Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 310, Juin 1998

1. 134. Education International (EI), the Canadian Teachers' Federation and the Manitoba Teachers' Society (MTS) presented a complaint of violations of freedom of association against the Government of Canada (Manitoba) in a communication dated 28 May 1997.
2. 135. In response to the allegations, in a communication dated 10 February 1998, the federal Government transmitted the reply of the Government of the Province of Manitoba. Further information was supplied by the Government in a communication of 2 March 1998.
3. 136. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), or the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants' allegations

1. 137. In their communication of 28 May 1997, the EI, the Canadian Teachers' Federation and the MTS allege that the recent amendments to the Public Schools Act through the adoption of the Public Schools Amendment Act ("the Act") violate ILO standards and principles concerning freedom of association and collective bargaining. In particular, the complainants allege that the Act interferes with the independence of interest arbitrators and the integrity of the arbitration process, thus contravening the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).
2. 138. The complainants take issue with three aspects of the recent amendments. First, the removal of certain matters from the jurisdiction of interest arbitrators; second, the requirement that interest arbitrators take into account specific factors including the ability to pay; finally, the creation of a new mediation/arbitration system.
3. 139. As background, the complainants note that in the Province of Manitoba, binding interest arbitration has been substituted by statute for the right to strike for public school teachers (Public Schools Act), as well as police officers in Winnipeg (City of Winnipeg Act), and some provincial civil servants (Civil Service Act). Labour relations in general is governed by the Labour Relations Act.
4. 140. Collective bargaining concerning public school teachers is carried out at the level of the school division or school district. Teachers' associations in each school division or district negotiate collective agreements with their respective employers, resulting in a wide variety of collective agreements.
5. 141. The complainants ask that all of the amendments to the Public Schools Act be viewed in the context of recent Manitoba legislation affecting the wages of public school teachers and other employees in the public sector. The Public Sector Reduced Work Week and Compensation Management Act ("Bill 22") allowed public sector employers, including school divisions/districts, to override collective agreements by imposing unpaid days off. During the 1993-94 school year, public school teachers lost approximately $6,631,366 (CDN) as a result of Bill 22, and $6,802,378 in 1994-95. The effect of the new amendments upon teachers is compounded since their standard of living has already been eroded by Bill 22. Following upon Bill 22, the amendments can only serve to further prejudice and destabilize the labour relation climate in respect of public school teachers in Manitoba. Furthermore, the amendments are of a permanent nature, rather than a temporary response to an economic crisis.
6. 142. Regarding Manitoba's present economic situation, the complainants contend that by the government of Manitoba's own admission, the economy is fundamentally healthy and growing. The complainants attached a copy of "the 1997 Manitoba Budget Address" in support.
   • Jurisdiction of interest arbitrators
7. 143. Prior to the amendments, the Public Schools Act contained no restrictions on the matters that an interest arbitrator could decide. The arbitrator was required to decide the manner in which all matters in dispute between the parties had to be settled. Pursuant to the amendments, certain matters are excluded from the arbitrator's jurisdiction. The relevant provision of the Act reads as follows:
   • Notwithstanding any other provision of this Act, the following matters shall not be referred for arbitration and shall not be considered by the arbitrator or included in the arbitrator's award:
     • (a) the selection, appointment, assignment and transfer of teachers and principals;
     • (b) the method for evaluating the performance of teachers and principals;
     • (c) the size of classes in schools;
     • (d) the scheduling of recesses and the midday break.
   • 144. The Act also contains a new provision that, with respect to the matters not referable to arbitration, "a school board shall act reasonably, fairly and in good faith in administering its policies and practices ...", and a failure to comply may be the subject of a grievance under the collective agreement.
8. 145. The complainants submit that while school divisions/districts may voluntarily agree to include provisions in collective agreements dealing with the excluded matters, interest arbitrators no longer have jurisdiction to impose such provisions. The practical effect of this situation is that school divisions/districts have statutory carte blanche to impose their will upon teachers' associations concerning the excluded matters. Teachers' associations have no recourse: they cannot strike, and now they cannot even rely upon interest arbitration. The complainants contend that this is not merely a theoretical situation since several collective agreements currently in effect contain detailed provisions dealing with at least some of the excluded matters, for example, the transfer of teachers. The complainants attached as an annex to the complaint a collective agreement between the Winnipeg School Division No. 1 and the Winnipeg Teachers' Association No. 1 of the Manitoba Teachers' Society, article 26 of which is entitled "Transfer".
