Definitive Report - Report No 295, November 1994

Case No 1743 (Canada) - Complaint date: 06-DEC-93 - Closed

1. 39. The Confederation of National Trade Unions (CNTU) presented a complaint of violation of trade union rights against the Government of Canada (Quebec) in communications dated 6 December 1993 and 22 June 1994.
2. 40. The Government of Canada, in a communication dated 9 August 1994, transmitted the observations of the Government of Quebec, dated 2 August 1994.
3. 41. I.Canada has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87); however, it has not ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), or the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant's allegations

1. 42. In its communication dated 6 December 1993, the CNTU maintains that the Act to amend the Labour Code, which entered into force on 19 May 1994 (hereinafter referred to as "the Act"), runs counter to the principles of freedom of association guaranteed by Conventions Nos. 87, 98 and 154, and by the Constitution of the ILO.
2. 43. The CNTU, founded in 1921, groups together 2,200 trade unions and over 240,000 workers, mainly in the province of Quebec. These trade unions are affiliated to nine federations, according to branch of activity, in the private sector and the public services. Most of the trade unions affiliated to the CNTU would be affected by this Bill, both in the private sector and in the public services, such as municipal corporations, for example. However, the public and parapublic sectors (hospitals, school boards and public servants) are not covered by the legislative measures contested in the complaint.
3. 44. The earlier version of the Labour Code provided that the term of a collective agreement was not less than one year and not more than three years (section 65). The Code also provided that certification could be applied for from the 90th to the 60th day prior to the date of expiration of a collective agreement, thus allowing assessment of the representative character of the certified association at least every three years, should another trade union claim to be representative. Under the new provisions, the issue of certification to the most representative trade union in a given unit, recognizing it as an exclusive agent for purposes of bargaining and representation of all the workers in the unit, cannot be challenged for a period of up to six-and-a-half years.
4. 45. Under the new provisions, for collective agreements with a term of over three years, assessment of a union's representative character can take place between the 180th and the 150th day prior to the date of expiration of the collective agreement. For example, if an employer and a certified association conclude a collective agreement for a seven-year term, no other organization can apply for certification for the same group until six-and-a-half years have elapsed after the signature of the collective agreement. This is an infringement of the workers' right to choose their representative organization within a reasonable period (all of the other labour jurisdictions in Canada recognize the right to change certified association at least every three years).
5. 46. The CNTU maintains that the new time periods imposed by the Labour Code of Quebec are clearly unreasonable in the light of the principles laid down by the Committee itself, in particular in Cases Nos. 533 (India), 559 (Trinidad and Tobago) and 1385 (New Zealand).
6. 47. Moreover, under section 15 of the Act, read together with section 2, a member of a certified association could be prohibited from becoming a member of another association or affiliating to it for a period of up to six-and-half years, depending on the term of the collective agreement concluded between the certified association and the employer. Under the earlier legislation this ban could not last more than three years, because of the prohibition on collective agreements with a term of over three years. This section therefore infringes the workers' right to join organizations of their own choosing and runs counter, in particular, to Articles 2, 5, 8 and 11 of Convention No. 87.
7. 48. In addition, the fact that a certified association and an employer may conclude collective agreements for a long term, while another association cannot apply for certification before a long period has elapsed (of up to six-and-a-half years), does not ensure adequate protection against acts of interference, in so far as this possibility in itself encourages employers wishing to set up a dominated trade union organization to do so and thus secure six-and-a-half years of "peace" without any genuine bargaining. Workers wishing to set up a trade union which is not dominated by the employer would in practice be compelled to wait until the six-and-a-half-year period has elapsed before they can claim representativity and negotiate. This infringes the right to adequate protection against any acts of interference, in violation of Article 2 of Convention No. 98.
8. 49. Lastly, since the new Act allows the parties to negotiate collective agreements for longer terms (five, ten, 20 years, etc.) without their being subject to denunciation by one of the parties, after some years of application this may become a restrictive framework from which one of the parties cannot free itself by negotiating working conditions adapted to the real situation, until it is able to choose another representative association, once five-and-a-half to six-and-a-half years have elapsed since the application of the collective agreement. These provisions therefore infringe the right to bargain.
