'rhe author. (efer to the prohihttion to atrik. ror provl11cial puhlic _ploy... In the P~ovlnce of Alberta un:'ier the Alherta Public B.rvicA P:mploy.e R..lationll Act of 1':,77 ane claim that ..uch prohihition conatitut•• a br.ach b~' Canada of articl" 22 of t': .. Ir.t.rnlltlonllll Co...nant on Civil IInd Pol Hiea1 RtCl~:·l!I. The hcta of the da illl hav( bODn Iillscr ihed a. rollow.. In 197"/, the Ltqialatur. or .. tl~ Province!' or Alh.rta, Canada, adopted the Public Sarvic. !':lIIJIloy•• Relations Act, mainly ~ith a view to con.oli~atinq a nu~b.r of exlatinq leqi.lativ. enactment. covar inq p.-ovincillll public .mploy.... Th. Act I wh l<:h .n':.r ec'J into rare. on 22 S.pt.mber 1977, prohihita por.on. within its ~cope from 8tri~inCl .n~ iMpo.~a p.naltiea In ca."'" of contrav.ntion 'section. 91 ~nd 9 .. ot the Puhllc Service Employ•• Relll!: i0f1. Act, UP7). Th.. 40,000 m.mber. or the Union ar". ~.ld to b. adv.r••ly arr.ct" hy th", provhiona. ~. In Nov.mh.r 1977, t .... Canadian Labour Conqr••• , on behalf of the Alb.rta Union ,... Public Employ••I'l, looqed 11 complaint with the COII.Ht•• on P'r.ttdOll or r.lIIaociat I.on of the Int.rnllt lonal [..bour Orqani...t Ion (HA» thllt the q.n.ral prohihition or atrik... tor pl'bltc .mploy.... contll~"ned in the Alb.rta Public S.rvice P:mploy•• R.lation. Act was 110'" in harmony with articl. 10 <lr H.O Convention No. 87 ~ ......lnc8 it oon.tituted • conaiCl.rabl. r ••tr letion on t.h. opportuniti •• ,Jpe•. to tr..d. uniorJGo to rurtllftr lIInCl eterond the int.r.at" or tholr .....ber.·. The comp".!"t. added thNt ""Hch 1II limitation III an impairm.nt of articl.a 1 and Cl or ronv."t ion No. 8'1 ...... In it. r.por'.: a. approved hy the H.O Gov.rnlnq OOOy in Nov--mber 197R (Olll:l\;l No. 99'), th4t COIImitte. on l'r.e<1f'111 of A••ociatlon .uqq••tOld t:hat '" ti G()v~rnm.llt lor .~lht>rtaJ conlli<1.r the po... ihlllt·,. ·)f introdueinq IIIl -1')1-
In 1980, a third complaint in the matter was submitted t~ the ILO Committee on Freedom of Association by the Canadian Labour Congress. The committee on Freedom of Association again recommended to the Governing Body that it suggest to the Government of Canada that the Government of Alberta ·consider the possibility of introducing an amendment to the Public Service Employee Relations Act in order to confine the prohibition of stzikes to services which are essential in the strict sense of the term·. El In 1983, as a result of this decision, the PUblic Service Employee Relations Act was amended to exclude from its ambit the Alberta Liquor Board, the only pUblicly-owned undertaking to ¥hich express reference was made by the Committee on Freedom of Assoc::iation in its f'!Xamination of the above-mentioned Act. si
The Union also commenced court action in Edmonton, Alberta, at an unspecified date, in 1979 or in the beqinning of 1980. The Union filed an application with the Alb~rta Court of the Queen's Bench, with a view to having certain sections of the PUblic Service Employee Relations Act of 1977 held to be contrary to international law ~nd to be thus void and of no effect. This application was introduced by way of an Originatinq Notice of Motion for the determination mainly of the following quegtions: (a) Whether the Public Service Employee Relations Act S.A. 1977 was, in whole or in part, in violation of Canada's international legal obligations, (b) Whether the Province of Alberta was empowered to legislate in violation of Canada's international legal ObliqationsJ
The Alb~rta Union of Provincial Employees maintained (at the time of the sUbmission of the communication on 5 January 1982) that all available domestic rem~!ed had heen exhausted.
