Le Canada en tant que membre de l’O.I.T. : réalisations et possibilités

Après une brève présentation de l'O.I.T., l'auteur fait un inventaire de la participation canadienne à cette organisation internationale pour ensuite aboutir aux perspectives d'avenir.Most Canadians - and indeed most union members - know relatively little about the ILO. Knowledge may pick up somewhat next year. 1969 will be the fiftieth year since the founding of the ILO. The Department of Labour - along with the Canadian Labour Congress, the CNTU, the Canadian Manufacturers Association, some other private organizations, and the provincial departments of labour - is planning commemorative activities. These activities will have two main purposes: to make the ILO better known in Canada; and to accomplish certain specific objectives relating to the ILO's work.Why is the ILO not better known in Canada ? This is a difficult question. I have known people go to ILO meetings and return to Canada full of enthusiasm to rouse public interest in the ILO. From time to time, public relations experts decide they will make the same attempt. Success does not crown their efforts.One reason seems to be that most people get bogged down trying to describe the technical aspects of how the ILO works - its tripartite structure; the composition at the delegations to the Conference; the voting system; the relationship between the Governing Body and the Conference; how the convention system works; the difference between a convention and a recommendation; and all this is made even more complicated as far as Canada is concerned when one tries to explain the federal-provincial relationship.Probably another reason for the difficulty in making the work of the ILO better known in Canada is that few Canadians, even including those who have actually been delegates to the Conference or to industrial committees for example, manage to develop any real sense of involvement in the ILO's work after their return to Canada.Finally, there may be a faint air of unreality about the ILO convention system, ingenious as it is, in view of the technical and political difficulties in the way of getting ILO Conventions implemented in Canada, let alone ratified. People tend to feel, consciously or unconsciously, that the exercise is not related too closely to basic objectives of social and economic policy in this country.The ILO, as I said, is fifty years old. It has a history, and perhaps to some extent it is saddled with its history. There is an intriguing question that I ask myself now and then - supposing one were to start all over again in 1968 to set up an international organization, as part of the United Nations family, and devote it to problems affecting labour, how much of what is presently in the ILO Constitution would one retain, and how many new ideas would one want to introduce? The ILO today has an annual budget of over 25 million dollars. It has access also to additional funds coming from the United Nations Development Program, the Special Fund and the Expanded Program of Technical Assistance which give it another 10 to 15 million dollars. Suppose one had the opportunity to start all over again today to set up an organization which would have forty million dollars a year at its disposal, what would one do with the money ?We may be too prone to take as given the activities that the ILO new performs. I would like to see more basic thinking about the ILO and its role and its potential, by labour and employer organizations and by university research people - as well as by governments.My own views concerning ways in which the ILO might evolve as regards its programs are set forth in the booklet « The ILO Today » of which a few copies are available for those of you who can find the time and patience to read them. This is not really what I want to discuss today however. Whether or not the ILO's role and purpose could be improved, it is my belief that in its present form and with its present structure and objectives, the ILO has a good deal to offer Canada, and that this is particularly so at the present moment in our history. So what I want to talk about essentially is the way in which the ILO has affected Canada in the past, the extent to which we have taken advantage of the opportunities it offers, and the potential for the future.The ILO - as I think most Canadians probably do know - was set up under the Treaty of Versailles following the First World War in 1919. During the Peace Conference, a nine-country labour commission was established to deal with a British proposal for the establishment of an international labour organization as part of the League of Nations apparatus. The conference of this organization would be composed, not merely of government delegates, but also of delegates representing employers and workers in each member country. And this, of course, was the unique idea, this tripartism, which has had so many implications for the ILO and its work and which sets it off today so sharply from other UN bodies.Samuel Gompers was named by the United States Government as one of its delegates on the nine-country labour commission. Canada was not a member. In fact, Canada did not have national representation at the Peace Conference being merely a part of the so-called British Empire Delegation. The Canadian group was headed by Sir Robert Borden, the Prime Minister. One of his advisers was P.M. (Paddy) Draper, the Secretary of the Trades and Labour Congress. It