9. 50. In its communication dated 22 June 1994, the CNTU states that the amendment made between the time the Bill was tabled and its adoption introduces an exception for the first collective agreement, whose term cannot exceed three years. This amendment means that, for every first collective agreement, the period during which workers may change their trade union allegiance when another association has the required representative character is between one and three years, depending on the term of the agreement (section 22(d) of the Labour Code, section 2 of the Act). In the case of a collective agreement that has been renewed, however, the parties may agree to postpone the period in which another association may apply for a certification to between five-and-a-half and six-and-a-half years from the date of the renewal of the agreement (section 22(e) of the Labour Code). This amendment only ensures respect of the principles of freedom of association in the case of a first agreement, while the grounds for the initial complaint remain as regards other agreements.

B. The Government's reply

1. 51. In its communication dated 2 August 1994, the Government of Quebec maintains that the provisions criticized by the complainant organization are in compliance with the principles of freedom of association of the ILO and, before going on to reply specifically to the allegations, outlines the main features of the labour relations system.
2. 52. The rules respecting certification allow an association claiming to represent the absolute majority of employees in a certain group of employees of the same employer (the bargaining unit) to request recognition as the exclusive agent of all of the employees of the unit for purposes of negotiation and application of a collective agreement (sections 21 and 67). This certification is carried out by a specialized and independent body, whose decision is based on objective and pre-established criteria. It can only be challenged at certain specified times which are linked to the term of the collective agreement. Before the amendments introduced by Bill No. 116, this could be done after one to three years, depending on the agreed term of the collective agreement, i.e. the lower and upper limits imposed by the law.
3. 53. The fact that certification cannot be challenged outside these periods does not, however, mean that it is impossible to remove a trade union which does not genuinely represent the workers' interests. On the one hand, the Code provides that certification shall not be granted to a trade union which is dominated (sections 12, 29 and 31) and, on the other, it stipulates that a complaint of an association being dominated can be brought at any time, and its dissolution can be obtained (sections 12, 143, 145 and 149). Since the decree to dissolve the association proceeds from the court's having established that it was dominated, it follows that the dissolved association is stripped of its certification. Since this is an essential attribute for the conclusion of a collective agreement by an association of employees, such agreement therefore loses its legal basis. Moreover, although this subject is not dealt with in the Code and this has no impact on certification, under the by-laws governing the functioning of the association, a group of employees has the possibility of replacing the trade union officers, even during the term of the collective agreement.
4. 54. Once certification has been granted, the certified association and the employer are bound to begin and carry on negotiations diligently and in good faith, with a view to concluding a collective agreement (sections 53, 141 and 144). In order to assist them, the law provides them with means of resolving their dispute: conciliation (sections 54 and 55) or arbitration (Chapter IV, sections 1 and 1.1 of the Code and section 15 of the Act respecting the Ministry of Labour, LRQ, c. M-32.1). The law does not dictate the content of the collective agreement but leaves free rein for negotiation, as long as it relates to conditions of work in the broad sense of the term and that it is not contrary to public order or prohibited by law (section 62). There can be only one collective agreement with respect to the group contemplated by the certification (section 67), the signing of which is conditional upon its being accepted by vote of the members of the trade union, by secret ballot (section 20.3).
5. 55. The Code provides that any disagreement regarding the interpretation or application of a collective agreement shall be submitted to the procedure of arbitration of grievance (sections 100 and ff.). Strikes and lockouts are therefore forbidden during the period of the agreement, except where negotiations are reopened under a clause to that effect in the agreement (section 107). These heavy means of pressure can only be used, with advanced notice, between two collective agreements or during negotiation for a first collective agreement - a less frequent occurrence since arbitration for a first collective agreement may take place at the request of only one of the parties (sections 58 and 93.1 and ff.). Under what are known as the "anti-strike-breaker" provisions of the Code, for the duration of a strike or a lockout the employer is prohibited from replacing striking or locked-out employees, whether by other employees not affected by the dispute, any person hired after the negotiations stage, by a contractor or by a person employed by another employer. The law also prohibits the use of the services of dissident employees. Moreover, in an establishment where a strike has been declared, an employer cannot utilize employees from another of his establishments, unless the employees of such an establishment are members of the bargaining unit on strike or locked out. An employer wishing to maintain his activities despite the dispute therefore has no other option than to utilize his own employees, subject to the reservation mentioned above, or to contract out his production to a contractor outside the establishment on strike or locked out. The Code also provides that an employee on strike shall not lose his employment because of the strike and enjoys priority in recovering his employment at the end of the dispute (sections 110 and 110.1).
