Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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

The Committee takes note of the comments from the International Trade Unions Confederation (ITUC) dated 30 September 2008 and 26 August 2009, as well as of the Government’s reply thereto.

The Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in a number of cases concerning allegations of interference into the right to organize and carry out trade union activities, including collective bargaining, in various provinces of Canada (Case No. 2173, 354th Report, paragraphs 35–46; Case No. 2254, 355th Report, paragraphs 29–33; and Case No. 2430, 353rd Report, paragraphs 66–68).

With regard to the implementation of the Convention in a broad perspective, the Committee recalls that in its previous observation it noted with interest the decision of 8 July 2007 of the Supreme Court of Canada (Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia, 2007 SCC 27), which held that freedom of association encompasses a measure of protection for collective bargaining under section 2(d) of the Canadian Charter of Rights and Freedoms, and by doing so the Court referred to Convention No. 87 as well as the International Covenants on Civil and Political Rights, and on Economic, Social and Cultural Rights, noting that the “interpretation of these Conventions, in Canada and internationally, not only supports the proposition that there is a right to collective bargaining in international law, but also suggests that such a right should be recognized in the Canadian context under section 2(d). The Committee notes from the Government’s report that a number of tripartite round-table discussions were held pursuant to the decision of the Supreme Court, at federal and provincial levels, on its potential implications on future labour relations and the country’s international obligations. The Government also indicates that it expects a number of ongoing cases before courts to further clarify the scope of the Supreme Court decision and its implication for the application of the Convention. The Committee invites the Government to continue to provide information on any development in relation to this decision which may have an impact on the application of the Convention.

Article 2 of the Convention. Right to organize of certain categories of workers. The Committee recalls that it has been expressing concern for many years on the exclusion of wide categories of workers from statutory protection of freedom of association and on the restrictions on the right to strike in several provinces.

Workers in agriculture and horticulture (Alberta, Ontario and New Brunswick). The Committee recalls from its previous comments that workers in agriculture and horticulture in the Provinces of Alberta, Ontario and New Brunswick are excluded from the coverage of labour relations legislation and thereby deprived of statutory protection of the right to organize.

The Committee notes with regret from the Government’s report that there are no plans for a legislative review in Alberta, although the province is closely monitoring the constitutional challenge to the Agricultural Employees Protection Act, 2002, before the Ontario Court of Appeal and subsequently before the Supreme Court of Canada.

As for Ontario, the Committee recalls that in its previous comments it noted the decision dated December 2001 by the Supreme Court of Canada which found the exclusion of agricultural workers from the Labour Relations Act, 1995, to be unconstitutional in the absence of any other statutory protection of their freedom of association (Dunmore v. Ontario/Attorney-General, 2001, 207 DLR (4th) 193 (SCC)). The Committee also noted that, although the Agricultural Employees Protection Act, 2002 (AEPA) gave agricultural employees the right to form or join an employees’ association, it however maintained the exclusion of agricultural employees from the Labour Relations Act and did not provide a right to a statutory collective bargaining regime. The Committee notes from the Government’s report that the appeal lodged by the United Food and Commercial Workers (UFCW) challenging the constitutionality of the AEPA before the Ontario Court of Appeal resulted in a decision acknowledging the right for Ontario farm workers to legislation that protects their ability to bargain collectively. The Ontario Government appealed the decision to the Supreme Court of Canada and the hearing on the case is expected at the end of 2009.

The Committee notes that, as regards the Province of New Brunswick, the Government reiterates that agricultural workers are not excluded from the protection of the Industrial Relations Act, 1971; however their bargaining rights are limited to units comprising at least five or more employees.

The Committee recalls once again that all workers without distinction whatsoever (with the sole possible exception of the armed forces and the police) shall have the right to organize under the Convention. Therefore, any provincial legislation that would deny or limit the application of the Convention in relation to the freedom of association of agricultural workers should be amended. Consequently, the Committee urges the Government to ensure that the Governments of Alberta and Ontario take all necessary measures to amend their legislation so as to fully guarantee the right of agricultural workers to organize freely and to benefit from the necessary protection to ensure observance of the Convention. The Committee requests the Government to forward the text of the decision of the Supreme Court of Canada concerning the constitutionality of the AEPA when it is delivered and to indicate any review on its implication with regard to the exclusion of agricultural employees from statutory protection of the right to organize in the Provinces of Alberta and Ontario.

