Introduction
The purpose of this paper is to make some observations about the civil liberties aspects of two important pieces of labour legislation passed in the last session of the British Columbia Legislature. They are Bill 11 (Labour Code of British Columbia Act, hereinafter referred to as the Labour Code) and Bill 75 (Public Service Labour Relations Act). Both bills have passed third reading and have been signed by the Lieutenant Governor but have been proclaimed only in part.
Labour legislation and civil liberties
While Bill 11 contains many novel and imaginative provisions, the structure of the Act is basically similar to the structure of labour legislation in Canada, and in the United States since the Wagner Act passed by the United States Congress in 1935. Since that time, the purpose of labour legislation has been to promote and to protect trade union organization on the theory that employees have little bargaining strength as individuals, but considerably more when they bargain collectively. In order to promote the development and maintenance of trade unions, legislatures have found it necessary to restrict some of the freedoms of both employers and of individual employees. The employers’ freedoms of speech, enjoyment of property, and contract, for example, have all been substantially modified by the unfair labour practice sections and the collective bargaining sections of North American labour legislation. Similarly, once a union has organized itself and has been certified as bargaining agent for a unit of employees, those employees are stripped of certain freedoms including that of bargaining individually with their employer. The policy of the Act is that trade union organization of employees is a sufficiently important social goal that it justifies the curtailment of some of the freedoms of employers and employees previously allowed by society, and that the ultimate benefits of trade unionism in the stabilizing of labour management relations and the improvement of the lot of the working person substantially outweigh the loss of some of the freedom of action of employers and employees.
As always, the question is one of balance. Accepting the proposition that, generally speaking, trade union organization has positive social benefits, the problem lies in determining the extent to which these benefits justify the restriction of the freedoms previously enjoyed by both employers and employees.
In this brief we have tried to make as clear as we can the basis for our choices between the freedoms accorded and constraints placed on the various groups involved in this area: employers, employees and the general public.
Bill 11: The Labour Code
Section 1 of the Labour Code limits the application of the Act by defining “employee” as excluding certain classes of employees who would be otherwise included. The excluded classes include employees exercising management functions, people employed in a confidential capacity in matters relating to labour relations, employees qualified in certain professions or trades, domestic servants, people employed in agriculture, hunting or trapping, and teachers defined in the Public Schools Act. The classes of people who fall within these exceptions to the definition of “employee” are thereby denied the benefits of trade union organization. While in one or two of these classes the original reasons for exclusion may still be valid, it seems odd to us, particularly in the case of agricultural employees and domestic servants who presumably are considerably in need of the benefits of unionism, that they continue to be denied the rights accorded to other employees by this Act. One can make an almost equally strong case for extending the benefits of the Labour Code to those professional employees who want to make use of it. It is paradoxical that engineers and other professionals employed by the civil service are expressly given a right to trade union organization under Bill 75, whereas the same people, if employed by a private employer, are denied such benefits. There may be practical reasons for these exceptions, but the B.C. Civil Liberties Association intends to press the Minister of Labour to move as soon as possible to extend the definition of employee to cover all people who fall properly within that description.
While on the subject of definitions, it might be useful to note that sections 1 and 48 extend the definition of employee in certain circumstances to cover dependent contractors, that is people who are technically not employees but who are substantially in a position of economic dependence upon the person with whom they have contracted. For a trade union to organize such dependent contractors, it must seek a variance of an existing certification, and the Labour Relations Board is thereby given some control over the process. The dependent contractor sections are an interesting attempt to overcome problems that have arisen in certain industries, such as the trucking industry, in which people who are for all practical purposes employees have been treated by the courts and the Labour Relations Boards as independent contractors and therefore as ineligible for union organization.
Part I of the Labour Code (sections 2 – 11) sets out a series of unfair labour practices by labour and management that are punishable by various penalties when proven before the Labour Relations Board. The purpose of these sections is primarily to create a system of rules to govern the period during which a trade union is organizing employees and before the trade union obtains certification. Thus, the employer is prohibited from interfering with the formation or administration of a trade union, a prohibition that is given specific content in a series of subsections to section 3. In the same way, the trade union is barred from certain kinds of unfair practices. These sections involve certain abridgements of civil liberties. For example, section 3 puts substantial limitations on the freedom of an employer to control his or her business during the organizational period or even to speak to his employees about unionism. Section 4(4) provides that where employees reside on the property of their employer, the employer must permit a representative duly authorised in writing by a trade union to have access and entry to the property for the purpose of attempting to persuade the employees to join the trade union.