Bv its decision of 8 Julv 1983, the Working Group of the Human Rights Committee transmitted the communication under rule 91 of the prOVisional rules of orocedure to the State party, reouestino information and observations relevant to the question of admissibility of the communication.
Under cover of the nOte dated 6 Auqust 1984 the state Party, inter alia, submitted that: "the Human Riqhts Committee must consider a communication inadmissible if: (a) It is incomoatible with the provisions of the CovenantJ (b) The same matter as that dealt with in it is beino examined under another procedure of international investigation or settlementJ or (c) The communioant has not eXhausted all available domestic remedies. The Government of Canada, after consultation with the Government of the Province of Alberta, is of the view that the present communication fails to meet these reauirements and should therefore be found inadmissible bv the Committee."
With respect to the comPatibility of the communication with the provisions of the Covenant, the State party arQued: "Article 3 of the Optional Protocol to the International Covenant on Civil and Political Riohts provides that the Human Riohts Committee 'shall consider inadmissible any communication under the present Protocol ••• which it considers ••• to be incompatible with the provisions of the Covenant'. The Government of Canada is of the view that article 22, paraoraph 1, of the International Covenant on Civil and Political Riohts does not ouarantee the ri<tht to strike and that as a result the present oommunication is inadmissible ratione materiae. • ThUS, so lonq as a State patty meets its basic requirements under article 22, paraqraph 1, of the COvenant, which is to per~it and make possible trade-union action aimed at protectinq the occupational interests of trade-union members, there is no breach of the Covenant. In giving effect to this Obligation, a State party is free to choose the means which it considers appropriate. Therefore, if a State party meets its basic obligations under article 22, paragraph 1, any eommunication which aims at forcing it to accept a given method of compliance in preference to another would clearly be incompatible with the covenant. ~ln the present case, the communicant's 801e argument is that the Public Service Employee Relations Act enacted by the legislature of the Province of Alberta violates article 22, paragraph 1, of ths Covenant by forbidding strikes in the provincial public service. It makes ~ argument as to why, apart from prohibiting strikes, the Alberta scheme would fail adequately to safeguard the occupational interest of trade-union members. It is asking the Committee to recognize that article 22, paragraph 1, of the Covenant confers a right to strike and as a result does away with the discretion which States possess to choose the means they consider the most appropriate to implement article 22, paragraph 1. In this respect, the communication is incompatible with the provisions of article 22, oaragraph 1, of the Covenant. Not only does this article not recognize a right to strike, it allows a State party to choose how it will give effect to the 'right [of everyon~l to form and join a trade union for the protection of his interest'. Therefore, the Government of Canada considers the present communication inadmissible on the basis of incompatibility with the Covenant."
