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Comments adopted by the CEACR: Canada

Adopted by the CEACR in 2022

C138 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 3(1) and (2) of the Convention. Hazardous work.With regard to the minimum age for admission to hazardous work and determination of types of hazardous work prohibited to children under the age of 18 years, the Committee requests the Government to refer to its detailed comments under the Worst Forms of Child Labour Convention, 1999 (No. 182).
Article 3(3). Admission to hazardous types of work from the age of 16 years. The Committee previously noted that some provinces (such as British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Prince Edward Island (PEI) and Saskatchewan) prohibit certain hazardous types of work only to children under 16 years. Hence, children between 16 and 18 years are allowed to perform certain types of hazardous work. In this regard, the Committee noted the observations made by the Canadian Labour Congress (CLC) that surveys of young people suggested that underage work in Canada is common, in both hazardous and non-hazardous work, and that there was a high prevalence of work-related injuries of young workers, mainly in Canada’s agricultural sector, which is evident from the millions of dollars in disability claims paid out to children injured at work. The CLC stated that agriculture, where underage workers are commonly found, is the most hazardous of any industry and occupation in Canada.
The Committee notes the detailed information provided by the Government in its report regarding the measures taken by the provinces to ensure the health and safety of young persons who perform hazardous work, including in the agricultural sector. It notes that the Governments of all concerned provinces and territories report that young workers are protected by their various occupational safety and health laws, in the same way as other workers, and that this includes the requirement that employers provide sufficient information, instruction, training and close supervision that is necessary to protect the health and safety of the workers.
The Committee notes that additional measures are taken by the provincial and territorial Governments. For example, in British Columbia, the Government is finalizing its work to prescribe the specific types of work and industries which will be accessible to young persons between 16 and 19 and the specific age of admission for each, in application of the Employment Standards Amendment Act, 2019. In Manitoba, SAFE Work Manitoba provides a number of safety resources for farm employers and workers, such as the Safety and Health Guide for Manitoba Farms. In Newfoundland and Labrador, the Workplace Injury Prevention Strategy 2018–2022 (“Advancing a Strong Safety Culture in Newfoundland and Labrador”) – implemented by Workplace NL, the province’s employer-funded, no fault workplace injury insurance system – includes “young workers” as one of its eight injury and illness priorities. In NovaScotia, the Society of Farm Safety Nova Scotia – established as a non-profit organization in 2010 – works with the Government to keep farmers, their families and their employees safe through giving farmers the tools and resources to operate safe and productive farms. In Ontario, the Ministry of Agriculture, Farming and Rural Affairs (OMAFRA) maintains an ongoing, active relationship with the Ministry of Labour, Training and Skills Development (MLTSD) in support of MLTSD’s health and safety oversight for all workplaces, including those with young workers in the agriculture and agri-food sectors. In PEI, the safety and health of workers is insured by the Farm Safety Specialist at the Workers Compensation Board, who inspects farm workplaces where children aged 16 to 18 may be working and issues orders in cases of non-compliance with the Occupational Health and Safety Act. The farming sector on PEI also has a Farm Safety Code of Practice which provides guidance on hazardous occupations in the agricultural sector to assist farm employers with complying with the OHS Act. In Quebec, the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) published an information document for the security of children in farms, for the benefit of their parents, which presents several recommendations for the safety of children and young people who find themselves in that working environment, including those who are involved in certain tasks. In Saskatchewan, the Ministry responsible for labour and workplace safety issues continues to partner with the Workers’ Compensation Board to provide educational programs and informational materials for workers and employers to ensure workers’ health and safety in the workplace. Additionally, the two agencies continue to work together – in consultation with stakeholders and interested parties – on a fatalities and serious injuries strategy to continue to reduce the number of injuries and deaths that occur at the workplace. Finally, in the Northwest Territories, the Government indicates that the agricultural industry is not significant, therefore a specific prohibition of the employment of youth in agriculture is deemed unnecessary for the time being. The Committee encourages the Government to continue its efforts to ensure that children under 18 years of age only be permitted to perform work in agriculture on the condition that their health and safety are protected and that they receive adequate specific instruction. It also requests the Government to continue to strengthen the capacity of the institutions responsible for the monitoring of child labour in agriculture, to protect child agricultural workers from hazardous work. In this regard, the Committee requests the Government to provide detailed statistical information on child labour in agriculture, including the number and nature of child labour violations detected and penalties applied.
Article 8. Artistic performances. The Committee previously requested the Government to indicate whether New Brunswick, Newfoundland and Labrador, Nova Scotia, PEI, Quebec, Saskatchewan, Northwest Territories, Yukon and Nunavut have provisions regulating the employment of children under 16 years in artistic performances.