These sections involve infringements of the civil liberties of the employer and of the union, but experience would appear to suggest that they are justified. The period of organizing a trade union is always a difficult one. Moreover, the employer by virtue of his or her position of control over the employees can in a variety of ways deter them from organizing by threats or promises. These sections appear to be necessary to enable employees to make up their own minds about trade union organization, free of undue pressure from employer and union. Section 4(4) is intended to deal with the specific problem of the remote logging camp in which trade union organization could be effectively prevented by an employer who simply refuses to admit a trade union organizer onto the property, a problem that has arisen on a number of occasions in the United States and Canada.
A more interesting series of civil liberties infringements occurs in section 8, which sets up the machinery for the Labour Relations Board to inquire into complaints of unfair labour practices. Section 8(2) empowers the Labour Relations Board to appoint an officer of the Department of Labour to inquire into the complaint and to report back to the Board. The practice under the old Labour Relations Act was that the report of the officer was secret and could not be seen by either party to the unfair labour practice complaint. Presumably the new Act does not change this position. The rationale for keeping the officer’s report secret was that employees would not be honest with the officer and would not tell him or her the true facts if they knew that the report would be seen by their employer. The question is whether this is a sufficient excuse for the practice, assuming that it is to continue under Bill 11.
The other interesting aspect of section 8 is subsection 7, which provides that where the Board is inquiring into a complaint under section 3(2)(d), the burden of proof that she or he did not contravene clause (d) lies on the employer. Section 3(2)(d) prohibits an employer from discharging or disciplining an employee because the employee is, or proposes to become, or seeks to induce any other person to become, a member or officer of a trade union, or participates in the formation, promotion or administration of a trade union. This is a reversal of the normal criminal and quasi-criminal practice that places the onus on the complainant, and it is a reversal of the normal onus in unfair labour practice provisions in other statutes. The reason for reversing the onus in this kind of case is the difficulty of proving an unfair labour practice in these circumstances. The experience of trade unions under sections similar to section 3(2)(d) has been that it is very difficult to prove the intention of the employer. In fact, some labour relations boards have, in cases of this type, effectively reversed the onus without legislative authority. The facts about this kind of unfair labour practice are peculiarly in the possession of the employer, and are very difficult to establish where the employer does not wish to cooperate. It should be noted that the Labour Code has reversed the onus only as to section 3(2)(d) and not as to the rest of the unfair labour practice sections. In the circumstances, the reversal of onus would appear to be justified.
Section 7 of the Code creates, for the first time in British Columbia, a duty on a trade union to refrain from acting in a manner that is arbitrary, discriminatory, or in bad faith in the representation of any of the employees in the bargaining unit, whether or not they are members of the trade union. A similar duty is placed on an employer’s organization. This is a statutory repetition of a common law duty of fair representation that has been developed in the United States and representation that has show signs of life in one or two recent Canadian cases. While the courts might have developed the duty on their own, it is useful that the legislation should hasten the process.
Sections 9, 10 and 11 deal with the problem of closed shop and union shop clauses in collective agreements. Section 9 makes it clear that a union security clause, including a closed shop clause, is legal in British Columbia. Again the result is an infringement of civil liberties, this time the right not to join a trade union. Nevertheless, bearing in mind the general objective of trade union organization, section 9 appears to be a valid modification of civil liberties. Trade unions are likely to be weakened by right to work legislation, because such legislation will be used by employers to break trade unions. This was in fact the objection of the British Columbia Teachers’ Federation to the analogous provisions introduced by the Social Credit government into the legislation governing the Federation.
The abridgement of civil liberties effected by section 9 is somewhat modified by section 11, which provides that where an employee can satisfy the Labour Relations Board that, by reason of his or her religious belief, he or she is opposed to joining or belonging to a trade union, that employee may be exempted from membership, although the employee must continue to pay an amount equivalent to union dues. In Ontario, where a similar section has existed for some years, very few employees have satisfied the Labour Relations Board of their genuine religious scruples in this matter. It is unlikely that the experience will be different here.
Part II of the Labour Code (sections 12 to 38) constitutes the new Labour Relations Board and seeks to give it extensive and exclusive powers in wide areas of administration of the Code. These sections attempt to accomplish two objectives. First, they remove from the courts certain powers that the courts have hitherto exercised in labour management relations, particularly the power to grant injunctions against illegal picketing. These powers are transferred to the Board. Second, a series of privative clauses attempts to ensure that decisions made by the Labour Relations Board will not be open to challenge in the courts. These sections have aroused considerable controversy, and they clearly raise civil liberties implications. The British Columbia Civil Liberties Association has therefore considered Part II of the Act carefully.
