Definitive Report - REPORT_NO284, November 1992

1. 27. In a communication dated 29 August 1991, the Canadian Labour Congress (CLC) presented a complaint of violation of freedom of association against the Government of Canada (Quebec) on behalf of the Canadian Union of Public Employees (CUPE).
2. 28. In a communication dated 13 May 1992, the federal Government sent observations and information provided by the Government of Quebec.
3. 29. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but not the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), or the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants' allegations

1. 30. The complainants, in their communication of 29 August 1991, allege that the Government of Quebec violated international Conventions on freedom of association by adopting, in May 1990, an Act ensuring the continuity of electricity services supplied by the state-owned company Hydro-Quebec (hereinafter referred to as Act No. 58) thus forcing back to work some 15,700 workers who are grouped into six bargaining units and three local sections, in charge of production and supplying of electricity to the entire Province of Quebec.
2. 31. Industrial relations in this sector are governed by the Labour Code, in particular sections 111.015 et seq. pertaining to public services. In accordance with these provisions, on 9 November 1988 the Government adopted Decree No. 1691-88 ordering Hydro-Quebec and the relevant trade unions to maintain essential services in the event of a strike. In December 1988, when their collective agreements came up for renegotiation, the trade unions began the procedure for renewing the agreements. Following several months of negotiation, a settlement had still not been reached; they notified the employer, the Ministry of Labour and the Essential Services Council of their intention to call a strike for 6 November 1989. The trade unions and employees complied with the provisions of the Labour Code concerning the right to strike, and with the recommendations of the Essential Services Council on maintaining the aforementioned services.
3. 32. The complainants assert that there was never any threat to the continuity of electricity services during the strike. The trade unions, whilst continuing their efforts to renew collective agreements, constantly maintained the essential services needed to ensure the continued supply of electricity. During the period October 1989-May 1990, whenever local trade union branches called a strike, they submitted comments to the Essential Services Council, the governmental body responsible for ensuring that essential services are provided in the event of a dispute between an employer and a trade union. On each occasion, the Council approved the strike, and made sure that there were enough workers at their posts to maintain essential services for the public. The Council states in its 1989-90 annual report that the trade unions made the necessary adjustments to their lists of services to be maintained, which shows their responsible attitude and good sense in respect of their duty to the public at large.
4. 33. The local branches held a series of one-day strikes, twice weekly throughout the spring and winter of 1990. The strikes always complied with both the Labour Code and the directives of the Essential Services Council. On 3 May 1990, it seemed that an agreement was within reach following a meeting between the Government's Conciliation Officer and all the parties concerned. On the same day, the local branches made public their acceptance of the proposed agreement and stated that there would be no more strikes. Nevertheless, on 4 May, the Government adopted Act No. 58.
5. 34. This legislation:
   • - made it compulsory for the employees involved to return to work from 4 May 1990;
   • - imposed all the conditions of employment applicable to the employees involved, until 13 December 1992;
   • - made it binding on every employee to carry out all the duties implied in his post, in accordance with the conditions of employment pertaining to him, without stopping, slowing down, reducing or changing the activities involved in the execution of his tasks (section 6);
   • - prohibited trade unions from calling any strike or concerted action that would cause their members to default on any of their obligations under section 6;
   • - prohibited any action or omission which could prevent employees from carrying out their duties efficiently;
   • - extended penalties already provided for in the Labour Code to include: suspension of the check-off system; lower remuneration; various fines, up to $60,000 per day (or part of the day) for an individual, and up to $100,000 per day (or part of the day) for a workers' association, with these fines applying to each offence.
6. 35. Furthermore, Act No. 58 suppresses or is less advantageous than certain conditions of employment covered by previous agreements, or accepted in the agreement of principle reached on 3 May, particularly in terms of provisions relating to: subcontracting; the right of workers to refuse dangerous work; job evaluation; equal remuneration and various social benefits such as dental care, life insurance, etc.
