Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

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

The Committee notes the Government’s report, the conclusions and recommendations of the Committee on Freedom of Association in the various cases concerning Canada, and the discussions in the Conference Committee on the Application of Standards in June 1999.

I.  Issues common to several jurisdictions

  A.  Alberta, Ontario, New Brunswick

  Right to organize of certain categories of workers

The Committee once again notes that workers in agriculture and horticulture in the provinces of Alberta (section 2(2)(e) of the Labour Code), Ontario (section 3(b) and (c) of the amended Labour Relations Act of 1995) and New Brunswick (section 1(5)(a) of the Labour Code) are excluded from the coverage of labour relations legislation and thereby deprived of the protection envisaged therein with regard to the right to organize and collective bargaining. Furthermore, with regard to Ontario, the Committee recalls the conclusions of the Committee on Freedom of Association in case No. 1900 (308th Report, paragraphs 139-194, and 316th Report, paragraphs 28-30) and observes with regret that several other categories of workers are excluded from the industrial relations legislation (domestic workers, architects, dentists, land surveyors, lawyers and doctors) under the terms of section 1(3)(a) of the amended Labour Relations Act, 1995. The Committee notes the information provided by the governments of Ontario and Alberta to the effect that workers in agriculture and horticulture are entitled to form associations and participate in voluntary negotiations with their employers. It also notes the comments of the government of New Brunswick that the requirement that a bargaining unit comprise at least five agricultural workers to engage in collective bargaining is necessary to free small family agricultural holdings from inappropriate legislative constraints.

The Committee is nevertheless bound to emphasize the fact that all workers, without distinction whatsoever, with the sole possible exception of the armed forces and the police, must be able to organize freely and benefit from the necessary protection to ensure observance of the Convention.

The Committee urges the governments of the provinces concerned to take the necessary measures to amend the legislation in question in order to bring it into full conformity with the Convention and to keep the Committee informed in this respect. The Committee notes that the Supreme Court of Canada has granted leave to hear an appeal against the dismissal by the Ontario Court of Appeal of a challenge to the exclusion of agricultural workers and it requests the Government to forward the text of the judgement when it is delivered.

  B.  Prince Edward Island, Nova Scotia, Ontario

  Trade union monopoly established by law

The Committee notes that certain provincial laws designate by name the union recognized as the bargaining agent (Prince Edward Island: Civil Service Act, 1983; Nova Scotia: Teaching Professions Act; Ontario: Education Act and Teaching Professions Act). The Committee recalls that, although it considers a system in which a single bargaining agent can be accredited to represent workers in a given bargaining unit and bargain on their behalf to be compatible with the Convention, it nevertheless considers that a trade union monopoly established or maintained by the explicit designation by name of a trade union organization in the law is in violation of the Convention.

The Committee requests the governments of these provinces to repeal from their respective legislation the designation by name of individual trade unions and to keep it informed in this regard.

II.  Matters relating to specific jurisdictions

  A.  Alberta

1.  Right to strike.  With reference to its previous comments concerning section 117.1 of the Public Service Employee Relations Act, as amended in 1983 by Act No. 44, which bans strikes by all hospital workers, including kitchen staff, porters and gardeners, and therefore goes beyond the admissible restrictions to the right to strike, the Committee notes that, according to the Government, the right to strike and to lockout depends on the nature of the organization providing the service, rather than on the type of work performed by employees. The Committee nevertheless recalls that the right to strike is an intrinsic corollary of the right to organize and any restriction should be limited to public servants exercising authority in the name of the State or to essential services in the strict sense of the term (see the 1994 General Survey on freedom of association and collective bargaining, paragraph 179).

The Committee requests the Government to amend its legislation to ensure that kitchen staff, porters and gardeners are not denied this fundamental right.

2.  Right to organize of university staff.  The Committee recalls that for several years it has been commenting on the need: (a) to repeal the provisions of the University Act which empower the Board of Governors to designate the academic staff members who are allowed, by law, to establish and join a professional association for the defence of their interests; and (b) to introduce an independent system of designation where the parties fail to reach agreement upon such designation. The Committee notes the ruling by the Alberta Court of Appeal in the Lakeland College case, which was however confined to the issue of whether the power of designation had in that instance been used in a fair and responsible manner. The Committee recalls that all workers, without distinction whatsoever, have the right to establish and join organizations of their own choosing without previous authorization.

The Committee requests the Government to repeal the provisions in question and to keep it informed in its next report of the measures taken in this respect.

  B.  British Colombia

The Committee notes the adoption in April 2000 of a special Act to bring an end to a collective dispute in certain provincial school commissions (Bill 7 on public education support staff collective bargaining assistance), which raises a number of difficulties in relation to the Convention (section 2: prohibition of the right to strike; sections 4, 5 and 6: the appointment by the Minister of Labour of an industrial inquiry commission entrusted, if necessary, with determining by itself the terms of a collective agreement; section 11: the broad powers of the Minister concerning the structure, role, establishment, responsibilities and rules of employers’ and workers’ organizations).

