Volume 24, numéro 4, 1969

FR :

À l'occasion du cinquantenaire de l'Organisation internationale du travail, l'université Laval, lors de la collation des diplômes le 18 octobre 1969, a tenu à marquer cet anniversaire — qui coïncidait avec le vingt-cinquième de la fondation de son département de relations industrielles — en décernant un doctorat d'honneur en sciences sociales {mention relations industrielles) à M. David A. Morse, directeur général du Bureau international du travail. Voici la citation telle que présentée par le professeur Gérard DION.

EN :

Last October 18, l’Université Laval marked the fiftieth anniversary of the International Labor Organization — together with the twenty-fifth anniversary of its Department of Industrial Relations— by awarding David A. Morse, Director-General of the ILO, the degree of doctor "honoris causa" in Social Sciences (in the field of Industrial Relations). The following citation was presented by Professor Gérard DION.

EN :

In its anniversary year, the I.L.O. has launched a World Employment Programme. The author will examine the circumstances in which this Programme has been launched and what it must accomplish. After a brief discussion of the nature and extent of unemployment and underemployment in developing countries, the author will make some remarks on the kind of approach that these countries themselves may have to adopt in grappling with these problems. He will then present the relationship between employment and growth. Finally he will make some comments on the kind of international perspective and international programme that are needed. This papers was presented by the author at Columbia University, as part of the Gabriel Silver Memorial Lecture.

FR :

On a eu tendance, jusqu'à récemment, à considérer le chômage et le sous-emploi comme des symptômes de sous-développement, symptômes qui disparaîtraient avec une croissance économique soutenue. Or tel n'est pas le cas. C'est pourquoi on doit reconsidérer le concept d'aide au développement en ajoutant aux buts économiques traditionnellement recherchés par ces programmes, un grand nombre de buts proprement sociaux. C'est ce qu'a fait l'O.I.T. en mettant sur pied son Programme international d'emploi.

CHÔMAGE ET SOUS-EMPLOI DANS LES PAYS EN VOIE DE DÉVELOPPEMENT

Les problèmes de chômage des pays moins développés des années '60 et '70 sont entièrement différents de ceux des pays plus développés des années '30. Ils sont tellement différents que l'usage de termes semblables — chômage et emploi — peuvent porter à confusion. Les termes développés pour étudier les situations particulières des pays en voie de développement — tels sous-emploi et chômage déguisé — sont cependant aussi difficiles à définir et à mesurer que le concept « chômage ». Ajoutez à ce problème conceptuel les difficultés de recueillir des statistiques pertinentes dans ces pays en voie de développement et vous comprendrez facilement l'arbitraire des hypothèses formulées. Un des buts du Programme international d'emploi est de préciser cette question.

LES SOLUTIONS NÉCESSAIRES

Les solutions à ce problème vont nécessairement varier d'un pays à l'autre. Il y aura cependant plusieurs points communs. Tous les gouvernements devront néanmoins reconnaître la complexité du dilemme chômage — sous-emploi, dilemme à plusieurs facettes dont chacun présente des causes différentes et partant, des remèdes différents. Nous aimerions mentionner les éléments les plus importants.

En milieu rural, il y a chômage ou sous-emploi à cause d'une sous-utilisation de la terre, alors qu'en milieu urbain, on retrouve plusieurs sortes de chômage et de sous-emploi. Par exemple, certains sont en chômage à cause de l'exode rural, d'autres à cause du manque de scolarité. Après une étude complète de l'importance relative de chacune des causes du chômage, un gouvernement pourra plus adéquatement choisir les moyens les plus efficaces pour apporter la solution la plus complète possible à son problème particulier.

RELATION ENTRE EMPLOI ET CROISSANCE

Il est important de savoir s'il y a conflit entre la croissance du produit national d'un pays et la promotion de l'emploi. En cas d'existence de conflit, il faut se rappeler que l'emploi a d'autres buts que l'accroissement de la production et du revenu aggrégatif. Il contribue à une plus grande égalité dans la distribution du revenu en faveur du plus pauvre, ce qui constitue en fait l'objectif ultime du développement économique.

DANS UNE PERSPECTIVE INTERNATIONALE

Ces problèmes de chômage et de sous-emploi ne peuvent pas être réglés par les seuls pays en voie de développement car ils manquent de capital, de marchés, d'administrateurs qualifiés et de connaissances techniques.

Nous aimerions ici mentionner quelques-uns des moyens et des étapes nécessaires au niveau international pour mieux solutionner ce grave problème, moyens et étapes qui font en fait partie du Programme d'emploi international de l'O.I.T.

1.—Les différents programmes internationaux sont-ils réellement aptes à solutionner le problème ? Ne devrait-on pas reconsidérer l'aide internationale en termes d'emploi ?

2.—Ne devrait-on pas réexaminer les différentes politiques de commerce international ?

3.—Ne devrait-on pas insister sur les missions à caractère d'assistance technique pour une meilleure formation des gens impliqués ?

4.—N'y aurait-il pas place pour une meilleure coordination des efforts entre pays plus riches et pays plus pauvres ?

5.—L'aspect formation et orientation professionnelle ne devrait-il pas être plus encouragé ?

6.—Une aide internationale pour des experts et des techniciens qualifiés ne favoriserait-elle pas le développement ?

Il est donc nécessaire de sensibiliser la communauté internationale et tout le système des Nations-Unies à l'urgence des problèmes de l'emploi.

CONCLUSION

Une des leçons des décennies d'après-guerre peut se résumer en disant que le progrès social et les niveaux toujours croissants d'emploi dont il dépend ne résultent pas nécessairement du progrès économique.

FR :

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.

EN :

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 government, cause us to violate.

By the early 1960's, a change had come about in the prevailing Canadian view, initiated by the Department of Labour. We now accepted that is was constitutionally possible for the Federal Government to ratify Conventions even though our compliance with these Conventions depended on the necessary legislation being enacted by the provinces. We also accepted that is was even desirable for us to press towards such ratifications. We recognized that it would be necessary to intensify federal-provincial cooperation on ILO matters, and we began to take steps to this end. This meant getting the provinces more interested in ILO. One way to stimulate this interest, we thought, was to ensure provincial participation in our delegations to ILO meetings, particularly when matters under provincial jurisdiction were to be discussed. For the last several years, therefore, we have tried to include on our delegations to the ILO Annual Conference two provincial members. It is mutually understood that these provincial members of the delegation do not « represent » their provinces; on the contrary, they represent Canada. They work from briefing which is prepared by the Department of Labour on the basis of consultations with the provinces. So far this system has worked out very well and personally I am not aware of any but the most minor of difficulties.