1. PEI, Nova Scotia, Nunavut, Saskatchewan, Northwest Territories, and New Brunswick. The Committee notes the information provided by the Government in this regard. PEI, Nova Scotia, Nunavut and Saskatchewan do not have specific provisions in place related to this issue (but this may be an area that Saskatchewan might consider as part of the consultations on provisions of the Saskatchewan Employment Act planned for 2022–23). In Northwest Territories, the Government indicates that there is no significant demand for the employment of children in artistic performances; as such, specific regulations dealing with this type of employment are not considered necessary. In New Brunswick, the employment of children in artistic performances is encompassed in the provisions of the Employment Standards Act and the Occupational Health and Safety Act, with work permit applications being reviewed by the Employment Standards Branch. The Committee observes that the permit application form includes questions on the number of hours and the nature of the employment involved.
2. Québec and Newfoundland and Labrador. In Quebec and in Newfoundland andLabrador, the engagement of children in artistic performances is regulated through collective agreements in various sectors of the arts industry. In Newfoundland and Labrador, industry associations under the Status of the Artist Act regulate such matters. The Government indicated that the 2019–21 Independent Production Agreement of the Alliance of Canadian Cinema, Television and Radio Artists sets the standards for minors, in accordance with its article A27. The Committee observes that article A27 of the Agreement provides in detail for the safety and extra care given to the proper health, education and morals of minors engaged in the industry - including prescriptions on the workdays and rest periods, the time allowed before camera or in rehearsal, the mandatory presence of a parent, and the provision of tutoring. The Committee therefore requests the Government to provide information on the application of these provisions in practice, including statistics on the employment of children and young persons in artistic performances, extracts from the reports of the inspection services and information on the number and nature of the contraventions reported.
Article 9(3). Keeping of registers. The Committee previously requested the Governments of PEI and Quebec to indicate if any laws or regulations had been adopted requiring employers to keep registers of all persons employed under the age of 18, in conformity with Article 9(3) of the Convention.
The Committee notes the Government’s information that both PEI (Employment Standards Act, section 5.6(1)) and Quebec (“Règlement sur la tenue d’un système d’enregistrement ou d’un register”, Chapter N1.1, r.6) have legislation requiring employers to maintain records that include the employee’s name and date of birth (if the employee is under 18 in the case of Quebec).
Application of the Convention in practice. Following its previous comments, the Committee notes from the Labour Force Statistics Table of Canada (monthly, seasonally adjusted and trend-cycle) that, as of May 2021, of the 2,054,800 young persons aged 15–19 years in Canada, 1,012,300 were in the labour force, among which 799,400 in employment, including paid work and unpaid family work, and 203,400 in full-time employment, i.e. persons who work 30 hours or more per week at their main or only job. The Committee requests the Government to continue providing a general appreciation of the manner in which the Convention is applied in practice. It also requests the Government to continue to provide statistical information on the number of children and young persons, under the age of 16 years in particular, who are employed in Canada.

C182 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Articles 3(d) and 4(1) of the Convention. Hazardous work. 1. Federal legislation. The Committee previously noted that the Government was in the process of consultation with various stakeholders in assessing the impact of the recommendations put forth by the Federal Labour Standards Review Commission concerning the revision of the provisions of the Labour Code to raise the age under which it is prohibited to employ children for certain types of hazardous work from 17 to 18 years of age. The Government indicated that it would be able to report further on this specific issue once the process of updating the Canada Labour Code was further advanced.
The Committee notes the Government’s indication in its report that the Budget Implementation Act, 2018, No. 2 (Bill C-86) – which includes amendments to the Canada Labour Code to raise the minimum age of employment in hazardous occupations from 17 to 18 years – received Royal Assent in December 2018. The legislative amendments require regulatory changes before they can come into force. Initial regulatory consultations were held between June and August of 2019. The Committee expresses the firm hope that the amendments to the Canada Labour Code raising the minimum age of employment in hazardous occupations to 18 years will come into force in the very near future, and requests the Government to provide information on the progress made in this regard.
2. Provincial legislation. In its previous comments, the Committee noted that, while prohibitions exist throughout Newfoundland and Labrador’s legislation that prevent persons under the age of 18 years from working in hazardous employment, the general minimum age established for admission to harmful and hazardous work is 16 years (Labour Standards Act). Similarly, the general minimum age established for admission to harmful and hazardous work in Prince Edward Island (Youth Employment Act) is 16 years, and 17 years in Nunavut (Labour Standards Act and Employment of Young Persons Regulations). While recalling the provisions of Article 3(d) of the Convention as stated above, the Committee also recalled that Paragraph 4 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190), addresses the possibility of authorizing the employment or work of young persons as from the age of 16 years under strict conditions that their health and safety be protected and that they receive adequate specific instruction or vocational training in the relevant branch of activity, and that employers’ and workers’ organizations be consulted.
The Committee notes the Government’s indication that Newfoundland and Labrador is not considering amending its legislation to establish a general prohibition for young persons under the age of 18 to perform hazardous work. It indicates that the protection provided under the Occupational Health and Safety (OHS) Act and Regulations are very progressive about hazardous work and workplaces, and that they require employers to ensure a safe workplace and provide the appropriate training, equipment, systems and tools to ensure the health and safety of workers. Furthermore, the OHS Act and Regulations require workers to be qualified, knowledgeable and experienced to work in or around areas that are considered hazardous.
