Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 279, Noviembre 1991

1. 218. The Confederation of National Trade Unions (CNTU) and the Federation of Quebec Professional Unions of Nurses (FQPUN) presented a complaint in communications dated respectively 12 March and 16 October 1990. The federal Government, in a communication dated 6 June 1991, transmitted the observations and information from the Government of Quebec.
2. 219. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). It has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) or the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants' allegations

1. 220. In its communication of 12 March 1990, the CNTU alleges that the Act respecting the maintenance of essential services in the health and social services sector (the so-called "Act No. 160"), adopted on 11 November 1986 by the Government of Quebec, is a serious infringment of trade union rights and international Conventions ratified by Canada. This Act, adopted following a 24-hour strike by trade unions in the health services and social services, and which ordered employees in these sectors to return to work, prevents them from freely negotiating their working conditions, denies them the right to strike and imposes heavy sanctions in the event of infringements. According to the CNTU, this essentially repressive Act is solely intended to penalise non-respect of the Act on the negotiation of collective agreements in the public and parapublic sectors (the so-called "Act No. 37"). This Act has already been the subject of a complaint to the Committee on Freedom of Association. (See 248th Report, Case No. 1356, paras 67-147.)
2. 221. Furthermore, the obligations and prohibitions provided by Act No. 160 are subject to heavy cumulative penalties:
   • - unilateral modifications of working conditions respecting the organisation of work (section 9);
   • - heavy fines up to $10,000 for an employee, $60,000 for a trade union official and $100,000 for an association of employees per day or part of day for each infraction (sections 10 to 17);
   • - suspension of the obligatory check-off of union dues for a period of 12 weeks for each day or part of a day of work stoppage (sections 18 and 19)
   • - reduction in salary, in respect of the work carried out after the infringement, of an amount equal to the salary which an employee would have received for each period of work stoppage if he had been at work (sections 20 to 22);
   • - loss of one year's seniority for each day or part of a day of work stoppage (section 23);
   • - reversal of the burden of proof in penal and civil matters;
   • - presumption of guilt of employees unless proved otherwise.
     • These sanctions are in addition to those already prescribed by the Labour Code of Quebec.
   • 222. In the spring and summer of 1989, employees in the health and social services sectors tried to negotiate their working conditions by using the mediation procedure prescribed by the Labour Code, but without success. In September they launched a strike in support of their claims. The affiliated members of the CNTU went on strike for three to six days and some 40,000 nurses were on strike for seven days. During this period union members provided the essential services prescribed by the code of trade union ethics of the Social Affairs Federation/CNTU. A truce was subsequently established to facilitate the resumption of negotiations.
3. 223. The penalties prescribed by Act No. 160 (challenged since 1986 in the courts on constitutional grounds) were applied only in September 1989 following the strike of trade unions affiliated to the CNTU. The complainants asked the courts to order the Government to defer the application of this Act until a ruling had been issued on its constitutionality. This decision is currently pending in the Appeals Court of Quebec.
4. 224. The complainants maintain that Act No. 160 infringes the judicial guarantees established by the Canadian and Quebec Charters of Rights and Freedoms in that it makes the employer the judge of the application of sanctions prescribed by the law, creates a presumption of guilt against employees and provides for an unfair mechanism of penalties which infringes the most elementary principles of justice.
5. 225. Furthermore, the penal and the disciplinary sanctions prescribed by Act No. 160 in the event of a strike are not consonant with the provisions of Convention No. 87, particularly since this Act imposes multiple penalties for the same action, such as loss of seniority, the imposition of a fine for each day or part of a day of strike and the suspension of the obligatory check-off of union dues. This last mentioned penalty deprives trade union organisations of the necessary funds for carrying out their obligations. Furthermore, employees who are members of trade unions affiliated to the complainant organisations and the trade unions themselves are treated differently from all the other groups in the private sector and the public sector covered by the Labour Code of Quebec. For a strike which is identical to that carried out by the complainants, these other groups are not subject to such severe penalties.
6. 226. This case is a repetition of an infringement by the Government of Quebec which was also the subject of similar complaints to the Committee of Freedom of Association in Cases Nos. 1171 and 1356. In the latter case, which concerned Act No. 37, the Committee in particular asked the Government to allow the parties to have recourse to an independent arbitrator to resolve disputes. However, the Government chose, by means of Act No. 160 to impose sanctions which make the provisions of Act No. 37 even harsher.