We also include on our delegation, and have done for many years, so-called « observers » from the provinces who go at the expense of their provincial governments and may be said to « represent » their governments. Such observers obviously do not have a right to participate actively in the work of the Conference, in a separate capacity from the Canadian delegation, but they do have the opportunity to follow the proceedings. Our policy has been to encourage them to work closely with the official Canadian delegation, to attend the early morning briefing sessions of our government group, to give us their views and advice, and to accompany us to meetings.

Every Canadian province has now been represented at least one ILO meeting. The consequences have been beneficial, in the sense that every provincial government now has first-hand understanding of how the ILO works and an interest in doing what is possible in Canada to conform not only to our specific constitutional obligations with respect to ILO Conventions, but also to the strengthening of our international image as a country which cooperates actively in the work of the ILO.

Three ILO Conventions whose subject matter falls partly within provincial jurisdiction have been ratified in recent years, following consultation with the provincial governments. This consultation has taken the form of a letter from the Prime Minister to the Premiers of the Provinces. Such letters have been proceeded however by less formal consultations at the level of the deputy minister to pave the way for the formal official consultations.

The three Conventions we have ratified on this basis are Convention No. 111 on Discrimination in Employment, ratified in 1964, the Employment Policy Convention No. 122 and the Convention prohibiting underground work in mines by women, both ratified in 1966. We were particularly gratified to ratify the Convention on Discrimination in Employment since, when this Convention had been dealt with by the ILO a few years earlier, the Chairman of the ILO Conference Committee had been a Canadian, Arthur Brown, the Chairman of the employers group was Allen Campbell of Canadian Westinghouse, and the Chairman of the workers group was Kalmen Kaplansky. Thus Canada had put a lot of effort into the development of this international instrument and it was a real source of satisfaction to be able to ratify it.

It is worth adding that the adoption by the ILO Conference of this Convention was no doubt a strong factor in the adoption in several of the Canadian jurisdictions of Fair Employment Practices legislation. Our attitude towards such matters in Canada tends to be pragmatic and we are not usually prepared to admit when we enact legislation that we have been influenced by some remote international agency. We prefer to regard it as our own idea. Nevertheless, the ILO influence has been significant. I know of at least one province which delayed a long time in replying to the Prime Minister's letter on the subject of ratifying a particular Convention, in the meanwhile introduced a Bill in its legislature, which brought it into compliance, and then informed the Prime Minister of its agreement to Canadian ratification.

Our total number of ratifications of ILO Conventions now stands at 24. Most of these of course are of Conventions whose subject matter falls exclusively within federal jurisdiction. What of the future ?

The Canadian Labour Congress has several times asked us to undertake studies of the extent to which Canadian legislation conforms with ILO Conventions. This is a formidable task, the more so since with respect to most of the remaining ILO Conventions, Canadian legislation in its totality does not completely conform. However, a good deal of work has been done. There are several ILO Conventions dealing with the employment of young workers and setting out a minimum age for various different industries. We did an analysis of federal and provincial legislation with respect to these Conventions more than a year ago, and sent the resulting study out to the provinces for their observations. Observations were received in due course. Unfortunately, staff difficulties prevented us from completing the study. I now have a highly competent man on this particular assignment and hope to have it completed within a very short time. The study will then be published. It will not be printed in glossy or expensive form since we regard a study of this kind as essentially a working document of interest to a rather limited number of people. The study is intended to show what changes in legislation would be required to bring all jurisdictions completely into conformity with the Conventions. It will of course be available to provincial governments and we think it will be of interest to provincial labour federations as well as to employer organizations. We would hope that the publication of this study would serve as an encouragement to improvements in legislation. No less than six of the provinces, in submitting observations on our first draft of the study, have said that they would contemplate introducing improvements in their legislation, and one has already done so.

We have also undertaken studies of two basic ILO Human Rights Conventions, number 87 dealing with freedom of association, and number 98 dealing with protection of the right to organize and bargain collectively. With respect to Convention No. 87, there are important problems of interpretation of the Convention. After a good deal of consideration, we took the view that Canadian legislation is in very substantial conformity with the requirements of the Convention, and that it would be in Canada's interest to ratify. As one of his last acts of office, the former Prime Minister, Lester B. Pearson, wrote to the provincial Premiers consulting them on this particular Convention and enquiring whether they considered their legislative position to be in accordance with its provisions. A number of affirmative replies have been received and follow-up work is now in process with the other provinces.

Concerning Convention No. 98, which deals with protection of the right to organize and bargain collectively, we are not so sure of our ground. The basic problem is coverage. Labour relations legislation in Canada usually excludes agricultural workers and in some cases professional workers and some other groups. The Convention, on the other hand, applies to all workers with the exception of public servants.

The following are some of the Conventions on which we intend to undertake studies, such studies to be published following consultations with the provinces. Equal Pay for Equal Work for Men and Women Workers;

Labour Inspection;

Minimum Standards of Social Security;

Protection of Wages;

Guarding of Machinery;

Workmen's Compensation;

Minimum Standards of Social Security;

Maternity Protection;

Protection against being required to carry too heavy loads;

Radiation Protection.

Next year's ILO Conference to be held in June 1969 will give first reading to a proposed convention on vacations with pay, setting out a minimum standard of at least two weeks. Canadian legislation in its totality does not meet this standard, nor does it meet some of the coverage or other requirements. We have been consulting the provinces on the stand which Canada should take at next year's Conference during the debates on this proposed instrument.

Our present objective then, in our work with the provinces, is to make our consultative procedures more productive, while maintaining respect for provincial jurisdiction. What we are doing is to institute discussions with the provinces on basic labour standards legislation, calling the attention of the provinces to the international standards that have been developed by the ILO, and leaving it up to them whether they feel they can conform with these standards. As our studies are completed and made available, labour organizations and other interested groups will have access to them, and we will have met the request of the Canadian Labour Congress to have this information available. To the extent that more ratifications prove possible in future, I am sure we will all feel a sense of satisfaction and united effort and achievement - and surely this is the spirit we want to foster in relation to Canadian legislation where jurisdiction is divided.

One of the projects in connection with the ILO 50th anniversary that we hope to carry forward in 1969 is a federal-provincial conference on outstanding ILO matters. This will follow the ILO tradition by including labour and employer representatives. One Convention which would certainly be discussed by such a conference would be the old Convention No. 1 dating from the first ILO Conference in Washington in 1919 and dealing with the eight-hour-day, forty-eight hour week, with which we are not yet in full conformity. Our difficulty stems partly from incomplete coverage and partly also from the fact that the Convention is rather more rigid than is most Canadian legislation with respect to provisions for temporary exemptions from coverage. This matter should probably be brought to a head. Do we really desire that this Convention should be fully implemented in all respects in Canadian legislation ? If not, perhaps we should consider denouncing the Convention, on the grounds that we have finally decided that we disagree with some of its provisions.