In Prince Edward Island, a comprehensive review of the Employment Standards Act and Youth Employment Act is pending, during which this issue may be addressed. The Government indicates, however, that the Occupational Health and Safety Act currently applies to all workers regardless of age, and that section 12(1) of the Act covers the conditions set out in Paragraph 4 of Recommendation No. 190. As for Nunavut, while it had been in the process of reviewing the Labour Standards Act to propose significant amendments, including to the young worker provisions, the Government indicates that there are no changes to the Labour Standards Act and the Employment of Young Persons Regulations at this time. The Committee requests the Government to provide information on the review of the Employment Standards Act of Prince Edward Island, including whether the issue of raising the minimum age for admission to hazardous work is from 16 to 18 years is addressed in that context. In the case of Nunavut, the Committee requests the Government to indicate whether the review of the Labour Standards Act is still ongoing and whether this review will adequately address the issue stated above.
Article 7(2). Effective and time-bound measures. Clauses (b) and (d). Direct assistance for removal of children from the worst forms of child labour and identifying and reaching out to children at special risk. Indigenous children. While taking due note of the measures taken by the Government related to the protection of indigenous children, the Committee previously noted that human rights mechanisms had underlined that indigenous children were still subjected to discrimination in Canada, in particular in education.
The Committee takes note of the Government’s detailed information on the more recent initiatives taken, which include strategies or action plans to eliminate education gaps between indigenous and non-indigenous students, and improve education attainment levels and success rates (for example, Manitoba’s Reconciliation Strategy, and its First Nations, Métis and Inuit Education Policy and Action Plan; Nova Scotia’s Treaty Education strategy; and Ontario’s Indigenous Education Strategy and Indigenous Children and Youth Strategy). In Alberta, one of the four components of focus for the Ministry of Education in its Education Business Plan (2021–2024) is Indigenous education, through collaboration with First Nations, Métis and Inuit communities, in order to support students in prospering through their learning journeys.
In addition, several provinces are investing in initiatives, programmes and projects to support Indigenous communities and learners. This includes Manitoba’s Indigenous Academic Achievement Grant to improve the academic success of Indigenous students, as well as its funding in support of 36 schools in urban, rural and northern communities through the Community School Program, almost half of which is directed towards Indigenous students and their families. Ontario is making a 200 million dollars (CAD) investment over three years to support Indigenous learners, including 56 million CAD to Indigenous Institutes to support capacity building with the flexibility for each institute to determine its priorities. In Québec, the budget lines of four measures related to service centres and school boards have been increased, including Indigenous awareness-raising projects, projects aimed at the educational success of Indigenous students, and support for Indigenous education and northern development projects.
Finally, some province or territory-specific initiatives include: (i) British Columbia’s initiatives aimed at supporting student-centred learning and improving equity of outcomes of Indigenous children, in particular through partnerships with Indigenous groups, through the implementation of its Declaration on the Rights of Indigenous Peoples Act; (ii) the development of resources designed to encourage young people to stay in school until graduation by New Brunswick’s Department of Education (more information available here); (iii) the embedding of Indigenous-specific resources and supports throughout Ontario’s Anti-Human Trafficking Strategy; and (iv) the modernization of the Northwest Territories’ Education Act to improve student outcomes, including by ensuring that schools are equipped to offer high quality educational programming such as an Indigenous languages curriculum.
The Committee notes however that statistics in certain provinces show that there remains important discrepancies between the indicators of schooling of Indigenous and non-Indigenous students (Alberta, Manitoba and in Québec (in relation to Cree students)), while other provinces or territories either do not provide any statistics (British Columbia, Nova Scotia, Northwest Territories, Ontario) or indicate that they do not have disaggregated statistics on the education rates of Indigenous students (New Brunswick and Québec (in relation to Inuit students)). In addition, while Newfoundland and Labrador indicates that the combination of its Schools Act, 1997, and Labour Standards Act, contribute to preventing child labour for all individuals under 16 years of age, it does not appear to adopt measures aimed specifically at protecting at-risk Indigenous children through education. The Committee welcomes the measures taken by the Government and once again encourages it to pursue its efforts to protect at-risk Indigenous children from the worst forms of child labour, particularly with respect to increasing their school enrolment rates and reducing their school drop-out rates. The Committee further requests the Government to take measures to ensure that statistics in this regard are made available in all Provinces and Territories, to the extent possible disaggregated by age and gender.

Adopted by the CEACR in 2020

C087 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government (mainly concerning the Government of Alberta) and the Canadian Labour Congress (CLC) this year, as well as on the basis of the information at its disposal in 2019.
The Committee notes that in its supplementary observations the CLC points out that the COVID-19 pandemic has disproportionately impacted low-income workers and already marginalized groups and has reemphasized the relevance of freedom of association rights and the essential role unions play in providing workers with a voice in their workplace. It further notes the CLC’s indication that since the beginning of the pandemic, a large number of non-unionized workers have reached out to unions and begun organizing their workplaces.