The Association is aware that the courts have historically played a role in labour management relations, which, consciously or unconsciously, has tended to favour management. This was the English experience and the American experience, and a study of decisions made by the courts under the Trade-unions Act of British Columbia suggests that it is the British Columbian experience as well. The specific problem that has raised most of the controversy has been the courts’ power to grant injunctions (including interim and ex parte injunctions) against illegal strikes and pickets. While the courts have generally attempted to use their powers to impose injuctions carefully, they tend to apply concepts and rules derived from property disputes to labour management situations in which the problems are very different. The British Columbia courts have read the Trade-unions Act of 1959 so as to expand substantially the power of management to obtain interim and ex parte injunctions against illegal picketing or illegal forms of picketing illegal strikes. The result has been the kind of confrontation which occurred in cases like the Lenkurt Electric strike.
There is a more general difficulty with the way in which courts have dealt with labour management problems. They have tended to assimilate these problems to the kinds of commercial problems with which the courts are more familiar, and the result has often been a misreading of the labour management situation, and decisions that have exacerbated situations rather than contributing to a solution.
The first objective of Bill 11 is to take away from the courts the power to grant injunctions except where a court is of opinion that, unless it makes an order, an immediate and serious danger to life or health is likely to occur or is continuing to occur. With that very limited exception, the power of the courts to grant injunctions is gone, although the courts may retain some power to grant damages and other forms of relief. Bearing in mind the peculiar character of labour management relations and the unhappy record of the courts in this field, the British Columbia Liberties Association is of the view that the policy in Bill 11 is correct insofar as it takes from the courts their power to grant injunctions in labour management disputes, except in very unusual circumstances.
The second objective of part II of the Labour Code is to protect decisions of the Labour Relations Board from review by the courts. The British Columbia Civil Liberties Association is unable to accept this aspect of the Code. It is one thing to move initial jurisdiction to grant injunctions from the courts to the Labour Relations Board. It is quite a different thing to attempt to shield the Labour Relations Board from review or challenge of its decisions, particularly in light of the Board’s already extensive jurisdiction.
The British Columbia Civil Liberties Association has traditionally taken the position that administrative tribunals should be subject to judicial review in cases where the Boards have made decisions in excess of their jurisdiction, where they have made errors of law, where they have exhibited bias, or where they have committed breaches of the principles of natural justice. In any of these situations, administrative tribunals should be subject to challenge in the courts. The Association does not favour a general right of appeal from administrative tribunals to the courts, because this would open the door to the courts substituting their decision on the facts for the decision made by the administrative boards. However, where an administrative board commits a serious error as to jurisdiction, law, or the principles of natural justice, it should be possible to have such error corrected in the courts. Otherwise we are simply writing a blank cheque to administrative tribunals to legislate as they please, and in the process to rewrite the laws of the land.
How do these principles apply to the Labour Relations Board? The Code gives to the Labour Relations Board extensive powers in the field of labour relations. The Association does not quarrel with the Board’s extensive original jurisdiction. However, the Association takes the view that where the Board has committed the kind of serious error discussed in the last paragraph, such errors should be capable of correction in the courts. Over the past fifty years, the courts have developed an extensive body of case law related to questions of jurisdiction, errors of law, bias and principles of natural justice, and have applied these principles to a variety of tribunals. In so doing, they have acquired some objectivity in their approach to tribunals which should help to protect them from the kind of unconscious, pro-management bias they have exhibited in cases involving the granting of labour injunctions. Our solution is a fair and sensible compromise between excessive jurisdiction in the courts over labour management relations, and excessive freedom of the Labour Relations Board from judicial control.
Before leaving our discussion of part II, it might be useful to point out sections 21 and 23, which suggest that the intention of the Legislature is that the Labour Relations Board should exercise its powers in a fair and reasonable manner. Section 21 requires the Board to give full opportunity to the parties to any proceedings to present evidence and to make submissions, and section 23 requires that decisions of the Board be made available in writing for publication. An important job for the B.C. Civil Liberties Association during the next few years will be to keep an eye on the Labour Relations Board to determine how it actually exercises its extensive powers.