I think you will agree with me that we are entering a very interesting period in Canada's use of ILO Conventions. We have got past the despairing stage of not too many years ago when we considered it inexpedient to seek to do anything very much about ILO Conventions which fell partly within provincial jurisdiction. We are undertaking the studies which will provide us all with the basic information for the first time as to how Canada actually stands with respect to the more important ILO Conventions. The way in which we follow up on these Conventions, and also of course on Conventions currently being developed by the ILO, could make its contribution to a more dynamic form of federalism in Canada. There are dangers and pitfalls of course. If we move wisely however we can hope to develop an active form of federal-provincial cooperation, offsetting some of the frustrations we have experienced in the past. There is also scope here for a more active form of labour-management-government relations with respect to social and economic policy at the combined federal-provincial level.

It is a curious fact that a rise in Canada's interest in ILO Conventions is taking place at a time when Conventions are becoming relatively less important elsewhere as a means of fulfilling ILO objectives. These objectives were listed in the Constitution back in 1919 as including regulation of hours of work; prevention of unemployment; provision of an adequate living wage; protection of the worker against sickness, disease and injury arising out of his employment; protection of children, young persons and women; and provision for old age and injury.

The founding fathers of the ILO envisaged that these objectives could be obtained most readily by one technique; the adoption of labour legislation in the various member countries. If one were starting all over again today to establish an international organization in the labour field, it seems to me unlikely that one would put quite so much emphasis on labour legislation. The objectives might be much the same, but I think they would be put more positively. There would I imagine be greater emphasis on human resources development, strengthening of departments of labour, support for free trade unionism, management training programs and so on. There would be less concern perhaps with the establishment of formal international treaty obligations and more concern with exploration of problems, study of difficulties, and positive activities by the ILO in cooperation with member countries - including the industrialized as well as the developing countries. In recent years, the ILO has come to devote much the greater part of its resources to programs of technical assistance. These are of course expensive programs in comparison that with what the ILO used to need when it was primarily a standard-setting organization. Twenty years ago, the ILO had an annual budget of 4 1/2 million dollars and a staff of about 500. This appeared more than adequate to do the research, prepare for the meetings, and carry out a program of international labour standards. Today, the staff of the ILO is charged with operational responsibilities, and it has grown from 500 to over 1,500 and on top of that, there are about 900 experts scattered about the world working on various ILO technical assistance projects. The budget has grown from 4 1/2 million dollars to 26 million dollars with an extra 17 million or so being provided under the United Nations Development Program and in other ways. These technical assistance activities are expensive and very difficult to appraise.

The ILO began to move into the technical assistance field on a significant scale in the early 1950's at a time when President Truman's so-called « point four » program had stimulated general concern with the problem of the underdeveloped countries.

In the early 1950's, it was not generally thought that the ILO had much to offer in the way of action programs to stimulate economic and social development. This attitude has changed. It is now much better appreciated that human resources development is an essential part of economic development, and it is in the field of human resources development that the ILO does the greater part of its technical assistance work.

Quite a significant turning point came interestingly enough at the time of the ILO American Regional Conference which was held in Ottawa in September 1966. A so-called « Ottawa Plan » for human resources development was adopted, setting forth a unified approach to the problem involving surveys, target setting, and integration of human resources projects with national development plans and more systematic review and evaluation of projects and programs that had heretofore been contemplated.

The Ottawa Plan is a regional plan. A similar plan was agreed for the Asian region at a Conference in Tokyo last month, and another such plan will be set up shortly for the African region. Taken together, these three regional plans form what the ILO describes as its World Employment Program.

Up to now there is not too much that can be said about Canadian participation in the ILO's field programs. In the 16 years since ILO moved into the technical assistance field, fewer than a hundred Canadians have been appointed by the ILO to serve on projects. The reasons for this are not easy to understand. Canadian experts are available and are recruited in significant numbers for the bilateral projects sponsored by our External Aid Office, now known as the Canadian International Development Agency. The ILO appears to draw much more heavily on Europeans, particularly those who may have been formerly employed by colonial administrations. Our distance from Geneva may be a factor, and may add to the inevitable delays and technical problems which sometimes militate against a Canadian recruit being still available when the time comes for a project actually to start. There is also the problem that Canadians expect somewhat higher salaries than do Europeans although the importance of this point has, I think, been exaggerated.

A new trend which we find encouraging is that a number of discussions have taken place recently between ILO officials and officials of our CIDA, aimed at finding projects in which Canada can cooperate with the ILO. The first such project will officially commence on January 1, next year, in Tanzania, where Canada has bitten off a particular chunk of a larger project financed under the United Nations' Development Program and executed by the ILO. The overall project is to set up a comprehensive National Apprenticeship Scheme. Canada has undertaken to run the Scheme's pilot Training Centre. She will bear the cost of the Canadian teachers involved and supply machinery and other necessary equipment. If this cooperative arrangement works out well, it may be anticipated that Canada will devote more of its funds in the future to projects developed under ILO auspices.

For example, there will be a meeting in Geneva early next month between senior officers of the Manpower Department and the CIDA to try to acquire a better understanding of what the ILO is really seeking to accomplish through its World Employment Program, how technically sound the concepts are, and what attitude Canada should take towards this ambitious undertaking. Negotiations are also under way for a senior Canadian official to undertake a short term project in Santiago, Chile. Although this ILO project is primarily for the benefit of Chile, the fact that Santiago is also the headquarters for the Ottawa Plan will give us an excellent opportunity to get a clearer idea of how this American regional segment of the World Employment Program is coming along.

I should add, of course, that the ILO also has assistance programs in its other fields of interest, with scope for labour participation, for example, in the Workers Education Program, and employer participation in the Management Development Program.

I feel that perhaps I have skimmed over the surface of a number of aspects of Canada's relationship with the ILO. There are three points I would want to make in summing up. The first is that as regards our own Canadian situation, we are at a moment in history when the ILO standard-setting system can be a useful instrument to us in improving labour legislation both federally and provincially and at the same time strengthening national unity. The second is that provided our technical people can satisfy themselves with the validity of the ILO's programs, in particular instances, there are advantages in making use of the ILO's experience and regional administrative strength in making the kind of contribution that Canadians want to make towards economic and social development throughout the world.

My third and final point is that it is open to us to appraise and review the ILO's objectives and its working methods. The ILO will be with us for many years to come. Its budget and its influence can hope to expand manifold. This is our organization. Is it trying to do the things we would want it to try to do? Where do we want it to put its emphasis over the next ten or twenty years ? What should we really be thinking about the ILO ?

EN :

The author observes how Canadians have influenced and have been influenced by their environment and thus tries to understand more fully how, through individual and collective action, their participation, development and enjoyment in today's world may be more fully achieved.

