Report in which the committee requests to be kept informed of development - Report No 110, 1969

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

1. 88. The Committee previously examined this case at its session in May 1968, when it submitted to the Governing Body the interim conclusions contained in paragraphs 20 to 45 of its 106th Report. This report was approved by the Governing Body at its 172nd Session (May-June 1968).
2. 89. The complaint contained two allegations, one of which the Committee decided did not call for further examination and will therefore not be dealt with in the following paragraphs. The Committee decided, however, to request the Government to supply further information on the other allegation, which related to the Hospital Employees' (Employment) Act (Newfoundland), 1966-1967, and this request for further information was brought to the attention of the Government by a letter dated 1 July 1968. By a communication dated 3 February 1969 the Government of Canada, on behalf of the Government of Newfoundland, supplied certain information in reply to this request.
3. 90. 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. 91. The facts of the case, as agreed by the complainants and the Government, are that in January 1967 employees of the Central Newfoundland Hospital at Grand Falls, organised by the Canadian Union of Public Employees, decided on strike action following unsuccessful attempts to reach agreement with the employers on a question of salary increases. The Lieutenant-Governor in Council thereupon issued a proclamation declaring that a state of emergency existed in the area served by the hospitals and declaring additionally that all further action and procedures in the dispute were to be replaced by the emergency procedures established by section 39A of the Labour Relations Act (Newfoundland), 1952, which provided for compulsory arbitration in such cases. The union was notified immediately of the declaration and was informed that an arbitration board whose findings and recommendations would be binding on both parties was being established. The employees in question, however, went on strike the following day, this action being, according to the Government, " in conscious and open violation of the law ". The enactment complained of the Hospital Employees' (Employment) Act, which prohibited strikes and lockouts or any slow-down, restriction or limitation of operation in all hospitals, geriatric centres, nursing homes or any similar institutions, was adopted a few days later.
2. 92. On examining the case in May 1968, the Committee noted in the first place that the dispute between the Central Newfoundland Hospital Association and the Union had since been settled by means of a collective agreement.
3. 93. It recalled, however, that it 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, and that it has emphasised in many cases that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised. It went on to recall that it 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 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.
4. 94. In the light of these principles, the Committee examined the legislation in question and noted that the Hospital Employees' (Employment) Act forbids lockouts and strikes in hospitals. It pointed out that the Labour Relations (Amendment) Act, 1966-1967, had repealed section 39A of the 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. The Committee noted that while the Labour Relations Act contained provisions on conciliation, it contained none designed to achieve a settlement of disputes in occupations in which strike action is forbidden if the parties cannot reach an agreement at the conciliation stage. As for the Hospital Employees (Employment) Act itself, the Committee observed that it did not lay down any procedure for the settlement of disputes which may occur in hospital establishments.
5. 95. The Committee accordingly recommended the Governing Body to request the Government 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 93 above.
6. 96. In the communication of 3 February 1969 from the Government of Canada, the Government of Newfoundland states that there are, in fact, no arbitration provisions applying to labour disputes in hospitals. The Government expresses its desire, however, to find an acceptable alternative to the earlier hospital legislation which did contain arbitration provisions. In this connection the Government states that it is undertaking a review of its labour legislation, and it expresses the hope that in the consideration of the recommendations to be made within the framework of this review some answer can be found to the difficulty in question.
7. 97. The Government adds that labour unions in the province of Newfoundland have been assured of its desire to meet with them from time to time and to discuss problems of mutual interest and concern. The problem raised in the complaint, the Government states, " is, admittedly, a difficult one and, in striving to deal with it, it is obviously the obligation of the Government to keep in mind the best interests of the province as a whole ".

The Committee's recommendations

1. 98. In these circumstances the Committee recommends the Governing Body:
   • (a) to stress the importance it attaches to the principle referred to in paragraph 93 above;
   • (b) to note that in Newfoundland provision for the settlement of labour disputes in hospitals, where strikes are forbidden, does not meet the requirements of the principle referred to in the preceding subparagraph;
   • (c) to note with interest, however, the statement of the Government of Newfoundland that it is undertaking a review of its labour legislation and hopes that within the framework of this review the problem raised in the complaint can be solved;
   • (d) to express the hope that a suitable solution to the problem raised in the complaint can be found in the near future, and to request the Government to keep it informed of any measures taken or envisaged to this end.