Interim Report - Report No 106, 1968

Case No 523 (Canada) - Complaint date: 18-MAY-67 - Closed

1. 20. The complaint is contained in a communication of 18 May 1967 to the I.L.O from the Canadian Labour Congress. A copy of this complaint was forwarded to the Government on 13 June 1967.
2. 21. The Government supplied its observations in a letter dated 26 January 1968.
3. 22. Canada has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 23. The complainants allege that the passing of two enactments, one in the province of Saskatchewan and the other in Newfoundland, has directly threatened the freedom of association of workers in certain occupations and is contrary to the principles of the Declaration of Philadelphia, as well as contravening the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
   • Allegations concerning the Essential Services Emergency Act (Saskatchewan), 1966
2. 24. The complainants state that the oil, chemical and atomic workers affiliated to the Canadian Labour Congress are the certified bargaining agent for the gas workers and office employees of the Saskatchewan Power Corporation, a government corporation. According to the complainants, after six months of fruitless negotiations, these employees went on strike on 2 September 1966, having fulfilled all the legal requirements. The Premier of the province, they continue, called a special session of the Legislature to pass the Essential Services Emergency Act, 1966.
3. 25. The complainants quote section 3 of the Act, which empowers the Lieutenant-Governor in Council, in certain specified circumstances and in the event of certain specified disputes, to declare by proclamation that all further action and procedures in the disputes are to be replaced by the emergency procedures provided for in the Act. According to the complainants, once such a declaration is made no strike action may be carried out or, if in effect at the time of the declaration, continued. The issue must be submitted to compulsory arbitration. If, in the opinion of the Lieutenant-Governor in Council, the trade union or any officer or employee of the trade union has not done everything reasonably possible to end the strike, the Lieutenant-Governor in Council may de-certify the trade union for a period of 12 months.
4. 26. The complainants add that immediately after the proclamation of the Act the employees of the Saskatchewan Power Corporation returned to work and submitted to compulsory arbitration.
5. 27. In its reply dated 26 January 1968 the Government of Canada forwards the information and observations supplied by the Government of Saskatchewan on this aspect of the case, together with a copy of the relevant legislation.
6. 28. The main points emerging from the information supplied by the Government are as follows. The collective bargaining agreement in effect between the Oil, Chemical and Atomic Workers' International Union and the Saskatchewan Power Corporation expired on 31 May 1966. Negotiations for a new agreement took place at 27 meetings between the parties from March to September 1966. The Corporation made an offer of a wage increase amounting to approximately 4.5 per cent, while the Union asked for an increase of 8 per cent. By August 1966 the negotiations had reached deadlock. On 2 September 1,361 workers left their jobs and joined the strike called by the Union. The Premier of Saskatchewan called a special session of the Legislature, which passed the Essential Services Emergency Act, and Royal Assent was granted on 8 September 1966. The following day the Premier offered the Union a wage increase amounting to 6 per cent, which was rejected. On 12 September the Lieutenant-Governor in Council signed a proclamation which declared that all further action in the dispute was to be replaced by the emergency procedures provided for in the new Act. In conformity with the provisions of the Act the employees on strike returned to work the same day. In accordance with the same Act a board of arbitration was established in October 1966 under the chairmanship of a judge. In May 1967 the board awarded a general increase of 5 per cent with effect from 1 October 1966; 3 per cent of this increase was made retroactive to 1 June 1966.
7. 29. In his observations the Minister of Labour for Saskatchewan points out that the Essential Services Emergency Act, 1966, covers a limited area since it applies to:
   • (a) employees engaged in the operation of any system, plant or equipment for furnishing or supplying water, heat, electricity or gas service to the public or any part of the public; or
   • (b) employees engaged in the provision of hospital services anywhere in the province.
8. 30. The Minister adds that the winter season in Saskatchewan is marked by prolonged periods of extremely cold weather. If a strike were to disrupt the operation of any of the utilities mentioned the results could be tragic. The uninterrupted provision of hospital services is also considered to be a matter of vital concern. Accordingly, the Government felt that it was necessary to prevent stoppages of work from severely interfering with the health and safety of the public. He goes on to state that the provisions of the Act take effect only after a decision of the Cabinet that the strike in question in fact creates an emergency situation. The Minister emphasises that the Legislature was called into session to consider the passage of the Act after a strike had in fact been in effect at the province's principal electricity and gas utility for several days.
9. 31. The Committee notes that the question at issue relates mainly to the passing of legislation restricting the right to strike in certain specified essential services. Accordingly, the Committee considers it appropriate to consider the matter in the light of the principles it has upheld in earlier cases of a similar character.
10. 32. The Committee has always held that allegations relating to the right to strike are not outside its competence in so far as they affect the exercise of trade union rights. It has also emphasised in many cases s that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised.
11. 33. In this connection the Committee has stressed the importance that it attaches, where strikes are prohibited or subject to restrictions in essential services, to the establishment of adequate safeguards to protect the interests of the workers who are thus deprived of an essential means of defending their occupational interests a and has pointed out that such restrictions should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures in which the parties concerned may participate at every stage and that the awards given should in all cases be binding on both parties.
12. 34. It is clear from the information supplied by the complainants and the Government that the Essential Services Emergency Act, which makes provision, inter alia, for compulsory arbitration and a return to work, applies to labour disputes which occur in certain specified services, namely those for the supply of water, heat, electricity or gas to the public, and hospital services, and that the Act does not come into operation automatically but only on proclamation of a state of emergency. Such a proclamation is only made if, in the view of the Lieutenant-Governor in Council, there is a danger to life, health or property (section 3 of the Act). Examination of the Act itself (a copy of the text of which was supplied by the complainants) also shows that each of the parties to the dispute is entitled to designate one member of the board of arbitration; these two persons then elect the third member, who must be a judge. The award made by the board of arbitration is binding on both parties (section 4). These provisions do not appear to conflict with the principle mentioned in the previous paragraph.
