Rapport définitif - Rapport No. 164, Juin 1977

1. 33. The complaint submitted by the International Federation of Free Teachers' Unions (IFFTU) is contained in a letter dated 23 April 1976. The Government sent its observations in a communication dated 18 October 1976.
2. 34. 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)

A. A. The complainants' allegations

1. 35. The complainants protested against the adoption by the Quebec National Assembly of a Bill (No. 23) respecting the maintaining of services in the field of education. This Bill - a copy of which was sent by the IFFTU - was designed to prohibit strikes, go-slows and lockouts for a period of 80 days (starting from 11 April 1976) in the education sector (colleges providing general education and vocational training; school boards).
2. 36. According to the Bill, three educational disputes commissioners must be appointed by the Lieutenant-Governor in Council. These commissioners are responsible for investigating current disputes, giving the parties a hearing, inquiring after the progress of the negotiations, examining the latest trade union demands and employers' offers, and studying the possible effect of these demands and offers on the services, staff, efficiency and costs. Their report must be submitted to the parties within 60 days of their appointment and immediately made public. The Bill also provides for harsh penal sanctions in the event of infringement of its provisions.
3. 37. In its reply the Government stated that the Quebec Act No. 23 was approved on 9 April 1976. It pointed out that the complaint did not refer to any specific international instrument nor did it state how the aforementioned Act would contravene trade union rights. The Government stressed the difficulty, in the circumstances, of making detailed observations on this complaint.
4. 38. The Government stated that Act No. 23 had been adopted because of the disastrous situation prevailing in education in Quebec. The Act had the following two main purposes: to ensure that the pupils and students get the full value from the academic year and to continue to seek for a negotiated settlement of the dispute. The Government quoted the number of working days lost in the elementary and secondary schools as well as in the "colleges" (pre-university establishments) and added that the situation was steadily getting worse. It also mentioned other aspects of the situation such as courses being curtailed or not given, examinations held outside the arranged times, failure to give work to the students, cancellation or boycotting of educational or extra-curricula activities, leaving before the specified time, refusal to ensure the pupils' safety and to deputise, and abandoning teaching projects. Since the academic year was due to come to an end less than 11 weeks later and in some colleges the term was due to end in the first fortnight in May (approximately five weeks later), the Government had felt, it added, that it had a duty to salvage what remained of the academic year for more than a million pupils and students and to take emergency measures in the public interest, in response, moreover, to the appeals of the parents and public opinion.
5. 39. The Government went on to say that it felt itself obliged, therefore, to prohibit any form of lockout, strike, go-slow or reduction of work in this sector. However, although section 99 of the Labour Code allows the Attorney-General to petition a judge of the Superior Court to grant an injunction to prevent or terminate a strike for a period of not more than 80 days, there was no provision for similar action to be taken in the case of a lockout. Under the Act which was adopted, therefore, stated the Government, lockouts had been suspended as well as strikes, but only as a temporary measure, and the suspension of lockouts constituted, moreover, a safeguard for respect of trade union rights.
6. 40. The Act, added the Government, was drawn up in fairly flexible terms so that it would be possible to reach a negotiated settlement of the dispute for the benefit of all the trade union members. Although, in effect, it ordered the normal resumption of courses, it did not put an end to the negotiations; on the contrary, it left the parties concerned full freedom to continue these negotiations, to reach an honourable settlement and to conclude a collective agreement; none of its provisions could be assimilated to a decree imposing conditions of work on the parties, such as had to be adopted some time ago in the education sector. The Government added that, together with the temporary suspension of the right to strike, a board of inquiry had also been set up with a view to clarifying the confused state of the negotiations. The board, which consisted of a judge of the Provincial Court of Quebec as chairman and two other members, had been commissioned to inquire into the questions separating the two parties. The tasks entrusted to these "educational disputes commissioners", continued the Government, showed proof of the legislator's concern for impartiality. The board had to give the parties a hearing so that the latter could freely express their opinions. The commissioners, added the Government, publicly made known their interpretation of the commission entrusted to them: they considered that their role was to be one of conciliation and that they would be empowered to put forward the necessary suggestions and recommendations; and they regarded the board as being independent of either party to the disputes. The Government declared that the commissioners had carried out their duties with impartiality with a view to reconciling the parties and helping them to reach an agreement in the shortest possible time. It stated that the negotiations between the Quebec authorities and the teachers had continued and that they would shortly result in the signing of an agreement.
7. 41. The Government emphasised that by intervening in a labour dispute because it affected the public interest, the legislator never sought to suppress trade union freedoms or to bypass the rules laid down in the Labour Code. In this connection it quoted section 25 of Act No. 23 which states that the Act is not designed to put the colleges and school boards or their staff beyond the reach of the provisions of the Labour Code. The Government stated, finally, that the academic year had been brought to a successful conclusion both in the elementary and secondary schools and in the colleges.

B. B. The Committee's conclusions

1. 42. The Committee has observed on previous occasions that a general prohibition of strikes constitutes a considerable restriction of the opportunities open to trade unions for furthering and defending the interests of their members and of the right of trade unions to organise their activities. The situation is quite different, however, when the law imposes a temporary ban on strikes, for example, during conciliation and arbitration procedures and during a "cooling off" period, during the statutory period of strike notice or during the life of a collective agreement. Restrictions of this kind have generally been accepted by the Committee, on the understanding that the conditions that have to be fulfilled in order to render a strike lawful must be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organisations.
2. 43. In this particular case, Act No. 23 imposed a temporary suspension of the right to strike in the education sector for a period of 80 days, beginning 11 April 1976 and at the same time set lip a board of inquiry to facilitate a settlement of the dispute; the latter is, moreover, according to the Government's statements, on the way to being settled. The Committee considers that such a restriction on the exercise of the right to strike does not go beyond those which it considered acceptable in other cases.