With respect to the issue of lis pendens, the State party arguedr WArticle S, paragraph 2 (a), of the Optional Protocol to the International Covenant on Civil and Political Rights provides that 'the Committee shall not consider any communication from an individual unless it has ascertained that ••• the eame matter is not being examined under another procedure of international investigation or settlement'. The Government of canada coneiders that the proceedings initiated en behalf of the Alberta union of PUblic Employees before the Committee on Preedom of Association of the International Labour Organisation result in li. pendens since proceedings before that Committee imply the use of another procedure of international eomplaint or settlement ~nd since the matter dealt with by the eo.mittee is the same ae that on which the Human Rights Committee is asked to express its views ••• WFOr article 5, paragraph 2 (a), of the Optional Protocol to apply a communication to the Committee on Fre~ of ABsociationof the International Labour Organisation must be considered to be anoth~r procedure of international investiqation or settlement. In the vie- of the Government of Canada, the special machinery for the protection of freedom of association established by the International Labour Organisation (or ILO) in 1950 followinQ an agreement with the united Nations Eeonomic and Social Council is such a procedure ••• -154- "Even if proceedinqs are beinq carried on before two international investia8tive bodies, a communication is only inadmissihle unoer article 5, paraaraph 2 (a), of the Optional Protocol if these two bodies are examininq the same matter. It is the view of the Government of Canada that this is the situation in the present case. "In ita complaint now before th~ Committee on Freedom of Association [see Para. 5.2 belowl, the communicant is alleqinq that the PUblic Service EmPloyee Relations Act In force in the Province of Alberta fails to set up an imPartial conciliation and arbitration procedure as an alternative to strikes and that as a consequence the Government of Canada is in breach of the obliaations under Convention No. 87. In its communication in respect to article 22, paragraph 1, of the Covenant, it seeks a recoanition that this article confers a riqht to ~trike and that therefore the PUblic Service Emoloyee Relations Act is 1n breach of Canada's international obliqations. The aims of these two communications are identical. In both cases, the c~~unicant seeks a recognition of the riqht to strike although in one case, its method is direct and in the other indir~t. "In the view of the Government of Canada, if the issue raised bv the commu~ioant were debated before the Human Riqhts Committee, it would in fact be dealinq with the same matter as is currently before the Committee on Freedom of Association. As Dreviously indicated, it is the view of the Government of Canada that the Covenant does not recognize the riaht to strike. If the Committee did not dismiss the present communicstion on the around of incompatibility with the C~venant, the communicant would have to show why and how the Public Service Employee Relations Act contravened article 22, oaraqraph 1, of the Covenant. To do this, it would almost inevitably have to resort to the same arguments it is invokinq in the other forum. For this reason, the Government of Canada, after consultation with the Government of the Province of Alberta, considers that there is in this case lis pendens and that the communication should be found inadmissible under article 5, paraarmph 2 (a), of the Optional Protocol."
with respect to the issue of exhaustion of domestic remedies, the State party arqued: "The communicant, before it made the present communication, had challenqed the constitutional validity of the no-strike provisions of tWe PUblic Service Employee Relations Act of the Province of Alberta before the Court of the Queen's Bench of the Province of Alberta. d/ A readina of the decision of Sinelaie C.J.Q.B. in Re Alberta union of p;ovincial Employees et al., and the Crown in Rioht of Alberta shows that this challenqe was based on the notion of division of pOW~rs between the federal and provincial levels of qovernment within the Canadian federation. Basically, the