6. 56. Individual employees are protected against anti-union acts on the part of the employer (sections 13, 143 and 14 and ff.) and provision is made for remedies for contesting failure of a trade union (whether or not he is member thereof) to discharge its duty of representation with respect to all of the employees of the bargaining unit (sections 47.2, 144 and 47.3 and ff.). Lastly, the Code provides that changes affecting the enterprise (alienation, operation by another in whole or in part, division, amalgamation or changed legal structure) shall not invalidate the certification of the trade union or the collective agreement; the new employer remains bound thereby (section 45).
7. 57. As regards the amendments introduced by the Act, only the provisions concerning the term of collective agreements are not unanimously accepted, and are the subject of the complaint; these are sections 2, 13, 15 and 35. Section 13, from which the other three follow, amends section 65 of the Labour Code, as it now stands, by removing the three-year upper limit on the term of collective agreements. Henceforth, the parties may, if they wish, agree on an agreement suited to their needs, the only limit being a specified term of not less than one year. The amendments introduced by sections 2 and 15 of the Bill are intended to ensure consistency with the provision concerning the term of agreements: they specify the periods during which union allegiance may be changed (raiding periods (Practice whereby a trade union recruits, as members, workers who are members of another existing union.)) and affiliation may be changed, in the case of a collective agreement concluded for a long term.
8. 58. The expiration date of a collective agreement has always served as a point of reference for determining the period during which employees may express their wish to change their collective representative. If freedom of association were not to be jeopardized, this rule could not be left as it stood in the case of a long-term agreement concluded for more than seven years. It is hardly conceivable that in the case of a collective agreement with a ten-year term the representative character of the certified union cannot be contested until the tenth year. It also seemed desirable for this period (known as the change of allegiance period) to occur before the beginning of negotiations to renew the collective agreement, it being possible to begin such negotiations 90 days before the expiration of the agreement.
9. 59. Thus, section 22(e) of the Code, inserted by section 2 of the Bill, provides that, for a collective agreement with a term of more than three years, the period during which allegiance may be changed shall be brought forward to between the 180th and the 150th day preceding the expiration of the agreement. The Code also provides, in the case of an agreement with a term of more than seven years, for a raiding interval running from the 180th to the 150th day preceding the sixth anniversary of the collective agreement and, where appropriate, every other anniversary thereafter. The following table illustrates the application of this new legislation, based on the agreed term of the collective agreement.
   • Raiding periods, based on term of agreement ------------------------------------------------------------------
   • Term Beginning of Applicable rule raiding period(s) ------------------------------------------------------------------
10. 31/2 years 2 years, 9 months (End) 180th-150th day
11. 4 years 3 years, 6 months (End) 180th-150th day
12. 6 years 5 years, 6 months (End) 180th-150th day
13. 61/2 years 6 years (End) 180th-150th day
14. 7 years 6 years, 6 months (End) 180th-150th day
15. 7 years, 1 month 5 years, 6 months (6-year interval) + 6 years, 7 months (End) 180th-150th day
16. 7 years, 2 months 5 years, 6 months (6-year interval) 6 years, 8 months (End) 180th-150th day
17. 8 years 5 years, 6 months (6-year interval) 7 years, 6 months (End) 180th-150th day
18. 9 years, 1 month 5 years, 6 months (6-year interval) 7 years, 6 months (8-year interval) 8 years, 7 months (End) 180th-150th day
19. 10 years 5 years, 6 months (6-year interval) 7 years, 6 months (8-year interval) 9 years, 6 months (End) 180th-150th day ------------------------------------------------------------------
20. 60. As regards the periods during which it is permitted to change trade union affiliation (section 73 of the Code, amended by section 15 of the Bill), all the Act does is maintain the previous rule, while adapting it to the context of agreements concluded for a long term. Thus, for a collective agreement whose term is three years or less, the amendment still allows a change of affiliation within 90 days preceding the expiration of the agreement and, in the case of an agreement for a longer term, within the 180 days counting from the beginning of any raiding period.