Article 2 of the Convention. Right to organize of certain categories of workers. Province of Alberta. The Committee recalls that it had previously requested the Government to provide information on the outcome of the technical discussions with respect to the application of the Labour Relations Code (LRC) to agricultural workers, as well on the outcome of the review of the LRC and the Post-secondary Learning Act with respect to architects, dentists, land surveyors, lawyers, doctors, engineers, domestic workers, nursing personnel and higher educational staff in Alberta.
  • -With respect to nursing personnel, the Committee notes with satisfaction that following a decision of the Alberta Labour Relations Board, on 25 November 2019, which declared that the exclusion of nursing practitioners from the right to associate was unconstitutional under the Canadian Charter of Rights and Freedoms, the Government passed in July 2020 the Restoring Balance in Alberta’s Workplaces Act to remove the exclusion of nurse practitioners from the LRC.
  • -As to the extension of full associational and collective bargaining rights to academic staff at Alberta’s post-secondary institutions, the Committee notes that following the review of the Post-secondary Learning Act, five professions have been included in academic bargaining units, giving them a statutory right to organize and enjoy freedom of association rights.
  • -Concerning agricultural workers, the Committee notes that in 2018 the Enhanced Protection for Farm and Ranch Workers Act came into force, granting waged, non-family farm and ranch employees the same statutory rights as most of the employees in Alberta including the opportunity to be represented by a bargaining agent. Nevertheless, the Committee notes with concern the Government’s indication that following province-wide consultations with agricultural industry stakeholders, the Alberta Farm Freedom and Safety Act, 2019, reinstated the farm and ranch sector exemption from the LRC, effective in January 2020.
  • -With regard to provincial public service employees, the Committee notes that the enactment of the Ensuring Fiscal Sustainability Act, in December 2019, amended the Public Service Employee Relations Act (PSERA). This amendment resulted in the exclusion of budget officers, systems analysts, and auditors from the scope of application of the PSERA, which recognizes freedom of association rights to other public service employees.
  • -Regarding the exclusion of certain categories of professional employees such as architects, dentists, land surveyors, lawyers, doctors and engineers the Government indicates that: (i) in public sector, the PSERA does not totally exclude professional employees (i.e. medical, dental, architectural, and engineering) from the provisions of the legislation and, according to its section 13(2), the Labour Relations Board may direct these employees to be members of a bargaining unit if the majority wishes so; (ii) a review of the Post-secondary Learning Act resulted in five professions (medical, dental, architectural, engineering and legal) being included in academic bargaining units, as provided under section 58.1(4) of the LRC; and (iii) some categories of professional employees, such as architects, have also the opportunity to be covered under the provisions of the Professions and Occupations Registration Act, which establishes the means by which professional associations in the province manage their affairs and the conduct of their professional members.
  • -Regarding domestic workers the Government indicates that nothing prevents them from associating and organizing.
With respect to agricultural workers and budget officers, systems analysts, and auditors working in the public sector, noting the Government’s indication that these categories are excluded either from the LRC or from the PSERA, the Committee requests the Government to indicate the manner in which these workers can enjoy their right to organize and all guarantees under the Convention. As regards domestic workers, the Committee requests the Government to specify under which legislative provisions this category of workers may enjoy their right to organize and all guarantees under the Convention. Regarding specific professional categories of workers, such as architects, dentists, land surveyors, lawyers, doctors and engineers, in view of the information provided by the Government, the Committee requests the Government to confirm that all the above categories, from both public and private sector, can exercise all freedom of association rights under the Convention.
Province of Ontario. The Committee notes that the Agricultural Employees’ Protection Act (AEPA) was amended in order to expand its scope to ornamental horticulture starting on 3 April 2019. As to the exclusion of agricultural workers from the Labour Relations Act (LRA), the Government once again indicates that the AEPA protects the right of agricultural workers in Ontario to form and join associations. The Committee notes however that, according to the Changing Workplaces Review final report (CWR), commissioned by the Ministry of Labour and released in 2017, the AEPA does not clearly state that such employees have the right to join a trade union and participate in lawful activities, and neither does it provide agricultural workers with the right to strike nor any alternative dispute resolution. The Committee further notes that the Government once again indicates that it does not have any statistics on the number of workers represented by an employee association or trade union. Recalling the value of statistical information for assessing the effective implementation in practice of the Convention, the Committee requests the Government to gather and provide information on the number of workers represented by an employee association or trade union under the AEPA. It also requests the Government to take any additional measures to guarantee that agricultural workers enjoy the right in law and in practice to establish and join organizations of their own choosing, as well as other rights recognized in the Convention. With respect to the other excluded categories of workers (architects, dentists, land surveyors, lawyers, doctors, engineers, principals and vice-principals in educational establishments, community workers and domestic workers), the Committee had previously noted that the above exclusions of the LRA were going to be considered by the ongoing review of Ontario’s labour and employment legislation. In this respect, the Committee notes that despite the recommendations of the Special Advisers leading the CWR with regard to the repeal of those exclusions, no changes were made during the 2016–19 period. The Committee notes, furthermore, the Government’s indication that labour laws are not appropriate for non-industrial settings, such as private homes and professional offices.  While taking due note of the final report of the CWR and the Government’s statement on the inadaptability of the labour laws to non-industrial settings, the Committee invites the Government to take all necessary measures, in consultation with social partners, to ensure that the above categories have the right in law and in practice to establish and join organizations of their own choosing, as well as other rights recognized under the Convention.