is a matter of history that Sir Robert Borden engaged in various struggles to protect the status of Canada. One struggle related to the composition of the Governing Body of the ILO, which was to be the executive of the organization. Canada had a good claim to be represented on the Governing Body in the capacity of one of the eight states of chief industrial importance. However, the Labour Commission decided that Canada and the other Dominions should be excluded from consideration for membership on the Governing Body in view of Britain's membership. Borden fought and won the battle for recognition of Canada's right to be independently represented.The first general Conference of the ILO was held in Washington. There was some uncertainty as to whether this Conference would actually take place since following the Peace Conference, the United States had turned towards isolationism and, in fact, did not become a member of the ILO until the Franklin Roosevelt regime many years later. The invitation for Canada to participate in this first ILO Conference was transmitted to the Governor-General of Canada by Britain's Colonial Secretary. Canada was not yet very far removed from colonialism ! Another struggle was necessary to ensure our right to participate as a full independent ILO member.All this may have strengthened our interest in the ILO and our determination to put up a good front at our first independent participation in an international conference.In planning for the Conference, everything was new to us, and everything had to be worked out from scratch. The Canadian Manufacturers Association was invited to name the employer delegate, which they have done ever since. The Trades and Labour Congress of Canada was invited to name the workers delegate, and Paddy Draper was named as delegate with Tom Moore as his principal adviser.Then came the question of Government representation; and a decision had to be made as to the Position of Canada's nine provinces. At the Peace Conference, the Canadians had taken the view that section 132 of the British North America Act, which sets forth the treaty powers of the Federal Government, conferred on the Parliament of Canada power to deal with any obligations that might arise out of its membership in the ILO. Nevertheless, the fact remained that the Washington Conference was to deal with certain matters that were normally within provincial jurisdiction, including for example hours of work and various aspects of the protection of women and children. It was decided that the Dominion Government should name the two principal delegates to the Conference, and that the Provinces should be invited to name advisers. All of them did so. Never since in fact have the Provinces been so fully represented at any subsequent ILO Conference.Probably the most important item on the agenda was the project for a convention on hours of work. The object was to develop an international standard calling for an eight-hour day and a forty-eight-hour week. This may not seem much of an objective and, in fact, even in 1919 Paddy Draper, as Canadian workers delegate, urged as a counter-proposal that the eight-hour-day should be coupled with a forty-four instead of a forty-eight-hour week. He got ruled out of order. But the curious fact is that even today Canada - and probably we are no different from a good many other countries - does not comply fully with the provisions of this first ILO Convention - even though it is one of the Conventions that Canada has ratified.Back in 1919, the adoption by Canada of an eight-hour day and a forty-eight-hour week would indeed have been a major reform. I have not found it possible from available records to piece out what was going on in the minds of civil servants and politicians at that period in our history. It was obviously a time when much might have been expected following on this first International Labour Conference whose aim had been to equalize international competition based on labour standards. A period of frustration was to set in.We find on our files correspondence between the Honourable J.W. de B. Harris, Minister of Labour for British Columbia, and the Minister of Labour for Canada, Honourable Gideon Robertson. The Provincial Minister demanded to know what sort of action Canada was going to take to implement the ILO forty-eight hour week standard. There is an interesting telegram on file in which the Minister of Labour for Canada sets forth his view that Section 132 of the BNA Act conferred on the Canadian Parliament the power to legislate to implement this particular ILO Hours of Work Convention, while agreeing that the provinces also had jurisdiction in this field and could, if they wished, enact standards which would be in advance of the forty-eight-hour week standard.Months went by and the issue was referred to the Department of Justice. The Minister of Justice gave it as his opinion that it was the provincial governments that had jurisdiction in this field and not the federal. This being the case, it would require legislation in each of the nine provinces as well as in the industries coming within federal jurisdiction in order to secure compliance with the Convention. How could this be accomplished? Nobody had any clear answer. The Trades and Labour Congress of Canada was urging the Government to take action, though what kind of action was possible seemed less and less clear. It suggested that if necessary the BNA Act be amended