21. 61. According to the Government, the complainant organization is concerned not so much about the removal of the upper limit on the term of collective agreements as about its necessary corollaries: the modification of the periods in which change of allegiance and trade union affiliation is allowed, upon which the periodicity of negotiation depends in turn. The CNTU considers the proposed periods to be excessively long in the light of the principles laid down on this subject by the Committee on Freedom of Association. In this respect, the Government maintains that these principles cannot be applied literally to Bill No. 116 without first considering the social, economic and legal context in which this amending Act is being adopted, as well as the spirit and context of the decisions handed down by the ILO supervisory bodies.
22. 62. As regards the social-economic context, the Government emphasizes that in the last five years, with the signing of the Canada-United States Free Trade Agreement (FTA) and, more recently, of the North American Free Trade Agreement with the United States and Mexico (NAFTA), Canada has moved from being a relatively closed economy to one which is open to the world. The restructuring of markets resulting from the signature of these agreements, as well as the economic realities at the beginning of this decade, have led the Quebec partners in enterprise - employers, unions and employees - now that they have reached this stage of maturity, to experiment with new labour relations based on partnership rather than confrontation. Thus, without any control from the State, a labour relations model known as the "social contract" developed, as a distinctive feature of Quebec in the entire North American region. To assist the process, the Government of Quebec supported the negotiation and conclusion of such agreements, which go beyond the traditional collective bargaining framework, either in terms of the subjects covered (investment guarantees), or as regards the term of the agreement, which generally takes account of the time needed to implement the terms of the agreement. By and large these agreements could have been included in the collective agreement if it had not been for the upper limit on the term laid down in section 65 of the Labour Code.
23. 63. The partners to bargaining thus developed a number of tools to compensate for a legal prohibition which had become obsolete: parallel agreements; signature of two collective agreements in advance, to be applied successively, with the second agreement being kept for filing on the date at which it is to enter in force; or simply the conclusion of an agreement with a four-, five- or six-year term or more, despite the legal prohibition. To date 40 such agreements have been concluded, 20 of which are said to have been negotiated by trade unions affiliated to the CNTU. As can be seen from the apparently contradictory decisions handed down by the Superior Court (attached to the Government's observations), a problem arises as to the legal status of such agreements. If one took the first judgement alone, one could even say that these agreements are, at most, amicable agreements whose legal status, once three years - i.e. the upper limit laid down by law - have elapsed, lies entirely in the good faith of the parties. With respect to third parties, or one of the parties wishing to obtain enforcement of the agreement, as far as the application of the Code is concerned it is as if the agreement did not exist. Raiding would therefore be possible and if certification were accorded to the raiding union, the latter could refuse to apply the long-term agreement signed by its predecessor and ask for new negotiations, in accordance with the rules laid down in section 61 of the Code. The enterprise would lose all of the advantages it hoped to gain from the stability of working conditions laid down in a long-term agreement, for which it may have made a number of concessions, which would then be considered as acquired rights. The same is true of the concessions and advantages the previous trade union hoped to gain, although to a lesser extent, since the replacement of the association results from the employees' decision. However, the situation could be just as problematical for the union and the members it represents if a new employer takes over the enterprise. In this case, the rules relating to the transfer of the enterprise (sections 45 and 46) cannot result in the new employer being bound by the terms of an agreement concluded more than three years earlier. The application, and especially the interpretation, of the agreement could also raise a problem in so far as one of the parties could successfully claim that a grievance cannot legitimately be referred to an arbitrator in the fourth year of the collective agreement.