Part III of the Labour Code (sections 39 to 60) and part IV (sections 61 to 78) deal with trade union certification, i.e. recognizing a union as the appropriate bargaining representative of the employees, and the process of collective bargaining itself. These sections appear to contain little material of interest to the Association except for section 50, which provides that a union that discriminates against any person, contrary to the Human Rights Code, shall not be certified for the employees, and an agreement entered into between such an organization and an employer shall be deemed not be to a collective agreement.
ection 50 has potentially a very wide application. Section 9(1) of the Human Rights Code (Bill 100) provides that no trade union shall, without reasonable cause in respect of such qualifications of a person, negotiate on behalf of that person an agreement that would discriminate against him or her contrary to this Act. It is arguable that a great many collective agreements negotiated in British Columbia today offend this provision because they contain wage rates that effectively discriminate against female workers. Is a union that is a party to such a collective agreement one that “discriminates against any person, contrary to the Human Rights Act”? The answer may be yes, in which case, the Labour Relations Act may find itself considering the Human Rights Code frequently when reviewing certification applications. One can only wait and see what the Board will do with section 50.
In one respect, section 50 is narrower than it might appear at first reading. The section requires actual discrimination on the part of the union. In other words, the simple presence of a discriminatory provision in a union constitution would not appear to be sufficient grounds for refusal to certify where the union does not discriminate in practice. Nevertheless, the Association has heard of unions that are very strongly considering redrafting their constitutions to avoid the problem.
One aspect of section 50 disturbs the Association. The section provides that an agreement entered into between an employer and a union that discriminates contrary to the Human Rights Act shall be deemed not to be a collective agreement. The sanction is simple but it is also very harsh. It means that where a relatively complex collective agreement contains one discriminatory provision, the whole agreement ceases to have the protection accorded to collective agreements under the Labour Code, with the result that the effect of the agreement has to be determined by the uncertain principles of the common law. The sanction is so draconian that the Labour Relations Board may well refuse to apply it, with the result that the section will be a dead letter. It would be better to give the Board a range of less drastic sanctions that might well prove to be more effective. For example, it might be useful if the Labour Relations Board had the power to excise the offending clause from an otherwise inoffensive collective agreement, thus preserving the employees’ rights under the amended agreement.
Part V of the Code (sections 79 to 91) sets down a series of restrictions on the right of the union and the employees to strike and to picket, and on the right of the employer to lock out. Two sections require notice. Section 83 draws a distinction between the situation in which an employer locks out his or her employees and the situation in which the employer discontinues the whole or part of his or her business for another reason. Subsection 2 of section 83 then reverses the onus of proof. In other words, where a union alleges before the Labour Relations Board that an employer is locking out his or her employees, the burden of proof is not on the complainant union but is on the defendant employer to establish that he or she is not locking out. The reasoning used above to defend section 8(7) appears to the Association to apply to section 83. Again the facts are peculiarly in the possession of the employer. This is because the distinction between a lockout and a legitimate suspension of business depends on the intention of the employer, something that can be best established by his or her own evidence, and would be difficult to establish without this evidence. There are a number of cases in British Columbia in which unions have attempted in the courts to persuade judges that what appeared to be a suspension of business was in fact a lockout, but the unions have lost because of their failure to satisfy the burden of proof. Section 83 requires the employer to refute the charge, a reversal of the usual onus that would appear proper in the circumstances.
Section 85 gives to trade unions lawfully on strike or locked out the power to picket, not only the employer of the employees in question, but also an “ally” which is defined as including a person who, in the opinion of the Board, in combination, or concert, or in accordance with a common understanding with the employer, assists an employer in a lockout or in resisting a lawful strike. Section 85 goes on to say that a person who performs work, supplies goods, or furnishes services of a nature or kind that, except for a lockout or lawful strike, would be performed, supplied or furnished by the employer, shall, unless he or she proves the contrary, be presumed to be an ally of the employer. Section 85 involves a limited acceptance of the legality of secondary picketing, a practice that was in certain circumstances lawful at common law but which was outlawed by the Trade-unions Act of 1959. Secondary picketing is recognized to some extent in other provinces including Ontario, and it would appear to be a legitimate extension of the right to picket in British Columbia, particularly as the Labour Relations Board is given supervisory jurisdiction over the operation of the provision.