to make such legislation possible. The Congress also approached the various provincial governments asking that they enact legislation on hours of work. The most satisfactory response came from the Government of British Columbia which passed a series of Acts to conform with the Hours of Work Convention and various other ILO Conventions. The proclamation of these Acts, however, was made contingent upon the passing of similar legislation in other provinces, and this was not forthcoming.Back came the Congress to the Federal Government, this time with a two-fold suggestion, that it introduce the eight-hour day on works coming within federal scope, and that it call a meeting of provincial government representatives to facilitate joint action to implement the Convention within each jurisdiction.During the 1920's a series of such federal-provincial meetings did in fact take place. One such meeting in 1923 was attended by representatives of workers and employers as well as the Dominion and provincial governments, and it gave consideration to the various ILO Conventions which had been adopted up to that time. The CNA commented after the Conference that it seemed to be consensus of opinion of delegates that implementation of the Hours of Work Convention was not practical politics. The CMA also argued that it would be « absolutely impossible for Canada to think of passing such legislation unless and until similar legislation was passed in the United States ». The United States at that time was not a member of the ILO, and the prevailing opinion of the American Federation of Labour in any event was not very much in favour of labour legislation.As time went by, Canada was able to ratify a few ILO Conventions dealing with matters coming exclusively within federal juridiction and covered by the Canada Shipping Act. With respect to other ILO Conventions, Canada took no action to ratify during the 1920's. This was somewhat embarrassing with respect to Canada's international posture since Canada had now been recognized as one of the states of chief industrial importance of the ILO and hence it might be expected that Canada would set a better example in dealing with ILO standards.There was a feeling that the legislative position in Canada was better than shown by our record of ratifications. The ILO published - and still publishes -regularly a chart showing for each member country whether or not it had ratified the various ILO Conventions. Canada complained that this chart did not give recognition to the fact that many provinces were well up in their legislation even though ratification of a Convention by Canada was not possible. The ILO agreed to amend its chart so as to show the position in the various Canadian provinces. This idea was subsequently dropped. But the basic notion - of maintaining a score-board of the provincial performance with respect to ILO Conventions - is an interesting one.In all fairness, it must be stated that the position of some of the other industriallized countries with unitary and not federal forms of government was not all that much in advance of Canada. During its first few years of life, the ILO did not attain the quantity of ratifications of Conventions that might have been hoped for. The concept of the ILO as a body which could eliminate international competition based on labour standards was a difficult concept to achieve. The Convention system has been effective in other ways. ILO Conventions have come to represent a consensus of opinion on what constitutes a desirable international standard. Some governments may have already reached the standard and can ratify the Convention. Others will move towards it at their own pace. By and large, the more successful ILO Conventions have dealt with subjects whose economic significance is not too conspicuous. This would include Conventions on technical matters such as safety standards, protection of women and young workers, labour inspection, and so on. It would also include the very important ILO Conventions on human rights.It is generally felt that the Convention system has an influence on national standards apart from anything that can be measured by the record of ratifications. I am fond of quoting an observation from Albert Thomas, the first head of the International Labour Office, who once said « We have taught the world to speak something like the same language on labour questions. » This very realistic remark suggests that the research carried out by the ILO and the exchange of experience at International Conferences may mean more than the actual record of ratifications.Ratification, however, remains the goal, at least as long as one is dealing with a Convention which has been soundly constructed, which is not always the case. And this leads us to the next episode in Canada's relationship with the ILO standard-setting system. During the early 1930's and the depression years, the ILO was much concerned with the problem of unemployment which, according to ILO figures, affected as many as 25 million workers throughout the world. The ILO pioneered in the concept of public works as a means of sustaining employment. It advocated such measures as the abolition of overtime and the adoption of social security programs including in particular unemployment insurance. It must be remembered that these were the days when social security legislation was rare among the nations of the world. Also, the ILO emphasized the desirability of a shorter