24. 64. Uncertainties of this kind arising out of the rules laid down in the Labour Code and case-law are likely to incur distrust on the part of the parties, however eager they may be to embark on the negotiation and conclusion of a collective agreement for a longer term. It would therefore become impossible for them to ensure that their relations are stable and up to date as dictated by today's economic environment. In this context, state intervention would therefore appear to be justified in so far as a balance needs to be maintained between stability of the employer and trade union partners and the right of employees to periodically choose the trade union representing them. The amendments introduced maintain this balance.
25. 65. As regards the legal context, the Government maintains that the Labour Code continues to ensure the promotion and exercise of the rights of association and collective bargaining. In fact, the sole purpose of the provisions that are the subject of the complaint is to create a secure legal framework for the partners, both employers and trade unions (including those affiliated to the complainant organization, the CNTU), when they sign agreements for a long term, an increasingly frequent occurrence to which legislation had not yet adapted. This mutual security of the partners could have been jeopardized had the amendment merely removed the three-year upper limit on the term of collective agreements (section 65 of the Labour Code). This would have meant that the possibility of replacing the trade union once the agreement had expired would have been shifted to much longer intervals (depending on the term of the agreement) than that envisaged by the amendments introduced. This is the reason justifying the introduction of an amendment to section 22 of the Code allowing an interval for a change of trade union allegiance in the case of an agreement concluded for more than seven years (section 2 of the Bill, introducing a new paragraph (e) in section 22 of the Code). Whereas under the combined effect of sections 22(d), 61 and 45 of the Code, employers and employees were formerly bound by the terms of the collective agreement until it expired, the amendment will favour employees, as they are the only party which can denounce a long-term agreement before it expires, by replacing their association. By setting this first change of allegiance period at a time six-and-a-half years after the beginning of the agreement, at the latest, the Government feels it has achieved a fair balance between the need for security of the partners to negotiation and respect for employees' right of association.
26. 66. By comparison, most of the other legislatures in Canada (at provincial or federal level), while they do not place an upper limit on the term of collective agreements, also allow a change of union allegiance at a specified period or specified periods, during the term of a long-term collective agreement. In one case (Ontario), the current agreement automatically ceases to apply as a result of certification of a new employees' association, while in others the union replacing the original signatory may denounce the agreement in force (federal, Alberta and British Columbia, for example). This change of union partner may take place for the first time between the 18th and the 35th month of the agreement's application, depending on the jurisdiction. It would have been easy to adopt a similar formula but for the fact that, according to the Government, allowing a date (any date) for a first raid could result in practice in the indirect imposition of a new upper limit on the term of collective agreements. There would then be a risk that few employers and unions would be inclined to make the concessions required by a long-term agreement if the possibility always existed for a new union partner to replace the signatory union in the short term and disregard this long-term agreement in future. In purely statistical terms, the experience of Canada bears out this concern, since the great majority of collective agreements are negotiated for a term which corresponds to the first allowed raiding period.
27. 67. The Government states that the complainant does not offer any factual evidence giving reason to believe that the new periods envisaged for change of union allegiance are unreasonable, or excessively long to the point of entailing systematic violation of employees' rights to choose their representative association. The complainant does not adduce any fact establishing that the new periods, ranging from two years and nine months to six years and six months (see table above), are particularly inadequate in the light of past experience or practice in Quebec as regards the frequency of changes of union allegiance. There is no obligation to choose three rather than two, four or six years as the time-limit for challenging the representative character of a certified trade union. The legislator had to draw a line of demarcation and arbitrate between the divergent demands of different groups of the community as regards the ideal period within which it should be possible to challenge the representativity of a trade union. In this respect, the Government considers that it has not been unreasonable in exercising a certain amount of leeway when addressing social policy issues and attempting to reconcile conflicting interests. It considers that in adopting these new provisions on the period for changing allegiance it has achieved a fair balance between the need for security of the bargaining partners and respect of employees' rights. These provisions adequately meet the need to update the Labour Code in the light of the new realities on the labour market, while securing industrial peace during the term of the collective agreement that has been negotiated and affording employees the choice of their representative association by allowing them the possibility of changing union allegiance at sufficiently frequent intervals.
28. 68. Moreover, the term of a collective agreement remains, as it has always been, one of the elements of negotiation. In other words, just like other conditions of work, the term of the agreement is negotiable and the conclusion of a collective agreement, irrespective of its term, is still a voluntary act. Moreover, the signature of the contract is still subject to the employees who are members of the association expressing their wish to do so (section 20.3 of the Code).