plaintiff was arquina that international law recoqni~ed to all persons employed in the public service save those employees enqaoed in essential services the riqht to strike and that under the Canadian Constitution only the Federal Government could "When the communlc:"nt 80uqht hlIlV. to "ppettl to the !'upr dmlt COl t of Canllt1a t.h. decision of tbe Court of Appelll, it IIllll'l!c1 be notec1 that. it 'tic1 invoke thfl freedom of 48ooci ..tion provilli'")na of the AlblHta Rill of Riqhta 11. one ef thl" IlrOunl1l1 of appe"l. rt: arQuer' th"t the Alherta Bill of Rlqhta oUl/hl: to be Interpret.,., in liqht of Canada'. international obltl1c1tinnll WI.1Gh, in itK view, recoqnia."" to employee. of' non-e,u,enti/ll pUblicly-owned undltrt"kinq& the ri'lht to "trikl'. It c1ic1 not IIrque that freec10'" of ae.ocicltlon a. rocoQnizltc1 in tt.c' Rill conferred by it.elf the rlqht to atrike.! Further, in ita plttllcl1n'1f1, the communicant ...111u narrowed the focuII of ita appeal. It no lon'ler chllllenqec1 the no-.trike proviaion. of. the Puhlic Service F.mployee Rellltiorlfl Act •• they applied to the entire pUblic .erviec, but rather it llmitttd it. ch"llenqe to th.1 r applicat ion to the the non-ea".ntlal employeea of the Crown-owned underlakinq•• .9I Clearly when Lhe cOlnmunioant mado ita communication it hal1 not exhaUtltec1 local remel1ie•. ·The Government of Canada haa iodica' ec1 that the Gommunlcltnt 1. curr."tly proceedinq with a chall.nqe aqainat. the nO-lItrlke provie1onal of the Puhlic Serv ice F,mployee Rolat iOn8 Act under IIUbolect ion 2 (<1) of the Canac1 ian Cha r ter of Riqht8 and Freedoma [ae. para. ~.3 below). T~ie provision reads 1118 followol '2. Everyone ha. the followin'l fundament ... l fr eec10msl '(d) P'reedom of AlI8ociation.' !V "·rh. h:sue Cif whether freedom of 1II.lIocia,. '.011 confera to trlll'1. ullion8 and their members a riqht to ~trik4 18 III natter ~hich wall not 11~lqat~ before the Supr.me Court of Canada and ~Iich dOG8 not appoar to have been dealt wit~ by 10l0'.r court. under the CIII.,.l1iltn 9ill I,f Riqht. or the Alberta BEl of Riqhta. However, under the Chluter the r.lationship het'ween fre.'Jom of "Iulociation and the riqht to stri"" ill a qutstion which hOle been ftuhmitted to the courts for al1judic.tion at tXh .• the federal "nd pro"!ncial 1 "e18. if Because of th. imporhnco of the ,natter and of connictinq judiciAl int~ .:pretatton, it ill likely that th. 8upre.e Court of Canaaa, which ia in the Canadian fadoration the COI>,.- of 1••t re.ort tor hoth the ftKJ.r.tl And provinc'"l juri ...Uctionll, will be IlY",n an opportunity to renddr judqement on thll1 q"eat'.ion. "Sinoll the Alberta Union of puhlic Employee. r"lle<'l to exh.,ullt domfllstic rem..,ie. before it aubmitted a cOl\Illtunication to the Hurnan Riqhl:. Committer...od .ince it ia currently purauinQ proceedinq. before the Alberta COJrt of Ouoen'lI RliInch On the Gllme matter, the C.overnment of Canada considerll that it. communication IIhould h. found ina('mi... ihl~ under IHticJ'lt "i, paraQraph 2 (h), of tbe Optional Protocol to the Intlt,.n~tion"l Covltnant I)n Civil ..nil Politic.. l RiqhtR ... 'i. I In th.;i r commentll under ru le cn, dated 2 .Jllne 1986, the author 8 addr ell. the three main objection. of tho 9t1lte pl.lrty with rltQllrd to th... adm168ihllity of the communicatic-n. P'irllt, thay .ubmit that the communication ill indeed compatihle with tne provisions of the Cov~nant dn~ refer to the relevance ot a,tlcl~ 22, p..raqraph J, which provideR that "Nothlnq 1n t.hi.. artic~le Rh.. ll "uthoriz@ StateB -156- ~10. 87. 1'ho COlllmttt"e on Fre..1om nl .....oc:i.tion hall oI!Iccordinqly request.., the Cllnat1iltn (',overnment "to l'e-exa",inc the provillionll in question in or<1er to o:mf1ne the hlln on Rtr Ikes to "er'l1ce....hlch /lire e••ential 1n t.h6 etr iet aenlle of' th(~ t: Mrm". '('lie rr.o Commt tt.el) of ~XP~tt a on the Appl ic:at ion of Convent iona IIn<1 RltCommonl'iation", it ia IHqUct1, ha...lao re",ffirmlld the importllnl~e of the r tqht to utrlke in the nOn-e8Rl!lntilll public sG~vice. ';. With req/lrrl t.O the ~~.te part.Y'1I objection that the matter 18 beinq eXllminO<1 \Inder /lnother procel1ure of international invest.iQ ..tion or set.tlltlllent (para.