7. 227. In its communication of 16 October 1990, the Federation of Quebec Professional Unions of Nurses reiterates the substance of the information provided by the CNTU on Acts Nos. 160 and 37 and gives the following clarifications on the effects and consequences of these Acts which affect more particularly the approximately 40,000 nurses of Quebec affiliated to the FQPUN
8. 228. After long and fruitless negotiations, the trade unions affiliated to the FQPUN went on strike between 5 and 12 September 1989, although sufficient essential services were provided so as not to jeopardise the health and safety of the public. On 6 September 1989, the Government issued, under the provisions of Act No. 160, three Decrees (Nos. 1473, 1474 and 1475) concerning the FQPUN and its affiliated unions. Decree No. 1473 stipulates that the deductions made from the salaries of employees will be paid to the charitable institutions listed in the annex (in application of section 20 of Act No. 160); Decree No. 1474 makes provision for the replacement, amendment or suppression of some provisions of the collective agreements (in application of section 9 of Act No. 160); Decree No. 1475 stipulates that any employee will lose one year's seniority for each day or part of a day of absence from work as from 8 September 1989, as a result of the strike.
9. 229. Almost 30,000 nurses, members of the FQPUN, were and are still subject to the penalties prescribed by sections 20 to 23 of Act No. 160, and some of them have lost up to four years' seniority. The application of these penalties is causing them serious and irreparable prejudice, since seniority is the decisive criterion for the right to paid leave, obtaining a post, replacement possibilities and the choice of certain work shifts, as well as considerable financial loss. The FQPUN and its affiliated unions have suffered and are still suffering from the consequences of the automatic suspension of the obligatory check-off of union dues, totalling a period of 96 weeks. This sanction is an infringement of freedom of association in that it deprives trade unions of their source of financing and union members of the services to which they are entitled.
10. 230. Act No. 37 which already substantially restricted the provisions of the Labour Code as regards collective bargaining in the public and parapublic sectors practically eliminates the right to strike in hospital sector installations by establishing very high percentages of employees who must ensure essential services and who therefore may not go on strike (90 per cent in the establishments providing long-term care; 80 per cent in the other hospital centres; 60 per cent in the local community service centres; 55 per cent in the social service centres). Act No. 160 strengthens Act No. 37 by the inclusion of extremely severe penalties; workers in the health and social services sector and in particular nurses have no compensatory mechanism available for the settlement of disputes, such as an impartial procedure for compulsory conciliation and arbitration.
11. 231. In conclusion, the complainants believe that the Government is jeopardising the right to freedom of association, attempting to weaken the trade union organisations of Quebec, hindering free collective bargaining and seriously disrupting the health and social affairs network. Finally the CNTU expresses the hope that an ILO mission should be sent to Quebec to meet the CNTU and the other trade union organisations which are subject to the effects of Act No. 160.

B. The Government's reply

1. 232. In its communication of 6 June 1991, the Government of Quebec outlines the history of labour relations in the health sector from 1960 to 1991. It describes the legislative framework currently in force, the dispute and illegal strikes of 1989 as well as their effects on establishments in the health sector. Since the CNTU and the FQPUN have lodged an appeal before the Superior Court of Quebec requesting a ruling on the unconstitutionality of Act No. 160 because of its incompatibility with the Canadian and Quebec Charters of Rights and Freedoms (in particular article 3 of the Quebec Charter which establishes, inter alia, freedom of association), the Government requests the Committee to postpone its examination of the case pending the above-mentioned ruling which, it believes, will provide additional information. Furthermore, the Government provides the following observations in the event that the Committee considers it appropriate to proceed forthwith with an examination of the complaint.
2. 233. The legal framework of occupational relations currently in force in Quebec was drawn up after a long series of difficult collective negotiations following major and repeated disruptions which had occurred between 1960 and 1985 in the public services, including certain essential services, in particular in the health sector. Various advisory committees were set up during these years and several Acts, of a general nature or in response to particular circumstances were adopted on the basis of their reports.
3. 234. The general rules governing occupational relations in Quebec are set forth in the Labour Code, which comprises the following main characteristics: the monopoly system for trade union representation, under which only one association which represents the absolute majority of employees of a bargaining unit is recognised; deduction of trade union dues at the source; obligation for the parties to negotiate with diligence and in good faith; dispute settlement machinery (conciliation, arbitration); prohibition of strikes or lockouts during the duration of collective agreements; prohibition on the employer recruiting persons or using the services of other employees of the enterprise for the purposes of replacing workers who are inactive due to a lawful strike or lockout; final and executory arbitration of disputes on the interpretation or application of collective agreements. The provisions of the Code apply to occupational relations in the public and parapublic sectors, subject to certain adaptations. For example, negotiations in these sectors are held on a sectoral basis, in derogation of the general system of negotiations at the level of the undertaking.