Province of New Brunswick. The Committee notes that the Government acknowledges the negative effect of excluding domestic workers from the scope of the Employment Standards Act and that consultations were held in September 2016 regarding possible amendments to the aforementioned Act, which encompasses repealing the exclusion. The Government further informs that it is currently conducting a technical review of the Domestic Workers Convention, 2011 (No. 189). The Committee hopes that the consultations and the technical review will be finalized in the near future and that all necessary measures will be taken to ensure that domestic workers enjoy the right to organize and other guarantees under the Convention. The Committee requests the Government to keep it informed on any development in this regard.
Other provinces. Nova Scotia, Prince Edward Island and Saskatchewan. With regard to the exclusion of architects, dentists, land surveyors, doctors and engineers, the Committee notes that: (i) in Nova Scotia, although no legislative changes were made, doctors are de facto represented by Doctors Nova Scotia, an association bargaining with the Government on behalf of doctors and residents; (ii) in Prince Edward Island, no information was provided by the Government regarding the above exclusions; and (iii) in Saskatchewan, the above categories are not explicitly excluded from being certified as a bargaining unit and therefore do have the right to organize, for example, lawyers at the provincial Legal Aid Commission are unionized. With regard to the exclusion of domestic workers in Saskatchewan, the Committee notes the Government’s indication that some categories of workers, including domestic workers, face a practical limitation on organizing as a result of the definition of “employer”, defined as “an employer who customarily or actually employs three or more employees”, with the purpose of ensuring viability of the bargaining unit. While noting that nothing impedes architects, dentists, land surveyors, doctors, and engineers from associating and organizing, the Committee requests the Government to specify under which legislative provisions the above-mentioned categories enjoy their trade union rights as well as other rights recognized in the Convention. Regarding the practical limitation to unionization faced by domestic workers, the Committee invites the Government to take all necessary measures, in consultation with social partners, to ensure that domestic workers enjoy, in law and in practice, the right to organize, as well as other rights under the Convention.
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). In its previous comments, the Committee had noted that the adoption of the Economic Action Plan Act in 2013 permitted the federal government the exclusive power to determine and designate unilaterally the essential services for the safety and security of the public and impose arbitration as the dispute resolution mechanism in cases where 80 per cent or more of the positions in a bargaining unit were deemed essential. The Committee notes with satisfaction that on 26 November 2018, Bill C-62 “An Act to Amend the Federal Public Sector Labour Relations Act and Other Acts” received royal assent and, as a result, the employer no longer has the exclusive right to determine which services are essential and designate positions necessary to deliver these services. The Committee further notes that, as a result, when a conciliation/strike has been selected by the bargaining agent as the dispute resolution mechanism in collective bargaining, the employer and the bargaining agent must collectively negotiate essential services and conclude an Essential Services Agreement.
Province of Saskatchewan. Employment Act. In its previous observations, the CLC expressed concern that the Saskatchewan Employment Act increased the number of employees not eligible for trade union membership by declaring their job duties confidential. On that occasion, the Committee pointed out that the definition of “employee” excluded anyone exercising authority and performing managerial or confidential functions, and that the term “union”, “labour organization” and “strike” were defined in the Act with reference to the term “employee”. The Committee notes the Government’s indication that there were extensive consultations in 2012 when considering the labour relations sections (Part IV) of the Employment Act and that some provisions in the Act required a review within a revolving ten-year period and therefore another review of the labour relations provision would occur around 2024. The Committee refers to its previous recommendations, in which it reminded the Government that although it is not necessarily incompatible with Article 2 to deny workers who perform managerial functions or are employed in its confidential capacity to belong to the same trade unions as other workers, this category 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 substantial proportion of their present or potential membership.  The Committee hopes that the Government will take all appropriate measures in a near future to ensure the review of The Saskatchewan Employment Act, in consultation with social partners, with a view to bringing it into full conformity with the above-mentioned considerations. The Committee also requests the Government to provide information on the number of employees declared “confidential” and thus not eligible for trade union membership, disaggregated by enterprises or branches of employment.
The Committee is raising other matters in a request addressed directly to the Government.

