1)).
8. 66. Furthermore, section 5 of the Act provided that, while maintaining basic customary postal service, the Corporation was to have regard to, inter alia, "the need to conduct its operations on a self-sustaining financial basis while providing a standard of service that will meet the needs of the people of Canada and that is similar with respect to communities of the same size". As interpreted by the Board of Directors established under the Act, the basic objectives to be met were improved service, the creation of a better climate for human relations within the organisation, and the achievement of financial self-sufficiency by the end of the Corporation's fifth year of operation.
9. 67. Further explaining the legislative and constitutional framework in which all legislation operates, the Government adds that the Canadian Parliament adopted in 1981 the Constitution Act a key element of which is the Canadian Charter of Rights and Freedoms. Subject only to such "reasonable limits as can be demonstrably justified in a free and democratic society", the rights and freedoms contained in the Charter are guaranteed. One of the fundamental freedoms enumerated in the Charter is freedom of association.
10. 68. Since the coming into force of the Charter, all legislation passed by Parliament must take into account these guarantees. Any limitations which must be placed on these rights in order to protect the rights of others are required to be reasonable, and as minimal as possible to achieve the objective necessary. However, a majority of the Supreme Court of Canada found in April 1987 that the Constitution Act, 1981 does not guarantee the right to strike, and that the freedom of association guaranteed by the Charter does not embody the right to strike.
11. 69. The Government explains the impact of work stoppages in the postal industry by stressing that Canada Post operates one of the most extensive collection and delivery systems in the world, providing more than 700,000 points of entry across the country, and delivery to more than 10 million addresses. The postal service is a public service industry with a legislative monopoly over letter mail in Canada. The Corporation's object is to establish and operate a postal service within Canada and between Canada and other postal administrations which will provide Canadians with reliable and efficient service at a reasonable cost.
12. 70. Those who depend upon government family and social assistance such as welfare assistance, family allowance, unemployment benefits and old-age pensions, rely on the mail for delivery of these cheques. Any disruption to the income flow of the recipients of such assistance has the potential to create severe hardships relating to the acquisition of food and shelter, necessities which impact on the health and well-being of these Canadians.
13. 71. Service industries which must bill by mail are deprived of cash flow during the period of a postal strike. The printing and publishing trades experience cessation of distribution which causes problems with subscribers and advertisers, and large numbers of lay-offs take place throughout these and other direct mail organisations dependent upon postal services.
14. 72. Studies were made by various organisations to assess the impact of postal disruptions on previous occasions. A survey carried out by the Canadian Direct Marketing Association and centred around the direct mail industry found that the 1975 postal strike resulted in an aggregate revenue loss of some $25 million to 64 reporting firms, most of which were classed as non-recoverable. Two-thirds of the firms reported a permanent loss of customers, a majority of these losing in excess of 10 per cent, and some 60 per cent of the firms laid off employees. In the case of the 42-day postal strike in 1981, a spokesperson for the Canadian Federation of Independent Businesses indicated that a study which they undertook found that Canadian businesses lost approximately $3 billion due to the work stoppage. Obviously, strikes in the Canadian postal service bring about substantial loss of income and employment in several sectors, particularly in the direct mailing, printing and publishing sectors.
15. 73. Dealing more specifically with the 1986-87 negotiations in the postal sector, the Government explains that CUPW served notice to bargain on the employer on 2 July 1986, and that numerous direct bargaining sessions between the parties were held over the next three-and-a-half month period. Following failure of the parties to resolve their differences themselves, the union filed a notice of dispute with the Minister of Labour, as required under the Canada Labour Code, on 21 October 1986.
16. 74. On 30 October 1986, the Minister of Labour appointed a conciliation officer from the Federal Mediation and Conciliation Service of Labour Canada to assist the parties in attempting to resolve the dispute. Beginning 24 November, the conciliator held joint and separate meetings with the parties but despite his efforts, the parties were unable to reach agreement. Following an impasse reached at a meeting on 11 February 1987, the conciliation officer filed his report with the Minister of Labour. On 23 February 1987, the Minister of Labour appointed a conciliation commissioner in the dispute.
17. 75. The conciliation commissioner began meetings with the parties on 2 March 1987, and these continued over approximately the next five months, with the final meeting held on 12 August 1987. The final report of the commissioner was filed with the Minister of Labour on 21 September 1987, with recommendations for settlement of a majority of issues in dispute. In his report, the commissioner referred to the profound reciprocal distrust which existed between the two parties, and the dampening effect which this had on negotiations. In his view, little in the way of substantive discussion had taken place on the practical application of proposed changes to important issues such as job security, use of part-time and casual workers, franchising and sub-offices, grievance and arbitration procedures and health and safety issues.
