Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

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 comments received from the International Confederation of Free Trade Unions (ICFTU) and the conclusions and recommendations of the Committee on Freedom of Association in the various cases concerning Canada.

I.  Issues common to several jurisdictions

A. Alberta, Ontario, New Brunswick. Right to organize of certain categories of workers. In its previous comments, the Committee had noted that workers in agriculture and horticulture in the Provinces of Alberta, Ontario and New Brunswick were excluded from the coverage of labour relations legislation and thereby deprived of protection concerning the right to organize and collective bargaining. The Committee had also noted with regret that other categories of workers (domestic workers, architects, dentists, land surveyors, lawyers and doctors) were excluded in Ontario, under section 13(a) of the Amended Labour Relations Act, 1995.

Furthermore, the Committee had noted that the Supreme Court of Canada held in December 2001 (in the Dunmore case, originating from Ontario) that the exclusion of agricultural workers was unconstitutional and gave the Government of Ontario 18 months to amend the impugned legislation. The Committee had noted that the Government of Ontario had introduced Bill No. 187 in October 2002 (Agricultural Employees Protection Act), which gives agricultural employees the right to form or join an employees’ association. It appears, however, that this legislation does not give agricultural workers the right to establish and join trade unions and to bargain collectively.

In its latest report, the Government of Ontario has confined itself to indicating that a provincial election was being held in Ontario on 2 October 2003 and that information would be provided to the Committee as soon as available. The Committee requests once again the Government to ensure that any new legislation introduced will guarantee full respect of the rights under the Convention for all the categories of workers mentioned above and to keep it informed in its next report.

As concerns the Province of Alberta, the Committee notes with regret that the Government of Alberta has indicated that further review of the organization of agricultural workers will not be done at this time, considering the current challenges in the agricultural sectors. As concerns the Province of New Brunswick, the Committee notes with regret that no legislative changes are being considered to the Industrial Relations Act at this time. The Committee recalls once again that all workers, with the sole possible exception of the armed forces and the police, have the right to organize under the Convention. It requests the Governments of Alberta and New Brunswick to amend their legislation accordingly and to inform it of developments in this respect in their next reports.

B. Trade union monopoly established by law. In its previous report, the Committee had noted 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 and Teaching Professions Act). It had recalled that although a system in which a single bargaining agent can be accredited to represent workers in a given bargaining unit and bargain on their behalf is 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 notes with regret that no developments on this point have been reported since 2002 by the Governments of Prince Edward Island, Nova Scotia and Ontario. The Committee requests once again the governments of these provinces to repeal from their respective legislation the designation by name of individual trade unions and to keep it informed of developments in their future reports.

II.  Matters relating to specific jurisdictions

A. Alberta. The Committee recalls that its previous comments concerned the right to strike of certain categories of employees in the hospital sector and the right to organize of university staff.

1. Right to strike. The Committee notes with regret that the Government, pursuant to the conclusions of the government MLA Committee Considering a Review of the Labour Relations Code (which concluded that the Labour Relations Code is continuing to balance the needs of employees and employers and is working well), decided that further review of labour relations in the health sector is not necessary at this time.

The Government further mentions in its latest report that the Labour Relations (Regional Health Authorities Restructuring) Amendment Act (Bill No. 27) came into effect on 1 April 2003 and has dealt with the majority of labour issues that were facing this sector. The Committee notes with regret the information supplied by the Government in its report, according to which the Amendment Act has not changed the situation of health workers with regard to the right to strike. The Committee recalls once again that the right to strike is a corollary of the right to organize and any restrictions 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. It requests the Government to indicate whether kitchen staff, porters, and gardeners (who the Committee considers do not constitute workers in an essential service) are still covered by this strike prohibition and, in the affirmative, emphasizes that these categories of workers should not be denied this fundamental right.

2. The right to organize of university staff. As concerns the right to organize of university staff, the Government once again makes reference to a previous decision from the Alberta Court of Queen’s Bench that found that the designation sections of the Colleges Act, the Technical Institutes Act and the Universities Act do not violate the freedom of association provision within the Canadian Charter of Rights and Freedoms. Furthermore, it states in its report that both faculty and support staff in Alberta’s post-secondary institutions currently have the right to organize and be represented by a union or faculty or staff association. The Committee recalls that for several years it has been commenting on the need 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 interests, because future designations could be made to exclude faculty members and non-management administrative or planning personnel from membership of the staff associations whose purpose is to protect and defend the interests of these categories of workers. The Committee recalls that all workers, without distinction whatsoever, with the sole possible exception of the armed forces and the police, have the right to establish and join organization of their own choosing without previous authorization. It requests the Government to amend its legislation to ensure that university staff are guaranteed the right to organize, without any possible exceptions based on the powers of the Board of Governors, and to keep it informed in its report of measures taken in this respect.

B. British Columbia. In its previous comments, the Committee noted that the Act to bring an end to a collective dispute in certain provincial school commissions was repealed in July 2000 and requested the Government to keep it informed in respect of a new report expected on the collective bargaining regime for support staff.

In its latest report, the Government mentioned it has initiated a broader dialogue on support staff collective bargaining, and has begun discussions with employers and unions in the education sector with a view to considering appropriate models of collective bargaining. The Government stated it was open to expand the discussions to include other unions/employers in areas such as health and the public sector, but that in light of the broader review, the status of the report for support staff had at this time not been determined. The Committee requests the Government to keep it informed of developments in this respect, in particular as concerns dispute settlement regulations or machinery.

