Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 387, Octubre 2018

1. 152. The complaint is contained in a communication dated 13 July 2017 submitted by the Lawyers and notaries of the Quebec Government (LANEQ).
2. 153. The Government of Canada submitted the observations of the Government of Quebec in communications dated 14 February and 24 April 2018.
3. 154. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It has not ratified the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 155. In its communication dated 13 July 2017, LANEQ states that it is an association of employees established pursuant to the Professional Syndicates Act and accredited to represent lawyers and notaries in all Quebec public service departments and agencies, including, in particular, those working at the Agence du revenu du Québec (Quebec Revenue Agency, hereinafter ARQ). LANEQ adds that the Conseil du Trésor (Treasury Council), which exercises the mandate conferred on it by the Government of Quebec, negotiates collective agreements with public service employees in Quebec and establishes conditions of employment at a number of entities, including ARQ. Following its accreditation, LANEQ negotiated and concluded with the Government of Quebec an initial collective agreement on 30 March 2000, and that agreement was then extended to 31 December 2005. As the complainant organization was preparing to begin negotiations on the renewal of that collective agreement, the Act respecting Conditions of Employment in the Public Sector, (hereinafter Act 43) was passed under closure and assented to on 15 December 2005, imposing until 31 March 2010, and without discussion or negotiation, the provisions of the collective agreement applicable to jurists with regard to normative and remuneration clauses. LANEQ, which at that time was known as the Association of State Jurists (AJE), submitted a complaint to the Committee on Freedom of Association, which in turn urged the Government to amend Act 43 to bring it into line with the principles embodied in Conventions Nos 87 and 98 [see Case No. 2467, 344th Report, para. 587(a)].
2. 156. LANEQ indicates that negotiations began in the autumn of 2010, following the expiry of Act 43, with a view to renewing the collective agreement imposed by legislation. One of the major issues in the negotiations to renew the collective agreement was the issue of salary increases to close pay gaps for the lawyers and notaries represented by LANEQ, which demanded the revision of employee pay scales. LANEQ proposed that it should form a joint remuneration committee with the Quebec Institute of Statistics, an organization established by the legislature of the Province of Quebec, to determine remuneration for 2010. The proposal was, however, rejected by the Quebec Government. In a meeting held on 2 February 2011, LANEQ advised the Government that it would call a strike on 8 February 2011 if no agreement was reached prior to that date. With the negotiations at an impasse, the strike went ahead on 8 February. On 22 February 2011, the Act to ensure the continuity of the provision of legal services within the Government and certain public bodies (hereinafter Act 2) was adopted under closure and ratified, imposing, for the second consecutive time, working conditions for the lawyers and notaries represented by LANEQ. That unilateral measure, which remained in force until 31 March 2015, disregarded all agreements reached between the parties prior to or during the mediation period and simply renewed the terms of the first collective agreement as it stood, compelled striking lawyers and notaries to return to work and prohibited them from exercising their right to strike. LANEQ then appealed to the Quebec Superior Court to repeal Act 2 on grounds of its unconstitutionality and filed a complaint in respect of Act 2 with the Committee on Freedom of Association.
3. 157. LANEQ indicates that, on 7 July 2011, it entered into an agreement in principle with the Treasury Council regarding certain amendments to the 2010–15 collective agreement for lawyers and notaries. According to that agreement in principle, LANEQ agreed, inter alia, to withdraw its complaint to the Committee, obtaining in return a letter of understanding concerning changes to the way in which negotiations would be conducted with LANEQ (hereinafter Letter of Understanding No. 5), which was added to the collective agreement between the parties. In that letter, the parties agreed to establish a labour-management committee composed of up to two representatives from each of the parties with a mandate to discuss reforms to the negotiation mechanism and to take steps, in line with the terms of reference of that committee, to “determine the elements to be addressed in the work of a new committee chaired by an independent third party appointed by the parties concerned”. That committee would make recommendations to the Government of Quebec regarding changes to the manner in which negotiations would be conducted with lawyers and notaries represented by LANEQ.
4. 158. The complainant organization indicates that, on 21 September 2011, l’Association des procureurs aux poursuites criminelles et pénales (the Association of Criminal and Penal Prosecuting Attorneys, hereinafter ACPPA), an entity that brings together specialized lawyers who represent the Government of Quebec in criminal and penal courts, entered into an agreement in principle with the Government of Quebec regarding certain amendments to the 2010–15 agreement on the working conditions of criminal and penal prosecuting attorneys. In particular, that agreement in principle included, in an annex, a letter of intent concerning reforms to the modalities for negotiations with ACPPA. The letter envisaged the establishment of a new mechanism for reviewing the remuneration of prosecutors together with the withdrawal of the right to strike, as well as the renewal for four years of the agreement on the working conditions of prosecutors. On 1 December 2011, the National Assembly adopted the Act to repeal the Act to ensure the continuity of the provision of legal services within the Government and certain public bodies and to amend the Act respecting the collective bargaining plan of criminal and penal prosecuting attorneys. As its name suggests, the law was adopted with a view to repealing Act 2 and with a view to implementing the terms of the letter of intent concerning reforms to the collective bargaining mechanism with ACPPA. The Act respecting the collective bargaining plan of criminal and penal prosecuting attorneys was thus superseded by an Act that addressed both the mechanism for determining the remuneration of criminal and penal prosecuting attorneys and their collective bargaining mechanism. That law establishes a committee on the remuneration of criminal and penal prosecuting attorneys (hereinafter CPPA), the function of which is “to ascertain every four years whether the remuneration, group plans, conditions of employment with pecuniary value, conditions of employment that concern industrial accidents and occupational diseases and work schedules are adequate”. The law provides that the remuneration committee, after receiving the observations of ACPPA and the Government of Quebec, shall submit a report to the Government of Quebec that sets forth recommendations it deems appropriate. The Minister of Justice of Quebec shall then submit the report to the National Assembly. The law also provides that “the National Assembly may approve, amend or reject some of all of the committee’s recommendations, by way of a resolution stating the reasons on which it is based. The Government shall take, with diligence, the necessary steps to implement the resolution.” The law also stipulates: “The conditions of employment that are the object of the National Assembly resolution or, if there is none, of the committee’s recommendations are deemed to be part of the agreement” between ACPPA and the Director of the Criminal and Penal Prosecutions. Furthermore, as provided for in the letter of intent, the law on the process for determining CPPA remuneration and on the collective bargaining mechanism of criminal and penal prosecuting attorneys provides for the appointment of an arbitrator should the parties fail to reach an agreement on other conditions of employment. After hearing the views of the parties, the arbitrator shall issue a decision, which constitutes a recommendation to the Government of Quebec. The Government must then approve, amend or reject, in whole or in part, the arbitrator’s recommendation and must publish the reasons for its decision. The process for determining remuneration and the negotiation mechanism provided under that law shall go hand in hand with the withdrawal of the right of CPPA to engage in strike action.
5. 159. The complainant organization indicates that, as part of the work of the labour-management committee established pursuant to Letter of Understanding No. 5, LANEQ and Treasury Council representatives met on 4 October and 20 November 2012, as well as on 18 June and 11 September 2013. The complainant organization adds that, on 11 September 2013, the representatives of the Treasury Council submitted to LANEQ the employers’ proposal, which provided for the continuation of the status quo under the current negotiation mechanism. Thus, according to that proposal, the working conditions of government lawyers and notaries would continue to be negotiated in the same way, at the end of each employment contract and between the same parties. On 25 September 2013, LANEQ rejected the proposal put forward by the Treasury Council on grounds that it did not respect the terms set forth in Letter of Understanding No. 5, which specifically provided for the reform of the negotiation mechanism. On 2 October 2013, after learning that their proposal had been rejected, the committee’s management representatives submitted their recommendations to LANEQ and to the Government, in which they called for the unilateral imposition of the status quo with regard to the negotiation mechanism. On 19 November 2013, the labour representatives on the committee submitted their recommendations, namely that a mechanism for determining remuneration and negotiating other working conditions should be established for government lawyers and notaries “through the adoption and entry into force of appropriate legislation prior to the start of the next round of collective bargaining, to begin in September 2014”. That mechanism should be similar to the mechanism established for CPPA under the law on the process for determining the remuneration of criminal and penal prosecuting attorneys and on their collective bargaining mechanism. The complainant organization alleges that no changes were made to the negotiation mechanism following the submission of those recommendations by the labour members on the committee. Thus, while Letter of Understanding No. 5, which had been agreed upon by the parties, envisaged reforms to the negotiation mechanism, (an essential concession for the complainant organization in return for its agreement to discontinue its efforts to seek remedies, including, in particular, through its filing of a complaint in respect of Act 2 with the Committee on Freedom of Association) specifically through the establishment of a committee chaired by an independent third party, the Government’s insistence on maintaining the status quo in that regard impeded any progress from being made.
6. 160. The complainant organization indicates that, on 1 October 2014, negotiations began on the renewal of the collective agreement, which was to expire on 31 March 2015. On 5 January 2015, LANEQ sent a notice of meeting to the Treasury Council with a view to communicating its demands. On 29 January 2015, the LANEQ negotiation committee submitted those demands. The submission included Letter of Intent No. 2 concerning reforms to the negotiation mechanism, including the establishment of a remuneration committee that would submit its conclusions in that regard to the Quebec National Assembly. On 16 February 2015, the Treasury Council filed its proposal, which included a “pension plan” component. The complainant organization alleges, however, that that proposal made no mention of the reform to the negotiation mechanism called for in Letter of Intent No. 2.