9. 146. The unilateral exclusion from collective bargaining of the items listed in the Act is an unwarranted interference in the collective bargaining process, according to the complainants. Furthermore, it is not a temporary measure or a measure designed in response to an economic crisis.
   • Factors to be taken into account by interest arbitrators
10. 147. Under the old Act, there were no restrictions on the matters which interest arbitrators could take into account in dealing with financial provisions of collective agreements. The amended Act contains new provisions (section 129(3) and (4)) stating --
    • The arbitrator shall, in respect of matters that might reasonably be expected to have a financial effect on the school division or school district, base his or her decision primarily on the school division's or school district's ability to pay, as determined by its current revenues, including the funding received from the government, and the Government of Canada, and its taxation revenue.
    • ... the arbitrator shall also consider the following factors within the context of the school division's or school district's ability to pay:
      • (a) the nature and type of services that the school division or school district may have to reduce in light of the decision or award, if the current revenues of the school division or school district are not increased;
      • (b) the current economic situation in Manitoba and in the school division or school district;
      • (c) a comparison between the terms and conditions of employment of the teachers in the school division or school district and those of comparable employees in the public and private sectors, with primary consideration given to comparable employees in the school division or school district or in the region of the province in which the school division or school district is located;
      • (d) the need of the school division or school district to recruit and retain qualified teachers.
    • 148. The complainants state that pursuant to the Public Schools Act, school divisions and school districts in Manitoba receive most of their revenue from two sources: grants from the government of Manitoba, and education support levies (in essence taxes added to municipal property taxes). For all practical purposes, school divisions/districts have the power to control their revenues by raising and lowering taxes. The current economic situation in Manitoba may be considered when deciding to raise or lower taxes; however, this is essentially a political decision. The complainants submit that the new requirements imposed upon interest arbitrators through the Act require them to consider political factors, balance political imperatives and make political decisions, thus undermining their independence and impartiality. Decisions not to raise taxes should be made by elected politicians rather than independent, impartial arbitrators.
    • Creation of a new mediation/arbitration system
11. 149. Finally, the Act contains new provisions in respect of conciliation, arbitration and mediation. The old Act contained provisions for conciliation and arbitration between teachers' associations and school divisions. Either party could request the Minister of Education and Training to appoint a conciliation officer "to confer with the parties and assist them to conclude a collective agreement or a renewal or revision thereof", and the provisions of the Labour Relations Act dealing with conciliation officers were applicable. Pursuant to the Labour Relations Act, conciliation officers are to be paid from Manitoba's Consolidated Fund (public revenue). Under the amended Act, the parties must now jointly request the Minister to appoint a conciliation officer, and the remuneration and expenses of the officer are to be shared equally by the parties. The complainants submit that this puts public school teachers in a less favourable position than all other unionized employees in Manitoba who continue to be governed by the conciliation provisions of the Labour Relations Act.
12. 150. Under the old Act, where a conciliation officer failed to bring about a collective agreement, either party could request the Minister to appoint a Board of Arbitration. The Minister was also entitled to appoint the Board on his or her own initiative. Nothing said or done in the course of efforts to settle a dispute through conciliation was admissible in evidence in any proceeding before the Board of Arbitration. Pursuant to the amendments, either party may request the Minister to appoint a mediator-arbitrator to confer with the parties and endeavour to assist them in concluding a collective agreement. If the parties are unable to reach an agreement through mediation, either party or the Minister may then require the mediator-arbitrator to effect a collective agreement through arbitration.