C087 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 2 of the Convention. Scope of the Convention. Other categories of workers. The Committee noted that the Canadian Labour Congress (CLC) considers that, in general terms, labour legislation is not adapted to workplaces with a small number of employees and non-standard forms of work, that there have been calls across Canada to recognize workers in the gig economy as employees rather than independent contractors, and that workers from food delivery couriers and ride-hailing platforms are pushing to unionization. In its supplementary observations, the CLC stresses that, in Ontario, workers in the gig economy have taken legal measures to be recognized as employees, rather than independent contractors, and to enjoy their freedom of association rights, noting in particular that: i) in February 2020, the Ontario Labour Relations Board recognized food delivery couriers as dependent contactors, and therefore declared that they can exercise their freedom of association rights; and ii) on 26 June 2020, following a class-action suit against a ride-hailing platform, in which drivers demanded to be recognized as employees, the Supreme Court of Canada ruled that there is jurisdiction to address their claim in Canadian courts; according to the CLC, this may open the door to the recognition of freedom of association and collective bargaining rights for these workers. The Committee had further noted that some provincial governments had also pointed out the inadaptability of labour laws for non-industrial workplaces and that the Changing Workplaces Review final report (CWR, independent report commissioned by Ontario’s Ministry of Labour) noted, among other recent trends, a decline of unionization in private sector, and highlighted the need for reform labour relations legislation in order to provide protection to vulnerable workers and those in precarious work situations, in particular part-time, temporary, seasonal and contractual workers. In this respect, the Committee notes the Government’s indication in its supplementary report that, in the province of Alberta, nothing prevents workers in the gig economy to associate outside of labour relations legislation, and that, depending on the circumstances of their employment relationships, the concerned workers could apply to the Labour Relations Board for certifications under the provisions of the Labour Relations Code. The Committee requests the Government to specify the manner in which workers in the gig economy can apply to the Labour Relations Board for certification and if the Board will ensure that they will benefit from all the guarantees provided by the Convention. Furthermore, in view of the ongoing developments, the Committee requests the Government to provide its comments concerning the situation in other provinces, and invites it, in consultation with social partners, to consider any necessary measures to ensure that these other categories of workers, such as those in the gig economy, can benefit from the trade union rights enshrined in the Convention.
Article 2. Right of workers to establish and join organizations. The Committee takes note of the concerns expressed by the CLC regarding some pieces of legislation in Ontario, Manitoba and Alberta (Bill 47, Making Ontario Open for Business; Bill 7, Labour Relations Amendment; and Bill C-2: An Act to Make Alberta Open for Business), alleging, among other issues, that they replaced the card-based certification system with a secret ballot vote (even when a majority of employees of the bargaining unit signed the cards), drastically reducing the amount of time during which an employee’s application for membership in a trade union constitutes proof of employee support and automatic access to first collective agreements in cases where employers contravene the respective labour law. According to the confederation, the modifications introduced will have a negative impact on their right to organize. The Committee notes the Government’s indication that, in Alberta, the decision to reinstate a secret ballot vote in union certifications, and remove the provision allowing certification based on evidence of 65 per cent card-based support, was taken to ensure that employees have the opportunity to express their views on a bargaining agent in a private manner, free from any possible influence. In view of the information provided by the Government and the concerns raised by the CLC regarding recent modifications to the certification system in the provinces of Alberta, Manitoba and Ontario, the Committee encourages the Government to review, in consultation with the most representative workers’ and employers’ organizations, the certification procedures in order to ensure that these changes do not have a negative impact on the freedom of association rights guaranteed under the Convention. The Committee further invites the Government to provide its observations concerning the provinces of Ontario and Manitoba.
Trade union pluralism. For many years, the Committee has brought to the attention of the Government that laws of Prince Edward Islands (the Civil Service Act, 1983), Nova Scotia (The Teaching Professions Act) and Ontario (the Education and Teaching Profession Act) specifically referring to a trade union recognized as the bargaining agent, could raise problems of incompatibility with the Convention. Noting the Government’s reiteration that the social partners at the national level have not raised concerns about these long-standing provisions, the Committee once again 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.  In view of the lack of progress in this respect, the Committee requests once again 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. Back-to-work legislation. The Committee recalls that in its previous comments it noted the use of back-to-work legislation with respect to certain federally regulated industries, particularly the postal service, as well as certain provincially regulated sectors such as the education and energy sectors (in the province of Ontario) and the construction sector (in the province of Quebec). The Committee notes the observations of the CLC denouncing the use of back-to-work legislation in 2017 and 2018 with respect to: (i) the postal service (Bill C-89); (ii) the electrical and education sector in Ontario (Bills C-2 and C-67); and (iii) the construction sector in Quebec (Bill C-142). The Committee also notes the Government’s observations according to which: (i) in general terms, the use of back-to-work legislation arises when the public interest requires an exceptional and temporary solution in response to a clear deadlock in order to facilitate the conclusion of an agreement; (ii) with respect to the postal sector, the matter is before the Committee on Freedom of Association (CFA) and therefore all relevant information was communicated to the latter; (iii) with respect to the educational sector, the Industrial Inquiry Commission appointed by the Ministry of Labour concluded that in view of the impasse, interest arbitration was the only possible outcome for the dispute; (iv) with respect to the electrical sector, public safety and economic reasons forced the recourse to such legislation; (v) with respect to the construction sector, all its four sectors reached an agreement through mediation or arbitration. In the light of the foregoing, the Committee is bound to recall that the ILO supervisory bodies have recurrently stressed the importance to make every effort to avoid having recourse to back-to-work legislation in non-essential services. The Committee once again 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 also observes that recourse to back-to-work legislation in the postal sector has previously been examined by both the Committee and the CFA. In Case No. 1985, the CFA considered that postal services could be regarded as a public service in which a minimum service can be foreseen and therefore trade union organizations should be able to participate in the definition of the minimum service, along with employers and the public authorities. Regarding recourse to back-to-work legislation in the education sector, examined in the framework of Cases Nos 2145 and 2025, the Committee notes that on both occasions the CFA invited the Government to take measures to ensure that teachers could exercise their right to strike, that recourse to arbitration be voluntary and to ensure full and good faith consultations with the parties.  Recalling once again that restrictions to the right to strike are only acceptable for public servants exercising authority in the name of the State, essential services in the strict sense of the term, and situations of acute national or local crises, and that in public services of fundamental importance recourse may be had to negotiated minimum services, the Committee expresses the firm hope that the Government will refrain from resorting to back-to-work legislation to unduly restrict the exercise of the right of workers’ organizations to carry out their activities and programmes in full freedom.