FR :

L'importance qu'attache un pays à son capital humain est déterminée par de nombreux facteurs. Certains de ceux-ci, par exemple les guerres, les crises économiques et les désastres naturels, qui menacent la vie et la sécurité, se produisent d'habitude subitement et occasionnent un fort sentiment de participation sociale. D'autres, qui sont toutefois moins dramatiques, produisent à la longue des effets tout aussi profonds en raison de l'influence qu'ils exercent sur les rôles joués par les ressources humaines et matérielles et sur les attitudes qui prédominent à leur égard.

Ces rôles et attitudes ont subi de nombreux changements significatifs au Canada au cours des récentes décennies. Un examen de ces changements et des facteurs qui ont contribué à les produire permet de comprendre plus clairement le stade auquel nous sommes maintenant parvenus et les voies probables de l'orientation future.

L'évolution du Canada s'est faite sous le signe d'une forte interaction entre les ressources humaines et matérielles. Au cours des décennies antérieures, beaucoup d'attention a été, par nécessité, concentrée sur la survivance ainsi que sur la garantie que les ressources matérielles du pays répondaient aux besoins humains.

La préoccupation à l'égard des aspects matériels de l'existence a persisté tout au long du dix-neuvième siècle et pendant une partie assez grande du vingtième. De temps en temps des programmes économiques et sociaux d'envergure étaient introduits mais il s'agissait véritablement d'exceptions à la norme de comportement individuel et local largement acceptée, basée sur l'effort personnel, l'application au travail et une attitude de laissez-faire en matière économique.

Peu à peu, à mesure que le pays s'est développé et les relations économiques sont devenues plus complexes, les gouvernements ont été appelés à jouer un rôle de plus en plus important, d'abord en aidant à établir des règles acceptables de comportement en vue d'empêcher l'exploitation et l'abus des êtres humains dans la course aux gains économiques et, plus tard, à participer activement en aidant à élaborer et à mettre en oeuvre des programmes d'ordre économique et social. Cette orientation nouvelle de la participation des gouvernements a été largement accélérée par les deux crises des périodes de guerre et par la période prolongée de grave dépression économique des années trente.

Dans tous ces événements, on remarquait l'accent croissant qui était mis sur l'importance des ressources humaines et sur la nécessité de façonner la main-d'oeuvre, les relations industrielles et les programmes connexes en fonction principalement des besoins humains plutôt que des besoins matériels.

Le rythme rapide de l'évolution technique a manifestement eu de grandes répercussions sur l'économie et sur la société en général. Il a touché de façon profonde les conditions de travail des Canadiens et a eu une influence marquée sur leurs heures de loisirs. Il a été également un facteur important contribuant à l'initiative prise par le gouvernement fédéral, travaillant en association efficace avec les gouvernements provinciaux, visant à réaliser une expansion sensible des moyens d'enseignement technique au cours des années soixante.

Ce programme était une manifestation évidente de la conviction croissante, de la part de tous les gouvernements, employeurs et syndicats, qu'une proportion plus importante de notre revenu national annuel devrait être consacrée au développement de nos ressources humaines, non seulement pendant la jeunesse mais tout au long de la vie.

L'accroissement de l'action collective en vue de régler des questions économiques et sociales a donné lieu à nombre des préoccupations et conflits actuels. Parmi eux on peut compter la difficulté qui se manifeste à faire une nette distinction entre les responsabilités des particuliers et celles des groupes, la nécessité d'en arriver à définir et à comprendre plus clairement les rôles et responsabilités nouveaux des employeurs, des syndicats et des gouvernements, et la détermination des moyens permettant aux organismes bénévoles de contribuer au mieux possible à une société nationale et internationale qui a beaucoup changée et évolue rapidement.

Que peut-on prévoir dans les jours à venir ? Les décisions économiques, tout en restant un facteur dominant, seront probablement mises à l'épreuve de plus en plus en fonction des besoins du pays et du monde dans son ensemble. Face à la préoccupation croissante à l'égard des larges écarts entre les riches et les pauvres au Canada, sur notre continent et dans le monde entier, des initiatives hardies et ingénieuses sont requises.

Le Canada a pris une part active, par l'intermédiaire de l'O.I.T., à l'élaboration de normes internationales de travail, à l'introduction de dispositions commerciales multi-nationales et à des programmes et collaboration technique sur une base mondiale. Ces préoccupations, ainsi que bien d'autres dans les domaines national et international, ont inévitablement pour effet une participation plus active des gouvernements au secteur économique. Elles représentent une évolution saine pourvu que l'on reconnaisse que la croissance économique est le serviteur et non le maître des hommes, et que les gouvernements doivent de façon croissante parler au nom de toute l'humanité.

Bien que les Canadiens aient atteint aujourd'hui à un consensus plus large que jamais à l'égard des objectifs économiques principaux, soit un haut niveau de l'emploi, une stabilité raisonnable des prix, une productivité accrue et un niveau de vie amélioré, il reste encore beaucoup à accomplir avant que ces buts soient convertis en des initiatives appropriées et efficaces sur le plan industriel, régional et local et réconciliés avec des objectifs internationaux, sociaux et économiques.

Comme la technologie s'acquitte d'une part de plus en plus grande des tâches de la société sur le plan matériel, le travail sera accompli de moins en moins par les êtres humains. À mesure que cette situation se précise, la tâche qui incombe aux particuliers et à la société, soit celle d'ouvrir la voie à un plus grand nombre d'autres activités créatrices, croît en importance.

Les rôles traditionnels des employeurs, des syndicats et des gouvernements se rapprochent, chacun gardant toutefois sa place distincte et une large mesure de liberté à exercer ses responsabilités de façon démocratique. On demandera de plus en plus aux employeurs et aux syndicats de rendre compte à la société dans son ensemble de la façon dont ils se sont acquittés de la charge qui leur incombe.

On peut s'attendre à ce que les gouvernements jouent un rôle de premier plan dans le maintien de la croissance économique, en prêtant une plus grande attention au coût qui résulterait pour la société si l'on ne réussissait pas à maintenir le progrès économique tant sur le plan national que régional ainsi que les mesures positives nécessaires en vue d'en arriver à un développement économique et social soutenu.

Les écoles, les universités et les autres institutions d'enseignement s'occuperont de plus en plus de préparer les gens à la vie dans son ensemble sans toutefois négliger la nécessité d'une préparation pour le travail.

Forcément les attitudes et les buts de la société dans son ensemble seront profondément influencés à mesure que les objectifs canadiens s'identifient de plus en plus avec des objectifs mondiaux. Des échanges plus importants entre les cultures du monde rendront obligatoire l'élaboration d'analyses plus profondes des différentes idéologies et croyances et auront pour résultat de faire mieux apprécier les éléments communs.

Les buts précis et immédiats des gouvernements totalitaires, sont fréquemment considérés comme des formes de vérité absolue. Lorsque cette situation se produit, de tels buts, bien qu'ils aillent profondément à rencontre de valeurs humaines fondamentales, tendent à devenir l'objectif principal.

