Re Alberta Union of Provincial Employees et Al and the Crown in Right of Alberta,

• Date: 25 July 1980
• Court: Court of Queen's Bench of Alberta (Canada)

Canada, Alberta Court of Queen's Bench.

(Sinclair CJQB)

Re Alberta Union of Provincial Employees et al and the Crown in Right of Alberta

Human rights Right to strike in public service Treaty of Versailles, 1919, Part XIII International Labour Organization Convention Concerning Freedom of Association and Protection of the Right to Organize, 1948 Universal Declaration of Human Rights, 1948 International Covenant on Economic, Social and Cultural Rights, 1966 Alberta statute prohibiting strikes by employees in public service Whether contrary to Canada's international legal obligations Public Service Employee Relations Act 1977

Sources of international law Customary international law Treaties Custom as evidence of general practice International conventions establishing rules expressly recognized by contesting States Right to strike ensured to all employees including public employees except in essential services Whether part of customary international law Whether conventional international law Treaty of Versailles, 1919, Part XIII International Labour Organization Convention concerning Freedom of Association and Protection of the Right to Organize, 1948 Universal Declaration of Human Rights, 1948 United Nations Covenant on Economic, Social and Cultural Rights, 1966 The law of Canada

Summary: The facts:The Alberta Union of Provincial Employees challenged the validity of the Alberta Public Service Employee Relations Act 1977 which prohibited strikes in most parts of the public service. The union contended that these measures contravened customary and conventional international law and were therefore void. The union asked the Court to determine the following questions:

(1) Is the Public Service Employee Relations Act 1977 of Alberta, in whole or in part, in violation of Canada's international legal obligations?

(2) Is the Province of Alberta empowered to legislate in violation of Canada's international legal obligations?

(3) Is the Public Service Employee Relations Act ultra vires the Legislature of the Province of Alberta?

Held:The Public Service Employee Relations Act 1977 was neither in whole nor in part in violation of Canada's international legal obligations, nor was it ultra vires the Legislature of the Province of Alberta.

(1) It was not part of customary international law that public servants had the right to strike (pp. 186, 188, 21112).

(2) The right to strike was not mentioned in any of the conventions to which Canada was a party. The union had contended that such a right was inherent in the right to organize and in the right of collective bargaining. It was only the United Nations Covenant on Economic, Social and Cultural Rights, 1966, which mentioned both the right to organize and the right to strike (p. 212).

(3) The ILO Committee on Freedom of Association and Procedures for Determining Conditions of Employment in the Public Service had recommended to the governing body of the ILO that Alberta consider amending the Public Service Employee Relations Act in order to redefine the prohibition against strikes to include essential services only. But the Government of Alberta was in no way bound by the ILO recommendations which were not part of the law of Alberta (p. 212).

(4) In view of the above conclusions it was unnecessary to answer the question whether Alberta, as opposed to the Parliament of Canada, was empowered to legislate in violation of Canada's international legal obligations (p. 213).

The text of the judgment of the Alberta Court of Queen's Bench commences on the opposite page.

Sinclair C.J.Q.B. (orally):I am now going to deliver my judgment on the union's application heard on Monday to have certain sections of the Public Service Employee Relations Act, 1977 (Alta.), c. 40, held to be contrary to international law and, thus, in the union's submission, void and of no effect.

My judgment will be a long onefirstly, because the resolution of this legal dispute involves an analysis and interpretation of many lengthy and complicated documents. Secondly, because we are in the complicated field of constitutional law; and, thirdly, on a more personal basis, I have always found that the longer one has to work on a judgment, the easier it is to avoid overlapping, to edit, and to condense.

I should also mention that while the Crown in right of Canada was served with notice of the application, it was not represented by counsel during these hearings.