7. 36. The complainants maintain that Act No. 58 is totally at variance with the principles of freedom of association and the many decisions of the Committee on this subject, in particular Cases Nos. 1438 and 1451. The strike was legal, complied fully with the Labour Code and, while it lasted, the members of CUPE local branches provided essential services to ensure that the lives, personal safety and health of the population of Quebec were not endangered. Act No. 58 represented a pointless and unjustified intrusion by the Government of Quebec in free collective bargaining, which served only to deprive the workers at Hydro-Quebec of a lawful and economically effective means of action.

B. The Government's reply

1. 37. In its communication of 30 April 1992, the Government of Quebec alleges that since a collective agreement was concluded between the parties concerned in June 1991, it would not be appropriate for the Committee to give a ruling on a complaint which is no longer valid. As to the substance of the case, the Government maintains that the complaint is unfounded, and that it complied with the relevant international labour standards.
2. 38. As regards its preliminary argument, the Government points out that soon after Act No. 58 was adopted, both sides resumed collective bargaining and, on 6 June 1991, reached an agreement of principle. In recognition of the efforts made, in December 1991 the Government adopted Act No. 158 which abrogated Act No. 58. In September 1991, the agreement of principle was freely ratified by the workers who put it to a vote. These collective agreements, the product of genuine negotiation between the parties, cover the period from September 1991 to December 1993. Substantially, conditions agreed to, in terms of wages, subcontracting and the right to refuse dangerous work, did not differ from those provided for in Act No. 58, complaints about which had been included by the trade unions in their communication. With regard to remuneration, the parameters provided for in Act No. 58 were renewed and an additional agreement covering 1993 was concluded.
3. 39. In the Government's opinion, since the conditions of employment provided for in Act No. 58 were negotiated and subsequently accepted by the trade unions and their members, the CLC complaint is no longer valid. Moreover, the penal and administrative sanctions provided for under Act No. 58, which were not unduly harsh or exceptional, were never actually applied and never will be, since Act No. 58 was abrogated by Act No. 158. The Government feels that a decision on a legislation which has since been repealed would not be appropriate given the circumstances. Any consideration of the complaint, quite apart from being pointless, could disturb the trust which has recently grown up between the parties by introducing an element of tension into the situation that might reopen the debate.
4. 40. As regards the substance of the complaint, the Government states that the state public service company, Hydro-Quebec, whose sole shareholder is the Government of Quebec, generates and distributes electricity for the entire province through its network of highly complex installations scattered over a large territory including 53 hydroelectric and 26 thermal power stations. It has a production capacity of 25,700 megawatts, and a transport and distribution network of 96,300 km. Some 70 per cent of the population of Quebec rely on electricity for heating in winter, when temperatures can drop to -47oC in the north and -39oC in the south. Electricity is a vital element in the economic infrastructure of Quebec, since it is the main source of energy and used essentially in homes, hospitals, schools, industry and the underground railway. In the event of a power failure, particularly in winter when temperatures are very low, the effect on the population is immediate, since there is no alternative energy. Electricity cannot be stored and prolonged power failure can thus prove catastrophic for the province. Development, maintenance, repairs and safety measures are therefore vital for Hydro-Quebec installations since the company is responsible for ensuring a continuous supply of electricity.
5. 41. The Government describes the industrial relations system and, in particular, the nature of these relations in essential services such as the electricity industry. The Essential Services Council (ESC) was set up in 1982 to ensure that the industrial relations machinery is applied, in particular by helping parties to identify which services should be maintained during a dispute. The ESC is made up of eight members: a chairman and a vice-chairman, two members from the most representative workers' associations in public services, health and social services, two members from the most representative employers' associations in the same fields and a further two members chosen following consultation with the Human Rights Commission, the Office of Disabled Persons of Quebec, the Ombudsman, and other persons or bodies. Decisions in the ESC are taken by majority vote.