Part VI of the Code (sections 92 to 112) deals with arbitration clauses in collective agreements and the system of arbitration in labour relations generally. These sections provide that every collective agreement must contain an arbitration provision, and go on to set out machinery and some substantive rules governing such arbitrations. The sections are not dissimilar from the equivalent sections in the old Labour Relations Act, and for that reason they raise what appears to the Association to be a substantial problem from a civil liberties point of view with Bill 11.
The system of labour arbitration before and after Bill 11 is essentially based on the assumption that the collective agreement within which the arbitration clause appears is an agreement between the employer and the union, and therefore these two parties have the right to initiate and to carry on arbitrations under the grievance procedure and arbitration clauses. This is certainly the assumption on which people practically proceed in British Columbia. The practice is that where an employee has been fired or is otherwise dealt with by his or her employer in a manner contrary to the provisions of the collective agreement, the employee’s recourse is to complain to his or her union, which then takes up the grievance and puts into motion the arbitration procedure. The difficulty with this practice is that for a number of reasons unions may on occasion be reluctant to assist certain employees with arbitration procedures. For example, one may have a situation in which an employee is suspected of a desire to organize a Canadian union, and the international union that represents him or her may therefore feel reluctant to press his or her case when the member has a grievance. Another example may be where there is a division of opinion within the union as to, for example, seniority rights, rights to certain shifts or other aspects of the collective agreement. When these situations arise, the union will, not surprisingly, represent the position of the majority of union members in the arbitration.
The problem that we have been discussing can be summarized in this way. The collective agreement, including the arbitration clause, can be seen theoretically as an agreement between union and employer. The individual employee who is not adequately represented by his or her union may find him or herself in a very difficult position when attempting to commence arbitration without the blessing of the union or when intervening in an arbitration already commenced by the union on behalf of another employee or group of employees. The legal position of such an employee is unclear. Labour relations acts in the past have tended not to give such employees specific rights with regard to the arbitration process, largely because neither unions nor management clamour for such rights. Arbitrations run much more smoothly when only the union and the employer are involved. Unions tend to deny that there is even a remote possibility of their failure to represent their members. Nevertheless, it is obvious that there may be cases where the union for one reason or another does not adequately represent the interests of an individual employee in an arbitration that is directly or indirectly going to affect that employee’s livelihood.
The Labour Code attempts to deal with this problem in two ways. First, section 7 discussed above, imposes on a trade union a duty to refrain from acting in a manner that is arbitrary, discriminatory, or in bad faith while representing any employee in the bargaining unit. In the situations set out above, there might be an infringement of section 7, in which case the individual could seek a declaration by the Labour Relations Board that the union has committed an unfair labour practice. If the Board decided that such an unfair labour practice had been committed, it could then make an order directing the trade union to cease discriminating. This is helpful but it is a rather indirect way of accomplishing what would appear to be the object: namely, to enable the individual employee to initiate the grievance procedure if the union will not do so, or to intervene in the grievance procedure and the arbitration hearing where his or her interests are being affected and where the union is not acting effectively on his behalf. Section 7 does not accomplish this objective.
The other relevant group of sections are sections 128 to 137, which create the office of labour ombudsman. The ombudsman has no power to compel a union or anyone else to change their conduct or to represent the employee fairly, and these sections do not appear to be a solution to the problem.
To protect the employee who is not well represented by his or her union, the legislation should be amended to permit such an employee to initiate or to intervene in any grievance procedure and the arbitration hearing. The present Act leaves the dissentient employee without this right and the common law is unclear on the matter. While making this recommendation, we are of the opinion that further research should be undertaken into this problem.
The only other point to make about part VI is to note sections 108 and 109, which attempt to limit but not abolish the rights of the courts to review arbitration awards. Section 108 gives the Court of Appeal jurisdiction to review and set aside decisions and awards of arbitration boards but, apart from this express grant of jurisdiction to the Court of Appeal, all other forms of review have been abolished. Whether the courts accept this restructuring of their jurisdiction to review arbitration awards remains to be seen. The rest of the Labour Code does not appear to raise any civil liberties issue.
Bill 75 – Public Service Labour Relations Act
The purpose of Bill 75 is to create a system of collective bargaining for members of the civil service. It is not our intention in this brief to review in detail the sections of Bill 75, except to make one point. The Public Service Labour Relations Act differs in many respects from the Labour Code. The definition of an employee in section 1, the structuring of the bargaining units in section 4, the certification procedures in sections 5 and 7, the form of collective agreements in section 11, 13, and 14, all differ from the analogous provision in the Labour Code. There is no doubt that the position of civil servants after Bill 75 is considerably improved over the position that they had before, a position which used to be described facetiously as “collective begging”. Nevertheless, Bi11 75 does not grant civil servants the same rights of collective bargaining as exist in the private sector. One of the best examples of this is section 13 that provides that collective agreements negotiated under the Public Service Labour Relations Act shall not deal with a series of matters that would be dealt with in a collective agreement in the private sector.