...hovel, the allth.)r" lIubmit that the compllllint .ubmittfld by the Canadian l.abour COnqeeRII, on t-~hlllt or the Alherta Union ,)f provi"... tal Employ"... , to n.c.> is no lonqer under eXftminlltton ..ince the ILO inve.t·lqati.ll Ill•• concludllK'l in 1985 dod recommendations for r~.olvinq the <1ifterences hlllve heen made hy the Committee on Freedom of A,,"ociatton IIInrt IIft/rmed by the Governinq Body of the [nternationlll Labollr Office. 1'he.e rlt(~ommendationll, th8 authors add, have bften iqnored hy the Gov.,rnml'lllt of the Province at Alberta. " l With reqarc1 to the qt.ellt ion of exhaust ion c f dom••t ie r eme<Uee, the authors Rubmit thllt 1111 IIv~tlahle dom••tic rem..'i~B have indeed been exhau.t~. In particular, the "uthor. dillPut~ the relevance of the Stale party's contenti(m (pun. 4.4 above) th..t their" arqument betore the Caua,Uan court. wa. narrower than th.. t hefore the Human Ri'lht. Comrdttee, expl"lninq t'i.t "since the Canailian (!Ourto d~id~ that there was no riQht to .trike (for public employe•• in the nrovince of Alhertal, the ~IQRtion of the entitlement o~ perftOnB like the compl~inantft was nAvor revehed". With raqarrl to the state partY'H contentiun that the Albert~ Union of Provincial ~mployelflll flI l1ursuinq this matter under the Canllldi.,n Charter of RlllhtR ... ncl Freerlomft, the allthor .. point out that., at the time of ftubmi81lion of the prellent commllnic..tt )l\ to the HUlnan Riqh':l!l COlIIm ttee on ~ J ...nllary 1982, the Charte,. of Riqht!'l and Fre~omll had not come into force. After the ('h.. r~.er wa. prtJ(~laimed on 17 April 1982, theo I\Illertlll Un!on of PE'ovincial Employee.. , hOt/ever, commenced an /lctton tn the Court of Queen'" Bench of Alberta for a decllllration that ce,.tain proVi81,mf\ of the Pulllic Service F,llIployee nel"tiono Act, incll"IHnq the 8trike prohtbition, wer.-e contrary to th(l qUlllrantee of freedom of aSl'Jociation contain8l' in lH!cttoli 2 (11 III the ChllrteL On 29 Fe, cuacy 191J4, the PC'ovince of Alherta r..,f.rrll<~ certllin qUl't!'ltions to the Court of Appeal ••t Alberta for sn advilllor.- \I opinion Bnd ohtained a ..tay of the ,>roceedinq .. that hll<1 been l/lunched by the Albertll IInion. Or. 17 ()(ltCember 1984, the Court of Appe.d of Albor.-ta certifi.' itR opinion on i) number of ooints, while d9Cllnlnq to iellul'I ·.n opinion on the question her!'.. in ,!If1pllte. 'rhl'! Alhertl'l Unton therefore IlIppe.. l8l' to the Sllpreme court l)(
Refore c...lnsi.,.riml ..ny cldim eontain~ in .. communh:"tion, the Human Riqhta Committee IIh"ll, in accordance with rule 81 ot it. provi.ional Cl te. of procedure, (leei.'. whether the communicat ion tll "dmi•• ihl. ander the opt ionAl Prutocol to the International Covenant on Civil and Politic"l Riqhtll.
The qll.at ion herore the Commi ttee i. whether the r iqnt t,o 8tr lkll lr quaranteed hy article 22 of the International Covunant Oil Civil a\I<1 political Riqhtll. Articl. 22, para'1raph I provid•• , "~veryone 8hall h"ve the ri'lht to freedom ",I:' aaaociation with otherll, Inclll,anq the riqht to form ane' jotn trade uniona for the prtlt.lt<'tt.on of hill tnterestll." Since the riqht to atrlke' not "Ilptelllsls verhis included in "rticle 22, the Committee mu"t interpret w, .ther the ri'1ht to freodom of ".aociation neceasarily implie. the r i'1ht to atr ike, a. contended hy the &lIthorll of the <:ommunication. The author" have arqllerl that such a~onclul!lion i. aupported by deel.inns of orqan8 of the Internat Iona1 Labour Orqani..at ion in interlJretin'1 the IlIcope and the l1leaninq ot laoour law treatie. enactlld under the allspicea of u.o. The Human Riqht. COl1lmlh:ee haD no qualm.. about accep::inq ao correct and jll.t the interpretation of tho.e treati•• by It.,, orqan. cOI"~:erned. Ho",ever, each internat.ional treaty, incluc1!nq th9 Intarnational Covenant on Civil anc1 Polltical Riqht., h•• a life 0t it. own And must he interpreted in a tair and juat m~~n.r, it ao provid~, by the body entrusted with the monitorinq of it. proviaions.