The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2173 (330th Report, paragraphs 239-305) concerning the Skill Development and Labour Statutes Amendment Act (Bill. No. 18) and the Education Services Collective Agreement Act (Bill No. 27).

The Committee notes that Bill No. 18 made education an essential service in the strict sense of the term and Bill No. 27, under which a collective agreement was deemed to exist, had the effect of rendering any strike that might have been ongoing illegal. The Committee recalls that the right to strike is one of the essential means through which workers and their organizations may promote and defend their interests and that restrictions on the right to strike should be limited to essential services in the strict sense of the term (the interruption of which would endanger the life, personal safety or health of the population), to situations of acute national crisis or for public servants exercising authority in the name of the Sate. The Committee requests the Government to repeal the provisions of Bill No. 18 which make education an essential service and to adopt legislative provisions ensuring that workers in this sector may enjoy and exercise the right to strike.

The Committee further notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2166 (330th Report, paragraphs 239-305) concerning the Health Care Services Continuation Act (Bill No. 2) and the Health Care Service Collective Agreement Act (Bill No. 15).

The Committee notes that where the right to strike is legitimately restricted or prohibited (Bill No. 2 concerns the health sector which is considered an essential service in the strict sense of the term), adequate protection should be given to the workers to compensate them for the limitation thereby placed on their freedom of action with regard to disputes affecting such services. The Committee notes that the workers did not benefit from impartial and adequate compensatory procedures and that sections 2 and 3 of Bill No. 15 essentially imposed the employer’s last offer. The Committee requests the Government to amend its legislation to ensure that workers in this sector enjoy adequate, impartial and speedy procedures to compensate for the restrictions in respect of the right to strike.

C. Manitoba. 1. Arbitration imposed at the request of one party after 60 days (article 87.1(1) of the Labour Relations Act). The Committee notes the Government’s statement that the Labour Management Review Committee (LRMC) reviewed the application of sections 87.1 to 87.3 of the Labour Relations Act, but that it did not address the issue of unilateral application to the Labour Board to initiate the dispute settlement process. In its report, the LMRC notes that there was limited experience of the operation of the new provisions upon which to base the review. There were only two applications made with respect to the relevant provisions during the two-year review period, neither of which resulted in the imposition of a collective agreement by the Manitoba Labour Board or by an arbitrator.

While taking due note that the application of this provision has not given rise to the imposition of a collective agreement, the Committee requests the Government to take the necessary measures to ensure that an arbitration award may only be imposed in cases of essential services in the strict sense of the term, of public servants exercising authority in the name of the State or where both parties to the conflict agree.

2. Prohibition of strikes by teachers, section 110(1) of the Public School Act. The Government reiterates its previous indication that the strike prohibition came about following a joint recommendation between the Manitoba Teachers’ Society and the Association of Schools. While this agreement dates back to 1956, the Committee observes that it was codified in the Manitoban legislation by the Public School Amendment of 1996, which explicitly prohibits the right to strike under section 110(1). 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. In this respect, the Committee considers that any voluntary renunciation of the right to strike should not be codified in legislation, which by its nature has no set time limitation. Furthermore, any desire to reclaim such a right in the present circumstances is placed out of the hands of those concerned. On the other hand, the same or similar restrictions, could, in conformity with the Convention, be set forth in legally binding agreements, which may be reviewed by the parties concerned in accordance with such agreements. It, therefore, requests the Government to amend its legislation accordingly and to keep it informed of developments in its next reports.

D. Ontario. In its previous comments, the Committee had noted 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; persons taking part in community participation activities prohibited from joining a trade union), Bill No. 22 and 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). The Committee further noted from the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1951 (325th Report, paragraphs 197-215) that principals and vice-principals are still denied the right to organize.

In its latest report, the Government mentioned that a provincial election was being held on 2 October 2003 and that any information provided by the Government of Ontario would be forwarded to the Committee as soon as available. The Committee recalls once again that the only possible exceptions being the armed forces and police, the right to organize should be guaranteed to all workers without distinction whatsoever and that teachers should be allowed to have recourse to strike action. It requests the Government to amend its legislation and to keep it informed of the measures taken in this respect in its next report.

E. Newfoundland and Labrador. The Committee recalls that its previous comments concerned the need to amend the Fishing Industry Collective Bargaining Act (Bill No. 31) so that workers in the fishing industry were not denied the right to strike. The Committee notes that it is the view of the Government that amending the Fishing Industry Collective Bargaining Act to remove the final offer selection process would be contrary to the wishes of fish harvesters as represented by the Fish, Food and Allied Workers’ Union/Canadian Auto Workers Union. It further notes that, according to the Government, the parties that operate under the final offer selection (FOS) agree to forgo the right to strike for a specific period of time.

On the other hand, the Committee notes with interest that, following the adoption of an Act to amend the Fishing Industry Collective Bargaining Act, which came into force on 19 December 2002, the opting out provision has been reconfirmed (section 35.12): either party to collective bargaining may serve notice that it wishes to withdraw from the FOS model. When the opting out provision is invoked, the legislation provides for a return to a more traditional collective bargaining regime, with conventional strike and lockout provisions. The Committee notes with interest that in this regard the prohibition on strikes is not currently a permanent feature of the legislation and can be seen as a legally binding agreement, which allows parties to reclaim such a right.