standard work week as a means of distributing available work over a larger number of persons.In 1932, the Canadian House of Commons adopted a motion calling attention to the Hours of Work Convention and urging its implementation throughout Canada. The response was not particularly noticeable. In 1935, R.B. Bennett announced his intention as part of his program of « New Deal » legislation to ratify the ILO Hours of Work Convention. Mr. Bennett took as his authority the famous Section 132 of the BNA Act dealing with international treaties. He reasoned that if Canada ratified an ILO Convention, it would then be bound by the Convention as though it were a treaty. Having become subject to treaty obligation in this manner, Canada would then find power in Section 132 to carry out its obligation by adopting the necessary legislation. Accordingly, Mr. Bennett's government ratified the Hours of Work Convention as well as two other labour standards Conventions. Parliament then enacted legislation to implement the Conventions, going beyond the normal federal jurisdiction and applying to Canadian industry generally.This was indeed a bold step. Shortly afterwards, however, Mr. Bennett's government lost a federal election. The New Deal measures were not proclaimed, but were referred to the Canadian Supreme Court, which divided three to three on the validity of Mr. Bennett's initiative. They were then referred to The Judicial Committee of the Privy Council, which declared the legislation ultra vires of the Parliament of Canada. Their lordship reasoned that the use of Section 132 to expand the area of federal jurisdiction might very well be carried to an extreme so as to undermine provincial constitutional autonomy. However, they also concluded that Canada was by no means incompetent to legislate in performance of treaty obligations. « In totality of legislative powers Dominion and provincial together she is fully equipped ». Totality of powers however meant cooperation between the Dominion and the provinces.This ruling by the Privy Council has of course become an important part of Canada's constitutional history and the so-called Labour Conventions case is known and cited by people without other knowledge of the ILO and by people without any particular interest in labour legislation.Canada's position with respect to ILO Conventions was next examined by the Rowell-Sirois Commission on Dominion-Provincial Relations and was declared to be unsatisfactory. The Commission recommended « that the Dominion and the provinces together should decide how international labour conventions should be implemented ».Meanwhile World War II had started and the various Canadian Government and the Canadian people had other things on their minds. Our interest in ILO Conventions lapsed. However, Canada's history with the ILO took a new turn in 1940, when following the Nazi invasion of France we invited the ILO to set up headquarters in Montreal and on the campus of McGill University. Here the ILO spent the war and early post-war years.When things came back to normal and the ILO returned to its Geneva headquarters, Canada as an ILO member had to re-examine its obligation with respect to the Conventions that had been ratified by the Bennett Government. Obviously, we had defaulted on our international obligation with respect to these Conventions. We had ratified them, but we had not implemented them. Thus began a somewhat embarrassing period for Canadian delegates to ILO Conferences, since the ILO Committee which has the responsibility each year of scrutinizing the way in which member governments are applying the Conventions they have ratified had some rather awkward questions to ask. Theoretically Canada might very well have taken advantage of its right to denounce the Conventions, and thus escape its obligations. Canadian authorities, however, took the view that this would be a retrograde step. It would be preferable to call the attention of the provinces to the situation and rely on them to improve their legislation to the point where we would achieve full compliance. In fact, this point has been pretty well reached with respect to two of the Bennett ratifications. With regard to the third, however, the Hours of Work Convention, our legislative position has indeed improved but there are many gaps in our compliance with the ILO standard. The ILO calls attention to these gaps from time to time. But by and large, it has shown good understanding of our difficulty, and has accepted our decision to try to move towards complete conformity rather than denounce the Convention. The ILO maintains a « black list » of countries seriously in default on their ILO obligations, but we have not been included in this list.One result of our embarrassment with respect to the Bennett ratifications was negative. Once bitten, twice shy. The prevailing opinion in Canadian Government circles during the first ten or fifteen years after the war was that Canada should not again seek to ratify Conventions where the jurisdiction to legislate in Canada was divided between the Federal Government and the provinces. It was simply felt to be too much trouble. It was also felt that the Federal Government would be in taking an unnecessary chance if, even with the full agreement of the provinces, it assumed an international obligation which one of the provinces might later, possibly as a result of a change in gover

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