Province of Alberta. Replacement workers and limitations to the right to strike. The Committee notes the Government’s indication that the Ensuring Fiscal Sustainability Act, 2019, amended the Labour Relations Code (LRC) by removing the ban on the use of replacement workers during a strike or a lock-out in essential services. It notes that according to section 95.201 of the LRC, within a reasonable time after the parties are required to begin negotiations for essential services agreements, an employer shall elect to use the services of either designated essential service workers or replacement workers to perform essential services during a strike or a lock-out. The Committee understands therefore that this provision grants an employer, in the event of a strike or a lock-out, discretion to determine whether to use designated essential workers or replacement workers. In this respect, the Committee recalls that the replacement of striking workers is an impediment to harmonious labour relations and may violate the workers right to strike. The Committee requests the Government to provide its observations in this respect, including detailed information on the scope and application in practice of section 95.201 of the LRC.
The Committee further notes the concerns raised by the CLC regarding the introduction of the omnibus Bill 32: Restoring Balance in Alberta’s Workplace Act, which would introduce amendments aimed at restricting freedom of association rights, including restrictions on secondary picketing and the removal of the capacity of the Alberta Labour Relations Board to automatically certify unions. In view of the concerns raised by the CLC, the Committee requests the Government to provide its observations in this regard.
Province of Manitoba. Education sector. The Committee had previously referred to 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 the Government’s reply that no changes are anticipated with respect to the prohibition of strikes by teachers, that Manitoba teachers voluntarily gave up their right to strike in 1956 in exchange for binding arbitration and that neither teachers nor school boards have formally petitioned the provincial government to restore the right to strike. On the other hand, the Committee notes that the province established a commission to undertake a first comprehensive review to the education system in 50 years, that governance structures and teachers’ unions are among the commission’s areas of focus and that the commission’s final report is expected to be released in March 2020.  Recalling that the public education system does not constitute an essential service in the strict sense of the term, the Committee hopes that this matter will be discussed with the social partners concerned during the review of the education system and requests the Government to provide information on any new development in this regard.
With respect to its long-standing recommendation to amend section 87.1(1) on the Labour Relations Act (which allows 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 exceeds 60 days), the Committee recalls that it awaited information on the outcome of the biannual reviews undertaken by the Labour Management Review Committee (LMRC). The Committee takes due note that, according to the Government, although section 87.4 of the Labour Relations Act requires that the LMRC, an advisory tripartite body on labour matters, review the operation of sections 87.1 and 87.3 every two years, in November 2018 the LMRC supported a proposal to remove the biennial review requirement given that the provisions have been working well and no changes have resulted from reviews since 2004.  Reiterating its previous recommendations, the Committee requests the Government to provide information on any development in this regard, as well as on the application of section 87.1 of the Labour Relations Act.
Province of Nova Scotia. Essential services. In its previous comments, the Committee had noted that sections 3(1)(a) and 2(f) of the Essential Health and Community Service Act provided for a broad definition of essential services and therefore requested the Government to take all appropriate measures to bring these dispositions into full conformity with the Convention. In this respect, the Government indicates that: (i) the parties subject to the Essential Health and Community Services Act are required to negotiate an Essential Service Agreement (ESA) outlining agreed staffing levels during a labour dispute; (ii) the Labour Board imposes an ESA if the parties are unable to negotiate one; (iii) hospital labourers and gardeners are unlikely to be included in any ESA since unions will not agree and the Labour Board would be unlikely to deem them as “essential” after hearing arguments; and (iv) the legislation is currently subject to a legal challenge.  Reiterating its previous recommendations, the Committee requests the Government to provide information on the outcome of the legal challenge to sections 3(1)(a) and 2(f) of the Essential Health and Community Service Act.

C098 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee also notes the observations of the Canadian Labour Congress (CLC), received on 31 August 2019 and on 30 September 2020, concerning issues examined in the present request. The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the CLC (social and economic measures taken to address the COVID-19 pandemic, scope of the Convention, and Articles 4 to 6 of the Convention) this year, as well as on the basis of the information at its disposal in 2019.