4. 235. Furthermore, the Code establishes machinery designed to ensure the maintenance of essential services during a work dispute in public services, such as the gas or electricity services and the services provided by public or parapublic sectors (this concerns in particular the health and social services sector). The Essential Services Council (ESC) was set up in 1982 to oversee the application of this machinery, in particular by helping the parties to identify the services to be maintained during a dispute. The ESC is composed of eight members: a president and a vice-president, two members from the ranks of the most representative workers' associations in the areas of public and health services and the social services, two members from the most representative employers' associations in these same areas and two additional members who are chosen after consultations with the Human Rights Commission, the Quebec Office for Disabled Persons, the Ombudsman and other persons or bodies.
5. 236. The Act respecting the negotiation of collective agreements in the public and parapublic sectors (Act No. 37), adopted in June 1985 after Parliament had consulted all the interested parties, instituted new machinery in response to the particular characteristics of the public sector. This Act makes provision in particular for the creation of the Institute of Research and Information on Remuneration (the Institute) and establishes the possibility for a party to request the intervention of an mediator. The provisions of the collective agreement respecting wages are negotiated at the national level for a period of one year. For each of the two following years, wages are, failing agreement between the parties, determined by regulation, after publication of the Institute's report. In no case may salaries be lower than those of the preceding year and these salaries are part of the collective agreement. Negotiations may be held at the local level on the matters defined by the parties during the national negotiations. As regards establishment of the network, they may make local arrangements on certain matters stipulated in an annex of the Act. Finally, the right to strike is maintained, subject to the negotiation of an agreement on essential services or, failing that, the depositing of a list providing for the maintenance of a minimum percentage of services, which must be approved by the ESC, which has the power to intervene in the event of failure to respect these obligations.
6. 237. The Government makes a preliminary objection regarding the complainants' allegations concerning Act No. 37, arguing that the Committee already examined these provisions during its examination of Case No. 1356 and that it has considered them as a whole to be in accordance with international standards. It thus concludes that the complainants' arguments on this subject are not receivable since the Committee has already dealt with the matter and should not reopen the case.
7. 238. In November 1986, following illegal strikes, the National Assembly adopted the Act on the maintenance of essential services in the health and social services sector (Act No. 160) in compliance with the provisions of Act No. 37. To this end, Act No. 160 prescribes severe measures (suspension of the deduction of trade union dues at the source, loss of wages, loss of seniority, amendment of collective agreements) which reflect the serious attitude taken by the authorities towards illegal strikes in this sector. The Government emphasises that Act No. 160 is not intended to establish a special system of negotiations in the health and social services sector. It merely prescribes measures designed to ensure the respect of the essential services in this sector in the event of an unlawful strike. In order for this Act to be applied, a strike or a work stoppage must be initiated which is contrary to the sections of the Labour Code stipulating that advance notice of a strike must be given to the Minister of Labour and that the ESC must have approved the agreement between the parties on the essential services or, failing that, a list of essential services must be maintained during the strike. These are reasonable and acceptable requirements which conform with international labour standards. If the provisions of the Labour Code are respected and essential services maintained, there is no absolute and general prohibition of the right to strike in the health and social services sector.
8. 239. In 1988-89, collective negotiations in the health and social services sector were held within the same legal framework. They were accompanied by major illegal strikes the length of which varied between one and eight days, and which resulted in the application of the measures provided by Act No. 160. The pressure brought to bear and the illegal strikes occurred in the following way:
   • - from 25 April to 15 May 1989: refusal of employees represented by the FQPUN to work overtime;
   • - from 15 May to 22 June 1988: failure to respect, by these same employees, the lists of workers on call as set forth on the reserve lists (the ESC issued rulings equating these two methods of pressure with illegal strikes);
   • - from 23 June to 7 August 1989: consultation with, and rejection by, members of the FQPUN of a basic agreement concluded in June;
   • - from 7 August to 5 September 1989: continuation of pressure by the FQPUN
   • - from 5 to 12 September 1989: illegal strike by the FQPUN;
   • - from 12 to 17 September 1989, illegal strike of employees represented by the Confederation of National Trade Unions;
9. - 13 to 14 September 1989: illegal strike by the employees represented by the Quebec Central Teachers' Union (CEQ);
10. - 20 September 1989, illegal strike of employees represented by the Association of Professional Health Workers (CPS).