This is an application by way of originating notice of motion brought by the union for determination of the following questions: Firstly, whether the Public Service Employee Relations Act is, in whole or in part, in violation of Canada's international legal obligations. Secondly, whether the Province of Alberta is empowered to legislate in violation of Canada's international legal obligations. And, thirdly, whether the Public Service Employee Relations Act is ultra vires the Legislature of the Province of Alberta.

While the features of the Act are well known to the parties and, moreover, are referred to in some of the documents which will later be mentioned, in appreciating the issues involved in the litigation, it may be helpful to at once mention some of the salient aspects of the Act.

The Act was passed by the Legislature of Alberta in 1977 and is sometimes known as Bill 41. The Government of Alberta recognizes the Alberta Union of Provincial Employees as the certified bargaining agent authorized to negotiate on behalf of the Government's employees pursuant to the Act with respect to salaries, wages, fringe benefits, and other terms or conditions of employment. The Government and the union are parties to a collective agreement under the Act.

It is essentially the four sections of the Act that give rise to the dispute:

93(1) No person shall cause or attempt to cause a strike by the persons to whom this Act applies.

(2) No person to whom this Act applies shall strike or consent to a strike.

94(1) No person shall cause or attempt to cause a lockout by an employer.

(2) No employer shall lockout or consent to a lockout.

95. A person who contravenes section 93, subsection (1) or section 94, subsection (1) is guilty of an offence and liable on summary conviction to a fine of not more than $10,000.

And then:

48(1) An arbitration board may only consider, and an arbitral award may only deal with, those matters that may be included in a collective agreement.

(2) Notwithstanding subsection (1), none of the following matters may be referred to an arbitration board and provisions in respect of the following matters shall not be contained in the arbitral award of an arbitration board:

• (a) the organization of work, the assignment of duties and the determination of the number of employees of an employer;

• (b) the systems of job evaluation and the allocation of individual jobs and positions within the systems;

• (c) selection, appointment, promotion, training or transfer;

• (d) pensions.

Since the union's attack on the legislation is based on several documents of an international nature, it will be as well to mention them now. They are referred to in the affidavit filed in support of the application by Mr. Booth, the president of the union, and copies are attached as exhibits to his affidavit. Many other documents were mentioned during argument and will be dealt with during the judgment.

The first of the documents in Mr. Booth's affidavit is the Treaty of Versailles. Part XIII of the Treaty dealt with labour, and it will be well to repeat the opening four paragraphs of s. I of Part XIII under the heading Organization of Labour:

Whereas the League of Nations has for its object the establishment of universal peace, and such a peace can be established only if it is based upon social justice;

And whereas conditions of labour exist involving such injustice, hardship, and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled; and an improvement of those conditions is urgently required: as, for example, by the regulation of the hours of work, including the establishment of a maximum working day and week, the regulation of the labour supply, the prevention of unemployment, the provision of an adequate living wage, the protection of the worker against sickness, disease and injury arising out of his employment, the protection of children, young persons and women, provision for old age and injury, protection of the interests of workers when employed in countries other than their own, recognition of the principle of freedom of association, the organization of vocational and technical education and other measures;

Whereas also the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries;

The High Contracting Parties, moved by sentiments of justice and humanity as well as by the desire to secure the permanent peace of the world, agree to the following:

And I have italicized the words recognition of the principle of freedom of association.

The Treaty provided for the creation of an International Labour Office, familiarly known as the I.L.O.

Article 427 of the Treaty deals with the methods and principles for regulating labour conditions. I think it appropriate to reproduce the opening words of the article:

The High Contracting Parties, recognizing that the well-being, physical, moral and intellectual, of industrial wage-earners is of supreme international importance, have framed, in order to further this great end, the permanent machinery provided for in Section I and associated with that of the League of Nations.

They recognize that differences of climate, habits, and customs, of economic opportunity and industrial tradition, make strict uniformity in the conditions of labour difficult of immediate attainment. But, holding as they do, that labour should not be regarded merely as an article of commerce, they think that there are...