7. 161. The 2010–15 collective agreement expired on 31 March 2015. On 29 May 2015, LANEQ submitted a proposal in which it amended its offer and Letter of Intent No. 2. On 1 September and 30 October 2015, the Treasury Council submitted two proposals. Those proposals did not, however, address the “pension plan” component or the reform of the negotiation mechanism addressed in Letter of Intent No. 2. Meanwhile, on 16 October 2015, LANEQ sent a notice of meeting to ARQ with a view to submitting union demands as part of the process to renew the collective agreement between ARQ and LANEQ. On 3 November 2015, LANEQ filed the union demands, which included a letter of intent concerning the reform of the bargaining mechanism, at a meeting held with ARQ representatives. As of 20 March 2017, ARQ had not responded to that proposal. On 24 November 2015, the Treasury Council amended its proposal of 16 February 2015 by filing two amendments to the “pension plan” component. The modified proposal still made no mention of reforming the negotiation mechanism, as had been outlined in Letter of Intent No. 2. On 18 December 2015, the Treasury Council filed a management offer, which made no mention of reforming to the negotiation mechanism or the pension plan component. On 29 January 2016, LANEQ filed a petition regarding psychological harassment and, on 8 March 2016, filed a petition regarding unpaid leave. On 21 March 2016, the Treasury Council submitted a proposal regarding group insurance plans and, on 15 April 2016, it submitted proposals that made no mention of the “pension plan” component. On 19 April 2016, after 18 negotiation sessions staggered over more than one year, which had facilitated only slight progress on matters of secondary importance, LANEQ filed a request for mediation. LANEQ and the Treasury Council participated in six mediation sessions between 5 May and 28 June 2016.
8. 162. The complainant organization indicates that, on 8 June 2016, the National Assembly of Quebec passed the Act to amend certain Acts establishing pension plans applicable to public sector employees, and that no negotiations had been held with LANEQ on that issue prior to the adoption of the new law, even though it unilaterally modified pension plan terms, particularly those related to eligibility and the calculation of employees’ retirement pensions, to the disadvantage of LANEQ members. That law was adopted while the Treasury Council and LANEQ were still negotiating the renewal of the collective agreement, and presented the complainant organization with a fait accompli.
9. 163. At a meeting held on 6 July 2016, LANEQ submitted to the Treasury Council and the mediator a summary of their position concerning the reform of the negotiation mechanism and the establishment of a remuneration committee. On 8 July 2016, the mediator filed his mediation report. The six mediation sessions did not succeed in breaking the deadlock in the discussions, particularly with respect to the reform of the negotiation mechanism, and the Treasury Council had repeatedly stated that the existing mechanism was sufficient. From the date on which the report of the mediator was filed in July until the date on which the strike began in October, no negotiations took place with the Treasury Council or with ARQ.
10. 164. The complainant organization indicates that, on 12 October 2016, it sent prior notices of its intention to exercise its right to strike to both the Treasury Council and ARQ. Before sending those notices of strike action, the representative of the complainant organization communicated with both the representative of ARQ and the representative of the Treasury Council to give them advance warning. The ARQ representative stated at that time that ARQ would wait for the outcomes of the negotiations between the complainant organization and the Treasury Council before it entered negotiations. LANEQ was entitled to call a strike as of 24 October 2016 at 00:01 hours, and a strike was officially declared that same day. The strike was due to come to an end on 1 March 2017, in accordance with the law. LANEQ indicates that, throughout the strike, the organization and its members availed themselves of numerous methods to draw attention to their demands, including picketing in several locations, organizing demonstrations, publishing press releases and participating in interviews, including with the media. The complainant organization underlines that its members never resorted to violence during the strike and that the Treasury Council demonstrated no willingness at any point during the strike to engage in meaningful discussions on its key demands, particularly the establishment of a remuneration committee.
11. 165. According to the complainant organization, on 9 November 2016, during a question and answer session at the Quebec National Assembly, the Minister of Finance, who at that time held the position of President of the Treasury Council, responded to a question from a member of the Assembly by stating that he was willing to discuss a mechanism for negotiating the working conditions of LANEQ members. Despite that affirmation, however, the Treasury Council negotiator informed LANEQ the very same day that he did enjoy a mandate to negotiate reforms to the mechanism for determining the working conditions of government lawyers and notaries. The complainant organization underscores that, at a meeting held, at its own initiative, on 23 November 2016 with a view to breaking the deadlock by putting forward constructive proposals, LANEQ submitted an amendment to Letter of Intent No. 2, proposing four four-year collective agreements with binding arbitration and a fifth collective agreement with non-binding arbitration. On 25 November 2016, commenting on the talks held since the Madagascar Francophone Summit, the Prime Minister of Quebec confirmed the Quebec Government’s refusal to negotiate a new mechanism for determining the working conditions of LANEQ members, and added that any settlement must be compatible with existing agreements with the Quebec public sector. The complainant organization alleges that on 30 November 2016, one week after it had submitted its proposal and five weeks after the start of the strike, the Treasury Council filed a comprehensive management offer that reiterated the offers that had been made to Quebec public sector unions in December 2015, in which the “pension plan” component would be subject to the Act to amend certain Acts establishing pension plans applicable to public sector employees. The Treasury Council, moreover, rejected the proposals put forward by LANEQ regarding amendments to Letter of Intent No. 2. The complainant organization alleges that, at the meeting held on 30 November 2016, the representatives of the Treasury Council, after consulting their constituents, confirmed that they did not enjoy a mandate to discuss reforms to the negotiation mechanism, and underscored that such a reform was “neither required nor justified”. The management representatives justified the proposals made to LANEQ on grounds of “Government coherence”, namely the need to offer the same conditions as those offered to Quebec public sector unions. Such coherence would apply to all Quebec Government employees but, according to the Treasury Council, would exclude judges, administrative judges and CPPA, whose “unique functions” justified the separate mechanisms.
12. 166. The complainant organization emphasizes that, at a meeting held after a question and answer session at the Quebec National Assembly on 1 December 2016, the President of the Treasury Council stated that, within the following few days, the Council would submit a new proposal regarding a normative framework and negotiation mechanism adapted for the specific role played by Quebec Government lawyers and notaries and their independent functions. However, at a meeting held on 12 December 2016, the Treasury Council made no proposals with regard to the negotiating mechanism to determine the working conditions of Quebec Government lawyers and notaries, as it had committed to do on 1 December 2016. Instead, the Council merely reiterated its proposal of 30 November 2016 without any amendments and without even the date of submission changed. Even though LANEQ had filed an amended proposal on 23 November 2016 that had reduced the number of binding arbitrations, the representative of the Treasury Council reiterated that he did not enjoy a mandate to discuss reforming the negotiating mechanism, notwithstanding the statement made by the Minister of Finance on 1 December 2016. The complainant organization indicates that, on 14 December 2016, it verbally submitted two new proposals concerning Letter of Intent No. 2 to the Treasury Council and that, on 15 December 2016, following submission of those these proposals, the representative of the Treasury Council informed LANEQ by email that “there is no likelihood of agreement on any proposal to modify the current negotiation mechanism.”
13. 167. The complainant organization indicates that, on 20 December 2016, in an extraordinary general meeting of the organization, 97 per cent of LANEQ members voted against the Treasury Council’s proposals of 30 November 2016 and 90 per cent of members voted to continue the unlimited general strike. A mandate was also given to LANEQ leaders to demand parity with CPPA in terms of their negotiation mechanism and the pay increase of 10 per cent over four years offered to them by the Quebec National Assembly. The complainant organization alleges that, on 22 December 2016, the Treasury Council publicly stated that it refused to modify the negotiation mechanism for government lawyers and notaries on grounds that they did not enjoy the same degree of independence as CPPA because of the nature of the “employee-employer” relationship, because they did not plead cases in court and because they did not make decisions. The complainant organization denounces that assertion and underscores that the Treasury Council must be aware of the ignore the factual and legal falsity of those statements, which had been made in public in order to sway public opinion and weaken the collective action of LANEQ members. After ten weeks of strike action, exploratory meetings were held between the parties on 27 December 2016 and on 3, 6, 7 and 11 January 2017, during which LANEQ, in support of its demand for changes to be made to the negotiation mechanism, highlighted the role and distinctive functions of government lawyers and notaries and the importance of preserving their independence. The complainant organization alleges that, at one of those exploratory meetings, held on 27 December 2016, a representative of the Treasury Council candidly stated that “the Government is prepared to risk the consequences of an absence of lawyers and notaries”, even though it had stated in public that it could not endure the repercussions of the strike of its lawyers and notaries.
14. 168. The complainant organization indicates that, on 7 January 2017, the Treasury Council affirmed that it now had a deeper understanding of the arguments put forward by LANEQ and would consult its negotiators with a view to reassessing its position. LANEQ states that, on 12 January 2017, following that reassessment and following 12 weeks of strike action by its members, the Treasury Council communicated verbally the following proposals:
    • – The same monetary offer as the one that had been submitted on 30 November 2016, which had been rejected by 97 per cent of LANEQ members. Moreover, the offer was only extended to members of the “public service” unit and not to members of the ARQ;
    • – a reduction of the number of sick days from 12 to 10 days as of 1 April 2017 in exchange for a 2 per cent salary increase, as of 2 April 2019;
    • – that the variable remuneration for special mandates, which would increase from 1.8 to 2.3 per cent, would no longer be eligible for associated pension contributions, even though such additional remuneration could constitute up to 10 per cent of the salaries of government lawyers and notaries; and
    • – the willingness of the Treasury Council, following the signing of a collective agreement, to create a working group whose mandate would be to analyse the role and responsibilities of government lawyers and notaries and to ascertain, if necessary, whether certain aspects of their work distinguished them from other public service professionals and from CPPA.
15. 169. The complainant organization alleges that, by offering the proposal of 12 January 2017 only to members of the “public service” unit and excluding ARQ members, who were also on strike, the Treasury Council was attempting to sow divisions among members of the two entities with the same working conditions, thereby undermining and discrediting the collective action of their members. Despite the ongoing strike, it still took 12 weeks for the Treasury Council to resubmit an exploratory proposal that still failed to provide for reforms to the negotiating mechanism, including the establishment of a remuneration committee that would submit recommendations to the National Assembly of Quebec. The complainant organization alleges that this modus operandi had already shown its limitations, given the refusal of the Treasury Council to consider any reforms whatsoever to the negotiation mechanism.