Domestic workers, architects, dentists, land surveyors, lawyers and doctors (Ontario, Alberta, New Brunswick, Nova Scotia, Prince Edward Island and Saskatchewan). The Committee recalls that it has been raising for many years the need to ensure that a number of categories of workers in Ontario, who have been excluded from statutory protection of freedom of association under sections 1(3) and 3(a) of the Labour Relations Act, 1995 (domestic workers, architects, dentists, land surveyors, lawyers and doctors), enjoy the protection necessary, either through the Labour Relations Act, or by means of specific regulations, to establish and join organizations of their own choosing.

In its previous comments, the Committee also noted that legislative provisions in other provinces (Alberta, New Brunswick, Nova Scotia, Prince Edward Island and Saskatchewan) contain similar exclusions of domestic workers, architects, dentists, land surveyors, lawyers, doctors and engineers from the scope of industrial relations law. Moreover, these workers might be excluded also in Newfoundland, Labrador and Saskatchewan if the employer has less than two or three employees, respectively.

The Committee notes with regret the statements from the Governments of Ontario, Alberta, Nova Scotia and Prince Edward Island that no legislative amendments are planned in respect of the exclusion of domestic workers. The Committee also takes note of the statement by the Government of New Brunswick according to which it will consult stakeholders on the potential for amendment of the Industrial Relations Act to remove the exclusion of domestic workers. With regard to the other professionals, such as architects, dentists, land surveyors, lawyers doctors and engineers (for Nova Scotia and Prince Edward Island), the Committee also notes the statement from the respective governments that these professionals in question are generally members of professional organizations that represent their interests, including through collective bargaining. Hence, they cannot be considered disadvantaged in the labour market.

The Committee is bound to recall once again its view that the exclusion of these categories of workers from the Labour Relations Act has had as a result that, although they can still exercise their right to associate under the Common Law, their associations are devoid of the higher statutory protection provided for in the Labour Relations Act, 1995, and this can function as an impediment to their activities and discourage membership. Consequently, the Committee urges the Government to ensure that the Governments of Ontario, Alberta, Nova Scotia, Prince Edward Island and Saskatchewan take all necessary measures to remedy the exclusion of the abovementioned categories of workers from the statutory protection of freedom of association and to amend its legislation to adopt specific regulations so as to ensure that domestic workers, architects, dentists, land surveyors, lawyers, doctors and engineers are allowed to form and join organizations of their own choosing and that these organizations enjoy the same rights, prerogatives and means of recourse as other workers’ organizations under the Convention. The Committee requests the Government to ensure that the Government of the Province of New Brunswick indicates the outcome of discussions held on the amendment to the Industrial Relations Act to remove the exclusion of domestic workers and any measures taken thereon.

Nurse practitioners (Alberta). In its previous comments, the Committee referred to the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2277 to the effect that nurse practitioners have been deprived of the right to establish and join organizations of their own choosing by the Labour Relations (Regional Health Authorities Restructuring) Amendment Act of the Province of Alberta. The Committee notes with regret from the Government’s report that there are no planned reviews of the status of nurse practitioners. The Committee once again recalls that the expression “all workers and employers without distinction whatsoever” used in Article 2 of the Convention means that freedom of association should be guaranteed without discrimination of any kind. The Committee therefore urges the Government to ensure that the Government of the Province of Alberta takes all necessary measures to amend the Labour Relations (Regional Health Authorities Restructuring) Amendment Act so that nurse practitioners have the right to establish and join organizations of their own choosing.