18. 76. Direct negotiations between the parties resumed following the release of the conciliation commissioner's report, but with little progress. On 29 September, the Minister of Labour instructed his Associate Deputy Minister to meet with parties and assess the prospects for a negotiated settlement short of a prolonged work stoppage. Rotating strikes by CUPW members began on 30 September, and talks between the parties broke off early on 1 October.
19. 77. On Friday, 2 October 1987, the Minister indicated that the Government was not prepared to tolerate a protracted, disruptive strike at Canada Post, and suggested that the parties should return to the bargaining table. The parties held a two-hour meeting on 5 October, following which the employer announced that their positions were "so far apart" on the key issues that no bargaining was possible.
20. 78. On Tuesday, 6 October 1987, the Minister sent a telegram to Canada Post and CUPW, reiterating his position that a protracted, disruptive strike would not be tolerated, and notifying them that he would be placing legislation on the order paper that same day which would bring about an end to the work stoppage and provide for a resumption of postal operations. Whether or not the Bill would be introduced would depend on their will to negotiate a renewal agreement through the collective bargaining process. Unfortunately, the parties did not respond to the challenge and on 8 October 1987, the Postal Services Continuation Act, 1987 was introduced in the House of Commons.
21. 79. Bill C-86, the Postal Services Continuation Act, 1987, required the post office to continue or resume postal operations affected by the work stoppage, and obliged each employee to continue working, or resume work when so required. The legislation placed an onus on the union not only to notify the employees that they must comply with the law, but also to take reasonable steps to ensure that employees comply with the Act and not engage in any conduct that might encourage employees not to comply. The same clause also sets out the offences for which penalties against the union, its officers and representatives are provided in a later clause. A similar obligation was placed on the employer to facilitate an orderly return to work. The employer, its officers and representatives, were directed not to impede the return to work, nor to impose any kind of discipline or discharge against any employee for participating in the legal strike.
22. 80. The Act provided for the extension of the expired collective agreement, for a period commencing on 1 October 1986 and ending on a date to be fixed by the mediator-arbitrator who was to be appointed to deal with the dispute. The clause also ensured that the collective agreement would be binding on the employer, the union and the employees for the extended term of the agreement as a negotiated collective agreement would have been. In order to provide protection against work stoppages to the extended collective agreement during its term, the Act restated the provision contained within the Canada Labour Code prohibiting strikes and lock-outs during the term of a collective agreement.
23. 81. The Act provided for the resolution of the issues in dispute between the parties by a mediator-arbitrator who was to be appointed by the Minister of Labour. The mediator-arbitrator was given 90 days to complete his function, subject to extension by the Minister. The appointee was expected first to try to mediate a resolution of the issues, but if his efforts failed, he was to render an arbitration decision on all outstanding matters. In the course of any arbitration proceedings, the mediator-arbitrator was required to hear representations from the parties and give due cognizance to the report of the conciliation commissioner. In addition, the Act called upon the mediator-arbitrator to fix the date for the expiry of the extended collective agreement, and to report to the Minister on this and on the resolution of the matters which were referred to him.
24. 82. The legislation established the powers granted to the mediator-arbitrator during the mediation effort as equal to those of a conciliation commissioner and should arbitration become necessary, the mediator-arbitrator would have all the powers of an arbitrator under the Canada Labour Code. The Act required that any arbitration decision rendered by the mediator-arbitrator was to be phrased in specific contractual language in order to facilitate its incorporation into the collective agreement.
25. 83. As soon as the mediator-arbitrator filed his report with the Minister of Labour, the legislation provided that the extended collective agreement between the parties was deemed to be amended by the incorporation of any amendments agreed to by the parties during mediation, all of the matters arbitrated by the mediator-arbitrator, and the expiry date which the mediator-arbitrator has fixed. The legislation also contained a clause which would enable the parties to amend by agreement any provision of the extended collective agreement, other than the expiry date.
26. 84. In addition to financial penalties for contraventions of the Act, the Bill also set out additional punishments for officers or representatives of the union or company who were convicted of an offence under the Act. A convicted union officer or representative would be immediately deprived of the right to hold elected or appointed union office for five years while any officers or representatives of the corporation found guilty of an offence under the Act would be deprived of the right to work for Canada Post for a five-year period.