16. 170. The complainant organization indicates that, on 16 January 2017, a new Treasury Council president was appointed. On 19 January 19 2017, an exploratory meeting was held between representatives of the Treasury Council, including its new president, and LANEQ. In the afternoon of the same day, a LANEQ representative met with a Treasury Council representative and made a formal verbal request for the establishment of a negotiating mechanism similar to the mechanism established with CPPA, a 10 per cent salary increase over four years and a working week of 37 hours 30 minutes. On 24 January 2017, Treasury Council representatives tabled a proposal, which was very similar to the one that had been tabled on 12 January 2017, and still failed to address the issue of reforms to the negotiating mechanism. The complainant organization also alleges that, on 24 and 25 January 2017, the new President of the Treasury Council publicly stated that he had put forward a monetary offer equivalent to that obtained by CPPA, a statement that was both false and intended to undermine the credibility and legitimacy of collective action by LANEQ in the eyes of its members and the public. At the same time, the new president also stated that government lawyers and notaries did not enjoy the same status as CPPA, since the latter must enforce the law regardless of any political pressure from the Government. The complainant organization alleges that that statement is groundless, since lawyers and notaries, by performing their various functions, contribute towards the application of and respect for the rule of law in the public interest, guiding principles that are applicable in both civil and in criminal and penal spheres and they act with the independence necessary in order to fulfil their duties.
17. 171. The complainant organization indicates that, at an extraordinary general meeting, held on 26 January 2017, 97 per cent of its members voted to reject the Treasury Council’s latest offer and 83 per cent of members voted in favour of the continuation of the unlimited general strike. LANEQ also states that, following the overwhelming rejection of the Treasury Council’s offer, the president of LANEQ requested a meeting with the President of the Treasury Council, and a meeting was held on 31 January 2017. At the meeting, proposals were outlined for breaking the impasse and, on 6 February 2017, LANEQ submitted a revised proposal on the role and status of lawyers and notaries and on the negotiation mechanism. From the complainant organization’s perspective, the Treasury Council’s proposal of 24 January 2017 falls far short of offering its members remuneration equivalent to that offered to CPPA. Indeed, a comparison exercise conducted by LANEQ concluded that CPPA would receive an additional 22,540 Canadian dollars (CAD) over four years, and additional annual pension contributions of CAD3,141. Talks held on 10 and 12 February 2017 did not result in any changes to the Treasury Council’s position. On 14 February 2017, with the strike in its seventeenth week, another extraordinary general meeting was held at which LANEQ overwhelmingly rejected the latest proposals made verbally by the Treasury Council on 12 February 2017. The complainant organization alleges that, on 16 February 2017, the Treasury Council acknowledged at a press conference that the wage proposal offered to LANEQ members was lower than the offer agreed to with Quebec public sector unions: indeed, the “total compensation”, offered was equivalent to an increase of 9.05 per cent over five years, while Quebec public sector unions had obtained 9.15 per cent.
18. 172. At a meeting held between LANEQ and Treasury Council representatives on 21 February 2017, the complainant organization’s negotiating team verbally presented a new two-part proposal: the question of the distinctive functions of lawyers and notaries would be reviewed by an independent committee, whose recommendations would be submitted to the Quebec National Assembly so that an appropriate decision could be made, while the issue of remuneration for the current fiscal year would be reviewed by another independent committee, which would also submit its recommendations to the Quebec National Assembly so that an appropriate decision could be taken. On the same day, the Bâtonnière du Québec (President of the Bar of Quebec), delivered a letter to the Prime Minister of Quebec on behalf of the Bar asking him to initiate steps to resolve the disagreement, underscoring in that letter that: “The questions raised regarding the professional independence of Government jurists undermine public confidence in our constitutional State, which depends, first and foremost, on the professional independence of its lawyers and notaries. I would like to take this opportunity to remind you that all lawyers are subject to the Rules of Professional Conduct for Lawyers, regardless of their duties, the way in which they practice their profession and the circumstances in which they practice. Whether they work for companies, for the Government or in private practice, lawyers are required to maintain their independence.”
19. 173. The complainant organization indicates that, on 22 February 2017, the Treasury Council representative advised LANEQ that a negotiation meeting could be held on 24 February 2017 to discuss its latest proposal. LANEQ alleges, however, that on 23 February 2017, before the parties have had the opportunity to discuss the latest proposal, the President of the Treasury Council called a press conference at which he presented a “final and comprehensive” offer and gave LANEQ just 24 hours to respond. That offer was officially communicated to LANEQ on the evening of 23 February. On Friday, 24 February 2017, the LANEQ representative contacted the Treasury Council representative to schedule a meeting for the afternoon of Saturday, 25 February or on Sunday, 26 February, and informed the representative that a counter-proposal was being prepared. On the same day, the Treasury Council representative twice confirmed that the Treasury Council would be available for a meeting on Saturday, 25 February, but at noon. On the morning of Saturday, 25 February 2017, the LANEQ representative wrote to the Treasury Council representative to reiterate that his representatives were working hard to finalize their counter-proposal, which could not be completed by noon that day and asked him what his availability was that afternoon or the following day. The LANEQ representative proposes that the meeting should be held in Montreal at 1 p.m. on 26 February in order to submit the counter-proposal.
20. 174. The complainant organization indicates that, on Saturday, 25 February 2017 at approximately 5 p.m., and before the aforementioned meeting had taken place, the President of the Treasury Council announced to the media that a special law would be submitted for adoption on Monday, 27 February, with the aim of compelling LANEQ members to return to work. LANEQ also alleges that, at the same press conference, the President of the Treasury Council stated: “... I therefore note that 48 hours after the tabling of our final and comprehensive offer, we have not received a response from the leaders of LANEQ suggesting that an agreement would be possible”, and considers that statement to be utterly at odds with the facts. Also on the same day, at 4.51 p.m., the Prime Minister of Quebec asked the speaker of the National Assembly to take the necessary measures to ensure that the Assembly could meet in special session as of 5 p.m. on 27 February 2017, in order to allow for the submission for adoption of the special law, namely Bill No. 127. The complainant organization alleges that, paradoxically, at 7.21 p.m., the Treasury Council representative sent an email to the LANEQ representative indicating that the Treasury Council had accepted his invitation to hold a meeting on Sunday, 26 February at 1 p.m. in order to receive the LANEQ counter-proposal. On 26 February 2017, LANEQ submitted and made public its proposal and, that same afternoon, Treasury Council representatives rejected that offer. On the morning of 27 February, LANEQ accepted the proposal made by the Bar of Quebec to appoint a mediator appointed by the Chief Justice of the Quebec Superior Court. On the same day, the Bar of Quebec and the Chambre des notaires du Quebec (Professional Order for Notaries in Quebec) held a joint press conference to demand that the Government of Quebec and LANEQ submit their labour dispute to a neutral and independent mediator. At the same press conference, the President of the Bar of Quebec stated: “…a special law is by no means an appropriate way to resolve a labour dispute and can also undermine public confidence in the justice system”. Furthermore, following discussions with the Chief Justice of the Superior Court of Quebec, the President of the Bar stated that the Chief Justice had proposed two possible candidates to conduct the mediation, if the parties so wished. On Monday, 27 February 2017, the Treasury Council reiterated its position regarding the proposed remuneration and submitted a “proposal on the working committee” which essentially reiterated its previous offer of 23 February 2017.
21. 175. The complainant organization indicates that, on 27 February 2017, the President of the Treasury Council rejected the request for mediation proposed by the Bar of Quebec and the Professional Order for Notaries in Quebec and that, at approximately 6 p.m., he submitted Bill 127, entitled “An Act to ensure the continuity of the provision of legal services within the Government and to allow continued negotiation and the renewal of the collective agreement of the employees who provide those legal services” (hereinafter the Act) to the Quebec National Assembly. The Act was passed and assented to on 28 February 2017 without any consultation with LANEQ. The Act applies to LANEQ (or any successor association), lawyers and notaries appointed under the Public Service Act who, on 28 February 2017, were represented by LANEQ (or any successor association) or who are represented by LANEQ thereafter, as well as ministries and agencies in respect of which LANEQ is certified under sections 66 and 67 of the Public Service Act and by the National Assembly (sections 2 and 3 of the new Act). The complainant organization indicates that the law does not apply to ARQ or to lawyers and notaries represented by LANEQ who work for that Agency. LANEQ also states that Division II of the Act includes provisions forcing all lawyers and notaries appointed under the Public Service Act and represented by LANEQ to return to work (sections 2 and 4). The complainant organization indicates that the Act thus prohibits lawyers and notaries in the public service from participating in a strike or “in any concerted action which involves the stoppage, slowdown, reduction or degradation of the duties attached to their respective functions or of their professional or administrative activities or the effect of which is to prevent, hinder or reduce the provision of legal services or to delay penal, civil or administrative proceedings” (sections 4 and 5). Corresponding prohibitions are imposed on LANEQ, which is prohibited from “calling or continuing a strike or participating in any concerted action if the strike or concerted action involves a contravention by employees of section 4 or section 5” (article 7). “Positive” obligations are also imposed on LANEQ, which “must take appropriate measures to induce the employees it represents” to, inter alia, return to work and refrain from participating in a strike or other prohibited concerted action (section 8). The Act also imposes obligations that extend to third parties: thus “no one may, by omission or otherwise, in any manner prevent or impede the fulfilment of the duties attached to an employee’s functions, the provision of legal services by an employee or the performance by an employee of his or work or of his or her professional or administrative activities, or directly or indirectly contribute to slowing down or delaying the performance of such work or activities” (section 9). With regard to obligations extending to third parties, the law stipulates that “[n]o one may hinder a person’s access to a place if the person is authorized or has a duty to be there and if the place is a place where an employee must exercise his or her functions” (section 10). LANEQ emphasizes that the measures depriving lawyers and notaries in public service of the right to strike or any other means of pressure that could “in any manner prevent or impede the fulfilment of the duties attached to an employee’s functions, the provision of legal services by an employee or the performance by an employee of his or her work or his or her professional or administrative activities or, directly or indirectly contribute to slowing down or delaying the performance of such work or activities” came into force on 1 March 2017, the day after the passage of the Act, and will remain in force until 31 March 2020 unless the Government decides otherwise at an earlier date (sections 4 and 48).
