Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

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

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing. The Committee previously noted the specific reference to the trade union recognized as the bargaining agent in the laws of Prince Edward Island (the Civil Service Act, 1983), Nova Scotia (the Teaching Professions Act) and Ontario (the Education and Teaching Professions Act). In this respect, it noted the indications of the Government that the social partners at the national level had not raised concerns about these long-standing provisions. Noting the Government’s statement that there have been no developments in this respect, the Committee recalls that legislation should not contain a specific reference to a trade union recognized as a bargaining agent and that it would be appropriate to amend such provisions and replace it with, for example, a reference to the most representative organization. The Committee requests the Government to take measures to ensure that the respective provincial governments engage in discussions on this matter with the social partners, and to provide information on the outcome of these discussions.

Article 3. Right of employers’ and workers’ organizations to organize their activities and to formulate their programmes. Essential services. Economic Action Plan (Bill C.4). The Committee notes the observations of the Canadian Labour Congress (CLC) that the adoption of the Economic Action Plan Act in 2013 permitted the federal government the exclusive power to determine which services are essential and subsequently restrict strike action. In this respect, it notes the information from the Government that this legislation, with respect to the federal public service: (i) provides the employer the exclusive right to determine which services are essential for the safety or security of the public, and to designate the positions it considers necessary to perform those essential services; and (ii) imposes arbitration as the dispute resolution mechanism in cases where 80 per cent or more of the positions in a bargaining unit are deemed essential. The Committee welcomes the Government’s statement that it announced, in May 2016, its intention to repeal these legislative provisions. The Committee requests the Government to pursue its efforts to ensure that workers in the federal public service not providing essential services in the strict sense of the term or exercising authority in the name of the State are guaranteed the right to strike, and trusts that, pursuant to the Government’s indications, the abovementioned legislative provisions will be repealed. It requests the Government to provide information on the measures taken in this respect.

Back-to-work legislation. The Committee notes the observations of the CLC relating to the use of back-to-work legislation with respect to certain federally regulated industries, particularly the postal service, an airline and a railway service, as well as certain provincially regulated sectors: home support services (in the province of Nova Scotia); the education sector (in the province of Ontario); and the construction section (in the province of Quebec). With respect to the postal service, the Committee notes with interest the information provided by the Government that the Ontario Superior Court of Justice found, in 2016, that back-to-work legislation adopted in 2011 concerning postal workers was unconstitutional for interfering with a meaningful process of collective bargaining. The Committee recalls that whenever a total and prolonged strike in a vital sector of the economy might cause a situation in which the life, health or personal safety of the population might be endangered, a back-to-work order might be lawful, if applied to a specific category of staff in the event of a strike whose scope and duration could cause such a situation. However, a back-to-work requirement outside such cases unduly restricts the right of workers’ organizations to organize their activities and defend workers’ interests. The Committee requests the Government to ensure that recourse is not had to back-to-work legislation in non-essential services or for services not exercising authority in the name of the State, and to limit its interventions to ensuring the observance of any agreed minimum service protocol.

Province of Alberta. Employees in the health sector. The Committee previously requested that measures be taken to ensure the review of the Labour Relations (Regional Health Authorities Restructuring) Amendment Act, which prohibited strikes for all employees within the regional health authorities, including various categories of labourers and gardeners. In this respect, it notes with interest the Act to Implement a Supreme Court Ruling on Essential Services, adopted in 2016, that extended the right to strike to all employees in the health-care sector, provincial government employees, and provincial agencies, boards and commissions, subject to the provision of essential services. It notes in this respect that the Act amends the Labour Relations Code to require that workers performing essential services negotiate an essential services agreement which identifies the services to be maintained in the event of a strike or lockout, the number and classification of employees required to perform those services, and procedures to be followed for responding to emergencies (pursuant to section 8 of the Act).

Province of Manitoba. Education sector. In its previous comments, the Committee referred to the need to amend section 110(1) of the Public School Act, which prohibits teachers from engaging in strike action. It notes in this respect the Government’s indication that no changes are anticipated with respect to the prohibition of strikes by teachers and that neither teachers nor school boards have formally petitioned the Government of Manitoba to restore the right to strike. The Committee recalls that the public education system does not in itself constitute an essential service in the strict sense of the term.  In this respect, the Committee trusts that this matter will be discussed with the social partners concerned and requests the Government to provide information on any new developments in this area.

In its previous comments, the Committee referred to the need to amend section 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. In this respect, the Committee notes that the Labour Relations Act requires the Labour Management Review Committee, an advisory body to the provincial government on labour matters with equal representation from workers and employers, to review, among others, the operation of section 87.1 and report on its findings every two years. The Government indicates that the body completed its review in November 2015, and did not make any recommendations relevant to the application of the Convention. The Committee requests the Government to continue to provide information on the outcome of the biannual reviews undertaken by the Labour Management Review Committee with respect to section 87.1 of the Labour Relations Act.

Province of Nova Scotia. Essential services. The Committee notes the observations of the CLC that the Essential Health and Community Services Act in Nova Scotia takes away the right to industrial action for workers in the health and communities services sector. The Committee notes that pursuant to section 3(1)(a), the Act applies to any employer who employs employees in a bargaining unit to provide health or community services. Pursuant to section 2(f) of the Act, the definition of an essential health or community service includes a service, duty or function that is necessary to enable an employer to prevent or limit: (i) loss of life; (ii) serious harm or damage to or deterioration of the mental or physical health of one or more persons; or (iii) serious harm or damage to or deterioration of property required for the performance of an essential health or community service in relation to subclause (i) or (ii). With respect to section 3(1)(a) of the Act, the Committee recalls that, within essential services, certain categories of employees, such as hospital labourers and gardeners, should not be deprived of the right to strike. With respect to section 2(f), the Committee recalls that the right to strike may be restricted or prohibited only when it is related to essential services in the strict sense of the term, that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee requests the Government to take all appropriate measures to ensure the review of the Essential Health and Community Services Act, in consultation with the social partners, with a view to bringing it into full conformity with the Convention.

Province of Quebec. Public sector. The Committee notes the information provided by the Government, in reply to its previous request concerning the extension of the application of collective agreements in the public sector, that Act No. 43 of 2005 is no longer in force, and that no special acts have been adopted during negotiations with the public sector since 2005.

Province of Saskatchewan. Employment Act. The Committee notes the Government’s indication that the Saskatchewan Employment Act came into force in 2014, establishing that employees are to be in separate bargaining units to those they supervise, unless the employer and union agree to maintain a single bargaining unit. It notes the observations of the CLC that the legislation increased the number of employees who are not eligible for trade union membership by declaring their job duties confidential, and imposed a separate bargaining unit for supervisors. The Committee notes in this respect that, pursuant to section 6-1(1) of the Employment Act, an employee is defined to exclude: (i) a person whose primary responsibility is to exercise authority and perform functions that are of a managerial character; and (ii) a person whose primary duties include activities that are of a confidential nature (in relation to labour relations, business strategic planning, policy advice and budget implementation or planning). The terms “union”, “labour organization” and “strike” in the Act are defined with reference to the term “employee”.

With respect to workers performing functions that are of a managerial character and workers whose duties include functions of a confidential nature, the Committee recalls that it is not necessarily incompatible with the requirements of Article 2 to deny such workers the right to belong to the same trade unions as other workers, but that the categories of such staff should not be defined so broadly as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present or potential membership. The Committee requests the Government to take all appropriate measures to ensure the review of the Employment Act, in consultation with the social partners, with a view to bringing it into full conformity with the abovementioned principles.