Les chances d'échapper à cette situation s'accroîtront dans la mesure où les êtres humains en tous lieux se résoudront à satisfaire entièrement et sérieusement aux exigences de leur milieu à mesure que celles-ci se font connaître, quelles qu'elles soient, plutôt que de dépendre uniquement de buts ou de valeurs qu'on leur a déterminés à l'avance.

Les conflits entre des particuliers et des groupes ne seront pas éliminés ; ils ne devraient pas d'ailleurs l'être. Le progrès et la productivité dans les affaires humaines sont, en fait, fréquemment réalisés autant par l'expression de divergences marquées de vues que par des accords réciproques. Ce qui compte le plus, c'est l'attitude ou l'approche de base lorsqu'on entre dans un conflit ou toute autre situation.

Ce qui ressort clairement, si l'on observe de façon impartiale ce qui s'est passé au Canada au cours d'un siècle, c'est la croissance de notre détermination et de notre capacité collectives à résoudre les problèmes économiques et sociaux. De plus, il est évident que des plans et programmes influant profondément sur les ressources humaines qui ont pu être mis en oeuvre à certaines époques de notre évolution nationale n'auraient eu aucun succès à d'autres moments.

Le développement et l'utilisation plus complets de nos ressources humaines restent entourés de nombreux obstacles ; il est toutefois significatif que la constatation générale de la nécessité de s'attaquer à ces obstacles de façon audacieuse et efficace est plus grande qu'il y a vingt-cinq ans par exemple. Les solutions requises dépendent dans une mesure croissante de l'élaboration et du perfectionnement des instruments collectifs appropriés ; les initiatives de particuliers se prévalant des progrès de la science sociale et médicale, de la technologie, du niveau de vie, et de l'éducation restent toutefois d'une importance décisive.

FR :

Le problème de la ratification des conventions de l'O.I.T. par les états fédératifs s'est toujours posé. Après une brève présentation de l'Acte de l'Amérique du Nord britannique, l'auteur examine plus particulièrement le cas du Canada.

EN :

INTRODUCTION

The International Labour Organization was established in 1919 on the firm belief that universal and lasting peace can only be established if based upon social justice and by eliminating injustice, hardship and privation.

The Conventions and Recommendations adopted by the I.L.O. play an essential part in fulfilling the basic objectives of the organization.

The provisions of Conventions and Recommendations form international labour standards affecting all aspects of conditions of labour.

By the end of 1968 the I.L.O. had adopted 128 Conventions and 132 Recommendations.

Conventions are draft international treaties intended for ratification and when ratified they create binding legal obligations.

Recommendations are not intended for ratification but to provide guidance to governmental policies, legislation and practice.

The making of both Conventions and Recommendations is a function of the I.L.O. Conference. In each case a majority of two-thirds of the votes cast by the delegates present is required for their adoption.

A Convention adopted by the I.L.O. is a draft international treaty. This character of a draft international treaty is not impaired by the fact that owing to the tripartite structure of the I.L.O. (governments, workers, employers) the adoption of I.L.O. Conventions is not subject to unanimous agreement of government delegates of the Member States. The fact that a draft Convention is adopted by a two-thirds majority vote of delegates representing governments, workers and employers is a specific characteristic of the I.L.O.

A Member State of the I.L.O., by ratifying a given Convention, assumes a legal international obligation to the effect that the requirements of a Convention will be met in the ratifying country.

In case of non-compliance with the ratified Convention, a complaint against the ratifying country may be lodged with the I.L.O. either by an industrial association of employers or of workers, or by any other ratifying State. Procedures dealing with such complaints are outlined in the I.L.O. Constitution.

The enforcement of the ratified I.L.O. Conventions is not restricted to the formal complaints mentioned above. By a system requiring periodic reports which are examined by a committee of experts, the I.L.O. exercises very effective supervision of the application of ratified Conventions.

TREATY-MAKING AND TREATY-PERFORMING POWERS

The process of ratification entails :

(1) the formation ; and

(2) the performance,

of the obligations undertaken by a Convention

(or a treaty).

These two aspects are sometimes referred to as the treaty-making and treaty-performing powers.

In countries with written constitutions, these matters are usually dealt with in the Constitution. In the case of unitary States, the position is simple. The national executive (the government of the day) performs ratification, essentially an executive act, with or without consent of the legislative branch of the government (Parliament). In some systems, a ratified treaty may, by the provisions of the Constitution, become automatically a part of the law of the land. In others, it may require — to be internally effective — implementing legislation. This may already exist or may have to be enacted by Parliament.

In the case of federal states, the situation is more complicated. The treaty-making power is normally the exclusive prerogative of the central (federal) government. The implementing (performing) power, in cases where a ratified treaty does not become automatically the law of the land, would be vested in a legislature or legislatures following the constitutional division of powers.

The power of ratifying and implementing I.L.O. Conventions within the Canadian constitutional context has two aspects :

(a) which level of government has constitutional power to ratify I.L.O. Conventions ; and

(b) which level or levels of governments has or have power to implement a

Convention by taking appropriate legislative measures, when necessary.

THE BRITISH NORTH AMERICA ACT, 1867

The B.N.A. Act enacted by the Parliament of the United Kingdom in 1867 and subsequent amendments established Canada as it is known today, and form the written part of the Canadian Constitution. The unwritten part of the Canadian Constitution consists of political conventions and customs which form the unwritten Constitution of the United Kingdom which has been applied in Canada before and after the enactment of the B.N.A. Act.

Some judicial decisions, particularly those rendered by the Privy Council in London in interpreting the provisions of the B.N.A. Act, added an important element to the totality of written and unwritten rules that form the Canadian Constitutional setup.

When, in 1867, the B.N.A. Act was enacted, it was not contemplated that the Dominion of Canada would possess treaty-making powers. At that time, Canada did not possess a separate juristic identity in the field of international relations and the Imperial Government in London was responsible for Canada's international relations.

Therefore, the B.N.A. Act only in one section dealt with the powers of the Parliament and Government of Canada regarding implementation (performance) of international obligations contracted by the Parliament and Government of Great Britain insofar as such obligations were binding Canada. The relevant section 132 of the B.N.A. Act reads as follows :

« The Parliament and Government of Canada shall have all powers necessary or proper for performing the obligations of Canada or of any Province thereof, as part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries ».

At that time the treaty-making power (that is the creation of international obligations affecting Canada) was understood to be within the exclusive competence of the Imperial Parliament and Government of Great Britain.

When Canada emerged from the First World War as an international person, and through membership in the League of Nations became a full fledged member of the international community of sovereign states, she faced her new international capacities and responsibilities without constitutional provisions regarding the treaty-making and treaty-performing powers that would correspond to her new international status. It was mainly left to judicial interpretation of the B.N.A. Act to fill in the constitutional gaps regarding the formation and performance of Canada's international obligations.