22. 176. The complainant organization further indicates that severe administrative, civil and penal penalties are prescribed in divisions III and V of the Act to punish non-compliance with the provisions of division II on forced return to work. LANEQ alleges that the law provides, in particular, for the following:
    • – the suspension of withholding any union assessment or dues deductions by public bodies (for twelve weeks per day or part of a day on which employees are not complying with section 4 or section 5 in sufficient number to ensure that its services are provided) (sections 11 and 12);
    • – the forfeiture of remuneration for any employee who contravenes sections 4 and 5 (section 13);
    • – the forfeiture of remuneration for employees released to carry on union activities if LANEQ contravenes section 7, the reduction of the salary of such employees with respect to the sums that they would have received under the collective agreement, the suspension of payment of any salary during the period during which they are released, for up to twelve weeks per day or part of a day during which LANEQ engages in an act described in section 7 (sections 15 and 17);
    • – granting the Government the power to replace, amend or strike out, by order, any clause of the collective agreement relating to the filling of positions, the hiring of new employees and any matter relating to the organization of work if employees do not comply with section 4 or section 5 in sufficient number to ensure that services are provided (section 18);
    • – a rule that LANEQ is presumed liable, in terms of civil liability, for any injury caused during a contravention of section 4 or section 5 by employees it represents (section 19);
    • – the suspension of the usual rules for the authorization of a class action (article 575 of the Code of Civil Procedure), which result in automatic authorization by the court of such an action when the court is of the opinion that a person who has suffered such injury and who submits a motion for authorization of a class action is in a position to adequately represent the members of the group described in the motion (article 20);
    • – a penal offence for any violation of sections 4, 5, 6, 9 or 10 of the Act, under which offenders are liable to the following fines (section 41):
      • ■ CAD100–CAD500 for lawyers and notaries covered by the Act or other natural persons;
      • ■ CAD7,000–CAD35,000 for LANEQ officers, employees or representatives;
      • ■ CAD25,000–CAD125,000 for LANEQ or other public body;
    • – the latter fine may also be imposed on LANEQ (or on a public body, in the case of a violation of the second paragraph of section 7) if it commits one of the following:
      • ■ a penal offence resulting from a violation of section 7 (section 42);
      • ■ a penal offence resulting from a violation of section 8 (section 43);
    • – any person who helps or, by encouragement, advice, consent, authorization or command, induces another person to commit an offence under the Act is also guilty of an offence liable to the same penalty as that prescribed for the offence the person helped or induced another person to commit (section 44).
23. 177. The complainant organization recalls that, in its report on the complaint submitted in connection with Act 43, the Committee on Freedom of Association considered that the same penalties were “excessive and not conducive to developing harmonious relations between the parties or to encouraging the conduct of fruitful negotiations” [see Case No. 2467, 344th Report, para. 579].
24. 178. The complainant organization also indicates that Division IV of the Act provides, immediately upon its entry into force, for a very short negotiation period (a maximum of 45 days, which may be extended only once, upon the request of both parties, for a period of 15 days) during which a conciliator may intervene (sections 21–24), and a very short mediation period (a maximum of 30 days, which may be extended only once, upon the request of both parties, for a period of 15 days) (sections 25–38). The complainant organization underscores that, in the absence of agreement on the choice of mediator, the mediator is chosen by the Minister of Labour of the Province of Quebec (section 25), and that the mediator may assist LANEQ and the Treasury Council in reaching agreement on certain working conditions (section 28), but that the Act expressly stipulates that “any direct or indirect modification of the negotiation process applicable to employees” (section 29) – the key demand of LANEQ – is completely excluded from the mediation process. Furthermore, the mediator has no decision-making power and, if no agreement is reached at the end of the very short mediation period, the mediator merely prepares a report, in which he records the matters that have been agreed and those that are still in dispute (section 35). The complainant organization concludes from this that, since any issue relating to the reform of the negotiation mechanism is excluded from the mediation process, the mediator’s report will, by default, fail to address that crucial issue. The mediator then submits his report to LANEQ, the Treasury Council and the Minister of Labour (section 36). If the parties do not reach an agreement on the entire collective agreement, the Act requires that the expired collective agreement shall be renewed until 31 March 2020. The complainant organization alleges that the only amendments to the expired collective agreement will therefore be the provisions it has agreed with the Treasury Council, as set forth in in the complete text of the mediator’s report and the salary adjustments and lump sums provided for in the schedule to the Act. Thus, the salary scale for lawyers and notaries and bonuses and allowances not expressed as a percentage of salary would be increased by the following percentages:
    • – from 2015 to 2016: 0 per cent;
    • – from 2016 to 2017: 1.5 per cent;
    • – from 2017 to 2018: 1.75 per cent;
    • – from 2018 to 2019: 2 per cent; and
    • – from 2019 to 2020: 0 per cent.
25. 179. In addition, lump sums of CAD0.30 for each hour paid (in 2015 and 2016) and CAD0.16 for each hour paid (in 2016 and 2017), which are not included in the basic salary, are also added. The complainant organization alleges that the salary measures provided for in the schedule to the Act are substantially less favourable than those set forth in the offer made by the Treasury Council on 24 January 2017 in the negotiations between the parties, and that the Act has the effect of imposing less favourable working conditions than the conditions provided in the offers made by the Treasury Council. LANEQ also points out that, during the debate on the Bill, the President of the Treasury Council stated that the Bill met the requirements established by the Supreme Court of Canada in its ruling on Saskatchewan Federation of Labour v. Saskatchewan, including, in particular, the requirement that “[w]here strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, it must be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations” (paragraph 25 of the ruling). According to the President of the Treasury Council, “a mechanism is being established to compensate for the withdrawal of the right to strike and the obligation to resume work. This mechanism is a time-bound mechanism called negotiation, negotiation with or without conciliation and negotiation with or without conciliation followed by mediation for an additional period of 105 days.”
26. 180. The complainant organization indicates that pursuant to section 24 of the Act, the President of LANEQ sent a letter to the President of the Treasury Council on 3 May 2017 confirming that no agreement had been reached between the parties and establishing a list of points of disagreement. With regard to the first of those points, namely the reform of the negotiation mechanism and the process for determining remuneration, the President of LANEQ explained that the proposal put forward by the Treasury Council on 24 April 2017 did not demonstrate a clear and sincere desire to resolve the dispute for the following reasons. Firstly, according to LANEQ, the proposal made it possible that the committee could assess non-traditional negotiating mechanisms while refusing the Committee to draw any conclusion in that regard within its formal mandate. In other words, the Treasury Council refuses to give the committee a mandate to rule on the key demand of LANEQ. Secondly, the proposal maintains the assessment of tasks by government professionals, which is completely unrelated to the disagreement in question, namely the distinction presumed by the Treasury Council between the functions and responsibilities of Quebec Government lawyers and notaries and those of CPPAs, even though, because of their distinctive functions, both groups are involved in upholding the rule of law. Thirdly, the proposal does not allow for the binding implementation of the committee’s conclusions. Even more worrying for the complainant organization is the fact that the Treasury Council even argued that its proposal would allow LANEQ to file a grievance if the Government did not respect its commitment “to take measures that will take into account the conclusions of the report”. With regard to the second point of disagreement, namely the parity in remuneration between Quebec lawyers and notaries and CPPA, LANEQ emphasizes that, on the basis of a comparative analysis conducted in response to the analysis carried out by the Treasury Council, the proposal would result in an average annual pay gap of CAD15,600 in favour of CPPA at the expert jurist level between 1 April 2015 and 31 March 2019. That difference is due in particular to the fact that the Treasury Council’s method for analysing total remuneration excludes the employer’s contribution to the CPPA pension plan. Finally, the complainant organization underscores that, during the negotiation period provided for by law, the Treasury Council essentially left its monetary proposal of 23 February 2017 unchanged. Thus, from the perspective of LANEQ, the key points of disagreement remained the same as they were prior to the adoption of the Act.
27. 181. The complainant organization further indicates that, on 19 May 2017, the Minister of Labour appointed a mediator, in accordance with section 25 of the Act. On 7 July 2017, after the expiry of his mandate on 2 July 2017, the mediator issued his report, in which he noted that no agreement had been reached between the parties. Furthermore, after drawing attention to the fact that section 29 of the Act prevented him from intervening in discussions between the parties regarding the modification of the negotiating mechanism, the mediator noted in his report that the inability to reach an agreement could be explained by the fact that the parties considered “that the settlement between them should be comprehensive and that every proposal put forward by either party depended on reaching an agreement on all the points on which disagreement remained”.
28. 182. LANEQ emphasizes that, in view of the remaining disagreement at the end of the mediation period, section 40 of the Act will force the renewal of the collective agreement under the aforementioned terms of that Act, and Quebec Government lawyers and notaries will be deprived of their right to strike.
29. 183. The complainant organization considers that the Act infringes on the right to collective bargaining and the right to strike. LANEQ invites the Committee to request the Government of Quebec to repeal the Act, to apply the principles of the Committee in fact and in law with regard to the rights to strike and the right to collective bargaining and to establish an effective and impartial negotiating mechanism with binding conclusions in which both parties have confidence that will allow them to settle their disputes; and in the light of the serious and repeated violations by the Government of Quebec of fundamental rights and principles relating to international labour standards, and in particular freedom of association and collective bargaining to dispatch a direct contacts mission at the earliest opportunity to support efforts by the Government of Quebec to identify solutions to facilitate agreements in accordance with fundamental principles and rights and to ensure their follow-up.

B. The Government’s reply

1. 184. In its communications dated 14 February and 24 April 2018, the Government of Canada transmitted the observations of the Government of Quebec. The Government of Quebec affirms that it acted in accordance with the principles of freedom of association, and that the adoption of the Act in question was necessary, that its scope was limited to what was necessary, that the timeframe was reasonable, and that it did not infringe on the rights to freedom of association or to collective bargaining. The Government underlines that the law applies only to employees represented by LANEQ who are employed by the Government. The Government underlines that the Act was intended only to ensure the continued delivery of legal services within the Government and that it was in no way applicable to other organizations, including ARQ, whose employees are not subject to the Public Service Act. The Government explains that ARQ was established on 1 April 2011, pursuant to the adoption of the ARQ Act and, as of that date, any person employed by the Ministry of Finance became an employee of that agency. ARQ is therefore a separate employer. The employees in its employ, whom LANEQ represents, form part of a distinct negotiating group. The Government further underlines that ARQ employees represented by LANEQ, who were also on strike at the time the Act was adopted, held a general meeting on 1 March 2017 during which they voted to end their strike and return to work. In addition, ARQ and LANEQ are still negotiating the renewal of the collective agreement applicable to the employees represented by those organizations.