11. 240. These strikes had serious repercussions throughout the network:
    • - the large majority of local community service centres which provide everyday medical, nursing and psychosocial services, home visits and services for risk groups had to close their doors because of staff shortages;
    • - in the social service centres only emergency social services (protection of youth, family violence) were maintained;
    • - in residential homes and long-term care hospital centres, 377 and 72 establishments respectively, whose patients are very old (over 82 years on average) and increasingly dependent on others, the strike was followed by the majority of workers, which resulted amongst other things in the cancellation of bathing services for periods of up to three days, and delays in the meals services, sometimes of two or three hours, and with only cold meals being provided. Voluntary workers and members of the families of patients who came to some establishments to offer patients basic services were denied access by union workers who had formed picket lines;
    • - in 140 rehabilitation centres (providing rehabilitation and re-education services to a wide variety of patients: young offenders and maladjusted persons with social and behavioural problems; persons with intellectual, physical or sensory deficiencies; alcoholics or drug addicts; young mothers with difficulties of adaptation), very few services were maintained. The sectors most affected were the catering, maintenance and psychosocial services. The maintenance of essential services was in no way respected in the rehabiliation centres, and most of the tasks were performed by the supervisory staff of each establishment; - the 143 hospital centres accept patients for the purposes of prevention, diagnosis, medical treatment and physical or mental rehabilitation. They are divided into three groups: general and specialised hospital centres, hospital centres and university institutes and psychiatric hospital centres. This category of establishments was the most affected by the industrial action and strikes of 1989. With a view to limiting the effects of these work stoppages on patients and to preserving a minimum level of quality in the care provided, each administration had to make reductions in voluntary admissions, i.e. patients waiting to be admitted to the hospital centre to receive treatment. This measures resulted in the closing down of a certain number of "short period" beds (beds used for hospitalisation periods of less than 60 days).
      • The Government includes in an annex a complete description of the development of the situation regarding the closing down of beds and other consequences of the staff shortages (closing of operating theatres, situation in the emergency units etc.).
    • 241. During the 1989 strikes, the trade union organisations infringed all the provisions respecting essential services. Thus, instead of negotiating an agreement with employers on the services to be maintained in the event of a strike and submitting this agreement to the Essential Services Council for approval, in accordance with the law, or, in the absence of such an agreement, submitting for approval their list of services to be maintained in such cases, the trade unions unilaterally determined which essential services would be maintained. The trade unions controlled the entire exercise: they determined which employees would work and in which workplace, without even allowing the employer to express its views on the matter. If the employer believed the services to be insufficient, with account being taken of the applicable legislative provisions and the actual situation of the establishment, he was obliged to ask the trade unions to add these essential services and the trade unions would then decide what action, if any, was to be given. In some cases the trade unions did not necessarily assign workers to their usual workplaces. For example, in one of the largest psychiatric hospitals, no worker was authorised by the trade union to work in the kitchens or in the household maintenance. Furthermore, in the laundry where 12,000 tonnes of washing is done each day by 100 workers, the trade union assigned only 12 persons to carry out all the work.
12. 242. Some trade unions refused to accept the mediation process established by Act No. 37, which is a prerequisite to the acquisition of the strikes. Furthermore, trade unions did not give advance notice of strikes. As a consequence the ESC intervened on several occasions to ensure the maintenance of essential services in the health and social services sector. The Government appends six of these decisions to its reply.
13. 243. In accordance with the jurisprudence of the Committee on Freedom of Association, it is well-established that the right to strike may be limited or even prohibited "in respect of essential services in the strict sense of the term (i.e. those services whose interruption would endanger the life, personal safety or health of the whole or part of the population)". On several occasions the Committee has recognised that the health and social services sector was an essential service in this sense. It has also pointed out in a recent decision (265th Report, Case No. 1421 (Denmark), para. 95) that all the essential services should be maintained during a strike. The situation in the present case was all the more serious in that the trade unions made no attempt to use the negotiation procedures established by Act No. 37; they thus decided, contrary to the provisions of Article 8 of Convention No. 87, to disregard the legal framework by launching a strike without maintaining the services essential to the public and without giving the necessary advance notice. They thus exposed themselves to the full consequences of Act No. 160, which the Government describes in the following terms.
14. 244. As regards the suspension of the obligatory check-off of union dues, this was a temporary measure (12 weeks for each day or part of a day of strike) taken following an illegal strike which did not prevent the trade unions from collecting dues themselves directly from their members. The Government is surprised that a trade union which claims it is acting in the best interests of the persons which it represents and in accordance with their wishes should feel threatened financially if it must itself collect from its members the money used to finance its activities and that it should lay claim to benefits which are provided by the Labour Code when it places itself in an illegal situation as regards other provisions of this same Code. The Government decided to make trade union organisations aware of their responsibilities and the consequences of the action taken by themselves and their members.