Principals, vice-principals in educational establishments and community workers (Ontario). The Committee recalls, with regard to Ontario, that its previous comments concerned the need to ensure that principals and vice-principals in educational establishments as well as community workers have the right to organize, pursuant to the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 1951 and Case No. 1975. The Committee takes note of the Government’s statement that it has no plan to amend the legislation concerning principals and vice-principals in educational establishments. However, the Government adds that, with regard to community workers, a detailed review of the 1998 amendments to the Ontario Works Act by the Act to Prevent Unionization with respect to community participation under the Ontario Works Act, 1997, has identified options that would be considered. While the Committee considers that it is not necessarily incompatible with freedom of association principles to deny managerial or supervisory employees the right to belong to the same trade union as other workers; such categories of workers should have the right to form their own associations to defend their interests and should not be defined so broadly as to weaken the organizations of other workers by depriving them of a substantial portion of their present or potential membership. Taking into account the abovementioned principles, the Committee reiterates its request to ensure that the Government of the Province of Ontario takes all necessary measures to amend the legislation so as to guarantee to principals and vice-principals in educational establishments, as well as community workers, the fundamental right to establish and join organizations of their own choosing.

Public colleges’ part-time employees (Ontario). The Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2430 (see 353rd Report, paragraphs 66–68) and notes with interest that the Government of Ontario introduced the Act to Enact the Colleges Collective Bargaining Act which allows part-time academic and support staff workers at Ontario’s 24 colleges to join unions for collective bargaining purposes. Along with the Committee on Freedom of Association, the Committee requests the Government to indicate in its next report any progress made in the adoption of this Bill which would allow part-time academic and support staff in colleges of applied arts and technology in Ontario to fully enjoy the right to organize, as enjoyed by other workers, as provided in the Convention.

Education workers (Alberta). With regard to the right to organize of education workers in the Province of Alberta, the Committee recalls that its previous comments concerned 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 their interests. The Committee expressed its view that such provisions would allow for future designations 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 notes with regret that there are no plans to amend this legislation. The Committee is bound to request once again the Government to ensure that the Government of the Province of Alberta takes all necessary measures with a view to ensuring that all university staff are guaranteed the right to organize without any exceptions.

Workers in social, health and childcare services (Quebec). The Committee recalls that its previous comments concerned two Acts (Act modifying the Act on health and social services (LQ, 2003, c.12) and Act modifying the Act on early childhood centres and other nursery services (LQ, 2003, c.13)), by which the Government redefined workers in social and health services and childcare services as “independent workers”, thus divesting them of the status of “employee” and denying them the right to unionize, leading to the cancellation of their trade union registrations. While emphasizing that the Convention does not exclude any of the above categories of workers who should have the right to establish and join organizations of their choosing, the Committee expressed the hope that the domestic courts would render decisions that would take into account the provisions of the Convention.

The Committee takes note with interest of the Government’s indication that a decision whereby the Superior Court of Quebec held the Act modifying the Act on health and social services and the Act modifying the Act on early childhood centres and other nursery services unconstitutional as they were contrary to section 2(d) of the Canadian Charter of Rights and Freedoms and to section 3 of the Charte québécoise des droits et libertés de la personne. Following that court decision, the Government of the Province of Quebec adopted an Act on the representation of family-type resources and intermediate resources and on the respective collective bargaining regime (LQ 2009, c.24) as well as an Act on the representation of certain persons responsible for childcare in family environment on the respective collective bargaining regime (LQ 2009, c.36) on 12 and 19 June 2009. These new texts established a system of representation for family-type resources and intermediate resources as well as for persons responsible for childcare in family environments. A system of collective agreement “similar to the one encompassed in the Labour Code of the Province of Quebec” is established. The Committee notes with interest the indication that the newly adopted texts provide for rules for recognition by the Committee on labour relations of associations representing such persons, the rules of collective bargaining between these associations and the Government and the matters covered by the negotiation. They also provide for measures for better access to government programmes, such as parental insurance, the pension plan and the programme for safe motherhood.

Prosecutors (Quebec). In its previous comments, the Committee referred to the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2467 with regard to the Prosecutors Act (as amended by the Act amending the Act respecting Prosecutors and the Labour Code, LQ 2004, c.22), which denied to prosecutors the right to join a trade union and deprives them of protection against hindrances, reprisals or sanctions related to the exercise of trade union rights. The Committee takes note with interest of the Act on the collective bargaining regime of prosecutors for criminal and penal affairs (LRQ, c. R-8.1.2), which grants them the right to organize as well as protection in the exercise of trade union rights, including the right to strike and to bargain collectively.