2. 185. The Government emphasizes that the various demonstrations in which the employees represented by LANEQ took part in the course of their dispute, including several picketing activities, were in no way affected by the Act, which contains no provision preventing any such demonstrations or picketing activities taking place. The Government stresses in this regard that picketing is a form of expression that is in no way undermined by the Act.
3. 186. The Government provides a general overview of the negotiation mechanism in place in Quebec. The Government specifies that, subject to certain amendments, the Quebec Labour Code applies to both the public and parastatal sectors, including the Government, its ministries and agencies, and public health, social service and public education institutions. Negotiations on the collective agreement between LANEQ and the Government are governed, inter alia, by certain provisions of the Act respecting the process of negotiation of the collective agreements in the public and parastatal sectors and the Public Service Act. Indeed, the Labour Code makes reference to those Acts, particularly in connection with the start of strike action and lockouts. The Act respecting the process of negotiation of the collective agreements in the public and parastatal sectors provides, inter alia, for a mandatory mediation mechanism, which must be used prior to resorting to a strike or lockout. As a result, the parties are required to take part in the mediation process. If no agreement is reached within 60 days of the appointment of a mediator, the mediator transmits a public report to the parties, which sets forth the mediator’s recommendations with respect to the dispute between the parties and must be forwarded to the Minister of Labour. The specific provisions of the Labour Code provide for a period of 20 days to be observed, following receipt of the aforementioned report by the Minister, before recourse to strike action can begin. In addition, the party intending to strike or declare a lockout must provide at least seven clear days’ advance notice to the Minister and the other party of its intention to strike or declare a lockout.
4. 187. The Government also indicates that under the Public Service Act, a strike is prohibited in the absence of an agreement on the maintenance of essential services or a decision of the Tribunal Administratif du Travail (Administrative Labour Tribunal) determining the essential services. The Government specifies that the applicable negotiation mechanism is not modified by the Act, which provides for a return to work while allowing negotiations to continue, with the possible assistance of a conciliator as well as the appointment of a mediator, with the previously negotiated collective agreement being renewed in the event of a continuing impasse during those negotiation and mediation phases, except with respect to basic salary parameters.
5. 188. The Government recalls that the adoption of Act 2 on 22 February 2011 provided for the renewal, until 31 March 2015, of the collective agreement with LANEQ, as well as the agreement on CPPA working conditions, which had expired on 31 March 2010. The Government indicates that, despite the adoption of Act 2, it resumed discussions with LANEQ in April 2011. Those negotiations resulted, inter alia, in the conclusion of an agreement in principle on 7 July 2011. The Government specifies that that agreement in principle applied only to employees represented by LANEQ who were then employed by the Government; it did not, therefore, apply to lawyers and notaries employed by ARQ. Incidentally, ARQ and LANEQ agreed on a separate collective agreement on 12 September 2012, which did not include the letter of understanding regarding reforms to the negotiating mechanism (discussed below). The Government indicates that Annex 8 of that agreement in principle provided that, if the Government were to enter into an agreement with ACPPA that would result in a percentage increase in total remuneration greater than that agreed to with the complainant organization, an adjustment would be made so that the members of the complainant organization would have a total remuneration increase equivalent to that granted to CPPA. An agreement in principle on amendments to the agreement on CPPA working conditions for the period 2010–15 was concluded on 21 September 2011. The Government indicates that meetings were held between its representatives and those of LANEQ to ensure compliance with Annex 8 of the agreement in principle and that, on 18 June 2012, the Government and LANEQ reached an agreement entitled “Application of the letter of agreement concerning an increase equivalent to the total remuneration of criminal and penal prosecuting attorneys”, which provided for additional salary increases for LANEQ members in the form of two lump sums, with a first lump in the amount of CAD5,000 and the second in the amount of CAD2,500. Once the wage issue had been resolved, with the payment of the lump sums and a commitment to ensure that the total remuneration increase was equivalent to that granted to CPPA, LANEQ withdrew a bad faith bargaining complaint filed following the adoption of Act 2, as well as its legal challenge to Act 2.
6. 189. The Government also indicates that Letter of Understanding No. 5 addressed reforms to the mechanism for negotiations with LANEQ, in that it provided for the formation of a labour-management committee to discuss reforms to that mechanism. The Government and LANEQ have met several times to discuss the establishment of that committee. Following a proposal made orally by LANEQ, as well as a written proposal from the Government, LANEQ sent a letter on 25 September 2013 to the associate secretary of the Treasury Council secretariat informing the Council that they wished to continue negotiations, but not through the labour-management committee. The Government therefore proposed maintaining the status quo with respect to the negotiation mechanism for LANEQ members. On 19 November 2013, LANEQ forwarded recommendations formulated outside the committee, which were identical to previously submitted recommendations. The Government therefore invited LANEQ to resume its engagement through the committee. However, when LANEQ refused to negotiate, no further progress was possible.
7. 190. On 1 December 2011, the Government proceeded to repeal Act 2 by adopting the Act to repeal the Act to ensure the continuity of the provision of legal services within the Government and certain public bodies and to amend the Act respecting the collective bargaining plan of criminal and penal prosecuting attorneys. On 4 July 2012, the Government and LANEQ signed a new collective agreement, which established the working conditions of LANEQ members until 31 March 2015, with some of those conditions made retroactive to 1 April 2010. In the light of those developments, LANEQ withdrew its objection to the constitutionality of Act 2, as well as a complaint that it had filed with the International Labour Organization, and gave a full and final release in respect of any appeal challenging the adoption of Act 2.
8. 191. The Government indicates that the collective agreement expired on 31 March 2015, and that, on 29 January 2015, LANEQ submitted its demands. In particular, these included draft Letter of Intent No. 2, which contained a proposal on reforms to the negotiation mechanism for employees represented by LANEQ. The proposal, which called for a compensation review model similar to that used to determine the compensation of judges, provided for the implementation of a new process for determining the working conditions of employees represented by LANEQ and the conclusion of a collective agreement. In addition, the proposal called for a commitment by the Government to introduce legislation in the National Assembly to reform the negotiation mechanism. The Government points out that, on 16 February 2015, it submitted a proposal but that that proposal did not constitute a response to draft Letter of Intent No. 2. Following the filing of the draft Letter of Intent No. 2, LANEQ indicated that it was reviewing the Government’s proposal, in the light of a ruling by the Supreme Court of Canada in late January 2015 on Saskatchewan Federation of Labour v. Saskatchewan.
9. 192. The Government indicates that, on 29 May 2015, LANEQ filed an amended version of the draft Letter of Intent No. 2 of 29 January 2015. That new version, although it provided more information, did not change in the least the primary objective of LANEQ, namely the development of a new negotiation mechanism to determine working conditions and the conclusion of a collective agreement. In the Government’s view, neither the 29 January 2015 version nor the 29 May 2015 version of draft Letter of Intent No. 2 articulated the precise working conditions sought by LANEQ. Instead, both versions of Letter of Intent No. 2 focused exclusively on the demand that the law establish a new mechanism for negotiating its working conditions by modifying the mechanism provided for in the Labour Code and its relevant amending legislation, including, in particular, the Act respecting the process of negotiation of the collective agreements in the public and parastatal sectors. The Government also underlines that, at the meeting of 29 May 2015, it had insisted that the negotiations taking place concerned only public service employees, as the other employees mentioned in the proposal worked for other employers in the public service category as defined in section 111.0.16 of the Labour Code, including the lawyers and notaries represented by LANEQ.
10. 193. The Government indicates that its representatives and those of LANEQ held in-depth discussions on the scope of LANEQ’s demand that a new negotiation mechanism be established and implemented, as determination of the working conditions of Government employees represented by LANEQ would now be entrusted to a third party in accordance with the terms and conditions set forth in draft Letter of Intent No. 2. A subsequent meeting was held on 15 June 2015, at which the Government and LANEQ discussed the allocation of issues, namely issues relating to working conditions that have financial implications and are therefore subject to oversight by the remuneration committee, and conditions without such implications and are therefore to be determined by the arbitrator. The Government indicates that LANEQ believed that direct remuneration, indirect or deferred remuneration and circumstantial remuneration should all be classified as remuneration matters and working conditions with financial implications. The Government also points out that discussions had also taken place on the difficulties that could result from the parallel coexistence of two mechanisms for determining working conditions, especially when certain conditions have provisions with financial implications and provisions that have no such implications.
11. 194. The Government informs that discussions on the allocation of issues between the arbitrator and the remuneration committee continued at a meeting held on 19 June 2015, and that LANEQ asked for the discussions on the allocation of issues and the negotiation mechanism to be concluded first, followed by discussions on the other topics. The Government also points out that, although it was under no obligation whatsoever with regard to the request of LANEQ for a new negotiating mechanism, it nevertheless continued to engage in an exercise to revise the allocation of issues between matters of a normative nature and those relating to remuneration and working conditions with financial implications. That review exercise was completed by the Government and LANEQ on 23 June 2015.
12. 195. At a meeting on 6 July 2015, the Government advised LANEQ that, on the basis of its analysis, there was no reason to set up a specific negotiation mechanism for employees represented by LANEQ, and that it was therefore not possible to comply with the request of the complainant organization in that regard. According to the Government, the existing mechanism, as provided for in the Labour Code, was entirely appropriate and should not be discarded. Thereby, the Government invited LANEQ to continue the discussions, expressing confidence that the parties would be able to negotiate an agreement within the existing mechanism and emphasizing that meetings had already been scheduled between September and December 2015. The Government points out that, in response, LANEQ argued that draft Letter of Intent No. 2 was the cornerstone of its demands, and emphasized the background to its complaint, namely the withdrawal of the right to strike on ethical grounds, and this for both the professions of lawyers and notaries, the lawyer-client relationship of trust, the independence to practice their professions, the mutual trust between clients and lawyers and the ruling in Saskatchewan Federation of Labour v. Saskatchewan.