13. 151. In the Act, there are no provisions distinguishing between the mediator-arbitrator's mediation role and arbitration role regarding admissibility of evidence. Information and submissions provided to the mediator-arbitrator during mediation may have an effect on the outcome of the arbitration, thus undermining the confidence of the parties and, therefore, violating the Labour Relations (Public Service) Convention, 1978 (No. 151). In addition, the remuneration and expenses of the mediator-arbitrator are to be shared equally by the parties, in contrast with the provisions of the Labour Relations Act requiring mediators to be paid in three equal portions by the two parties and the Consolidated Fund. In effect, public school teachers are again placed in a less favourable position than all other unionized employees in Manitoba. The complainants submit that the amended Act thus violates the Labour Relations (Public Service) Convention, 1978 (No. 151), by failing to encourage and promote the full development and utilization of machinery for negotiation of terms and conditions of employment. Nor does the amended Act promote collective bargaining as required by the Collective Bargaining Convention, 1981 (No. 154).
14. 152. The complainants further submit that the amended Act violates the principle that restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings, since as a result of the amendments a prohibition on strikes is now combined with an arbitration system that is neither adequate nor impartial. B. The Government's reply
15. 153. Generally, it is the Government's position that the action which it has taken is entirely consistent with the fundamental principles of the International Labour Organization.
16. 154. The Government takes issue with the complainants' suggestion that the recent amendments were primarily the outgrowth of the economic retrenchment experienced by the Canadian economy generally, and the Manitoban economy in particular, in the early and middle 1990s. The Government states that it would be simplistic to characterize these amendments as being economically driven. Rather, Manitoba's Department of Education and Training had for years been concerned about the effectiveness of the collective bargaining process within the public school system. For example, as of September 1997, 13 school divisions and teachers' associations were still without a new contract for the period beginning 1 January 1995. The amendments which are the subject of the complaint were implemented to create a better collective bargaining process and environment, not simply a cheaper one. The present legislation was not in essence wage restraint legislation.
17. 155. As background to the amendments, the Government states that the collective bargaining process for public school teachers has been in place for some 40 years. In 1992, after public hearings, the Panel on Education Legislation Reform recommended that the collective bargaining provisions of the Public Schools Act be updated. A committee which included representatives from the Manitoba Association of School Trustees (MAST) and MTS was established to investigate collective bargaining issues. As this committee proved ineffective, it was replaced in 1995 with the Teacher Collective Bargaining and Compensation Review Committee, composed of two government members and the Deputy Minister of Education. The Committee consulted extensively with the public and stakeholders before making recommendations upon which, broadly speaking, the disputed amendments were based. The Committee was guided by the following criteria:
    • -- the need to safeguard the opportunity for local input and participation;
    • -- the need to reduce costs and time associated with the bargaining process;
    • -- the need to effect efficient budget planning;
    • -- the need to preserve and guarantee uninterrupted learning for students;
    • -- the need to balance adequately employer-employee rights and responsibilities;
    • -- the need to address affordability.
18. 156. The Government agrees that collective bargaining by public school teachers is carried out at the school division/district level. Nominally these negotiations are carried out by teachers' associations in each division of the district; however, the teachers' associations rely heavily upon their union, the MTS, to provide research and other support for bargaining and, similarly, the school divisions rely on their central body, MAST. Due to this structure, there are many collective agreements in place in the province (approximately 57); however, contrary to the assertion of the complainants, this has not resulted, according to the Government, in a wide variety in the substantive content of these collective agreements. There is little variability in either salary, benefits or working conditions since "pattern bargaining" is the tendency. There are some relatively minor variances in some of the collective agreements, but only in a limited number of areas.
19. 157. The Government agrees that the amended legislation contains the new categories of provisions described by the complainants.
    • Jurisdiction of interest arbitrators
20. 158. The Government acknowledges that unlike the old legislation, the amendments stipulate that certain enumerated items are not to be the subject of arbitration, though the parties are still able to address them through negotiation if they choose. This was added because of the significant restraints that some recent arbitration awards were placing on the ability of local authorities to meet their obligations to their electorate and the students under their care. The Panel on Education Legislation Reform indicated specifically that in the course of its public consultations there was no support for including within the negotiation process certain issues such as "selection, appointment, assignment, evaluation of teachers; duties that teachers are to perform; the number, kind, grades and descriptions of schools; courses of study and programmes of study; class size, pupil-teacher ratios, preparation time or number of classes; hours or days of the school year".