The civil liberties problem is obvious. If trade unionism and freedom of collective bargaining is a valuable right in our society, why should civil servants be denied the right enjoyed by employees in the private sector? There may be legitimate reason for treating civil servants in a different way from employees in the private sector, but the differences between Bill 75 and Bill 11 are so extensive, and in some cases so capricious, that the British Columbia Civil Liberties Association is undertaking further study of the relationship of the two Bills. We plan to publish an addendum to this brief, dealing with this subject, when this study has been completed.
Summary
The purpose of this paper is to make some observations about the civil liberties aspects of two important pieces of labour legislation passed in the last-session of the British Columbia Legislature. They are Bill 11 (the Labour Code) and Bill 75 (the Public Service Labour Relations Act).
The Association recognizes that legislatures have found it necessary to restrict some of the freedoms of both employers and employees, in order to promote the development and maintenance of trade unions. As always, the question is one of balance. Accepting the proposition that, generally speaking, the trade union organization has positive social benefits, the problem lies in determining the extent to which these benefits justify the restriction of freedoms previously enjoyed by both employers and employees.
Recommendations
- Excluded classes of employees
The Labour Code excludes from the benefit of trade union organization certain classes of employees such as domestic servants, agricultural employees and professional employees. There may be practical reasons for these exceptions, but the Association intends to press the Minister of Labour to extend the definition of employee as soon as possible to cover all people who fall properly within that description.
- Judicial review of decisions of Labour Relations Board
The Code attempts to ensure that decisions made by the powerful Labour Relations Board will not be open to challenge in the courts. The Association is unable to accept this restriction of the courts’ jurisdiction, because it has traditionally taken the position that administrative tribunals should be subject to judicial review in cases where the boards have made decisions in excess of their jurisdiction, where they have made errors of law, where they have exhibited bias, or where they have committed breaches of the principles of natural justice. In all such cases, it should be possible to have such administrative errors corrected in the courts. Bearing in mind the extensive original jurisdiction of the Labour Relations Board (with which the Association does not quarrel), it is essential that the courts should be empowered to review all cases in which the Labour Relations Board has committed a serious error as to jurisdiction, law or the principles of natural justice.
- Human Rights Code
The Labour Code provides that an agreement entered into between an employer and a union that discriminates against any person, contrary to the Human Rights Code, shall be deemed not to be a collective agreement. While the Association supports the principles underlying section 50, it takes the position that the sanction is too harsh and the result may be that the section may become a dead letter. It would be better to give the Labour Relations Board a range of less drastic sanctions, such as the power to excise a discriminatory clause from an otherwise inoffensive collective agreement, thus preserving the employees’ rights under the modified agreement.
- Employees’ rights to access arbtration
Employees who are fired or otherwise dealt with by their employer in a manner contrary to the provisions of the collective agreement have under British Columbia law the right to complain to their union, which will then take up the grievance and put into motion the arbitration procedure which is a part of every collective bargain. The process generally works well, but cases may arise where unions are reluctant for a number of reasons to commence or to carry on vigorously the arbitration process on behalf of certain employees. Before the Labour Code, it was not clear whether the individual employee who was not being adequately represented by his or her union could initiate a grievance or could participate in it without the blessing of the union. The Association is unhappy that the Labour Code has not clarified the rights of such employees. The Association therefore proposes that the Code should be amended to permit such an employee to initiate or to intervene in any grievance procedure and the arbitration hearing that affects him or her, although this recommendation is coupled with a warning that further research into the problem must be undertaken.
- Public Service Labour Relations Act
There is no doubt that the position of civil servants after Bill 75 is considerably improved over the position they had before, a position that used to be described facetiously as “collective begging”. Nevertheless, the Association is disturbed that Bill 75 does not grant civil servants the same rights of collective bargaining that exist in the private sector. There may be legitimate reasons for treating civil servants in a different way from private employees, but the differences between the Public Service Labour Relations Act and the Labour Code are so extensive, and in some cases so capricious, that the Association is undertaking further studies of the relationship of the two Bills with a view to publish a brief on the subject.