In \nterpretinq the Rcope of article 22, the Committee haR qiven attention to the "ordinary meaninc;" or each el'lment of the Illrt iele in it. contellt and in the li'1ht of its objeet and purpa.e (trticlr. Jl of the Vienna Convention on ~he Law of Tro.tie~). 1/ Th~ Com~tttee haa al.o had reoour.e to Aupplementary me.n~ of interpretation (article 32 of the Vienna Convention on the Law of Treatte.) an,1 pen,aed the travaux pr'paratoire. "f the Covenant on Civil and Politloal Riqhta, in particular the dlacualllon. in the Commi•• !on on HurMn Riqht8 and in t:h. '\.'hlrd "nmmitt.e of' the General A••embly. 'rhe Committee notlis that in the cou,..e of cJlaftin'1 th Covenll'nt on Civil and political Ri'1hlll An<'l the Cove '1nt on Economic, Social and Cultural Riqhts, the Commis.ion on lIuman Riqht. ba.ed tt.elf on the Univeraal OtiClaratton of Human Riqhta. The Ur,lverRal DeclIH"tl.on, howel!Jr, dOOR not reter to th.a rlqht to atr ikc. At itll ..evflOth .o•• ion in lq51 the COIII1l1••ion IIldopted the tll'xt of 11 lIin'111' "dr4ft ooven:mt on "uma,') riqht." comprt.lln'1 7J ... rt1(~l*a (J!./1992, annell). The relevant dcaft acticl... Hi ("the riqtlt of a••ocintion") lIInd 2" ("the ri<"t 'If everyone, 1\1 conformity with article 16, to form anI' join local, n.ti'lO.~l and intenHII':.i.lOlIll trade unionll") did not provide for the riqht to IItrlke. In the Gourlle of th.. dillcua.ion" of H.e•• article" at the Conlllll ..llIion's eiqhth lIelUlion in lq5:l, IIrticle 27 ",alii dealt 'ltith f1r.t. An amendl'llo,,1 to article 27 provilHn'1 for th.. inelullion of thflt r iqht to atrike w.... rejected by 11 voteR to 6, with l/lblltfrntion. Thee.. weeks later th~ Commill.ion <It lcu••e~ Ilrtlc:l" lh /lnd ."dopt~ It with minor amendments, wJ,thout, however, any p,.opo.al or amenrlmf'lIl: hf>tn~ t ..ble<'l with" vi ..w to incllJ(Hnq the d.qht to ..trtke in t'IIt -158-
The conclusions to be drawn from the drafting history are corroborated by a comparative analysis of the International COvenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, Article 8, paragraph 1 (d), of the International COvenant on Economic, Social and Cultural Ri~hts recognizes the right to strike, in addition to the right of everyone to form and join trade unions for the promotion and protection of his economic and social interests, thereby making it clear that ~he right to strike cannot be considered as an implicit component of the right to form and join trade unions. Consequently, the fact that the International Covenant on Civil and Political Rights does not similarly provide expressly for the right to strike in article 22, paragraph 1, shows that ~his right is not included in the scope of this article, while it enjoys protectio~ under the procedures and mechanisms of the International Covenant on Economic, Social and Cultural rights SUbject to the specific restrictions mentioned in article 8 of that instrument.
As to the importance which the authors appear to attach to article 22, paragraph 3, (para. 5.1 above) of the COvenant on Civil and Political Rights, the Committee observes that the State party has in no way claimed that article 22 authoriz~s it to take legislative measures or to apply the law to the detriment of the guarantees provided for in lLO Convention No. 87.