Article 2. Trade union monopoly established by law (Prince Edward Island, Nova Scotia and Ontario). The Committee recalls that its previous comments concerned the specific reference to the trade union recognized as the bargaining agent in the law of Prince Edward Island (Civil Service Act, 1983), Nova Scotia (Teaching Professions Act) and Ontario (Education and Teaching Professions Act).

The Committee notes with regret from the Government’s report that there are still no plans to amend the legislation in Prince Edward Island, Nova Scotia and Ontario. The Committee is bound to recall that, although it may consider 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, a trade union monopoly established or maintained by the specific designation of a trade union in the law is in violation of the Convention, thus suppressing any freedom of choice. The Committee expresses the firm hope that the Government will indicate measures taken or contemplated by the Governments of Prince Edward Island, Nova Scotia and Ontario to bring their legislation into full conformity with the standards of freedom of choice laid down in the Convention by removing the specific designation of individual trade unions as bargaining agents and replacing them with a neutral reference to the most representative organization.

Article 3. Right to strike of workers in the education sector. The Committee recalls from its previous comments that problems remain in several provinces with regard to the right to strike of workers in the education sector (British Columbia and Manitoba).

British Columbia. The Committee recalls that its previous comments concerned the Skill Development and Labour Statutes Amendment Act (Bill No. 18), which declares education to be an essential service, and the need to adopt provisions ensuring that workers in the education sector may enjoy and exercise the right to strike pursuant to the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2173. The Committee notes the information pertaining to measures undertaken to support and facilitate the bargaining process between teachers and school employers resulting in the parties achieving, through collective bargaining, a five-year collective agreement effective 1 July 2006. However, the Committee observes that progress is yet to be made on the issues raised.

The Committee notes that, when it last examined Case No. 2173 (see 354th Report, paragraphs 35–46), the Committee on Freedom of Association expressed the hope that the settlement reached in the health-care sector, following the Supreme Court decision noted above, would serve as an inspiration for the settlement of grievances prevailing in the education sector between the Government of the Province of British Columbia and the unions concerned with regard to the Skills Development and Labour Statutes Amendment Act and the Education Services Collective Agreement Act. The Committee invites the Government to indicate any progress made in this respect. Furthermore, while noting that decisions on essential services are made by the Labour Relations Board (LRB) in consultation with the parties concerned, the Committee requests the Government to indicate any decision taken by the LRB with regard to the essential service level (minimum service) in the education sector and the factors taken into consideration in doing so. Finally, while recalling that an outright ban on strikes should only be limited to essential services in the strict sense of the term and that the education sector does not qualify as such, the Committee asks the Government to specify if the Skills Development and Labour Statutes Amendment Act takes away the right of teachers to engage in strike action.

Manitoba. The Committee recalls that its previous comments concerned the need to amend section 110(1) of the Public School Act which prohibits teachers from engaging in strike action. The Committee once again notes with regret from the Government’s report that there are no plans to make amendments to the Public Schools Act in the immediate future. The Committee is bound to recall 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. The Committee requests the Government to indicate in its next report any measures taken or contemplated by the Manitoba Government to amend its legislation so that schoolteachers, who do not provide essential services in the strict sense of the term and do not qualify as public servants exercising authority in the name of the State, may exercise the right to strike without undue restrictions, and suggests that the Manitoba Government give consideration to the establishment of a voluntary and effective dispute-settlement mechanism in this regard, on the basis of consultations with all organizations concerned.

Article 3. Right to strike of certain categories of employees in the health sector (Alberta). The Committee recalls that its previous comments concerned the prohibition on strikes for all employees within the regional health authorities, including various categories of labourers and gardeners under the Labour Relations (Regional Health Authorities Restructuring) Amendment Act. The Committee notes that the Government reiterates that the Act in question does not take away the right to strike for the vast majority of gardeners and labourers in the health-care sector, and states that these employees were rather prohibited from striking as staff members of facilities on designated hospital lists prior to the enactment of the Act. The Committee, recalling its view that gardeners and labourers do not provide essential services in the strict sense of the term, expresses the firm hope that the Government will indicate in its next report measures taken by the Government of the Province of Alberta in order to ensure that all workers in the health-care sector, who are not providing essential services in the strict sense of the term, are not deprived of the right to strike.