15. 245. As regards the salary cuts, domestic labour relations jurisprudence recognises that it is appropriate to suspend and even dismiss, in certain circumstances, a worker who participates in an illegal strike. These are, in fact, the disciplinary measures customarily used. In the health and social services sector, because of the essential character of the services provided by this network, the authorities have retained the pecuniary aspect of suspension without, however, making use of the second, i.e. the absence of the worker from his workplace. Furthermore, in this sector, measures such as suspension or dismissal are impractical when a very large number of workers are absent, since the remedy would then be worse than the absence which it seeks to prevent or redress. It was in fact unthinkable to suspend the 110,849 workers of the network for a period equal to that of the illegal strike. The Government preferred to use a measure which was adapted to the situation in the establishments concerned and proportional to the absence in question; employees were not paid for the periods of illegal strike and a reduction was furthermore made from their salary equal to the salary which they would have received for the period of the illegal strike. Any disagreement on the application of this measure may be submitted to an arbitration tribunal. If the measure is confirmed, the sums deducted will be donated to a charity designated by government decree. In practice, the decrees of 6 and 13 December designated bodies which work on behalf of the beneficiaries of the health and social services sector. The Government believes that when placed in this context these salary cuts are not a violation of freedom of association. They constitute a measure which is less severe than dismissal for participation in an illegal strike, which the Committee has already accepted in the case of the strike of the American air traffic controllers, even if it believed that such an extreme measure was not conducive to the strengthening of harmonious industrial relations.
16. 246. As regards loss of seniority, section 23 of Act No. 160 stipulates that a worker shall lose one year's seniority for each day or part of a day of illegal strike. This measure is not automatic in the sense that it is applicable only from a date determined by government decree. In this way Parliament authorised the Government to evaluate the situation and determine the appropriate time for the measure to come into force, thus ensuring a degree of progression in the application of the measures. In the present case the Government decided to apply the measure respecting seniority when it became clear, after a few days of illegal strike, that is as from 6 and 13 September 1989 respectively, for the members of the FQPUN and the CNTU, that the other measures (suspension of the obligatory check-off of union dues, salary reductions and even the possibility of penal sanctions) would not be sufficient in themselves, that the illegal strike movement was becoming prolonged and even extending and drawing in other trade union organisations and their members. Parliament thus showed caution by establishing a measure which was proportionate to the absence: one day per year or part of a day rather than the total loss of seniority. Even though they knew the risk which they were running, workers and their organisations continued the illegal strike movement by claiming that they were the most competent, if not the only judge to decide which services should be maintained. In this case, the trade union organisations did not even attempt to negotiate through recourse to the legal means of pressure applicable to the maintenance of essential services. Indeed, it has not been proved, and the trade union organisations have not tried to do so, that a legal strike would have no effect on their bargaining power or that such a strike would not be an effective means of promoting the interests of the workers whom they represent. It is true that the promotion of workers' interests is rightly considered to be very important; however, in a democratic society, no one is above the law and those who violate these laws publicly and deliberately jeopardise the very foundations of such a society. It is precisely this kind of conduct which Article 8 of Convention No. 87 is designed to prohibit.
17. 247. As regards the amendment of collective agreements, the Government emphasises that Act No. 160 enables it, only in the event of an illegal strike, to replace, amend or suppress any provision of a collective agreement applicable in the network with a view to "providing for the method whereby the employer fills a post, recruits new workers and as regards any matter concerning the organisation of work" and "only for the purposes of ensuring essential services" (section 9 of Act No. 160). This power was given to the Government "from the date, for the period and in the conditions which it shall fix". Two decrees were thus adopted on 6 and 13 September 1989 concerning the members of the FQPUN and the CNTU. The decrees stipulate that the texts shall remain in force until the trade unions concerned and the workers respect the law. However they cease to be applicable "when a new collective agreement is concluded between the negotiating parties empowered for this purpose". The purpose of the measure was thus limited and its effects were temporary since the illegal strikes ended on 17 September 1989 and collective agreements were in fact signed on 10 November 1989 with the FQPUN, on 27 April 1990 with the SAF (CNTU) and on 11 May 1990 with the FQPUN (CNTU). Given the short period of time between the adoption of the decrees and the end of the strikes, the Government emphasises that these decrees had no effect in practice.