29. 69. The complaint also implies that it will be easier for a dominated trade union to establish itself and maintain its position in the enterprise because of the time period which must elapse before it can be removed. Concerned to avoid this situation and aware of the problem, the legislator amended the Bill to prohibit partners negotiating their first collective agreement from concluding an agreement for a term of more than three years, since this is the time at which the employees' association is most vulnerable: the situation therefore remains as it stands for such agreements. In this case as in the other cases, the Code also continues to provide, at any time, for the possibility of filing a complaint alleging that the association is dominated by the employer (sections 12 and 143 of the Code). The complaint is heard by an independent court of law, whose decision can lead to the imposition of a fine, with the possible addition of a request to decree the dissolution of the dominated association (section 149). If such dissolution is decreed by the court, the employees may then found a new association, apply for certification and negotiate a new collective agreement replacing that which was cancelled as a result of the dissolution of the signatory association.
30. 70. Neither does the Bill deny employees, as regards their individual rights, the remedies and machinery afforded them by the Labour Code as protection against arbitrary acts of the trade union. In addition to the right to express their agreement, by secret ballot, to the signature of a collective agreement, the members of an association have the right of access to the financial statements of their association and may, whether they are members or not, contest failure of the union to discharge its duty of representation with respect to them (sections 20.3, 47.1, 47.2 and 144). If the union negligence occurs in a context of a dismissal or disciplinary sanction, the employee concerned has a special remedy which allows him first of all to submit a complaint of such negligence (for example, refusal by the union to arbitrate his grievance of dismissal) and then to have the case referred to arbitration (sections 47.2 to 47.6). The process successively involves an investigator of the Ministry of Employment, should the employees so request, then the labour court and, finally, an arbitrator of grievances.
31. 71. The Government points out that this machinery only makes sense if there is a high degree of unionization. Quebec has one of the highest rates of unionization in North America, taking all branches together, and representation is highly diversified. The vast majority of employees covered by collective agreements are represented by a trade union affiliated to one of the four major confederations of Quebec, over which the State has no control. A large proportion of the other employees are grouped together in independent trade union federations. Trade union dynamism is thus by no means impaired by labour legislation in Quebec, on the contrary, and there is nothing in Bill No. 116 to jeopardize this situation. As it has for several decades now, the Labour Code continues to recognize the right of association (section 3), to ensure its protection by prohibitions and appropriate machinery for contestation before independent bodies (sections 12 and ff.); to allow any representative association to be certified following assessment of its representative character by an independent body, and according to specific, objective, previously established criteria (sections 21 to 44); to promote the negotiation and conclusion of a collective agreement (sections 52 to 73); to encourage, by appropriate and independent machinery (arbitration of disputes and arbitration of grievances) the settlement of disagreements concerning the negotiation or interpretation of a collective agreement (sections 74 to 102); to authorize a strike in support of negotiation of a collective agreement, coupled with protection machinery unequalled in scope throughout North America, in the form of prohibitions on the employer to utilize replacement labour ("anti-strike-breaker" measures, sections 109.1 and ff.); and, lastly, it provides that violation of one of its provisions can incur a complaint and sentencing to a fine by an independent court of law, the labour court (section 118, second paragraph, and 141 and ff.).
32. 72. The Government considers that the provisions which are the subject of the complaint are in conformity with the principles of freedom of association. As amended, the Labour Code does not affect the right of an employee to refrain from joining, or his right to participate in forming, carrying out the activities of or being a member of another association at any time. The amendment does not impose a compulsory duration for trade union membership. Rather, this would be derived from the term of the collective agreement freely negotiated by the parties (unions and employers). In a way it acts as a guarantee of stability of the union side allowed by law for a longer period, which does not result in a system of trade union monopoly contrary to the principles of freedom of association. (ILO, Freedom of association, 3rd edition, 1985, para. 248; 259th Report, Case No. 1385 (New Zealand), para. 551; ILO: Freedom of association and collective bargaining, General Survey, Report III (Part IV(B)), ILC, 69th Session, 1983, paras. 144 and 145.) In other words, the amendment at issue relating to change of union allegiance merely governs the periodicity of such changes.