When federal legislation implementing Canada's obligations under the Aeronautic Convention was challenged, the Judicial Committee of the Privy Council upheld the validity of such legislation under section 132 of the B.N.A. Act as being legislation to perform obligations imposed by a treaty between the British Empire and the foreign countries (The Aeronautics Case (1932) A.C. 54). ¹

In the Radio Case (1932) A.C. 304, the validity of the federal radio communication legislation implementing the international Convention was upheld not on the ground of section 132 of the B.N.A. Act, but on the ground that the Convention in question dealt with classes of matters not included within the enumerated classes of the subjects reserved in section 92 of the B.N.A. Act exclusively to provincial legislatures, or even within the enumerated classes reserved to the Dominion Parliament in section 91 of the B.N.A. Act. Moreover, part of the subject matter of the Convention, namely, broadcasting, might come under the heading « Inter-provincial Telegraphs », expressly excluded from section 92 and thus falling within federal jurisdiction ².

THE LABOUR CONVENTIONS CASE (1937) ³

In 1935 the federal government ratified three I.L.O. Conventions the subject matter of which was partly within both federal and provincial jurisdictions, but primarily within provincial jurisdiction under section 92 (13) of the B.N.A. Act, namely, « Property and civil rights in the Province ».

The Conventions in question were :

Convention No. 1 : Hours of Work (Industry), 1919

Convention No. 14 : Weekly Rest (Industry), 1921

Convention No. 26 : Minimum Wage-Fixing Machinery, 1928.

The same year (1935) the legislation implementing these Conventions was enacted by the Parliament of Canada, namely : The Limitation of Hours of Work Act ; The Weekly Rest in Industrial Undertakings Act ; and the Minimum Wage Act.

By the decision of the Judicial Committee of the Privy Council rendered on January 28, 1937, the statutes implementing these ratified Conventions were declared ultra vires of the Parliament of Canada.

This decision of the Privy Council is of primary importance as it dealt with the question of ratification and implementation of the I.L.O. Conventions and international treaties in general within Canadian constitutional framework and the B.N.A. Act in particular.

Considering that the constitutional position established in the judgment of the Privy Council in the Labour Conventions Case is still applied to Canada's approach to ratification and implementation of I.L.O. Conventions, it might be useful to present the main aspects of the judgment.

The main issue that the Judicial Committee of the Privy Council was called to decide was whether the federal statutes implementing the ratified Conventions were valid. It was admitted at the bar that each statute affected property and civil rights within each province.

Nevertheless, the federal government argued that the implementing legislation was validly enacted under the legislative powers given to the Dominion Parliament by the B.N.A. Act, 1867. In particular, it was contended that the legislation could be justified either (1) under section 132 of the B.N.A. Act as being legislation « necessary or proper for performing the obligations of Canada, or any Province thereof, as part of the British Empire, towards foreign countries, arising under treaties between the Empire and such foreign countries » or (2) under the general powers, sometimes called residuary powers granted by section 91 of the B.N.A. Act to the Dominion Parliament to make laws for the peace, order and good government of Canada in relation to all matters not coming within the classes of subjects assigned by the B.N.A. Act exclusively to the legislatures of the Provinces ⁴.

The latter argument was apparently prompted by an opinion expressed by the Chief Justice of the Supreme Court of Canada (when the case was considered by that Court) that the judgments of the Judicial Committee in the Aeronautics Case and the Radio Case (referred to above) indicated that « jurisdiction to legislate for the purpose of performing the obligation of a treaty resides exclusively in the Parliament of Canada » ⁵.

The provinces (Ontario, New Brunswick and British Columbia) contended :

Regarding the first argument —

(a) « that the obligations, if any, of Canada under the labour conventions did not arise under a treaty or treaties made between the Empire and foreign countries: and that therefore section 132 of the B.N.A. Act did not apply »;

(b) « that the Canadian Government had no executive authority to make any such treaty as was alleged »;

(c) « that the obligations said to have been incurred, and the legislative powers sought to be exercised, by the Dominion were not incurred and exercised in accordance with the terms of the Treaty of Versailles ».

Regarding the second argument —

« if the Dominion had to rely only upon the powers given by s. 91, the legislation was invalid, for it related to matters which came within the classes of subjects exclusively assigned to the Legislatures of the Provinces — namely, property and civil rights in the province » ⁶.

The judgment stressed that it is essential to make the distinction between (1) the formation, (2) the performance, of the obligations constituted by a treaty. It pointed out that « within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action » ⁷. Another rule is that, « unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law » ⁸. If the national executive, the government of the day, decide by the act of ratification to be bound by the obligations of a treaty which involves alteration of law it has to obtain the assent of Parliament to the necessary legislation implementing the treaty obligations. There is no doubt that the creation of the obligations undertaken in treaties is the function of the executive alone. Once such obligations are created, « while they bind the State as against the other contracting parties, Parliament may refuse to perform them and so leave the State in default »⁹

In a unitary state (like the United Kingdom) with a legislature possessing unlimited powers, the problem is simple. Parliament will either fulfil or fail to fulfil treaty obligations imposed upon the state by its executive. The nature of the obligations does not affect the full power of the Parliament to make them into law only if it so chooses. But the problem is complex in a state where the legislature does not possess absolute authority ; or, in a federal state where legislative authority is either limited by a constitutional document, or, even more so when it is divided up between different legislatures in accordance with classes of subject-matter (as in Canada). In this latter case, the obligations imposed by a treaty may have to be performed by several Legislatures. Then the executive has to obtain the legislative assent (implementation) not only of the one Parliament to which the executive may be responsible but also of all other legislatures concerned and to which the executive stands in no direct relation.

The judgment emphasized that the question is not how is the obligation formed, which is the function of the executive, « but how is the obligation to be performed, and that depends upon the authority of the competent Legislature or Legislatures »¹⁰. At this point it should be noted that the Judicial Committee did not consider necessary to rule on the contention submitted by the Provinces that the Canadian government did not have executive authority to ratify the Conventions in question. But, on the other hand, the Judicial Committee noted that no argument was raised that would question « the international status which Canada had now attained, involving her competence to enter into international treaties as an international juristic person » ¹¹.

In declaring the federal statutes implementing the ratified Conventions to be ultra vires of the Parliament of Canada, the Judicial Committee rejected the contentions submitted by the Federal government on the following grounds :

The contention that the implementing legislation was valid under section 132 of the B.N.A. Act was rejected on the ground that the international obligations contracted by ratifying the conventions were not obligations of Canada as part of the British Empire, but of Canada, « by virtue of her new status as an international person », and were not created under a treaty between the British Empire and foreign countries ¹². The judgment admitted that it was not contemplated in 1867 that the Dominion would possess treaty-making powers, but added that it was impossible to stretch section 132 so as to cover the event not contemplated at that time, also, it was impossible to accept the argument that the obligations to perform the conventions arose « under » part XIII of the Treaty of Versailles which dealt with the establishment of the I.L.O. In this respect, the judgment stated that « no obligation to legislate in respect of any of the matters in question arose until the Canadian executive, left with an unfettered discretion,of their own volition, acceded to the conventions, a novus actus not determined by the Treaty » ¹³.