27. 85. The Government submits in conclusion that the Freedom of Association Committee has recognised in its past decisions that there are circumstances where restrictions and even prohibition of strikes are justifiable. This particular Canada Post case involves a situation where the right to strike has been suspended by the Parliament of Canada as a last resort in circumstances where the public interest demanded it. Difficult and protracted negotiations between Canada Post Corporation and the Canadian Union of Postal Workers over a period in excess of one year had resulted in a strike by some 24,000 mail handlers and postal clerks.
28. 86. The parties to the dispute had been afforded every assistance possible under the provisions of Part V of the Canada Labour Code in attempting to resolve their differences. Following the failure of the parties to reach agreement in direct negotiations, the Minister of Labour appointed a conciliation officer to assist the parties and several meetings were held between the officer and the parties but little progress was made on any of the key issues in dispute.
29. 87. The Minister then appointed a conciliation commissioner in the dispute. The commissioner held a series of meetings with the parties over a period of some five months and received several briefs and submissions from both sides in the dispute. His comprehensive report, dealing with the background to the dispute and focusing on the key issues in contention, was released to the parties on 23 September 1987. Following the release of the report, the parties had before them a reasoned and rational document which should have served as a basis for negotiations towards a settlement. Instead, the negotiations deteriorated.
30. 88. Consequently, on 29 September, the Minister asked the Associate Deputy Minister of Labour to meet with the parties and ascertain what progress had been made since the release of the conciliation commissioner's report and whether, in his view, the dispute could be resolved through the collective bargaining process short of a protracted strike. The Associate Deputy Minister held discussions with both sides and concluded that little progress had been made by the parties on the major issues in dispute. He also advised the Minister that he did not feel that the dispute could be resolved through the collective bargaining process short of a lengthy test of economic strength. Following this assessment by the Associate Deputy Minister, the Minister of Labour urged the parties to return to the bargaining table, while at the same time indicating to them that the Government would not tolerate a protracted and disruptive work stoppage. Again, the parties exhibited reluctance to compromise and achieve a settlement, and meetings broke off after a brief two-hour meeting. With no settlement in sight and the Canadian public faced with the disruption of mail services for the second time within four months (the Letter Carriers Union of Canada had held a series of work stoppages from 16 June through 4 July 1989), the Government decided to act and introduced the Postal Services Continuation Act, 1987.
31. 89. That legislation, which brought about the restoration of postal services, provided for the appointment of a mediator-arbitrator rather than strict arbitration. This was done with the express purpose of affording the parties one last chance to settle their own differences while removing their ability to pursue diversionary tactics against each other. The mediator-arbitrator held numerous meetings with the parties and toured a number of postal installations to observe many of the expressed concerns on a first-hand basis. Through extensive mediation efforts, the parties were able to sign off a number of clauses prior to the release of the mediator-arbitrator's report on 5 July 1988.
32. 90. In summary, the introduction of the back-to-work legislation came after more than a year of negotiations between the parties. In addition to direct bargaining, the parties were provided with the complete range of conciliation assistance provided for under the Canada Labour Code including a conciliation officer and a conciliation commissioner. The Postal Services Continuation Act, 1987 provided the parties with a further opportunity to resolve the conflict through mediation assistance. All stages of these processes were open, impartial and completely accessible to the parties.
33. 91. Penalty provisions contained within the legislation, designed to ensure compliance with the requirements of the Act, applied equally to both labour and management despite what is suggested in the complaint submitted jointly to the International Labour Organisation by the Canadian Labour Congress and the Postal, Telegraph and Telephone International.
34. 92. Regarding the impact on the public, in addition to losses in business experienced by firms dependent on regular mail service, any disruption to the income flow to recipients of family and social assistance payments had the potential to create severe hardships relating to the acquisition of food, shelter and other necessities which impact on the health and well-being of the Canadians affected.

C. The Committee's conclusions

1. 93. The complainants allege that the Government breached the principles of freedom of association by enacting the Postal Services Continuation Act, 1987, which ordered the postal workers back to work. For its part, the Government submits it had extended every possible means of mediation and conciliation to the parties without any result, and that it acted in the public interest since a protracted and disruptive work stoppage could not be tolerated.
2. 94. The Committee takes note of the elaborate and extensive reply submitted by the Government, and in particular of the fact that the parties had negotiated for more than a year, that this was the second major postal strike within four months; it also notes the considerations relating to the financial losses incurred by business and to the potentially severe hardships experienced by recipients of family and social welfare payments who depend on the mail for their income.
3. 95. The Committee feels however compelled to state that the issue is basically this: the postal workers were legally on strike and the Government, through special legislation, ordered them back to work after seven days of work stoppage.