13. 196. The Government also underlines that numerous meetings were held between 1 September 2015 and 15 April 2016, during which the Government attempted, unsuccessfully, to move forward the discussions to address the working conditions of employees represented by LANEQ in the collective agreement that had expired on 31 March 2015. The Government indicates that mediation took place from 5 May to 28 June 2016 and that during that mediation process, LANEQ reiterated the importance of reforming the negotiating mechanism applicable to its members. On 6 July 2016, it submitted a document for the attention of the Treasury Council and the Ministry of Labour outlining that demand. On 12 October 2016, LANEQ submitted an unlimited strike notice to the Government. That strike took effect on 24 October 2016 and lasted until the passage and assent of the Act of 28 February 2017. The Government emphasizes that, following receipt of the strike notification, and concerned about the disruption that such a strike would cause with regard to the services provided to the public by employees represented by LANEQ, regardless of whether those were services provided directly to the public or services that benefit the general population by facilitating to the smooth functioning of the judiciary, the provincial government or the National Assembly, it contacted the LANEQ spokesperson to request a meeting to present a new proposal addressing monetary matters. That meeting was held on 18 October 2016. According to the Government, the LANEQ spokesperson argued that it was premature to file a new monetary proposal, unless the Government changed its position on the request put forward by LANEQ for a new negotiating mechanism. The spokesperson added that, LANEQ believed that the negotiations would be easy to conclude once a new negotiating mechanism had been agreed with the Government, and that its position was therefore entirely consistent with the position repeatedly expressed by LANEQ throughout the numerous negotiation sessions that had been held, namely that LANEQ was not willing to enter negotiations on any matter prior to the establishment of a new negotiating mechanism.
14. 197. The Government underlines that, on 9 November 2016, its representatives contacted representatives of LANEQ in an attempt to convene meetings with a view to making a revised monetary offer, but adds that LANEQ adopted the same position as at the previous meeting. The Government adds that, a few days later, LANEQ contacted the Government in order to formulate a new proposal for the establishment of a new negotiation mechanism. A meeting was held on 23 November 2016, during which LANEQ submitted a proposal that was very similar to the proposal contained in the draft Letter of Intent No. 2. On 30 November 30 2016, following consultations, the Government submitted its response to LANEQ in which it stated that the latest proposal did not alter the essence of the 29 May 2015 request and was unacceptable. The Government explains, in particular, that this is a question of upholding government coherence, as the 533,000 employees in the public and parastatal sectors were subject to the negotiation regime established by the Labour Code. The Government adds that it has drawn up a new salary proposal, which could have been submitted as early as October 2016, had LANEQ not refused to receive any proposals on 18 October and 9 November 2016. At the meeting, LANEQ reiterated its position that its employees refused to be considered as civil servants and its demand for a negotiating mechanism that would draw a distinction between them and other government employees, similar to the mechanism established for judges and CPPA.
15. 198. The Government indicates that an additional meeting was held on 14 December 2016, during which LANEQ ignored the Government’s overtures and insisted on presenting, once again, two proposals for the adoption of new legislation to establish a new negotiation mechanism accompanied by the withdrawal of the right to strike that would recognize the independence of lawyers and the particular nature of their duties. In response, the Government reiterated that no attempt to change the negotiating mechanism could offer any prospect of an agreement.
16. 199. The Government points out that, in December 2016, LANEQ held an extraordinary general meeting of its members to vote on whether or not to continue the strike. The continuation of strike action was approved by 90 per cent of those voting. At the end of December 2016 and the beginning of January 2017, several meetings bringing together Government and LANEQ representatives were held at the Government’s request. During these meetings, the Government argued that the existing negotiation mechanism in no way undermined the rule of law and that government lawyers and notaries did not enjoy conditions of independence and accountability requiring them to be excluded from the negotiation mechanism applicable to all Government employees. The Government affirms that it respects the right of LANEQ to call for strike action but that is also aware of the need to make every effort to reach an agreement, including with respect to the remuneration of LANEQ employees, under the existing negotiating mechanism.
17. 200. The Government indicates that, on 11 January 2017, by which time the negotiations had come to a complete standstill as a result of LANEQ’s insistence on a new negotiation mechanism, it made an oral proposal in which it suggested that a working group with a mandate to assess the duties and responsibilities of LANEQ members should be established in order to determine whether the nature of those duties and responsibilities justified making a distinction between them and other unionized professionals in the public service. That proposal was rejected by LANEQ.
18. 201. On 24 January 2017, the Government submitted, in writing, a new proposal reiterating the important offer that it had made verbally on 11 January 2017 regarding the formation of a working group. The proposal would allow LANEQ employees to receive total remuneration equivalent to that granted to CPPA. The Government indicates, however, that the proposal was rejected by LANEQ, which claimed that a 10 per cent wage increase was needed in order to achieve parity with the compensation offered to CPPA.
19. 202. At a meeting held on 6 February 2017, LANEQ proposed that a committee or working group should be established and expressed its willingness to make changes, provided that that committee could express its views on both the role and responsibilities of LANEQ employees and on the negotiation mechanism. The establishment of such a committee had been proposed by the Government in January 2017 and LANEQ had refused that proposal.
20. 203. The Government underlines that, on 7 February 2017, in the light of the wage proposal submitted on 24 January 2017, it provided LANEQ representatives with a document entitled “Presentation to Lawyers and Notaries in the Public Service” that demonstrated that the salary increases offered to lawyers and notaries meant that they would receive remuneration similar to that of CPPA, particularly as the contributions to the CPPA pension plan (Régime de retraite du personnel d’encadrement) were higher than those payable by lawyers and notaries into their plan, namely the Régime de retraite des employés du gouvernement et des organismes publics. The Government indicates that it is taking additional steps and, on 12 February 2017, it submitted a new, more advantageous salary proposal, which allowed employees represented by LANEQ to receive total remuneration equivalent to that of CPPA. The Government also underscores that the collective agreement, the renewal of which was then under discussion, made no mention of a commitment by the Government to guarantee employees represented by LANEQ remuneration equivalent to that of the CPPA. The Government also underlines that the proposed creation of the working group underscored its desire to resolve the impasse - an impasse that was becoming increasingly difficult to address because of the persistent demands of LANEQ for a new negotiating mechanism, even though the Government had expressed in July 2015 that there was no justification for such a reform, which could only be implemented by law.
21. 204. The Government points out that, on 14 February 2017, LANEQ held an extraordinary general meeting attended by 77 per cent of the employees it represented, at which 96 per cent of those employees voted to reject the Government’s latest proposals and 63 per cent voted in favour of continuing the indefinite general strike. On 19 February 2017, the Government verbally presented a new salary proposal that now provided for an increase in the total compensation of employees represented by LANEQ of 9.15 per cent, rather than the 9.05 per cent proposed in the offer submitted on 12 February 2017.
22. 205. The Government indicates that, on 23 February 2017, in an effort to resolve the impasse, it submitted a “comprehensive and final proposal on wage parameters and normative aspects” and requested a response from LANEQ by 5 p.m. on 24 February 2017. LANEQ responded on 26 February 2017 with a proposal amending certain elements of the Government’s proposal. The Government claims that, despite the efforts made following its initiative in early January 2017 to resolve the deadlock, LANEQ had clearly returned to square one and extinguished any hope of moving forward on the path advocated by the Government in order to finalize a collective agreement, namely the creation of a working group with a mandate to decide on the status of employees represented by LANEQ.
23. 206. The Government indicates that, given the absence of sincere efforts by LANEQ to reach an understanding that would allow it to move forward with the conclusion of a collective agreement, and in the light of the significant outstanding points of disagreement, the National Assembly started work on formulating a Bill on 27 February 2017. The Government adds that, before and at the beginning of the National Assembly’s meeting, LANEQ representatives acknowledged the impossibility of agreeing terms with regard the establishment of a working group, its mandate and the follow up to its conclusions, reiterated that the existing negotiation mechanism did not function effectively, and underscored the need to use the same mechanism to determine the working conditions of its members as that used in 2011 to determine the working conditions of CPPA, a point of contention that, according to the Government, lies at the root of all the problems that have emerged since the submission of draft Letter of Intent No. 2 on 29 January 2015. The Government concluded that, in view of the comments by LANEQ on the negotiations, it could only conclude that LANEQ did not truly wish to break the deadlock in the negotiations.
24. 207. The Government explains that the strike, which lasted more than four months, had a major impact on the entire Quebec justice system, and particularly on the services normally provided to the public. The Government adds that the President of LANEQ appeared several times in the media to underscore the serious impact of the strike by employees represented by LANEQ. According to the Government, even before the strike began, the President of LANEQ had already anticipated that government activity would be almost paralyzed. The Government also indicates that, only a few weeks after the strike began, the President of LANEQ used the media to convey a letter to the Minister of Justice, in which he outlined the consequences of the strike. He argued that hundreds of court cases were being held back, that costs were being incurred by litigants, that litigants were unable to obtain the support they required from prosecutors, that important legal proceedings were being affected, that the drafting of laws and regulations had come to a standstill and, finally, that a large number of decisions were being made daily by the various government authorities without any input from lawyers. On several occasions, the President of LANEQ had noted the impact of the strike, namely the delay in the preparation of some 20 bills, some 200 draft regulations and some 5,000 cases before the courts, as well as the award of multiple contracts worth several hundred million Canadian dollars without input from legal experts. Finally, the Government affirms that the President of LANEQ had even expressed concern with regard to the legal security of the Government and even admitted that the strike was having a significant impact on the population, the Government and the Government’s legal security.
25. 208. The Government indicates that the National Assembly began consideration of the Act on the evening of 27 February 2017, and that the Act was passed and assented to on 28 February 2017. As stated in its explanatory notes to the Act, the objective of the Act was to end the labour dispute while leaving the door open for further negotiations:
    • The purpose of this Act is to ensure the continuity of the provision of legal services within the Government. The Act also provides for continued negotiation of the collective agreement of the employees whose functions consist in providing such services. In the event that no agreement is reached, it provides for the content of the collective agreement.
    • To that end, the Act provides, among other things, that advocates and notaries appointed in accordance with the Public Service Act and represented by Les avocats et notaires de l’Etat québécois (LANEQ) are required to cease participating in the current strike and resume work according to their normal work schedule and other applicable conditions of employment.
    • The Act also provides for a negotiation mechanism allowing, first, continued negotiation with the possibility of appointing a conciliator and, second, a mediation process if necessary.
    • The Act provides for the renewal of the collective agreement binding the advocates and notaries, which expired on 31 March, 2015, either according to the agreement reached by the parties during the continued negotiation or, in the event that no agreement is reached, by making certain modifications to the collective agreement, in particular to increase to the salary scale.