The Committee requests the Government to indicate whether this Act was repealed on 31 July 2000 in whole or in part, as provided for in section 13, and to keep it informed of any development relating to its application.

  C.  Manitoba

1.  The Committee notes the amendments made to the Labour Relations Act by Bill 44. Section 87.1(1) of the Labour Relations Act provides that, when 60 days have elapsed since the commencement of a strike or lockout and conciliation has been used, one of the parties may apply to the Labour Board of Manitoba to settle the provisions of a new collective agreement. The Committee recalls that arbitration imposed by the authorities at the request of one party is contrary to the principle of voluntary bargaining and the autonomy of the parties (see General Survey, op. cit., paragraph 257).

The Committee requests the Government to take the necessary measures to ensure that recourse to arbitration for the settlement of conflicts is voluntary.

2.  The Committee notes the amendments made to the Public Schools Act by Bill 42, including:

-  section 110(1), which prohibits strikes by teachers;

-  sections 112(3) to 112(5), which envisage penalties of up to CAN$2,000 a day for any bargaining agent or trade union officer who declares or authorizes a strike by teachers;

-  sections 100, 103 and 108, which provide that when at least 90 days have elapsed since the commencement of collective bargaining and no collective agreement has been concluded, one of the parties may initiate arbitration proceedings to decide the matters in dispute between them with a view to the preparation of a collective agreement embodying all matters settled in the award.

The Committee recalls that the right to strike should only be restricted for public servants exercising authority in the name of the State and in essential services in the strict sense of the term. It also recalls that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association, which is not the case in this instance. Finally, the Committee emphasizes that arbitration imposed by the authorities at the request of one party is contrary to the principle of the voluntary negotiation of collective agreements and the autonomy of the partners.

The Committee requests the Government to take measures to amend its legislation so that teachers are not denied the right to strike, the exercise of this right does not result in them being penalized and recourse to arbitration for the settlement of disputes is voluntary.

  D.  Ontario

1.  The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1975 (316th Report, paragraphs 229-274; 321st Report, paragraphs 103-118) concerning the Prevention of Unionization (Ontario Works) Act (Bill 22) and the Economic Development and Workplace Democracy Act (Bill 31).

The Committee notes that Bill 22 provides that persons taking part in community participation activities are prohibited from joining a trade union within the general framework established by the 1995 Industrial Relations Act and it recalls that the right to organize must be guaranteed to all workers, without distinction whatsoever, including, as in the present case, persons performing community work.

The Committee requests the Government to amend this legislation with a view to guaranteeing the right to organize to the persons concerned, in conformity with the Convention.

2.  The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2025 (320th Report, paragraphs 374-414) concerning the Back to School Act, 1998, which brought an end to a legal strike by teachers, without prior consultation with them, and authorized either party to initiate a mediation‑arbitration procedure and to request the Minister of Labour at any time to appoint a mediator‑arbitrator with the exclusive jurisdiction to determine all matters that he or she considers necessary to conclude a new collective agreement. The Committee recalls that the right to strike is one of the legitimate and essential means through which workers and their organizations, including teachers, can defend their economic and social interests, and that recourse to compulsory arbitration in cases where the parties do not reach agreement through collective bargaining is not in conformity with the principle of voluntary negotiation and is permissible only in the context of essential services in the strict sense of the term.

The Committee urges the Government to take the necessary measures so that teachers in Ontario are authorized to exercise the right to strike, and to avoid in future recourse to the adoption of return to work legislation.

  E.  Newfoundland

1.  The Committee recalls that its previous comments concerned the need to amend section 10.1 of the Public Service (Collective Bargaining) Act (No. 59), which confers broad powers on the employer with regard to the procedure for the designation of "essential employees". The Committee notes that the joint labour and management working group, whose mandate included a review of legislation affecting freedom of association with a view to proposing necessary reforms, has submitted a detailed report which is generally supportive of the provisions of the Act in this respect. The Committee also notes that, in all the cases dealt with by the Labour Relations Board in the early 1990s, workers and employers voluntarily submitted an agreement to the Board on employees to be designated as essential which, according to the Government, demonstrates their endorsement of the provisions in question.

The Committee notes this information with interest and requests the Government to keep it informed in future reports of the application of this legislation in practice.

2.  The Committee notes the adoption of a new collective bargaining legislative model in the fishing industry which prohibits strikes or lockouts. The Committee recalls that the right to strike is an intrinsic corollary of the right to organize and may only be limited in the case of public servants exercising authority in the name of the State or in essential services in the strict sense of the term.

The Committee requests the Government to amend the legislation so that these workers are not denied the right to strike.