18. 248. The Government emphasises furthermore that even if sections 10 to 17 of Act No. 160 make provision for penal sanctions, no penal proceedings were taken against any workers or their organisations, despite the seriousness of their actions and the dangers to which the public was exposed. The measures imposed on trade union organisations and workers who had illegally engaged in work stoppages were only customary disciplinary measures under the labour law and do not constitute criminal or penal sanctions. The measures set out in Act No. 160 were justified and proportional to the illegal action taken by the workers and their trade union organisations, collective action which was taken in disregard of the life or normal conditions of existence of the beneficiaries of the health and social services.
19. 249. In conclusion, the Government asks the Committee:
    • - to defer the examination of the case pending the decision to be taken at the internal level and which it believes will provide additional information;
    • - to consider that the complaint does not call for further examination; and - to invite the employees and trade union organisations to respect international labour standards and the maintenance of essential services in the establishments of the health and social services network.

C. The Committee's conclusions

1. 250. In this case, the complainants criticise the contents of Act No. 160 of 11 November 1986, adopted by Quebec to ensure the maintenance of essential services in the health and social services sector. They allege that this Act infringes the judicial guarantees established by the Canadian and Quebec Charters of Rights and Freedoms and that the sanctions which it prescribes for strikes are not compatible with the provisions of Convention No. 87. They allege that this Act is solely intended to punish infringements of the Act on the process of negotiation of collective agreements in the public and parapublic sectors (Act No. 37).
2. 251. As regards the request for the postponement of the examination of the case, the Committee note that irrespective of the judicial proceedings initiated in the national courts by the CNTU and the FQPUN, this will not have any real effect on the present complaint which is to be placed in a quite different legal framework and must be analysed in the context of international standards and principles of freedom of association. Furthermore, the parties have provided the Committee with very complete observations and information based on comprehensive documentation (the reply of the Government, including its annexes, alone covers more than 200 pages) concerning both the legislation and the facts. The Committee therefore does not consider it appropriate in the circumstances to postpone its examination of the case since the judgements to be handed down are not such as to provide relevant supplementary information concerning the present complaint.
3. 252. As regards the facts, the Committee notes a certain contradiction between the allegations of the complainant organisations, which state that a sufficient level of essential services was maintained or provided for, and the observations of the Government which refers to serious disruptions in the hospitals during the period in question. In this connection the Committee has taken note of the decisions reached by the Essential Services Council when it was called upon to intervene in the various instances of industrial action and strike in June and September 1989.
4. 253. The Council issued several decisions (on 4, 8, 13 and 21 September) ruling that the strikes, either announced or under way, were illegal. It ordered the trade unions and federations concerned to take all the necessary measures to ensure that their members returned to work and urged the latter to resume work. Furthermore, the Council studied in detail the actual situation in several large hospitals in Quebec throughout this period, in particular in its decisions of 8 and 21 September, from which the Committee notes the following conclusions and observations: "not only is the method of acquisition of the right to strike (in the public and parapublic sectors) very different from the general framework of the Labour Code, but the exercise of the right to strike is subject to strict and imperative rules. It is clear that the work stoppage organised by the federation is illegal. Absolutely none of the prescriptions of the Labour Code has been respected either as regards advance notice or as regards the essential services to be maintained during the strike ... In the case of an illegal strike, the services which a union intends to provide cannot be evaluated in the same way as during a period of legal strike ... In no part of the Labour Code is a trade union organisation authorised to launch an illegal strike and subsequently provide staff when necessary, according to its own assessment and on a case-by-case basis, as the trade union in this case wanted to do ... The witnesses who gave evidence and the examination of the lists deposited describing the health services which were to be maintained make it necessary for us to conclude that the dispute, if it results in a strike, will probably cause prejudice to the health services to which the public is entitled. Nurses play a vital role in the organisation of care in hospitals. Their work is regulated by and exclusive to their professional body. Their absence from both hospitals and care centres could cause prejudice to a service to which the public is entitled. The closing down of beds which is imposed upon employers, the refusal of admissions even before the strike has been initiated, the nurse-patient ratio which is much lower than usual are factors which oblige us to reach this conclusion" (pages 12 and 13 of the decision of 8 September). The decision of 21 September is essentially along the same lines.
5. 254. The Committee notes that the parties were heard by the Council and were able to present their arguments before it took its decision. The Council is without any doubt in the best position to evaluate objectively the real situation given its membership and the information available to it. It would therefore seem that the strikes of September 1989 did in fact cause serious disruptions in the health services in Quebec, making it necessary in several cases to adopt various measures: the closing down of beds, the refusal of non-urgent admissions, the closing of external clinics, etc.