    • Lastly, administrative, civil and penal provisions are included to secure the continuity of the provision of legal services concerned.
26. 209. The Government emphasizes that the Act was adopted in the context of negotiations to which it has at all times devoted considerable effort with a view to maintaining a frank and sincere dialogue with LANEQ representatives and to explore, with an open mind, possible avenues that could lead to a collective work agreement, thereby resolving the points of disagreement between the Government and LANEQ. The Government adds that, despite all the efforts made by the Government and the open-mindedness it demonstrated in seeking solutions, the two-year negotiation process failed to end the impasse and resolve its differences with LANEQ. According to the Government, legislative steps became necessary because of the inability to reach an agreement. The Government’s responsibility to take the necessary measures to provide citizens with the services that they were being deprived of and to which they were entitled was the driving force behind the adoption of the Act. As for the impact of the aforementioned strike, the Government underscores that in numerous press releases and public statements, LANEQ representatives highlighted its effectiveness in blocking the drafting of laws and regulations, while causing thousands of cases to be delayed in court.
27. 210. The Government also emphasizes that sections in divisions II, III and V of the Act were specifically intended to ensure the continuity of services to the public and were essential to uphold and ensure compliance with the law. The Government insists that those objectives clearly relate to the urgent and real concerns of the elected Government and for the entire population of Quebec, in view of the fact that:
    • ■ All negotiation avenues had been exhausted and no reasonable prospect of an agreement between the Government and LANEQ was foreseeable, as the demands of LANEQ and the offers made by the Government were simply irreconcilable.
    • ■ Fundamental differences of opinion remained in connection with LANEQ’s demands for a change in the negotiation mechanism applicable to the employees it represented, the positions of the parties being irreconcilable, even in the context of the third path proposed by the Treasury Council in January 2017 in an attempt to resolve the impasse.
    • ■ The parties’ positions were also irreconcilable with regard to salaries. Although it had no obligation to do so, the Government had been persuaded to offer total remuneration equivalent to that offered to CPPA, who are not considered employees under the Labour Code, when, in January 2016, LANEQ submitted a new request for a 10 per cent wage increase, which it defined as “new money”.
    • ■ An accurate assessment of the impasse over wages and monetary matters is of fundamental importance since, in the opinion of the Government, it is imperative to promote internal equity and consistency in the wage parameters applicable to employees in the public and parastatal sectors, while acknowledging that the circumstances specific to certain categories of employee may make it possible to agree on specific monetary benefits. The Treasury Council has attempted, without success, to negotiate and agree on such benefits with the complainant organization. In any event, LANEQ has categorically rejected those Government attempts while demanding the establishment of a negotiation mechanism and pay parity with CPPA.
28. 211. In short, according to the Government, in order to safeguard the collective interests of the people of Quebec, it was critical for legal steps to be taken to break the impasse caused by the inability of the parties to reach an agreement. The Government underscores that, as guarantor of the interests of the entire population of Quebec, it had a duty to ensure passage of the Act by the National Assembly, and that acting otherwise would have continued to jeopardize to a serious degree the continuity of services normally offered to the public by the employees represented by LANEQ. The Government affirms that the purpose of the Act was to ensure consistency, coherence and stability in collective working relationships between the Government and its employees.
29. 212. The Government emphasizes that the Act contains provisions that facilitate the continuation of negotiations with a view to achieving a genuine, mutually respectful compromise agreement between the parties. Thus, section 21 of the Act provides that the union and the employer have an obligation to “continue negotiating diligently and in good faith, for a maximum period of 45 days, with a view to reaching an agreement”. Under section 22, that period may be extended for a period of up to 15 days, making a total negotiation period of sixty days, or approximately two months. The Government explains that at any time during the 45-day negotiation period, the union or employer may request the Minister of Labour to appoint a conciliator. As part of the negotiations, the union and the employer are called on to draw up in writing a list of the elements that are to be part of an agreement. The Government adds that, in the event that there is still a disagreement at the end of the period provided for under sections 21 and 22, the Act provides for a process of mediation. In that respect, the mediator is chosen jointly by the parties or, failing that, by the Minister of Labour. In the latter case, section 26 provides that the mediator must have recognized experience and that he or she must not have been an employee, officer, representative or member of the association or Government. Furthermore, the mediator must attempt to facilitate the conclusion of agreement between the union and the employer within 30 days of his appointment or 45 days in the event of an extension. The Government points out that the mediation process addresses all the employees’ working conditions, but does not address the negotiation mechanism, which, as is clear, does not constitute such a working condition. Moreover, at any time during that process, the mediator has the power to make exploratory and confidential proposals to assist in the resolution of the dispute. The Government adds that section 33 provides that the mediator enjoys “all the powers necessary to carry out his or her mandate and for that purpose may, among other things, meet with the association or the employer individually on a confidential basis.” The mediator may also terminate the mediation process before the prescribed time limits if he or she considers the positions of the parties to be irreconcilable, while the parties are required to participate in all meetings called by the mediator. Finally, in the absence of an agreement, the mediator prepares a report in which he records the matters that have been agreed and the matters that are still in dispute. A copy of the report is submitted to the Minister, who then makes it public.
30. 213. The Government also indicates that, in the event of deadlock or the failure of negotiations, section 40 provides that “the collective agreement which expired on 31 March 2015 is renewed as of the day the Minister of Labour makes public the mediator’s report”. That collective agreement shall be binding on the parties until 31 March 2020. The Government claims that this section therefore provides for the continuation of the status quo, except with respect to salary parameters and provisions that have been agreed upon by LANEQ and the Government. The Government adds that, in this manner, the law clearly gives precedence to the ongoing negotiations between the Government and LANEQ, despite the adoption of the Act, and encourages the parties to reach a comprehensive agreement or, failing that, a number of agreements to settle their disputes, with those agreements being incorporated into the renewed collective agreement. In the absence of an agreement covering all aspects of collective agreement to be renewed, the Act provides for the renewal of the collective agreement that expired on 31 March 2015, with the incorporation of the provisions agreed on by the parties, as well as the amendments set out in Annex A of the Act, which relate exclusively to salary parameters. The Government, moreover, underlines that those salary parameters have been the subject of agreements concluded between the Government and numerous employee associations, which represent 99 per cent of employees in the public and parastatal sectors.
31. 214. The Government emphasizes that the legislative authorities demonstrated clearly the importance they attached to free collective bargaining in view of the fact that the Act in no way infringes on the collective agreement, (which expired on 31 March 2015 and was then renewed in its entirety) nor on the efforts of the parties to resolve the issue of working conditions applicable to employees represented by the complainant organization. The intention of the legislator is not to usurp the role of the parties and reject free collective bargaining, which continued after 27 February 2017, as is explicitly called for in relevant provisions. Indeed, the adoption of the Act was made necessary because of the deadlock resulting from the demands put forward by LANEQ. In the light of the above, the Government considers that the measures provided for by the Act were designed to affect the working conditions of employees as little as possible and also underscores that the legislative measures provided for a balanced approach whose sole objective was to ensure the continuity of legal services while also upholding fundamental rights.
32. 215. Furthermore, the Government mentions that, since the collective agreements expired in 2015, it has reached an agreement with 99 per cent of the 510,000 employees in the public and parastatal sectors without their relevant trade unions resorting to strike action, except in very exceptional circumstances. The Government adds that the fact that only the employees represented by LANEQ engaged in an unlimited strike, with a complete work stoppage that lasted for more than four months. Because all efforts by the Government to resolve the matter had proven unsuccessful because of the inflexibility demonstrated by LANEQ and its insistence on obtaining its demands, and given that the strike caused serious problems that it was imperative to address, the National Assembly was compelled to adopt the relevant Act to end the strike in the interests of the public and to preserve public order.
33. 216. The Government denounces the fact that, in effect, LANEQ is claiming the right to a specific negotiation mechanism, namely that applicable to criminal and penal prosecuting attorneys, which is based on the mechanism applicable to judges, when that mechanism confers on third parties important responsibilities relating to the determination of working conditions. The Government alleges that it is clear that the inflexibility demonstrated by LANEQ was the factor that compelled the legislature to adopt measures necessary to uphold the interests of the public and preserve public order, and that the Act is carefully formulated so that the rights are infringed upon only as is strictly necessary, assuming, naturally, that such infringements could occur in the light of the circumstances that led to the adoption of the Act.
34. 217. Finally, the Government considers that the Act respects the fundamental principles of freedom of association, violates neither the right to collective bargaining nor the right to strike, and provides for a set of appropriate and fair measures, so that rights violations, should any occur, are as limited in scope as is possible.

C. The Committee’s conclusions

1. 218. The Committee observes that the complainant organization in this case – LANEQ – denounces the adoption by the Government of Quebec of the Act to ensure the continuity of the provision of legal services within the Government and to allow continued negotiation and the renewal of the collective agreement of the employees who provide those legal services, and alleges that that Act not only denies lawyers and notaries of the Quebec Government the right to strike without appropriate compensation measures but also infringes on their right to collective bargaining.