33. 73. The Government requests the Committee to examine Bill No. 116 in the light of the decision of the ILO supervisory bodies to leave "it to the practice and regulations of each State to decide whether it is appropriate to guarantee the right of workers not to join an occupational organization, or on the other hand, to authorize and, where necessary, to regulate the use of union security clauses and practices". (General Survey, op. cit., para. 142.)
34. 74. Lastly, the Government of Quebec considers that the precedents referred to by the CNTU do not apply to the case in question. As regards Case No. 533 (India), the two trade unions that had concluded a five-year agreement with the company had acted without the consent or knowledge of most of the workers. In this case, the unions were not representative of all the workers and could not represent them for purposes of collective bargaining and the conclusion of the five-year agreement. Moreover, in this case it was up to the employer to recognize the trade union, whereas here this is done by decision of an independent body. Lastly, contrary to what is implied by the CNTU, there is no passage in this decision where the Committee states that the five-year period before the trade union partner can be replaced is unreasonable. As regards Case No. 559 (Trinidad and Tobago), a legislative provision required that a collective agreement have a term fixed by agreement between the parties, not to be less than three years. In addition, the law ensured that the union which was representative of the majority of workers would represent them for the specified term of the collective agreement. In this case, the law protected the union party to the agreement for a minimum period of three years. If one is to understand the Committee's decision correctly, in particular paragraph 132, it is the absence of a raiding interval which was the determining factor in handing down its decision, whereas this is not the case under the terms of the amendment introduced by Bill No. 116.
35. 75. The Government adds that under the terms of an amendment to the Bill it undertook to submit to a Committee within the National Assembly, the Standing Committee on the Economy and Labour, an evaluation report on the new measures (term of agreements and new raiding periods) by the year 2000 at the latest. All of the citizens of Quebec, as well as trade union associations, will then have the opportunity of expressing their views on the subject and suggesting adjustments if necessary.

C. The Committee's conclusions

1. 76. The Committee notes that the present complaint concerns some of the legislative amendments introduced in the Labour Code of Quebec by Bill No. 116, in particular section 13 thereof which repeals the upper limit on the term of collective agreements and from which the other provisions at issue follow. According to the CNTU, these amendments entail infringements of the principles of freedom of association because they may incur unreasonable waiting periods, in particular for assessing the representative character of unions, the possibility of affiliating to another organization, the creation of unions dominated by the employer and collective bargaining. According to the Government, it was necessary to remove this upper limit in order to provide a secure legal framework for collective agreements concluded for a long term, a form of contract which has emerged recently in response to a new socio-economic context.
2. 77. The former text of section 65 of the Labour Code read as follows: "A collective agreement shall have a specified term of not less than one year and not more than three years." It was replaced by the following text: "A collective agreement shall have a specified term of not less than one year. In the case of a first collective agreement for a group of employees contemplated by the certification, the term shall not be more than three years."
3. 78. The new provisions of the Labour Code, as explained both by the Government and the complainant organization, have the effect of extending the time periods within which it is permitted to change union allegiance and union affiliation and, hence, the periodicity of collective bargaining. The CNTU considers that these periods are unreasonable and that they entail a risk that unions may be set up which are dominated by the employer.
4. 79. In the view of the Committee, the difficulties referred to by the complainant organization derive from the particular features of the labour relations system in Quebec, in particular the right of exclusive representation of the employees of the bargaining unit (whether or not they are members of the trade union) conferred on the most representative union for a specified period based on the term of the collective agreement.
5. 80. The Committee has already pointed out in this respect that it is not necessarily incompatible with Convention No. 87 for the most representative union to be recognized as the exclusive bargaining agent, provided that a number of safeguards are ensured, including in particular:
   • (a) certification to be made by an independent body;
   • (b) the representative organization to be chosen by a majority vote of the employees in the unit concerned;
   • (c) the right of an organization which fails to secure a sufficiently large number of votes to ask for a new election after a stipulated period;
   • (d) the right of an organization other than the certificated organizations to demand a new election after a fixed period, often 12 months, has elapsed since the previous election.
