Rapport définitif - Rapport No. 207, Mars 1981

1. 88. The Committee previously examined this case in May 1979 when it submitted its report and interim conclusions in paragraphs 212 to 227 of its 194th Report to the Governing Body, which approved it at its 210th Session, may-June 1979. The Canadian Association of University Teachers (CAUT) submitted further information in a letter dated 5 March 1980. The Government sent its additional observations in two letters dated 29 April and 19 August 1980.
2. 89. 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. Previous examination of the case

1. 90. The complainants had alleged that the introduction of Bill No. 68 to amend the Notre-Dame University of Nelson Act, 1977, section 7 of which terminated the collective agreements between the University and the Faculty Association of Notre-Dame University (FANDU) and FANDU's certification under the Labour Code of British Columbia as bargaining agent for the University, would deny employees their entitlement to continue employment with the successor employer. The complainants also alleged that Bill No. 68 breached the workers' right to establish and join organisations of their own choosing The Government had replied that Bill No. 68 had not been passed by the Legislative Assembly; however, according to one of the complainants, a new Bill (No. 82, the Colleges and Provincial Institutes Act) had been introduced to perpetuate the intent of section 7 of Bill No. 68. Furthermore, the complainants had stated that another new Bill (No. 91, Miscellaneous Statutes Amendment Act to amend, inter alia, the Universities Act) provided that the Labour Code of British Columbia would not apply to the relationship of employer and employee between a university and its faculty members, which, according to the complainants, would prohibit the unionisation of university staff and deny them the right to bargain collectively. The Government had replied that university faculty members were not restricted in collective bargaining and it was the practice of universities to recognise voluntary faculty associations for this purpose, thus the withdrawal of certification did not breach Conventions Nos. 87 and 98. The Government also stated that the issue was before the Labour Relations Board and the Supreme Court of British Columbia. The Committee considered that it would be useful to have the decisions taken by these two bodies in order to enable it to reach conclusions with full knowledge of the facts.
2. 91. The Governing Body, on the Committee's recommendation, noted that section 7 of Bill No. 68 had not been adopted by Parliament and requested the Government:
   • - to send its observations regarding Bill No. 82 (Colleges and Provincial Institutes Act) and
   • - to supply the texts of the decisions of the Labour Relations Board and the Supreme Court of British Columbia regarding the matters dealt with in the complaint.

B. Further developments

1. 92. In its letter of 5 March 1980, CAUT reiterates its allegations that the amendment to the Universities Act, which became law on 7 October 1977, denies labour code protections (including access to a neutral labour board to administer, supervise and regulate the bargaining relationship and to determine the scope of bargaining) to its members. It states that, while it is true that voluntary bilateral negotiations may and do take place, it is also an accurate statement that academic staff cannot compel such bargaining and even if the university consents to such a process it can impose restrictions on the range of negotiable issues. According to CAUT, in other Canadian labour relations statutes where voluntary recognition is contemplated, it is clear that certification is available to the employees if the employer does not respond meaningfully to the request for voluntary recognition.
2. 93. In its letter of 29 April 1980, the Government sends its observations regarding Bill No. 82, together with a copy of the Bill which became law on 27 September 1977. It states that Part V of this Act guarantees to professional employees of a college or provincial institute the right to organise and become certified as a bargaining agent for the purpose of collective bargaining pursuant to the Labour Code. It claims that the amendment to the Universities Act, which states (section 80A) "the Labour Code of British Columbia does not apply to the relationship of employer and employee between a university and its faculty members", does not preclude such faculty members from enjoying freedom of association and the right to organise. According to the Government, it is the practice of universities to recognise faculty associations for the purpose of collective bargaining.
3. 94. The Government also supplies the texts of the decisions of the Labour Relations Board of British Columbia and the text of the appeal before the Supreme Court of British Columbia which concerned a preliminary argument as to jurisdiction. The Board's decision of 26 September 1979 in the case brought by FANDU's successor organisation against the provincial Minister of Education held that the Minister had violated section 5 of the Labour Code of British Columbia in certain public statements. Section 5 reads "No person shall use coercion or intimidation of any kind that could reasonably have the effect of compelling or inducing any person to become or refrain from becoming, or to continue or to cease to be, a member of a trade union". It is stated in the judgement that certain of the offending statements were made just before the introduction of Bill No.

C. Conclusions of the Committee

1. 95. This case concerns allegations that certain British Columbian legislation adopted in 1977 - the amendment to the Universities Act withdrawing the application of the Labour Code of British Columbia from faculty members of a university, and the Colleges and Provincial Institutes Act - prohibit the unionisation of university faculty staff and deny them the right to bargain collectively.
2. 96. The Committee notes that the Government maintains its position that faculty members enjoy freedom of association and the right to organise and that, in practice, faculty associations are recognised voluntarily by universities for the purpose of collective bargaining. It also notes that the Colleges and Provincial Institutes Act does not contain the section originally complained of (section 7 terminating certain collective agreements) and gives certification rights to trade unions which represent the staff of colleges and provincial institutes, which do not include universities.
3. 97. The amendment to the Universities Act does exclude faculty staff from the Labour Code which, according to the complainants, would deny them the right to bargain collectively. The Committee would like to recall generally in this connection the principle that employers should recognise, organisations that are representative of workers in a particular field of activity for the purposes of collective bargaining.) Nevertheless, in the present case, the Committee observes that both the complainants and the Government admit that voluntary bilateral negotiations can and do take place between such workers and their employers. Although both pieces of legislation were passed in 1977, the complainants do not cite examples of actual difficulties in this practice of voluntary collective bargaining. The Committee, while recalling generally the principle that governments should encourage and promote collective bargaining which is recognised as a legitimate means through which workers and their organisations can defend their occupational interests, is of the opinion that this aspect of the case does not call for further examination.
4. 98. On the other hand, the decision of the Labour Relations Board of British Columbia concerning certain aspects of this case (a copy of which was supplied by the Government) contains statements such as "there evolved a programme of public coercion the clear purpose of which was to mount intense and irresistible community pressure on the FANDU membership to give up that membership". The Board clearly states that certain statements made by the Minister of Education regarding FANDU "amounted to coercive conduct which could reasonably have the effect of compelling or inducing the Notre-Dame University faculty members to cease to be a member of a trade union". In this connection, the Committee would like to recall the importance of Article 2 of Convention No. 87, ratified by Canada, which provides that workers without distinction whatsoever shall have the right to establish and join organisations of their own choosing and the importance of protection of workers and their organisations against acts of anti-union discrimination.