6. 42. The parties must negotiate which essential services will be maintained in the event of a strike. Once agreement has been reached, the decision is then passed on to the ESC which assesses whether or not the level of essential services being maintained is adequate. Where no agreement has been reached, the trade union sends its list to the employer and to the ESC. The latter then judges whether the level of services is adequate and reports to the Minister of Labour. Where sufficient understanding cannot be reached or the list of essential services is deemed inadequate, the ESC recommends modifications to the parties concerned. The certified association must give the Minister of Labour, the employer and the ESC at least seven days' notice of a strike, stating when it will begin. The Council must remind parties of their obligation to maintain essential services during a strike and, consequently, has a number of powers at its disposal in terms of redress, in the event of these obligations not being respected. Thus it may demand that the law, a collective agreement, or a list of essential services be complied with. It has the same powers with regard to concerted action, other than a strike or a go-slow, if the action would jeopardise a service to which the public is entitled.
7. 43. In the 16 months of the dispute, which lasted through two winters, the dispute reached such proportions that the Government was forced to intervene to ensure public safety. Contrary to what was alleged in the complaint, the trade unions did not always act in accordance with the law. The various means of pressure brought to bear gave rise, on several occasions and in various places, to acts of sabotage and vandalism, threats and attacks on company representatives. The ESC was forced to intervene 41 times and more than once ordered workers to put an end to such activities. Also, negotiations were interrupted on several occasions by illegal work stoppages, in so far as no prior warning was given and essential services were not maintained. Finally, even the legal exercise of the right to strike was tainted by illegality, the ESC having to intervene on six occasions to remind trade unions of their obligation to maintain predetermined essential services. The Government has submitted, as supporting evidence to show the seriousness of the situation, the text of all ESC decisions and other documents including press cuttings, debates in the National Assembly and reports to the Minister.
8. 44. Contrary to the complainants' allegations, there was no agreement in sight on the eve of the adoption of Act No. 58. Attempts to settle the dispute had failed. The cost of the trade union demands amounted to $85 million over 3 years and despite the intervention of a conciliation officer, after 16 months of negotiations the two sides were still so far apart that an end to the dispute could not be expected in the foreseeable future. The Government therefore deemed it expedient to adopt Act No. 58, since there was an acknowledged breakdown in negotiations, the means of pressure were dragging on and there was a real danger for the safety of the population. The Committee has already ruled that providing electricity is an essential service (Case No. 1307, 238th Report, para. 325; Case No. 1549, 277th Report, para. 444), as is maintenance work to prevent accidents or catastrophes (Case No. 961, 204th Report, para. 68; Case No. 1019, 217th Report, para. 375).
9. 45. Furthermore, the Committee decided that it would appear legitimate that a minimum service be maintained in the event of a strike "the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the population" (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 415). In spite of the fact that essential services had been determined by the trade unions and the employer (services which were not constantly maintained by the trade unions), and despite the many interventions of the ESC, the delay in maintenance work on the Hydro-Quebec network had become so serious that the normal living conditions of the population were being seriously jeopardised. When Act No. 58 was adopted, the safety of the population was in such danger that even if essential services had been respected from that point on, the potential risks would have remained the same. Only a complete resumption of normal operations could make any difference to the situation. So, the Government of Quebec decided to intervene, adopting Act No. 58, only as a last resort after 16 long months of negotiations, several failed attempts at reconciling the parties, and in the light of a real threat to public health and safety.
10. 46. The Government's legislative intervention resulted, for a short period, in a prolongation of the employees' conditions of work and to changes in the contents of collective agreements in the form of wage increases which were sufficient to maintain their living standards. This is in line with the principles of the Committee which state that, as a rule, public authorities should refrain from intervening to change the content of freely concluded collective agreements, except where such intervention is justified by reasons of social justice and in the public interest. According to previous rulings by the Committee, restrictions on freedom of negotiation made on such grounds can only be acceptable if they are an exceptional measure, applied only when and for as long as strictly necessary and are accompanied by adequate safeguards to protect workers' living standards. The Government feels that in this case these conditions were respected, and has shown that there were overwhelming reasons of public interest underlying its intervention.