4. 96. The Government points out, rightly so, that the Committee has recognised in the past that there are circumstances where restrictions and even prohibitions of strikes are justifiable. However, the Committee hastens to say that these are exceptions to the general rule and that the right to strike is one of the legitimate and essential means through which workers and their organisations may defend their economic and social interests (Digest of decisions and principles of the Freedom of Association Committee, third edition, 1985, paras. 362 and 363).
5. 97. It follows that restrictions or even prohibitions of the right to strike can only be justified in a limited number of situations: civil servants and workers in essential services in the strict sense of the term, i.e. those services whose interruptions would endanger the life, personal safety or health of the whole or part of the population (Digest, loc. cit., para. 387), provided however these workers have access to adequate procedures, such as conciliation and arbitration, where the parties concerned can participate at all stages and in which the awards are binding on both parties and are fully and promptly implemented.
6. 98. The Committee discussed very recently at some length the concept of essential services in a case concerning the Federal Government of Canada (265th Report, Case No. 1438, para. 24, May 1989) and will not unduly burden this decision by repeating the conclusions it made then. However, based on the same criteria, the Committee fails to see how postal services could be said genuinely to constitute essential services in the strict sense of the term. It is true that businesses will experience problems and losses during a postal strike, and may even have to lay off employees; companies relying heavily or exclusively on the mail - such as direct mail undertakings - will be particularly affected by such a strike. It is equally true that some individuals, who depend on mail delivery to obtain their unemployment benefits, old-age pension, family or social allowance cheques, will be inconvenienced. Nevertheless, unfortunate as these consequences are, they cannot justify an abridgement of the fundamental rights guaranteed by Conventions Nos. 87 and 98, unless they reach the point where they affect the life, personal safety or health of the whole or part of the population. In the opinion of the Committee, such was not the case here, especially in view of the uncontradicted allegation that most of the mail was getting through, according to the employer's own figures. Furthermore, the comments made by the Committee with respect to the establishment of a minimum service (265th Report, Case No. 1438, para. 27), would apply equally here.
7. 99. The Government stresses that the postal service is a public service, and submits that it acted in the public interest by adopting the Postal Services Continuation Act as a measure of last resort in circumstances indicating that the parties were so far apart that they could not possibly conclude a collective agreement. The Government adds that it did not merely put an end to the strike and provide strict arbitration through the Act, but that it appointed a mediator-arbitrator with the express purpose of affording the parties one last chance to settle their differences. The Committee notes that the Government submitted identical arguments in a similar case, involving the same union, whose 1978 three-day strike was ended by special legislation (202nd Report, Case No. 931, paras. 203 and 205), and that it dismissed them.
8. 100. Furthermore, the Committee unequivocally reiterated that position in the recent case mentioned earlier, concerning the Maintenance of Railway Operations Act, also enacted in 1987 by the Canadian Government to order the railway workers back to work after a five-day strike (265th Report, No. 1438). Therefore, the Committee can only state, mutatis mutandis, that in this instance, the strike was allowed to last only seven days before the Government decided to introduce back-to-work legislation. That Act restricted, with an immediate application to a work stoppage called in conformity with the law, the right to strike granted to postal workers by the federal legislation. In all the circumstances, and despite the protracted negotiations which did not enable the parties to settle their differences, the Postal Services Continuation Act, 1987 does not appear to be conducive to sound industrial relations, which should be founded on a predictable and stable legislative framework respecting the principles of freedom of association.
9. 101. Although the Government submits that back-to-work legislation is relatively uncommon and is adopted only when the continuation of a particular dispute would have severe consequences for the national interest, the Committee cannot fail to stress that the Postal Services Continuation Act, 1987 was the second almost identical legislation enacted in less than two months affecting large numbers of workers.
10. 102. Needless to say, provisions like section 11(1) of the Postal Services Continuation Act, which disqualifies union officers or representatives from holding any union position during five years if they are convicted of an offence under the Act (which itself violates the principles of freedom of association) also constituted a breach of the right freely to elect representatives, guaranteed to workers by Article 3 of Convention No. 87, and an interference in the free functioning of union organisations.
11. 103. Finally, the Committee notes that the Supreme Court of Canada held in 1987 that the Constitution Act does not guarantee the right to strike, and that the freedom of association guaranteed by the Canadian Charter of Rights, which is enshrined in the Constitution, does not embody the right to strike. The Committee certainly respects the judgement of the highest court of Canada, but points out that this is a different forum and that the Committee's mandate is to evaluate, with a view to making a recommendation to the Governing Body, whether certain situations of fact and/or legislation are in conformity with the principles of freedom of association, as established in international Conventions.