13. 35. Lastly, it is clear from the information supplied by the Government that the dispute involving the Saskatchewan Power Corporation to which the complainants refer was settled in May 1967 by means of the arbitration procedure mentioned above.
14. 36. Accordingly, in view of the considerations set forth in paragraphs 31 to 35 above, the Committee recommends the Governing Body to decide that this aspect of the case does not call for further examination.
    • Allegations concerning the Hospital Employees (Employment) Act (Newfoundland), 1966-67
15. 37. Secondly, the complainants state that in the spring of 1966 the Canadian Union of Public Employees organised employees of the Central Newfoundland Hospital at Grand Falls and was duly certified as bargaining agent in July 1966. In September of that year negotiations began with the Central Newfoundland Hospital Corporation and agreement was reached on all matters except monetary items and union security. A conciliation board was appointed in accordance with the Labour Relations Act and made a unanimous report, which was accepted by both sides.
16. 38. In order to implement the pay increases, the Hospital Corporation required a revision of its operating budget to be approved by the Newfoundland Department of Health. This approval-according to the complainants-was not forthcoming and Local No. 990 of the Canadian Union of Public Employees voted for strike action, the deadline being set for 27 January 1967. On 23 January 1967 a state of emergency was proclaimed as provided for under section 39A of the Labour Relations Act and the emergency procedures under that section were declared operative. On 24 January 1967 a majority of the employees walked off the job. On 27 January the Newfoundland House of Assembly passed the Hospital Employees (Employment) Act, 1966-67. The complainants state that the Act outlawed strikes and lockouts or any slowdown, restriction or limitation of operation in all hospitals, geriatric centres, nursing homes or any similar institutions. All hospital employees on strike at the time of passage of the Act were to return to work within 72 hours, failing which the Local and the Union would be liable to the penalties provided for by the Act.
17. 39. The following main points emerge from the information and observations supplied by the Government of Newfoundland through the Government of Canada. In August 1966 negotiations began over a collective agreement between Local No. 990 of the Canadian Union of Public Employees and the Central Newfoundland Hospital Association. In November of that year a conciliation board was appointed at the Union's request, and in the same month the Lieutenant-Governor in Council of Newfoundland, in the speech from the Throne, announced that the Government desired to increase the salaries of nurses and certain other hospital employees and also to shorten the work week in certain health institutions.
18. 40. In January 1967 the Central Newfoundland Hospital Association notified the Minister that it was unable to implement the wage recommendations of the board, and on 20 January 1967 the Union, which had accepted these recommendations, voted to go on strike. On 23 January the Lieutenant-Governor in Council issued a proclamation declaring that a state of emergency existed in the area served by the hospital and declaring additionally that all further action and procedures in the dispute must be replaced by the emergency procedures provided for under section 39A of the Labour Relations Act. The proclamation was notified on the same day to the Union, which was at the same time informed that an arbitration board whose findings and recommendations would be binding on both parties was being established. According to the information received from the Government, the Union went on strike on 24 January " in conscious and open violation of the law ". On 27 January the Hospital Employees (Employment) Act, 1966-67, was enacted together with the Labour Relations (Amendment) Act, 1966-67. (The latter enactment, a copy of which is supplied by the Government, repeals section 39A of the Newfoundland Labour Relations Act, which provided-following the proclamation of a state of emergency-for the prohibition of strikes and for compulsory arbitration in labour disputes which interrupted or threatened to interrupt hospital services.)
19. 41. In their comments the Newfoundland authorities emphasise the illegality of the strike called by the Union and the fact that the Government had to consider the welfare of the patients. The Government adds that at the time of the illegal strike the law of Newfoundland made provision for dealing with disputes in hospitals up to and including legally binding arbitration.
20. 42. The Committee once more refers to the principles mentioned in paragraphs 32 and 33 above and notes from the Government's statement that the dispute between the Central Newfoundland Hospital Association and the Union has since been settled by means of a collective agreement.
21. 43. However, it feels bound to note that the Newfoundland Hospital Employees (Employment) Act, 1966-671, forbids lockouts and strikes in hospitals with effect from its entry into force (section 5). This Act, however, does not lay down any procedure for the settlement of disputes which may occur in such establishments, as did section 39A of the Labour Relations Act, which allowed a strike to be prohibited following the declaration of a state of emergency and established an arbitration procedure which was binding on both parties. The Labour Relations Act contains provisions on conciliation but none designed to achieve a settlement of a dispute in occupations in which strike action is forbidden if the parties cannot reach an agreement at the conciliation stage.
22. 44. Accordingly, in order to arrive at its conclusions with full knowledge of the facts, the Committee recommends the Governing Body to request the Government of Canada to be good enough to state whether, in view of the prohibition of strikes in hospitals, any provision is made in the legislation of Newfoundland or in collective agreements, for other procedures for the settlement of labour disputes in hospitals affording the safeguards referred to in the principle set forth in paragraph 33 above.

The Committee's recommendations

1. 45. In these circumstances, with respect to the case as a whole, the Committee recommends the Governing Body:
   • (a) as regards the allegations concerning the Essential Services Emergency Act (Saskatchewan), 1966, to decide, for the reasons stated in paragraphs 31 to 35 above, that these allegations do not call for further examination;
   • (b) as regards the allegations concerning the Hospital Employees (Employment) Act (Newfoundland), 1966-67, to request the Government to be good enough to supply the information specified in paragraph 44 above;
   • (c) to take note of this interim report, it being understood that the Committee will report further when it receives the additional information requested from the Government.
     • Geneva, 29 May 1968. (Signed) Roberto AGO, Chairman.