6. 255. As regards the legislation, the complainants' criticisms concern Act No. 160 and the series of measures it introduces for the implementation of Act No. 37. The Government replies that the complainants' arguments concerning Act No. 37 are irreceivable since the Committee has already examined these provisions in Case No. 1356 and "considered them generally to be in accordance with international standards". The Government therefore maintains that the Committee should not reopen the case since it has made final recommendations on the subject. Before continuing its examination of the substance, the Committee wishes to rectify this observation and the conclusion which the Government draws from it.
7. 256. Act No. 160 exists and has meaning only in conjuction with Act No. 37: the Committee cannot therefore analyse it separately. In other words it would be illogical and inappropriate to examine the supplementary Act (Act No. 160) without taking into account the provisions of the main Act (Act No. 37). The question to be examined by the Committee is therefore whether the legislative contents of Acts Nos. 37 and 160 taken together are compatible with the principles of freedom of association flowing from the respective international Conventions. In doing so the Committee is not reopening a case; its examination is restricted to the different components of a legal process of negotiation which may lead it to note that the previous conclusions and recommendations on a given Act have or have not been implemented.
8. 257. The Committee does not intend to return in detail to the analysis of Act No. 37 which it had made in the context of Case No. 1356 (248th Report, paras. 67 to 147, approved by the Governing Body at its 235th Session). It does, however, emphasise that that case involved organisations of teaching staff whereas the present case concerns exclusively the health and social services sector, which the Committee and the Committee of Experts on the Application of Conventions and Recommendations have always considered as essential services in the strict sense of the term, where the right to strike may be restricted or even prohibited. Furthermore the Committee recalls the comments which it had added, based on long-established case law: "... if the right to strike is restricted or prohibited in the public service or in essential services, appropriate safeguards must be afforded to protect workers who are thus denied one of the essential means of defending their occupational interests. Restrictions therefore should be offset by apporpriate, impartial and speedy conciliation and arbitration procedures, in which the parties concerned can take part at every stage, whose award should be binding on both parties, and, once rendered, be rapidly and fully implemented." (ibid., para. 144.) The following recommendation, amongst others, was thus made: "as regards the determination of salaries for the second and third years of a collective agreement in the public sector, the Committee suggests that the Government consider the possibility of establishing a further procedure enabling both parties to appeal to a mediator or independent arbiter to resolve a dispute in cases where the machinery set up by the Act is unsuccessful in resolving the dispute, especially since strikes are prohibited during this period. The awards of such arbiters should be binding on both parties." (ibid., para. 147(b).)
9. 258. The Committee has taken due note of the explanations of the Government on the reasons which led it to establish the present negotiation system and on the constraints, particularly economic, with which it is confronted. However, the Committee notes that in the final analysis salaries in the health sector are determined at the national level by regulation. After the publication of the Institute's report, the Council of the Treasury negotiates with the associations of employees with a view to reaching an agreement (section 53). The President of the Council of the Treasury must present in March of each year to the National Assembly a draft regulation establishing salary scales for that year; the parties must be heard by a parliamentary commission before the draft regulation can be submitted to the Government for adoption (section 54); salary scales, which may not be lower than those of the previous year, are those established in the regulation adopted by the Government (section 55).
10. 259. Thus employees in the health sector still do not enjoy a compensatory mechanism allowing impartial and independent settlement of disputes, particularly as regards salaries. Furthermore, even if they enjoy the right to strike, this right is deprived of any real effectiveness because of the minimum percentages of essential services which must be maintained (90, 80, 60 and 55 per cent depending on the nature of the establishment). The Committee therefore once again suggests that the Government establish a procedure, where employees do not enjoy the right to strike or have a right to strike which is so restricted that it is deprived of any real effectiveness, enabling the two parties in the event of a deadlock in negotiations to have recourse to conciliation or mediation procedures, and then to an independent arbitrator so as to resolve their dispute, with the arbitration awards being binding on both parties and fully and rapidly implemented. The Committee recalls in this connection that it is "essential that all members of bodies exercising conciliation or mediation functions shall not only be impartial but shall also be considered as such by the parties concerned if they are to secure and maintain their confidence, for it is on that confidence that the success of these procedures really depends". (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 370.)