21. 159. The Government agrees that the amended legislation contains a provision requiring the school board to act reasonably, fairly and in good faith in administering its policies relating to the matters that have been statutorily excluded from arbitration. If it fails to do so, this can be the subject of a grievance. The Government submits that this is a very significant constraint upon the employing boards. Furthermore, the legislation does not preclude the school division/district from arriving at a consensual agreement with the teachers with respect to the excluded items.
22. 160. The Government states that few, if any, collective agreements deal with class size or scheduling of recesses/midday break. A growing number of contracts are by agreement addressing the midday break to confirm that teachers are to have an uninterrupted break, usually of 55 minutes, between 11:00 and 14:00. There are a few agreements that have covered the area of evaluations. Many collective agreements recognize management rights with respect to teachers' assignments, but include provisions requiring "fair notice" to be given with respect to a change of assignment.
    • Factors to be taken into account by interest arbitrators
23. 161. While the Act was not, in essence, wage restraint legislation, the Government states that Manitoba's financial experience earlier this decade is relevant to one issue arising out of the disputed amendments, namely the inclusion of "ability to pay" as a factor to be considered by the arbitrators. Manitoba's school boards represent a third level of government, and within each school division/district, the educational system is administered by elected trustees. The school system is financed in significant measure through local taxation, the rates of which are set by the school boards. However, the trustees had difficulty in managing school division affairs, not least because the largest portion of their budgets which were for teachers' salaries are externally controlled through the collective bargaining process, and many operational functions were increasingly becoming the subject of negotiation and ultimately binding arbitration. The result was, and continues to be, spiralling levels of local taxation at a time when many of those local economies were in a state of financial deterioration. This was further exacerbated when more and more non-salary items became the subject of binding awards, making it more difficult for the Trustees to manage division affairs in a flexible and responsible manner while containing expenditures within acceptable budgets.
24. 162. The Government states that school divisions are often forced into probable tax increases where an arbitrator has chosen to regard pay increases granted in other divisions as justification for a similar increase, despite the differing economic situation which may exist within the boundaries of that school division. When this happens, the employing division is left with a stark choice: raise taxes, or if the economic situation does not otherwise permit it to meet the increased costs incidental to the award, eliminate programmes to the detriment of its pupils.
25. 163. The Government submits that arbitrators are not being asked to make political decisions, simply to take into account local financial realities along with other factors such as terms and conditions in other school divisions/districts, the need of the school division to recruit and retain qualified teachers, and what comparably trained salaried persons other than teachers would earn in the same geographical area. Some of these considerations on their face are likely to be helpful to teachers. The last two factors listed were in fact added to the Act in response to MTS representations. It is submitted that even the financial factors are neutral, since while they may make it more difficult to win significant wage increases in difficult economic times, it would have the opposite effect when local economies improve. With regard to the allegation that the arbitrator's role under the amendments can be characterized as "political", the Government submits that it was no less political under the old Act, since arbitrators could have a significant impact on shaping the local school system without acquiring any form of responsibility for those consequences.
    • Creation of a new mediation/arbitration system
26. 164. The Government agrees with the complainants' description of the conciliation system under the old Act. However, this system, it submits, was seen by the parties as a mere pro forma procedure on the road to arbitration. Conciliation officers rarely succeeded in bringing the parties to agreement, and the process did not appear to be taken very seriously by either MTS or MAST.
27. 165. It is agreed that prior to the Act, all conciliation costs were paid by the Government. Now the costs, on a schedule determined by the Government, are paid equally by the parties. This is an attempt to encourage both teachers and employers to take the conciliation process seriously.
28. 166. Regarding the costs of the mediator-arbitrator, the Government submits that in paying only half the costs of a single mediator-arbitrator the system will in fact be less expensive to the parties overall than paying for an arbitration board. The Government further states that, although the Minister of Education and Training has the right to appoint an arbitrator, this power has never been used, and would only be used if there were a deadlock in negotiations and an absolute refusal by the parties to use the statutory process. The Government notes, however, that the Minister appoints the arbitrator from a list maintained by either the Collective Agreement Board or by the Manitoba Labour Board, these lists consisting of names acceptable to labour and management. In July 1997, the Minister wrote to both MTS and MAST providing them with the names currently on the Collective Agreement Board roster, and encouraging them to nominate other individuals who either have, or could acquire, an expertise in this area. MTS has not yet responded to this invitation.