In the light of the above, the Human Rights Committee concludes that the communication is incompatible with the provisions of the COvenant and thus inadmissible ratione materiae under article 3 of the Optional Protocol. In the circumstances the Committee does not have to examine further the question of the admissibility of the communication under article 5, paragraph 2 (a) and Cb), of the Optional Protocol, or the question whether an alleged breach of a collective right, such as the right to strike, can be the subject of a claim submitted by individuals pursuant to articles 1 and 2 of the Optional Protocol.
The Human Rights Committee therefore decides: That the communication is inadmissible. El International -Labour Office, ·Complaint presented by the Canadian Labour Congress against the Government of Canada (Alberta}1 case No. 893" in Report& of the Governing Body Committee on Freedom of Association (203rd, 204th and 205th), (1980) LXIII Official Bulletin, Series B~ NO. 3, p. 28, para. Cb). £I Public Service Employee Relations Act, SChedule, section 6 as added by the Labour Statutes Amendment Act, 1983, S.A. 1983, c. 34, subsect. 5 (13). g; When this challenqe was initiated, there exist@d no constitutional protection of freedom of association in Canada. Such a protection came into existence only on 17 April 1982 with the coming into force of the Canadian Charter of Rights and Freedoms. However, the Alberta Bill of Rights, R.S.A. 1980, c. A-16, did protect various basic rights and freedoms inclUding freedom of association. The Bill, waa, however; not constitutionalized. !1 ~e Alberta Union of Provincial EmploYees et al., and the Crown in Riqht of Alberta, 120 Dominion Law Reports, pp. 592-622. See in particular, p. 592 for a summar;-of the matters in litigation, p. 609 for the employees covered by the plaintiff's arguments and pp. 621-622 for the conclusion of Sinclair C.J.O.E. y Alberta: The Alberta Union of Provincial Employees et al. v. Tbe Crown In Right of Motion for leave to appeal, 25 November 1981, pp. 10, 20 and 21. ~., pp. 10 and 21. hi Riqhts protected by the Canadian Charter of Rights and Freedoms are not absolute. Section 1 provides that the rights and freedoms set out in the Charter are quaranteed SUbject "to such reasonable limits prescribed by law aR can be demonstrably justified in a f~ee and democratic society". Apart from the proceedings initiated by the communicant, mention ought to be made of Re Service Employees' International Union, Local 204 and Broadwax Manor Nursing Home et al. and two other applications, (1984) O.R. 392 (Ontario High Court of Justice, Divisional Court), PUblic Service Alliance of Canada v. The Queen et al., Federal Court of Canada, Trial Division, 21 March 1984 (unreported) and Bglphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580 et al., 5 March 1984 (unreported). All of the decisions have been appealed, the last one to the Supreme COUrt of Canada• .v Official Records of the United Nations Conference on the Law of Treaties, Vienna, 26 March-24 May 1968 and 9 April-22 May 1969 (United Nations pUblication, Sales No. E.70.V.5), p. 287.
In its deci8ioll th~ Committee I!ItllteR that the issue hefore it is whether the rioht to stl"tke i8 Qllal"anteed hy al"t!cle 22 of the Intel"lIatiolllll Covenant 011 Civil and Politic"l Riqhtsl and. findinq thlllt it i8 not, it declllres the commllnicatlon inadmissi.lle. 7.. We reqret that we cannot Ahare thi8 llIPproach to the issues in this Citse. Wl~ note that in Canad.... 1111 in many other countries, thel,~ exists. in principle, a rillht to IIh ike, and that the compVl1nt of the authors concerns the Qeneral pl"ohihition of the exercise of such rioht for puhlic employees in the Alherta Puhlic Service Employee Rl"llIt ions Act. We helieve that the Question that the Comlnit:l:ee 18 required to answer at this staae is whether article 22 alonl" or in conjunction with other provisionll of the Covenant necessarily exclu:ies, in the relevant circumstances, an entit.lement to strike.