11. 260. At the same time the Committee emphasises that it is not the full text of Act No. 37 which is being called into question but only the absence of compensatory impartial and independent machinery for the settlement of disputes, in particular wages disputes, in the event of a deadlock in negotiations. The other components of the negotiation machinery established by Act No. 37 do not pose any problem of principle as regards freedom of association. In particular, the Committee has noted the role entrusted to the Institute of Research and Information on Remuneration, a joint body which in addition to its mandate of research and analysis on remuneration, "has the function of informing the public of the comparative state and development of the overall remuneration of employees in the government service ... on the one hand and the overall remuneration of other Quebec employees ... on the other" (section 19 of Act No. 37). The Committee has also noted with interest the following passage in a decision of the Essential Services Council, in which the latter explains how it perceives its role: "The mandate of the Council is to intervene during a dispute, when it believes that there is prejudice to a service to which the public is entitled: this is its first mission. The Council plays no part in the negotiations between the parties and its only role is to ensure that the public continues to receive the health services to which it is entitled. On several occasions, within the framework of its decisions, the Council has informed the parties that it firmly believed that the best means of ensuring the continuity of services was a good climate of industrial relations in the establishments of the health network, and the opportunity for the parties concerned to conclude a negotiated labour contract. This is the philosophy adopted by the Council in the exercise of its mandate." (Page 4 of the decision of 19 June.)
12. 261. As regards Act No. 160 itself and the constitutional arguments raised by the complainants, the Committee considers firstly that it is not competent to formulate an opinion on the compatibility of this legislation with the Quebec and Canadian Charters of Rights and Freedoms, a matter which falls within the competence of the national courts.
13. 262. The other arguments of the complainants concern in fact the severity of the sanctions established by Act No. 160 which are intended to encourage strongly - not to say forcibly - trade unions and their members to respect Act No. 37:
    • - section 9: amendment of collective agreements for "any matter concerning the organisation of work ... solely for the purposes of ensuring essential services";
    • - sections 10 to 17: the possibility of penal procedures sanctioned by fines (25-100 dollars; 5,000-25,000 dollars for trade union officials; 20,000-100,000 dollars for trade unions). Persons who knowingly help or encourage infringements of the Act are subject to the same penalties;
    • - sections 18 and 19: suspension of the obligatory check-off of union dues; 12 weeks per day or part of a day of infringement;
    • - section 20 to 22: no salary for the duration of an illegal strike; additional reduction of salary for an equivalent period;
    • - section 23: loss of one year's seniority per day or part of a day of illegal strike.
14. 263. The Government itself admits that these are indeed severe penalties. The Committee notes, however, that during the events surrounding the negotiations in 1989, no penal proceedings were taken against workers and their organisations and that the provisions establishing the amendment of collective agreements have not been implemented. The Committee notes further that Act No. 160 is a permanent text and that these provisions could be invoked during a future dispute. In the present case there were three additional measures.
15. 264. As regards the salary deductions, the Committee notes that they comprise two elements: the non-payment of salary for days of strike, which is not really a sanction since no work was performed; and an additional deduction equivalent to the hours not worked, and which is in fact a monetary sanction. This sanction is proportional in that its severity depends upon the duration of the infringement.
16. 265. As regards the suspension of the obligatory check-off of union dues, the Government emphasises that the trade union may continue to collect contributions directly from its members. Although this is theoretically possible, it involves considerable difficulties in practice in the context of this case, even if these measures are temporary. It is thus a real sanction which can deplete the financing sources of the trade union, hinder its operational capacity and reduce the services which it provides to its members.
17. 266. As regards loss of seniority, the Committee believes that this is perhaps the measure which is most likely to create medium and long-term difficulties in that it risks disrupting on a lasting basis the climate of industrial relations in establishments in the health sector. Indeed, seniority is the decisive criterion for obtaining a number of rights or benefits: choice of post, preferential right to holiday leave, transfers, etc. The negative consequences on relations between employees and between employers and employees are easy to see. As regards sanctions, in particular for strike actions, the Committee considers that there must exist a certain proportionality between the sanctions imposed and the offences committed, if one wants to re-establish a harmonious industrial relations climate, once the dispute is over. This principle is particularly relevant as regards the loss of seniority provided for by Act No. 160.
18. 267. The complainants refer to a previous decision of the Committee concerning legislation (special Act No. 111), adopted in 1983 by the Government of Quebec, which included similar provisions: two days of salary deduction for each day of strike, loss of three years' seniority for each day of strike, suppression of the obligatory check-off of union dues, etc. (230th Report, Case No. 1171, paras. 114 to 171.) The Committee stresses, however, that the complaint there mainly concerned teachers, whereas the present case refers to essential services in the strict sense of the term.
19. 268. However, the Committee recalls that employees deprived of the right to strike because they perform essential services must have appropriate guarantees to safeguard their interests: a corresponding denial of the right of lockout, provision of joint conciliation procedure and where, and only where, conciliation fails, the provisions of joint arbitration machinery. As regards the nature of the system in question, the Committee points out that restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented (Digest, para. 397).