The second argument that the power to enact the contested legislation was based on section 91 of the B.N.A. Act was also rejected. In the opinion of the Judicial Committee, there is no doubt whatsoever that normally the contested legislation came within the classes of subjects by section 92 of the B.N.A. Act assigned exclusively to the legislatures of the Provinces, namely, property and civil rights in the Province. Being so, such legislation is expressly excluded from the general powers given to the Parliament of Canada by the first words of section 91 (Peace, Order and good Government of Canada) ¹⁵.

Further, the judgment rejected the argument that the distribution of powers in sections 91 and 92 of the B.N.A. Act could be disregarded and federal legislation could be justified on the grounds that the legislation in question was concerned with matters of such general importance as to have attained « such dimensions as to affect the body politic » and to have « ceased to be merely local or provincial » and to have « become matters of national concern ». Such argument could only be accepted in some exceptional circumstances such as epidemic of pestilence or the existence of « some extraordinary peril to the national life in Canada », but the situation in Canada at the time of the enactment of the legislation in question was far from such highly exceptional conditions which might over-ride the normal distribution of powers in sections 91 and 92 ¹⁵.

The judgment stressed that for the purposes of sections 91 and 92, which divided the legislative powers between the Dominion and the Provinces, « there is no such thing as treaty legislation as such » ¹⁶.

The distribution of legislative powers is based on classes of subjects. Consequently when a treaty affects a particular class of subjects then the legislative power of performing it is to be ascertained accordingly. The judgment stressed that the distribution of legislative powers between two levels of governments constitutes probably the most essential condition in the « inter-provincial compact » achieved under the B.N.A. Act. Therefore, any claim by the Dominion following ratification of a treaty to legislate on matters reserved to provincial legislatures would « undermine the constitutional safeguards of Provincial constitutional autonomy » ¹⁷.

It is true, the judgment noted, that the federal executive has now the powers of making treaties and assuming international obligations. But if such obligations affect the classes of subjects within provincial jurisdictions enumerated in section 92, their implementation is within the competence of the Provincial legislatures only. In other words, the Judicial Committee added that « the Dominion cannot, merely by making promises to foreign countries, clothe itself with legislative authority inconsistent with the Constitution which gave it birth » ¹⁸.

Finally, the judgment stated :

« It must not be thought that the result of this decision is that Canada is incompetent to legislate in performance of treaty obligations. In totality of legislative powers, Dominion and Provincial together, she is fully equipped. But the legislative powers remain distributed, and if in the exercice of her new functions derived from her new international status Canada incurs obligations they must, so far as legislation be concerned, when they deal with Provincial classes of subjects, be dealt with by the totality of powers, in other words by co-operation between the Dominion and the Provinces. While the ship of the state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure » ¹⁹.

EFFECTS OF LABOUR CONVENTIONS CASE

The decision of the Judicial Committee of the Privy Council created an awkward situation for Canada. The decision did not affect the validity of ratification of the Conventions in question. Canada remained bound to comply with the provisions of the ratified Conventions but the legislation enacted by the Parliament of Canada, in order to perform the contracted obligations, was declared ultra vires and consequently not valid. There were two courses open to the federal government. Canada could consider the denouncing of these conventions under the terms provided in each of them. Alternatively, Canada could remain bound by the ratifications hoping that the provinces as well as the federal government acting within their respective jurisdictions would enact the necessary legislation implementing the international obligations contracted by the federal executive. The second alternative was adopted. Canada did not denounce the conventions, and legislative action on both levels of government brought us on the whole into compliance with conventions regarding weekly rest and minimum wage-fixing machinery. Regarding Convention No. 1 — Hours of Work (Industry) — full compliance as yet has not been achieved.

The judgment of the Privy Council clarified the constitutional aspects of ratification of the I.L.O. Conventions by indicating how Canada could perform contractual international obligations when subject matters of the conventions fall within exclusive provincial or both federal and provincial jurisdictions.

The approach regarding I.L.O. Conventions, the subject matter of which is within exclusive federal jurisdiction was not affected by the Privy Council decision and several conventions of this kind have been ratified particularly in the field of conditions of employment of seafarers.

Regarding conventions affecting both federal and provincial jurisdictions, the judgment stressed the need of consultation and co-operation with the provinces in order that Canada could not only create, but also fulfil, her international obligations.

PRESENT PRACTICE AFFECTING RATIFICATION

Before proceeding with ratification it has been Canada's policy to first obtain virtually complete legislative conformity with the requirements of a Convention.

When the subject matter of the Convention is within exclusive federal jurisdiction, such conformity can be secured through federal legislation. Up to the end of 1968, Canada had ratified 17 such Conventions.

In situations where the subject matter of a Convention is partly within federal and partly within provincial jurisdictions, conformity depends on the adoption of implementing legislation by all the provincial and the federal governments. This involves close consultation with the provinces to find out whether the legislative provisions in all jurisdictions conform with the requirements of the Convention. Once the federal and provincial governments agree that the Convention has been implemented in all jurisdictions, the federal government proceeds with ratification.

The procedure of consultation makes the provincial governments aware that once a Convention is ratified the fulfilment of Canada's international obligations contracted by the act of ratification will depend on continuous conformity of provincial legislation with the provisions of the Convention. In recent years, following consultations with the provinces, three Conventions have been ratified, namely : Discrimination in Employment and Occupation (ratified in 1964) ; Employment of Women on underground Work in Mines (ratified in 1966) ; and Employment Policy (ratified in 1966). At present the federal government is in final stages of consultation with the provinces regarding ratification of Convention 87 concerning Freedom of Association and Protection of the Right to Organize. Formal concurrence with intended ratification has already been obtained from eight provincial governments.

The aim of the I.L.O. is to have as many I.L.O. Conventions as possible ratified by the Member States. However, the constitution of the I.L.O. takes into consideration the difficult position of federal States in contracting international obligations with respect to Conventions, the implementation of which is within the constitutional jurisdiction of component parts of federal states. The I.L.O. Constitution puts stress on periodical consultations between two levels of government with a view to promoting within the federal state co-ordinated action to give effect to the Conventions (and Recommendations) adopted that would eventually lead to the ratification of such Conventions.

At present there is no formal machinery for consultation with the provinces regarding ratification of I.L.O. Conventions. However, various occasions provide opportunity for such consultation. Often the problem of ratification is being discussed at periodic meetings of federal and provincial deputy Ministers of Labour as well as Ministers of Labour.