29. 167. Although the Act does not distinguish between the mediator-arbitrator's mediation and arbitration roles with respect to admissibility of evidence, it is open to the parties to agree from the outset that all mediation discussions will be without prejudice. In addition, the option remains for the parties to be assisted by a conciliator, and if this fails, to have a different person as an arbitrator, rather than necessarily invoking the mediator-arbitrator model.
30. 168. The Government submits that the amended procedures continue to give MTS the ability to bargain effectively on behalf of teachers, and there is no reason to believe that it will be any less impartial than under the old Act. It further contends that the procedures provide a framework for "adequate, impartial and speedy conciliation and arbitration" that is at the at the heart of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). Similarly, the Government denies that the amendments at issue violate the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The collective bargaining process for teachers has not only been kept in place, it has been enhanced by making conciliation and arbitration faster and ultimately less costly to the parties. Similarly, by improving what has become a slow and cumbersome conciliation/arbitration model, the Government is encouraging and promoting the full development and utilization of machinery for negotiation of terms and conditions of employment, as stipulated in the Labour Relations (Public Service) Convention, 1978 (No. 151).
31. 169. The Government further submits that there has been considerable prior consultation with respect to the amendments at issue, in keeping with the Collective Bargaining Convention, 1981 (No. 154). The 1992 Panel on Education Legislation Reform held extensive public hearings, and the first committee established as a result of the Panel's report consisted largely of stakeholders, including MTS and MAST. Because of their inability to reach a consensus, the Teacher Collective Bargaining and Compensation Committee was established, which held 11 public meetings and a special meeting to hear the official positions of MTS and MAST. Finally, after the legislation in question had been introduced into the Legislative Assembly, and pursuant to Manitoba's legislative procedures, there were extensive public hearings at the public committee stage where all the amendments were discussed and in fact modified in certain significant respects at the request of MTS representatives prior to the final passage of the Bill. The Government states that it is prepared to continue the consultative process and revisit any areas where problems can be identified in the legislative structure. The Government states, however, that for a true consultative process to work, all the parties must be prepared to enter into dialogue and consider reasonable compromises, and contends that MTS has not always approached the issues at hand in such a manner.
32. 170. The Government submits in conclusion that the amendments, when viewed in context, are not only reasonable, but will, given a good faith approach by the stakeholders, prove to be an improvement to collective bargaining for Manitoba teachers and trustees for years to come.

C. The Committee's conclusions

1. 171. The Committee notes that the allegations of violations of freedom of association in this case concern three categories of recent amendments to the Public Schools Act in the Province of Manitoba. First, the removal of certain matters from the jurisdiction of interest arbitrators, in a system where binding interest arbitration has been statutorily substituted for the right to strike for public school teachers. Secondly, in reaching a decision, the interest arbitrators are to take into account specific factors, including ability to pay. Thirdly, the former conciliation and arbitration system has been replaced by a combined mediation/arbitration system. The complainants allege that as a result of these changes the independence of the arbitrators and the integrity of the arbitration process has been interfered with, thus contravening ILO standards and principles on freedom of association.
2. 172. The Committee notes that the Government does not characterize these amendments as a temporary response to serious financial and budgetary difficulties facing the Government, but as a means of creating a better collective bargaining process and environment. The Committee further notes that, while those in the education sector should be entitled to exercise the right to strike if they so wish (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 545), the complainants do not seek to question the validity of the compulsory arbitration system per se, and thus the denial of the right to strike as a means of defending their economic and social interests, but rather object to certain changes in the arbitration system.
   • Jurisdiction of interest arbitrators
3. 173. The Committee notes that pursuant to the recent amendments to the Public Schools Act, in settling an interest dispute, an arbitrator no longer has jurisdiction to make an award involving the selection, appointment, assignment and transfer of teachers and principals; the method for evaluating the performance of teachers and principals; the size of classes in schools; and the scheduling of recesses and the midday break. While these matters have been excluded from the arbitrators' jurisdiction, a responsibility has been placed on school boards to administer their policies and practices regarding the excluded matters reasonably, fairly and in good faith.
