Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Canada (Ratification: 1972)

The Committee takes note of the detailed report supplied by the Government in reply to its previous requests. It also takes note of the texts of the labour legislation adopted by the federal and provincial governments during the period covered by the report.

1. Article 2 of the Convention. Designation by name of one union in the legislation. For several years, the Committee has been drawing attention to several provincial laws which establish a trade union monopoly situation in favour of one trade union designated by name in the legislation, which is contrary to Article 2 of the Convention (Prince Edward Island, Civil Service Act, 1983; Ontario and Nova Scotia, Teaching Profession Acts).

The Committee notes the information provided by the governments of these three provinces: the Governments of Nova Scotia and Prince Edward Island, while noting the Committee's concerns, indicate that no changes to the legislation are currently contemplated, since this is not perceived to be an issue in the context of their provinces' labour environments; the Government of Ontario recalls that the large majority of employees in Ontario bargain collectively under the Labour Relations Act which guarantees employees freedom to join the trade union of their choice. Furthermore, special legislation on collective bargaining has been adopted to take account of the needs of particular groups of employees, and this legislation has merely codified previously existing relationships between employee associations and employers and respects the associations' role as employee representatives.

The Committee recognises that the system of labour relations in Canada is based, for collective bargaining purposes, on the recognition of a single trade union for a given bargaining unit (bargaining agent) determined according to objective and pre-established criteria. However, the fact that certain provincial laws designate by name the union recognised as bargaining agent creates a situation in which it appears impossible for another union to assert its right to represent members of a bargaining unit, and this could give rise to a situation of trade union monopoly.

The Committee therefore asks the Federal Government to obtain from the provincial governments concerned indications as to how the workers of a bargaining unit can opt, if they so wish, for a union other than the one designated by name in the legislation (in particular, the period of time and procedure involved).

2. Article 3. Exceptional strike-breaking legislation. The Committee notes that during the period covered by the report, the Government of Quebec adopted an Act to ensure continuity of the Hydro-Quebec electricity services, which ends the dispute between Hydro-Quebec and the employees' associations and provides for the renewal of expired collective agreements with modifications.

With regard to legislation to halt strikes in sectors where the interruption of services could endanger life, personal safety or health, the Committee recalls that workers who are thus deprived of an essential means of defending their interests should be able to have recourse to adequate, impartial and speedy conciliation and arbitration procedures.

The Committee therefore asks the Federal Government to request the Government of Quebec to indicate the extent to which the workers coming under the Act to ensure the continuity of the Hydro-Quebec electricity services participated in drawing up the collective agreements set out in an annex to the Act.

3. British Columbia, Case No. 1430. The Committee notes the information supplied by the Government of British Columbia concerning: (a) section 137.95 of the Industrial Relations Act as amended in 1987, concerning the "ability to pay" criterion; (b) section 137.9(7) of the Act concerning disciplinary sanctions for refusing to obey a back-to-work order; and (c) section 4(1) concerning the prohibition of secondary boycott clauses.

The Committee also notes with interest that sections 137.97, 137.98 and 137.99 of the Industrial Relations Act, which provide for recourse to compulsory arbitration in certain circumstances, have not yet come into force. The Committee asks the Federal Government to request the Government of British Columbia to keep the Committee informed of any changes in this regard.

With regard to section 137.81(b) of the Act, respecting the procedure for determining essential services, the Committee notes the information supplied by the Government of British Columbia to the effect that this provision is applied only to such services as are necessary to prevent immediate and serious danger to the life, health or personal safety of the population. Since amendments to the legislation were introduced in 1987, there has been no designation of essential services in respect of a threat to "the economy of the province" or to the "welfare of its residents" or to the "provision of educational services in the province". The Government quotes the example of a recent work stoppage by teachers, during which there was no designation of essential services. The Government adds that, even when a bargaining unit has to carry out essential functions, its trade union can exert considerable pressure because the established practice is for members of other trade unions to respect picket lines.

While noting this information, the Committee recalls that when a minimum service is set up to ensure essential services in the strict sense, all the parties concerned should be able to participate in defining such services. The Committee would be grateful if the Federal Government would supply information from this provincial government indicating whether the council responsible for such matters includes representatives of the parties concerned pursuant to sections 1(1) and 13 of the Industrial Relations Act.

In addition, the Government indicates that the trade union of a bargaining unit, certain members of which have been declared "essential", and the employer concerned may agree to submit their dispute to impartial, binding arbitration.

The Committee notes that this procedure is only possible where the dispute concerns the public sector and where the two parties opt for such a procedure (section 137.95).

The Committee recalls that when workers are unable to resort to a strike, they should be able to have recourse to adequate conciliation and arbitration procedures. It requests the Federal Government to seek information from the Government of British Columbia indicating the alternative recourse available to the trade union and the bargaining unit when the employees in a given bargaining unit (private or public sector) are unable to exercise their right to strike because some of them are under the obligation to carry out functions that have been declared essential.