2. 219. The committee notes the detailed description of the facts that preceded the complaint. The context of the complaint can be summarized as follows: (i) as the complainant organization was preparing to begin negotiations on the renewal of the collective agreement in force until 31 December 2005, the Act respecting Conditions of Employment in the Public Sector, (hereinafter Act 43) was passed and assented to on 15 December 2005, imposing the provisions of the collective agreement applicable to jurists with respect to normative and remuneration clauses, to be applicable up to 31 March 2010. LANEQ, which at that time was known as the Association of State Jurists (AJE), submitted a complaint to the Committee on Freedom of Association, which urged the Government to amend Act 43 to bring it into line with the principles embodied in Conventions Nos 87 and 98 [see Case No. 2467, 344th Report, para. 587 (a)]; (ii) negotiations to renew the collective agreement imposed by legislation were able to start in the autumn of 2010, following the expiry of Act 43. With the negotiations at an impasse, AJE called a strike on 8 February 2011. On 22 February 2011, the Government adopted Act 2, requiring a return to work and imposing the terms of a new collective agreement until 31 March 2015. The complainant organization filed a complaint with the Committee on Freedom of Association; and (iii) on 7 July 2011, AJE and the Government entered into an agreement in principle regarding certain amendments to the 2010–15 collective agreement for lawyers and notaries. In return, LANEQ agreed to withdraw its complaint to the Committee. Under the terms of the agreement, the Government of Quebec proposed, inter alia, the restructuring of the salary scale, the introduction of an expert jurist level in the collective agreement, variable compensation, an increase in bonuses and allowances, parental rights and measures allowing certain casually-employed lawyers to obtain the status of temporary lawyer, as well as measures on union releases and on working hour arrangements. The “other agreed elements” included the incorporation of “a letter of understanding concerning changes to the way in which negotiations would be conducted with the Association of State Jurists”, as provided in Annex 5 to the agreement. The Committee observes that Annex 5 reads as follows:
   • Letter of agreement concerning changes to the way in which negotiations would be conducted with the Association of State Jurists
   • The Government of Quebec and the Association of State Jurists agree to establish, on the date of signature of the agreement amending the 2010-2015 collective agreement for lawyers and notaries, a labour-management committee composed of up to two representatives of each of the two parties, including the Associate Secretary of the Public Service Secretariat of the Treasury Council and the President or Vice-President of the Association of State Jurists, to discuss the reform of the negotiation mechanism. The committee shall adopt appropriate operating rules so as to fulfil that mandate. To that end, each party may, in particular, involve such persons as it deems necessary. The committee must submit its recommendations to the parties within 12 months of its establishment. After the recommendations are submitted, the parties have six months to agree on the action to be taken. As part of its mandate, the committee shall determine the elements to be covered in the work of a new committee which shall be chaired by an independent third party designated by the parties. The recommendations made by the committee may be approved, modified or rejected in whole or in part by the Government.
3. 220. The Committee notes the assertion by LANEQ that, in September 2011, ACPPA, an entity that brings together specialized lawyers who represent the Government of Quebec in criminal and penal courts, entered into an agreement in principle with the Government of Quebec regarding certain amendments to the 2010-2015 collective agreement on the working conditions of criminal and penal prosecuting attorneys (similar to the letter of agreement concluded with AJE). That agreement in principle also included, in an annex, a letter of intent concerning reforms to the modalities for negotiations with ACPPA. On 1 December 2011, the National Assembly adopted the Act to repeal the Act to ensure the continuity of the provision of legal services within the Government and certain public bodies and to amend the Act respecting the collective bargaining plan of criminal and penal prosecuting attorneys. LANEQ explains that, as provided for in the letter of intent, the Act respecting the process for determining the remuneration of criminal and penal prosecuting attorneys and respecting their collective bargaining plan provides for the appointment of an arbitrator should the parties fail to reach an agreement on other conditions of employment. After hearing the representations made by the parties, the arbitrator shall render a decision, which constitutes a recommendation to the Government of Quebec. The Government of Quebec must then approve, amend or reject all or part of the arbitrator’s recommendation and must publish the reasons for its decision. The process for determining remuneration and the negotiation mechanism provided under that law shall go hand in hand with the withdrawal of the right of CPPA to engage in strike action.
4. 221. With respect to the letter of agreement on the negotiation mechanism with AJE, the Committee notes that the labour-management committee has been established, and its representatives and those of the Treasury Council met several times in 2012 and 2013. The labour representatives on the committee submitted a proposal that a process for determining remuneration and negotiating other conditions of employment should be established for government lawyers and notaries, “through the adoption and entry into force of appropriate legislation prior to the start of the next round of collective bargaining, due to begin in September 2014”. That mechanism should be similar to the mechanism established for CPPA under the Act respecting the process for determining the remuneration of criminal and penal prosecuting attorneys and respecting their collective bargaining plan. Meanwhile, the employer representatives on the committee proposed that the status quo with regard to the bargaining plan should remain in force. As a result, no reform of the negotiation mechanism has been concluded. However, the Committee takes note of the assertion by LANEQ that Letter of Understanding No. 5, which had been agreed by the parties, envisaged reforms to the negotiation mechanism (an essential concession for the complainant organization in return for its agreement to discontinue its efforts to seek remedies, including, in particular, through its filing of a complaint in respect of Act 2 with the Committee on Freedom of Association), specifically through the establishment of a committee chaired by an independent third party, and that the position of the Government, namely to maintain the status quo in that regard prevented any progress from being achieved.
5. 222. The Committee notes the sequence of events as described by LANEQ and the Government: (i) 1 October 2014, negotiations began on the renewal of the collective agreement, which was to expire on 31 March 2015; (ii) on 6 July 2015, the Government advised LANEQ that, on the basis of its analysis, there was no justification for the establishment of a specific negotiation mechanism for employees represented by LANEQ, and that it was therefore not possible to comply with the request of the complainant organization in that regard. The Government maintained that the existing mechanism, as provided for in the Labour Code, was entirely appropriate and should not be discarded. At the same time, the Government invited LANEQ to continue the discussions, expressing confidence that the parties would be able to negotiate an agreement within the existing mechanism and emphasizing that meetings had already been scheduled between September and December 2015; (iii) on 19 April 2016, after 18 negotiation sessions staggered over more than one year, which, according to the complainant organization, had facilitated only slight progress on matters of secondary importance, LANEQ filed a request for mediation; (iv) LANEQ and the Treasury Council participated in six mediation sessions between 5 May and 28 June 2016, which failed to achieve any breakthrough in the discussions, particularly with regard to the negotiation mechanism; (v) on 24 October 2016, LANEQ acquired the right to strike, and a strike was officially called the same day; and (vi) on 28 February 2017, the Government of Quebec adopted the Act to ensure the continuity of the provision of legal services within the Government and to allow continued negotiation and the renewal of the collective agreement of the employees who provide those legal services, thereby requiring lawyers and notaries of the Quebec Government to return to work.
6. 223. In that regard, the Committee notes that the Government emphasizes that the Act provides for steps which the legislature believes are necessary to ensure the continuity of the provision of essential legal services within the Government, and thus the preservation of the collective interests of the population of Quebec. The Government emphasizes that the Act was adopted in the context of negotiations to which it has at all times devoted considerable effort with a view to maintaining a frank and sincere dialogue with LANEQ and to exploring, with an open mind, possible avenues that could lead to a collective work agreement, thereby resolving the points of disagreement between the Government and LANEQ. The Government adds that, despite all the efforts made by the Government and the open-mindedness it demonstrated in seeking solutions, the two-year negotiation process and the four-month period of strike action did not end the impasse and the dispute between the Government and LANEQ. According to the Government, legislative steps became necessary because of the inability to reach an agreement.
7. 224. The Government also underlines that the Act contains provisions that facilitate the continuation of negotiations with a view to achieving a genuine, mutually-respectful compromise agreement between the parties. In that regard, the Committee refers to its conclusions in Case No. 2467 (paragraph 587 (d)) [see Report No. 344, March 2007], in which it requested the Government to establish a bargaining procedure that had the confidence of the parties concerned and allowed them to settle their differences, especially by having recourse to conciliation or mediation and by voluntarily calling on an independent arbitrator to resolve their differences, on the understanding that the arbitration decisions were binding on both parties and were fully and swiftly executed. The Committee notes that affording the parties concerned the opportunity to avail themselves, on a voluntary basis, of the services of an independent arbitrator to resolve their dispute may prove useful to the parties and eliminate the need for legislative steps to resolve that dispute, as has been the case for the two most recent collective agreements. The Committee reiterates this recommendation and requests the Government to keep it informed of the measures taken in this regard.
8. 225. The Committee notes that the complainant organization alleges that the Act violates a free, genuine and voluntary process of collective bargaining, in particular in that the Act: (i) provides for a very short period of negotiation and mediation; and (ii) excludes from the mediation process the modification of the negotiation mechanism applicable to employees. In that regard, the Committee notes the Government’s response in which it emphasizes that the Act: (i) does not restrict the right to freedom of association or collective bargaining in that it provides for the continuation of negotiations with a view to achieving a compromise agreement; and (ii) gives precedence to free negotiation since, in the event of the failure of the negotiations provided for following its adoption, the status quo is preferred. The collective agreement that expired on 31 March 2015 is renewed in its entirety while incorporating the provisions that were agreed upon and the salary parameters that, at the time of its adoption, had already been agreed upon by 99 per cent of employees in the public and parastatal sectors.
9. 226. The complainant organization denounces the severity and disproportionate nature of the sanctions for violations of the provisions (sections 4 and 5) prohibiting the use of strike action or pressure tactics. The Committee notes that Act 43, which it examined in Case No. 2467, provided for the same penalties. In particular, the Act provides that withholding of union assessment or dues deductions at source may be discontinued by public bodies for a period of twelve weeks per day or part of a day on which employees are not complying with section 4 or section 5 in sufficient number to ensure that services are provided (sections 11 and 12). In this specific case, the Committee observes that the discontinuation of the check-off facility was for longer than the period concerned and considers that this is disproportionate and is not conducive to the development of harmonious industrial relations and should therefore be avoided. In the event of a breach of the prohibition on strike action, the payment of employees’ salaries may be withheld. Furthermore, if the contravention results from a period of absence or work stoppage, the salary to be paid to the employee under the collective agreement for work performed after that absence or stoppage is reduced by an amount equal to the salary he would have received for each period of absence or stoppage (section 12). In addition, any employee who is on union release during a period when his or her employees organization is in breach of its obligations is also subject to a suspension of pay for the period during which he or she is on union release, for a period of twelve weeks per day or part of a day during which LANEQ engages in one of the actions referred to in article 7 (sections 14 and 16). The Committee is of the opinion that salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 942], but that, since in this specific case the deductions of pay are higher than the amount corresponding to the period of the strike, the Committee considers that the imposition of such a pecuniary sanction for a legitimate strike action is not conducive to harmonious labour relations. Moreover, section 20 considerably facilitates the institution of a class action against an association of employees in the event of a violation of the law by reducing the conditions required under the Code of Civil Procedure for the institution of such an action. In the Committee’s view, there is no reason to treat this type of class action differently from others and it sees no justification for this difference in treatment. Finally, severe criminal penalties may be imposed for contraventions, up to the considerable sum of CAD35,000 per day of contravention for natural persons and CAD125,000 per day of contravention for associations (article 41). The Committee therefore invites the Government to review, in consultation with LANEQ, the penalties provided for in the Act to ensure that they are not excessive or disproportionate to the violation committed.