11. 47. Act No. 58 was also designed to restore continuity in the supply of electricity by stipulating that each employee had to carry out the duties inherent in his job, in accordance with the relevant conditions of employment without stopping, slowing down, reducing or changing his activities. In the opinion of the Government, the obligation to return to work was acceptable since the strikes, means of pressure, serious acts of vandalism against the undertaking's property and failure to respect essential services had, all together, jeopardised the safety of the population. The Committee has already acknowledged that the right to strike can be restricted or even prohibited in the public service or in essential services in so far as a strike there could cause serious hardship to the national community (Digest, para. 393). Under the legislation of Quebec, the right to strike is normally recognised for workers in public electricity services. However, in an emergency, the Government is duty bound to take action and give priority to public interest. When Act No. 58 was adopted, the Government was unable to assess and ensure the supply of electricity to the population of Quebec.
12. 48. Finally, although Act No. 58 provided for administrative and penal measures to be applied in case of violation of the Act (suspension of trade union deductions, reductions in remuneration and penal sanctions), none of these penalties was actually applied, as the return to work took place as provided for by law. Even if the penalties had been applied, they would, in any event, have been proportionate to the offences committed. (Digest, para. 441.)
13. 49. Once the electricity services which had been under threat during the strike were re-established, both Hydro-Quebec and the trade union side realised that the time was right to try and reach a settlement on the conditions of work and remuneration of employees belonging to the three trade unions involved. In spring 1991, the parties got back to the negotiating table with a view to signing collective agreements which would supersede Act No. 58. In November 1991 after several weeks of amicable negotiation, the parties concluded new collective agreements which will remain in force until December 1993. In December 1991, the Government adopted Act No. 158 which abrogated Act No. 58.
14. 50. The Government requests the Committee to conclude that examination of the substance of the complaint is inappropriate in the circumstances or, failing that, that the complaint is not founded. It requests the Committee to invite the trade unions and employees concerned to respect the law and international labour standards in future.

C. The Committee's conclusions

1. 51. In the present case, the complainants criticise the provisions of Act No. 58, adopted in May 1990 by the Legislative Assembly of Quebec to ensure the continuity of electricity services. They allege that this legislation is contrary to international labour standards and the previous decisions of the Committee on the subject. The Government replies that the Act was necessary to protect the life and safety of the population and came under the exceptions recognised by the Committee. Furthermore, the penalties provided for by law were never applied and the legislation was subsequently abrogated when the parties concerned concluded a collective agreement.
2. 52. The Committee recalls that the provision of electricity is an essential service in respect of which the right to strike may be limited, even prohibited. The Committee took account in this case of the local climatic conditions. The Government explained how repairs to the network need to be carried out urgently, and the extent of the problems which could arise in the event of a prolonged breakdown in the electricity supply. In its considerations the Committee also took account of the length of the dispute. This case is clearly different from those mentioned by the complainants which concerned the rail sector (265th Report, Case No. 1438) and postal services (268th Report, Case No. 1451). However, the fact that the right to strike may be limited, or even prohibited, in essential services does not mean that these services should be excluded from collective bargaining. The social partners should be able, for instance, to negotiate the maintenance of minimum services. It notes that, in the present case, the parties had concluded an agreement in this respect.
3. 53. The Committee stresses the important role played by the Essential Services Council (ESC) in the procedure established by the Labour Code to determine the minimum services. The ESC, as a body, relies on the participation of different sectors of the population and brings together representatives of trade unions and employers to determine essential services. As the Committee had already emphasised in a case concerning this Province "... the Council is without doubt in the best position to evaluate objectively the real situation given its membership and the information available to it" (Case No. 1526, 279th Report, para. 254). The parties were able to put their observations before the Council which, in this case, made a number of decisions, some in favour of the trade union, and others of the employer.
4. 54. The Committee further notes that, to a certain degree, Act No. 58 protected the employees' living standard and, in particular, that agreement was concluded and ratified by means of a free ballot among employees, and that certain provisions of the Act were more or less retained, such as the 4 per cent increases for 1989, 5 per cent for 1990, 4-5 per cent for 1991, and an increase for 1992 in line with that of the public sector. The standard-settingclauses are also largely based on Act No. 58.
5. 55. Finally, the Committee observes that since the complaint was lodged Act No. 58 has been abrogated (following the conclusion of new collective agreements) and that the penalties provided for in the Act were never applied. Consequently, it feels that this complaint does not call for further examination.