Definitive Report - Report No 187, November 1978

Case No 903 (Canada) - Complaint date: 09-MAR-78 - Closed

1. 55. In a communication dated 9 March 1978, the Economists', Sociologists' and Statisticians' Association presented a complaint of infringement of trade union rights in Canada. Further information was received from the complainant organisation in a communication dated 17 April 1978. The contents of these communications were transmitted to the Government, which forwarded its observations on 21 August 1978.
2. 56. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 57. The complaint concerns Bill C.28, An Act to Amend the Public Service Staff Relations Act, submitted by the Government for a first reading in the House of Commons on 8 March 1978.
2. 58. According to the complainants, the Bill is a clear violation of Convention No. 87 in that it denies freedom of association to a certain category of employees by not including them in the category of "employee" as defined in the Act. The complainants refer specifically to the following provisions of the Bill:
   • - section 1(1)(i), which excludes from the definition "employee" a person who is determined to have or exercise senior professional duties and responsibilities, or is determined to have or exercise managerial duties and responsibilities in relation to the formulation or implementation of policies and programmes or the effective control of employees, by the person being employed in a position that is classified in a managerial occupational category, or at an annual rate of pay equal to or greater than $33,500;
   • - section 1(4), which excludes from the definition "employee" the managerial occupational category, and section 1(5) which includes in the definition "person employed in a managerial or confidential capacity" a person who is employed as a legal officer in the Department of Justice, is employed in the Treasury Board or is a person described in paragraph (i) of the definition "employee" in subsection 1(1) (see above).
3. 59. The complainants stated that, by these two amendments to the Public Service Staff Relations Act, the Government was taking away from senior professionals and employees of the Treasury Board the freedom to associate in a trade union for the purpose of bargaining collectively on wages and conditions of employment. Moreover, a group of persons who have salaries above a certain scale shall be denied freedom of association.
4. 60. The complainants went on to state that, under section 1(8) of the Bill, the Governor in Council may, by order, amend annually or at such other intervals as he may consider appropriate the annual rate of pay referred to, to take into account changes in salary levels in the public service. Consequently, the Government may, by order in Council, determine that the category of employees denied freedom of association shall be enlarged or reduced by altering the salary perimeters indicated in the Act whereas, by virtue of Convention No. 87, this right should be inalienable.
5. 61. The complainants stated that the Bill further reduced the rights of freedom of association by expansion of the managerial category of employees. They quoted a news release issued by the Treasury Board, which stated that "managerial exclusions from collective bargaining would now be determined by the classification of their positions in a new and expanded managerial occupational category..." The complainants alleged, however, that the Government did not intend that these employees should form a bargaining unit separate from the employees they supervise; they were completely denied freedom of association.
6. 62. Finally, the complainants referred to section 5 of the Bill, which states that no collective agreement shall provide for a maximum salary that would be equal to or higher than the amount set out in section 1(1) (i) ($33,500, see above). They considered that this amendment was a violation of Article 4 of Convention No. 98 in so far as it constitutes an obstacle to collective bargaining rather than an encouragement.
7. 63. In their second communication, the complainants submitted a brief prepared by the Public Service Alliance of Canada analysing the legislation and a letter from the Chairman of the Staff Side of the National Joint Council of the Public Service of Canada to the President of the Treasury Board criticising the Bill.
8. 64. In its reply, the Government states that the Parliament has been prorogued and that, consequently, Bill C.28 is no longer on the Order Paper. According to the Government, there is no indication at this time as to whether it will be reintroduced during the next session of Parliament. In conclusion the Government declares that, in these circumstances, the grounds for the complaint in question no longer exist.

B. B. The Committee's conclusions

1. 65. The Committee takes note of the information supplied by the Government. Although the Bill in question is at present no longer on the Order Paper of Parliament, the Committee nevertheless considers it useful to make certain general observations regarding the Bill so as to acquaint the Government and the complainants of the views of the Committee regarding this matter.
2. 66. The Committee is bound to recognise that the Bill appears to deny freedom of association to a category of employees who have or exercise senior professional duties and responsibilities or managerial duties and responsibilities. In this connection, the Committee recalls that, by virtue of Article 2 of Convention No. 87, which has been ratified by Canada, workers, without distinction whatsoever, shall have the right to establish and to join organisations, the only exception provided for by the Convention having regard to the armed forces and the police.
3. 67. Moreover, Article 3 of Convention No. 87 provides that workers' and employers' organisations shall have the right to organise their administration and activities and to formulate their programme. It follows from this provision that trade unions should have the right to seek, by means of collective bargaining or any other legal means, to improve the conditions of work of those they represent. At its last session, the International Labour Conference referred to this matter by adopting the Labour Relations (Public Service) Convention, 1978 (No. 151). According to Article 7 of this Convention, "measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and the public employees' organisations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters". It should however be stressed that, in accordance with Article 1, the extent to which the guarantees provided for in Convention No. 151 shall apply to high-level employees whose functions are normally considered as policy-making or managerial, or to employees whose duties are of a highly confidential nature, shall be determined by national laws or regulations.

The Committee's recommendations

1. 68. In these circumstances, in view of the fact that the Bill in question is no longer on the Order Paper of Parliament and subject to the observations contained in the foregoing paragraphs, the Committee recommends the Governing Body to decide that the case does not call for further examination.