T~d draftinQ hiatocy cle6rlv Bhows that th& riqht of association ~as dealt wi th separatelv from the r iQht to .'orm and join tr ad.. un ions. The travallx pr~paratoire8 Indicat~ that in 1952 the riQht to strike was proposed or,ly for the draft article nn trade unions. This ill what we would ~ave expected. It was at that time rejected. Tncw show also that in 1.957, wh"n the riQht to strike (suhject to certain limitation~1 was accepted as an amendment to the draft article on the r iQht to form and join trade unions, such an amendment. WIlB nei ther introoJc1!!d nor dil!leU8serl wU:h rel'lpect to the draft covenant on civil and political riqhtl'l. 'rhe reaBon seer's to us both cleitr and cOI:rect - namelY, th"t hecause What is now art.icle 22 of the Covenant on Civil and Political RiQhts deals with the riQnt of association as 11 whole, concernillQ clubB and societies 8S well aB trade union8, mentioninQ particular activities such as strike action would have been inappropr tate. -161-
We note that article B of the International Covenllnt on f:con,)mlc, Social llnd Cultural RI<Jhts, havinQ spokeo of the riqht of everyone to form trade unions "nd join tho union of his choice, qoes on to epeak of "the riqht to strike, provided that it is exerciseo1 in conformt.ty with the laws of the partlculal country". While thiH latter phl'aee qives rise to some complex leqal issues, it suffices for our pre8ent purpo8e that the specific aspect of freedom of aS8or.iation which l' touCffll on as an individual riqht in article 22 of the Covenant on Civil Ilnd political Riqhts, hut dealt with as a set of di8tinctl~e riqhts in article 8, does not necessarily exclude the riqht to strike in all circumstances. We see no teltSOll for int~rpretinq this coml/lOn matter differeotly in the two Covenantfl.
We are also aware that the ILO Comluittee on Freedom of Association, a bo<~y 8inqularly well placed t.o pronoun(~e author itattvely on fluch matters, has hele'! that the qeneral prohibition of strikes for puhlic employees contained in the Alherta Public Service Employees Re>latione Act was not in harlllOny with article 10 of IU) Convention No. 81 ..... sincf! it conatituted a considerable restriction on the opportunities open to trade unions "0 further and defend the interests of their members." While we do not at this staqe purport to comment on the merits, we c.:tnnot fail to notice that the IU) findinq is based on the furtherance ar.J defence of interests of t.rade-union members, and article 22 1I1so requires UB to cP'lsider that the purpose of joininq a trade un1.on. Is to pretect 00("'9 interests. Aqain, we we see no resson to interpret article 22 in a manner dtfterent from Tl,O when ,addres9inq a comparable consideration. In this reqard we note that article 22, pllraqraph 3, provideR that /lOthinq in that article authorizes a State party to ILO Convention No. 81 to take leqislative me1ll8ure9 which would prejudice, or to apply the law in such a manner as to prejudice, the qUlllrantees provided for in that Convention.
Whereas article 22, paraqrllph I, riellls with the riqht of freedom of association as ~uch, paraqraph 2 deals with the extent of the exercifle of the riqht which necessarily includes the means which may be resortl~ to hy a member of a trade union for the protection of his interestA.
Whether the riqht to 9trike is a nece9s~ry element in the prot~tion of the interests of the .'luthors, and if so whether it has been ullliuly restricted, is a questi'.n on the merits, that is to SPly, whether the rest.rictions imposed in C"nada are or are not justifiable under article 22, paraqraph 2. But we do not find the communication inadmissible on this qrounn. for us to fll~e whether the communication ia rendered With [eqard te. the S~ate party's objection that the another procedure of int.ernational inve1..tiqation or
It is therefore oecessary inadmissible on other grounda. '"'acter ia being examiol:KJ under -162-
with reqard to the iSfllle of exhllustlon of local remedieA, we find that all rele'Jant local remedies aVid Illhle to the duthofs at the time of the slIbmis8ion of the preflent communicat ion have bl'en exhausted.
Wl' wout.'l therefore consider the communication admissihle. l~oRalyn lIiqqln8 Andrea8 MlIvrommatiq Torkel Op86' Am08 Wlllko -163-