4. 174. According to the Government, these amendments were adopted because of the significant restraints that some recent arbitration awards were placing on local authorities. The nature of these restraints is not specified. A further reason put forward is that according to a report published in 1992, in the course of public consultations, there was no support for including in the negotiation process the topics at issue. The Government also contends that few collective agreements deal with the enumerated subjects in any event.
5. 175. The Committee recalls firstly that the right to bargain freely with employers with respect to conditions of work constitutes an essential element of freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom they represent (see Digest, op. cit., para. 782). The Committee has previously noted in particular the importance of promoting collective bargaining in the education sector (see Digest, op. cit., para. 804). Secondly, regarding the subject-matter of collective bargaining, the Committee recalls the view of the Fact-Finding and Conciliation Commission on Freedom of Association that "there are certain matters which clearly appertain primarily or essentially to the management and operation of government business; these can reasonably be regarded as outside the scope of negotiation" (see Digest, op. cit., para. 812). Determining the broad lines of educational policy has been given as an example of a matter that can be excluded from collective bargaining; however, there are other matters that deal primarily with questions relating to conditions of employment, and they should not be regarded as falling outside the scope of collective bargaining (see Digest, op. cit., paras. 812-813). The Committee considers that, with the possible exception of the size of classes in schools, the subjects that have been excluded from the jurisdiction of the arbitrators are clearly related to conditions of employment, and thus in the context of the Manitoban system of determining terms and conditions of employment in the education sector, these subjects should be within the arbitrator's jurisdiction. While not necessarily prevalent in the collective agreements for public school teachers in Manitoba, these subjects have been included in some agreements; in any event, they raise important issues for workers that are finding their way more and more in collective agreements generally. Regarding the issue of the selection and appointment of teachers and principals, the Committee considers that the establishment of procedures in this regard should be included within the scope of issues covered by arbitration, whereas specific cases of selection or appointment may be excluded. With respect to class size, the Committee acknowledges that, while this subject may have a bearing on conditions of employment, it could also be considered as an issue more closely linked to broad educational policy. If the Government considers that subjects such as class size should be determined outside the process of collective bargaining, the Committee requests the Government to ensure that the teachers' associations concerned are adequately consulted prior to the development and implementation of policies in this regard.
6. 176. The Committee notes the Government's assertion that there is no violation since the parties remain free to voluntarily negotiate regarding these issues and the good faith provision is a significant restraint upon the employing bodies. However, the Committee observes that where workers' organizations are not permitted to resort to any means of pressure to promote and defend their position in collective bargaining, effective collective bargaining may be inhibited. In the Committee's view, the provisions requiring the Government to act reasonably, fairly and in good faith in administering its policies relating to the matters that have been statutorily excluded, with the grievance procedure being available in case of an alleged breach, cannot be considered to be tantamount to collective bargaining, since the Government retains the power to act unilaterally in these matters, and it is not a sufficient compensatory guarantee for the restriction on the right to strike. The Committee recalls that the right to strike is one of the fundamental means through which workers and their organizations may promote and defend their occupational interests. This right can only be restricted in essential services or with respect to public employees who act as agents of the public authorities, and workers in the education sector do not fall within either of these categories (see Digest, op. cit., paras. 474-475, 536; see also 278th Report, Case No. 1570 (Philippines), paras. 165-166). In the present case, the complainants do not contest the denial of the right to strike; however, in exchange for accepting the denial of this important means of defending their claims in collective bargaining, adequate guarantees should be provided, including adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage (see Digest, op. cit., para. 547). Since with respect to the enumerated subjects interest arbitration is not permitted, the workers and their organizations are left with no effective means of promoting the claims made in negotiations and no adequate compensatory guarantees.
7. 177. The Committee accordingly urges the Government to take steps to have the amendments to the Public Schools Act of Manitoba that circumscribe the jurisdiction of the interest arbitrators repealed and to keep it informed in this regard. The Committee draws this aspect of the case to the Committee of Experts on the Application of Conventions and Recommendations.