Article 3. Right to strike in the public sector (Quebec). The Committee recalls that its comments concerned Act No. 43 which put a unilateral end to negotiations in the public sector by imposing collective agreements for a determined period, and depriving the workers concerned, including teachers, of the right to strike (labour law in Quebec prohibits strikes during the term of a collective agreement). Furthermore, this Act provided for:

–           severe and disproportionate sanctions in the event of an infringement of the provisions prohibiting recourse to strike action (suspension of the deduction of trade union dues merely by the employer declaring that there has been an infringement of the Act for a period of 12 weeks for each day or part of a day that the infringement is observed (section 30));

–           the reduction of employees’ salary by an amount equal to the salary they would have received for any period during which they infringe the Act, in addition to not being paid during that period – a measure applicable also to employees on trade union release during the period in question (section 32);

–           the facilitation of class actions against an association of employees by reducing the conditions required by the Civil Procedures Code for such an action (section 38); and

–           severe penal sanctions (sections 39–40).

The Committee notes the Government’s statement that this Act is currently under appeal before the domestic courts. The Committee once again urges the Government to ensure that the Government of the Province of Quebec takes all necessary measures with a view to: (i) ensuring that, where the right to strike may be restricted or even prohibited, adequate compensatory guarantees are afforded to the workers concerned, for example, conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be fully impartial and independent by the parties concerned and leading to binding awards which should be implemented rapidly and fully; (ii) reviewing the excessive sanctions provided for in the Act in order to ensure that they may be applied only in cases where the right to strike may be limited in accordance with the principles of freedom of association and that they are proportionate to the infringement committed; and (iii) reviewing the provisions facilitating class actions against an association of employees, as there is no reason, in the Committee’s view, to treat such actions differently from other class actions in the Civil Procedures Code. Furthermore, the Government is requested to indicate the outcome of the appeal pending on Act No. 43 before the domestic courts.

Article 3. Arbitration imposed at the request of one party after 60 days of work stoppage (article 87.1(1) of the Labour Relations Act) (Manitoba). The Committee recalls that its previous comments concerned the need to amend article 87.1(1) of the Labour Relations Act which allowed a party to a collective dispute to make a unilateral application to the Labour Board so as to initiate the dispute-settlement process, where a work stoppage exceeded 60 days. The Committee notes from the Government’s report that there has been no change to the legislation. The Committee recalls once again that provisions which allow for one of the parties to refer a dispute to compulsory arbitration seriously limit the means available to trade unions to further and defend the interests of their members as well as their right to organize their activities and formulate their programmes (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 148 and 153). The Committee urges the Government to ensure that the Government of the Province of Manitoba takes all necessary measures to amend the Labour Relations Act so that an arbitration award may only be imposed in cases involving 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 collective dispute agree.

Comments from the ITUC on Bills adopted by the Government of the Province of Saskatchewan. The Committee takes note of communications dated 30 September 2008 and 26 August 2009 from the ITUC denouncing the Public Service Essential Services Act (Bill No. 5) and the Act to amend the Trade Union Act (Bill No. 6), adopted in May 2008 by the Government of the Province of Saskatchewan. While questioning beforehand the need for such legislative texts to be adopted, the ITUC indicates that Bill No. 5 weakens the right of workers to organize, permits employers to potentially designate every worker individually as providing an essential service without recourse to such potential avenues as binding arbitration, reducing the bargaining rights of workers. Furthermore, the ITUC alleges that Bill No. 6 weakens the rights of workers and unions to organize into associations and it potentially permits employers to use coercive means to prevent the creation of union associations, and punish workers for engaging in union activities.

The Committee takes note that a number of national and provincial trade unions have filed in the provincial court in July 2008 to have Bills Nos 5 and 6 declared unconstitutional for violating, amongst other fundamental texts, the Canadian Charter of Rights and Freedoms and international Conventions ratified by Canada. The Committee requests the Government to indicate any outcome of the appeal lodged before the provincial court.

The Committee also observes that the National Union of Public and General Employees (NUPGE) had presented in 2008 a complaint before the Committee on Freedom of Association in relation to Bills Nos 5 and 6.