Another opportunity to discuss I.L.O. matters and the prospects of ratification is afforded by the annual meetings of the Canadian Association of Administrators of Labour Legislation. Also, it should be noted that the provincial departments of labour are consulted by correspondent in preparing the position of the government of Canada at various stages leading to the adoption of I.L.O. Conventions and Recommendations.

Recently, in response to suggestions made by the provinces and labour organizations, the International Affairs Branch of the Federal Department of Labour initiated a program of preparing detailed analyses of a selected number of Conventions, the degree of their implementation in Canada and action required by all jurisdictions in Canada to bring total legislation in Canada into conformity with international standards. The first publication in this series entitled « Minimum Age for Employment — a study of action required to bring legislation in each jurisdiction in Canada into conformity with International Labour Conventions » was published recently in English and French, and sent to all provincial departments of labour and to employers' and workers' organizations. Other studies in this series are in preparation. Before such study is published, a draft is sent to all provinces for comments to ensure that the provinces agree with the Branch's assessment of their respective legislation within the terms of the selected Conventions.

Through this consultation before the final draft is prepared, provinces have the opportunity to have a critical look at their legislation and in this way all levels of government are involved in critical assessment of their standards as compared with the standards embodied in the Conventions.

It was thought that this kind of publication would create greater awareness in Canada of international standards, and would lead eventually to greater compliance in Canada with I.L.O. Conventions and speed up the process of ratification.

Canada is one of the founding members of the I.L.O. and has been a permanent member of the Governing Body from the very beginning of the organization. For 50 years we have been involved in the process of establishing international labour standards that provide for social justice and better working conditions. It could be argued that in many instances, whether we ratify the I.L.O. Conventions or not, our Canadian standards are the same or better. But, the reverse is also true. In many other instances our standards are below international standards. The whole process of federal-provincial consultation aiming at ratification of I.L.O. Conventions, whether successful or not, is contributing to raising our Canadian standards. Our ultimate aim of ratification is the best guarantee of the observance of international standards in Canada.

1. As referred to in Labour Conventions Case, below.

2. As referred to in Labour Conventions Case, below.

3. Attorney-General for Canada and Attorney-General for Ontario and Others (1937) A.C. 326.

4.lbid., p. 342.

5.lbid., pp. 350, 351.

6.lbid. p. 342.

7.Ibid., p. 347.

8.Ibid., p. 347.

9.Ibid., p. 348.

10.Ibid., p. 348.

11.Ibid., p. 349.

12.Ibid., p. 349.

13.Ibid., p. 350.

14.Ibid., p. 350.

15.Ibid., pp. 352, 353.

16.Ibid., p. 351.

17.Ibid., pp. 351, 352.

18.Ibid., p. 352.

19.Ibid., pp. 353, 354.

EN :

The author summarizes the l.L.O.'s technical co-operation activities and their evolution from the early 1930's until the present time by highlighting some of the main topics and making a few supplementary observations.

FR :

NATURE ET ÉTENDUE DE L'ASSISTANCE TECHNIQUE DE L'O.I.T.

L'Organisation internationale du travail a grandement changé dans les vingt dernières années. Alors qu'avant la guerre, elle recrutait ses effectifs parmi les pays fortement industrialisés d'Europe et d'Amérique, elle compte aujourd'hui plus de la moitié de ses membres parmi les pays en voie de développement. On comprend alors pourquoi son programme d'action a changé : en plus de vouloir protéger les travailleurs des inconvénients de l'industrialisation, l'O.I.T. se propose de favoriser le développement économique par la formation de travailleurs et de cadres compétents.

Cette formation, l'O.I.T. cherche à la fournir non seulement au côté patronal, mais également au leadership syndical et aux fonctionnaires gouvernementaux des ministères du travail et des affaires sociales des pays en voie de développement.

POURQUOI L'O.I.T. EST-ELLE IMPLIQUÉE DANS CE TRAVAIL ?

« Le refus par un pays de favoriser l'établissement de conditions humaines de travail est un obstacle sérieux pour les autres pays qui cherchent à améliorer les conditions de travail à l'intérieur de leurs frontières ». Ceci est en fait le principe de base du Code international des normes de travail dont l'O.I.T. favorise l'adoption par les différentes autorités gouvernementales dans le but de promouvoir le changement social et économique. Comme corollaire de ce principe, l'O.I.T. croit fondamentalement qu'il ne peut y avoir de paix universelle sans qu'il y ait une justice sociale universelle et que la finalité du développement économique est l'épanouissement de l'homme tant sur le plan spirituel, culturel que matériel.

UNE NOUVELLE ORIENTATION

La stratégie de développement proposée pour les années 1970 reflète un certain changement d'attitudes et d'orientations. On abandonne l'hypothèse que le progrès économique est nécessairement suivi d'une amélioration des conditions de vie pour poursuivre des objectifs tels l'éducation, l'emploi et un niveau de mortalité plus bas.

L'expérience a amené l'O.I.T. à croire qu'une approche internationale « concertée » est indispensable à la solution des problèmes de développement économique. C'est le défi que toutes les nations du monde auront à relever dans les dix prochaines années. Ce défi tient surtout au fait qu'il y a une tendance marquée depuis vingt ans à ce que le niveau d'emploi accuse un retard de plus en plus grand malgré la croissance économique. Ceci laisse donc entrevoir un effort encore plus grand de formation pour les années 70.

La présente approche générale au problème du développement est, selon nous, trop traditionnelle. La stratégie employée ne vas pas assez loin. On ne peut rien faire en ce domaine sans la participation active des gens impliqués. C'est pourquoi on doit créer des motivations favorables au développement.

L'APPROCHE TRADITIONNELLE EST-ELLE UTILE ?

Historiquement, le développement des pays maintenant hautement industrialisés a pris la forme d'un glissement graduel des travailleurs du primaire vers le secondaire et le tertiaire, glissement accompagné d'une urbanisation toujours plus grande. On considérait alors le chômage comme la rançon des cycles de la croissance économique. Les modèles théoriques et les techniques de planification du développement reflètent encore aujourd'hui cette façon de penser.

Les projections faites pour les dix prochaines années mettent sérieusement en doute l'utilité de cette approche surtout parce que l'emploi devient l'objectif de base sur lequel s'appuie le développement et qu'on ne peut pas s'attendre à des changements structurels majeurs à l'intérieur des pays en voie de développement.

CONCLUSION

L'expérimentation de cette nouvelle approche du développement économique

devra être appuyée, pour qu'elle réussisse, par les pays supporteurs d'une part et

devra être, d'autre part, l'occasion d'une participation active des pays récipiendaires.

La coopération économique des pays en voie de développement offre un défi intéressant pour le Canada et les canadiens.