   • Factors to be taken into account by interest arbitrators
8. 178. The Committee notes that the Public Schools Act has been further amended to oblige the interest arbitrators, when dealing with a matter that may reasonably be expected to have a financial effect on the division or district, to base his or her decision primarily on the school division's/district's "ability to pay", as determined by its current revenues. A number of factors are then enumerated which are to be "considered" by the arbitrator within the context of the school division's/district's ability to pay.
9. 179. The Committee notes that, despite the Government's denial, these amendments appear to be an attempt to contain the level of wages in particular within certain budgetary limits, though some flexibility is maintained through a balancing of the enumerated factors such as the need of the school division/district to recruit and retain qualified teachers. The Committee considers that while financial considerations may be required to be taken into account, by mandating the arbitrator to base his or her decision "primarily" on the ability to pay, the legislation goes beyond what is acceptable under the principles of freedom of association. The Committee, therefore, requests the Government to amend the legislation, in consultation with the workers' organizations concerned, and to keep it informed of the developments in this regard. The Committee draws this aspect of the case to the Committee of Experts on the Application of Conventions and Recommendations.
   • Creation of a new mediation/arbitration system
10. 180. The Committee notes that formerly under the Public Schools Act, in the negotiation of a collective agreement, either party could trigger a conciliation procedure, which was funded from public revenue. If conciliation failed, either party could request the Minister to appoint a Board of Arbitration. Pursuant to the amendments, if conciliation is to take place, the parties must jointly request the assistance of a conciliation officer, and they must share equally the remuneration and expenses of that officer. In essence, the procedure for conciliation and then arbitration by a board has been substituted by a system of mediation/arbitration. Now either party may request the Minister to appoint a mediator-arbitrator to assist them in concluding a collective agreement. If mediation fails, then, at the request of either party or the Minister, the same person is to effect a collective agreement through arbitration.
11. 181. As stated above, the Committee has accepted that restrictions on the right to strike in the context of this case should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings. The complainants submit that the new mediation-arbitration system is neither adequate nor impartial since conciliation must be initiated jointly, and now must be paid for jointly; because the mediator-arbitrator's mediation and arbitration roles are not sufficiently independent; and because the parties are jointly responsible for the remuneration and expenses of the mediator-arbitrator. The complainants also suggest that the revision of the system was not preceded by adequate consultation with the parties concerned.
12. 182. Regarding the requirement that the parties pay for the conciliation and mediation/arbitration services, the Committee concludes that, provided the costs are reasonable, and do not inhibit the ability of the parties, in particular those with inadequate resources, to make use of the services, there has not been a violation of freedom of association on this basis. Furthermore, the Committee takes no position as to the desirability of conciliation over mediation as both are means of assisting the parties in voluntarily reaching an agreement. Nor does the Committee take a position as to the desirability of a separated conciliation and arbitration system over a combined mediation-arbitration system, as long as the members of the bodies entrusted with such functions are impartial and are seen to be impartial. In mediation and arbitration proceedings it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but, if the confidence of both sides, on which the successful outcome even of compulsory arbitration really depends, is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned (see Digest, op. cit., para. 549).
13. 183. Regarding the complainants' final concern with respect to the lack of consultation in the modification of the arbitration system, the Committee recalls that where a government seeks to alter a bargaining structure in which it acts actually or indirectly as employer, and the arbitration system is an extension of the bargaining structure in this case, it is particularly important that there be an adequate consultation process, whereby all objectives can be discussed by the parties concerned. Such consultation is to be undertaken in good faith and both parties are to have all the information necessary to make an informed decision (see 299th Report, Case No. 1802 (Canada/Nova Scotia), para. 281; 300th Report, Case No. 1806 (Canada/Yukon), para. 126). The Committee notes that while there were a number of public meetings regarding the reform of education legislation, only one meeting was held to hear the official positions of MTS and MAST. Furthermore, although MTS appears to have had some success in having a few modifications made to the Act once it had been introduced into the Legislative Assembly, this involvement comes very late in the procedure, and cannot be considered to be a substitute for good faith consultations in the development of a policy to alter the bargaining structure. The Committee requests the Government to ensure in future that consultations in good faith are undertaken in such circumstances that the parties have all the information necessary to make informed proposals and decisions.