     • (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 237.)
   • 81. The first two conditions referred to above are not at issue here. As for the other two criteria, which are in fact two facets of the same right, several aspects should be emphasized in view of the particular legislative context of the present complaint. Firstly, and this is perhaps the most important aspect, the term of collective agreements (which, it should be recalled, determines the time periods and frequency of change of union allegiance and affiliation) is still one of the elements of voluntary negotiation; thus, a union negotiation committee could be willing to conclude an agreement for a longer term than the maximum formerly laid down by the Code, in exchange for financial or other advantages. Indeed, it appears from the information provided to the Committee that some 40 such agreements have been concluded, including about 20 by unions affiliated to the CNTU. Moreover, the parties remain free to negotiate clauses providing for a renewal of negotiation of certain terms of the agreement, if certain conditions arise, or at the end of a certain period. In addition, the signature of the agreement remains subject to ratification by secret ballot by the members of the certified association, which confers on the latter a right to veto a draft agreement they might consider to be unacceptable, by which act they challenge the negotiating team and hence the union involved. It was therefore understandable, in such a context of voluntary collective bargaining, that the Government would seek to reflect in the legislation a practice which had started to develop, to secure the legal status of agreements concluded for a term of more than three years, and thus to avoid their being challenged by a party seeking to evade its obligations on the grounds that it had committed itself for a period exceeding the maximum laid down in the Code.
6. 82. As regards first collective agreements, where unions are both more vulnerable to attempted interference and domination and in a weaker bargaining position, the three-year upper limit has been maintained in the law and the situation remains unchanged in this respect.
7. 83. Concerning the complainant organization's allegations on the risk of employer domination and interference, the Committee observes that the remedies provided for by the Labour Code, in particular recourse to an independent judicial body, continue to apply, both at the time of the initial application for certification and subsequently. While it is true that the risks of inadequate representation of the employees concerned increase with the lengthening of the periodicity for the renewal of collective agreements, the comments made above concerning the voluntary nature of negotiation still apply: the law does not impose the conclusion of collection agreements for a long term, it allows it; in cases where the parties accept it by means of negotiation, the law introduces time periods which are admittedly longer than those laid down by the earlier provisions, but which do allow changes of union allegiance and affiliation.
8. 84. For all of the reasons stated above, the Committee considers that the amendments removing the upper limit on the term of collective agreements, and its effect on the time periods for assessing representativity, collective bargaining, change of union allegiance and affiliation, do not constitute a violation of the principles of freedom of association. However, the Committee is aware that, at least potentially, the possibility of concluding collective agreements for a very long term entails a risk that a union with borderline representativity may be tempted to consolidate its position by accepting an agreement for a longer term to the detriment of the workers' genuine interests.
9. 85. The Committee notes in this respect that the Government states that it has undertaken to submit to a Committee of the National Assembly, "by the year 2000 at the latest", an evaluation report on the new measures and that all of the citizens, including trade union organizations, will then have the opportunity of expressing their views as to whether the objectives of the Act have been achieved and suggesting adjustments if necessary. The Committee considers that should problems of the practical application of the new provisions manifest themselves, in the form and to the extent cited by the complainant organization, this period would appear to be too long. It therefore recommends that the Government submit a report to the Committee in question within a shorter time, for example within three years of the Act's entry into force, so that all of the social partners may, in a tripartite framework, evaluate the application in practice of these new provisions and propose any changes they may consider appropriate.

The Committee's recommendations

1. 86. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee considers that the legislative amendments concerning the removal of the upper limit on the term of collective agreements and its effects on the periods for assessment of representativity, change of union allegiance and affiliation and collective bargaining do not constitute a violation of the principles of freedom of association.
   • (b) However, being aware that the time period for evaluating the new measures is very long, the Committee recommends that the Government submit a report to the Standing Committee on the Economy and Labour within a shorter period than that envisaged, for example within three years of the Act's entry into force, so that the social partners may, in a tripartite framework, evaluate the application in practice of the new provisions and propose any changes they may consider appropriate.