Social and economic measures taken to address the COVID-19 pandemic. The Committee notes that the CLC stresses that the COVID-19 pandemic has disproportionately affected low-income workers and marginalized groups and has reemphasized the relevance of freedom of association and collective bargaining rights. The CLC denounces that, in response to the pandemic, some provincial governments enacted pieces of legislation suspending collective bargaining rights. In Ontario, the enactment of Bill-195: The Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, led to the suspension of provisions in collective agreements concerning working time, holidays, leaves and termination of employment, impairing the acquired rights of specific categories of essential workers, in particular those in the health sector. Furthermore, the CLC denounces that Bill-195 allows the provincial government to maintain and modify emergency orders under the Emergency Management and Civil Protection Act for at least a year after the end of the declared emergency and removes the mechanism for democratic accountability. With regard to the latter, the Committee notes the Governments’ indication that: i) Bill-195 was enacted as part of the provincial plan to respond to the effects of the COVID-19 pandemic, providing Ontario with the necessary flexibility to ensure the provision of services and protect the health and safety of its population; ii) the law requires the Premier of Ontario to report on any amendments or extensions to the orders within 120 days of the bill coming into force, and iii) the government of Ontario maintains only the necessary powers and measures to continue to protect the safety and health of its population and the orders, as and when they become unnecessary, will not be renewed or will be amended accordingly, following the advice of public health experts.
The Committee fully acknowledges the exceptional circumstances being experienced in the country due to the COVID-19 pandemic and the absolute necessity to adopt urgent measures to protect public health. The Committee recalls that measures which unilaterally fix conditions of employment setting aside the application of collective agreements in force should be of an exceptional nature, be limited in time and include safeguards for the workers who are the most affected. The Committee further highlights that the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205) emphasizes the importance of social dialogue in general and collective bargaining in particular in responding to crisis situations, encouraging active participation of employers’ and workers’ organizations in planning, implementing and monitoring measures for recovery and resilience. The Committee therefore encourages the Government to engage in dialogue with the most representative employers’ and workers’ organisations of the sectors concerned with a view to limiting the impact and the duration of the above measures and ensuring the full use of collective bargaining as a means of achieving balanced and sustainable solutions in times of crisis. The Committee requests the Government to provide information in this respect.
Scope of the Convention. Categories of workers not covered by provincial labour laws. The Committee notes the Government’s indication that several categories of workers are not included in the scope of provincial labour laws. The Committee further notes that the Government states that, despite this exclusion from the general labour relations regime, these categories can exercise, to varying degrees, some of their collective rights.
Liberal professions. Architects, dentists, land surveyors, lawyers, engineers, doctors. The Committee notes that the labour legislation in Alberta, Ontario, Nova Scotia, Prince Edward Island and Saskatchewan excludes the above categories of workers from its scope. It further notes the Government’s indication that, while these categories of workers are excluded from the labour legislation, nothing prevents them from collectively making representations to their employers or from bargaining collectively outside the statutory regime. The Government adds that, under Canadian law, employers have an obligation to engage in good faith consultations regarding working conditions and that Labour Relations Boards may order the inclusion of their members (or members-in-training) in a bargaining unit if a majority so desires. For example, the Ontario Medical Association and Doctors Nova Scotia bargain on behalf of doctors and residents in their respective provinces, and lawyers in the Saskatchewan Legal Aid Commission are unionized and can bargain collectively. The Committee notes that, in its supplementary information, the Government points out that in Alberta: i) in the public sector, the Public Service Employee Relations Act (PSERA) does not totally exclude professional employees (i.e. medical, dental, architectural, and engineering) from the provisions of the legislation and, according to its section 13(2), the Labour Relations Board may direct these employees to be members of a bargaining unit if the majority wishes so; ii) a review of the Post-secondary Learning Act resulted in five professions (medical, dental, architectural, engineering and legal) being included in academic bargaining units, as provided under section 58.1(4) of the Labour Relations Code (LRC); and iii) some categories of professional employees, such as architects, have also the opportunity to be covered under the provisions of the Professions and Occupations Registration Act, which establishes the means by which professional associations in the province manage their affairs and the conduct of their professional members. The Committee further notes the Government’s indication that the current labour laws, originally enacted for industrial settings, are not always suited to non-industrial workplaces, such as private homes and professional offices.
Domestic workers. The Committee notes that domestic workers employed in private homes are excluded from the labour legislation in Alberta, Ontario, New Brunswick and Saskatchewan. The Committee notes that: (i) in New Brunswick, the Government, aware of the negative effect of excluding domestic workers from the Industrial Relations Act, held consultations in September 2016 regarding possible amendments to the labour legislation and is currently conducting a technical review of the Domestic Workers Convention, 2011 (No. 189); (ii) in Saskatchewan, domestic workers face practical limitations on the effective exercise of their rights, due to the definition of “employer” in the Saskatchewan Employment Act, which requires the employment of “three or more employees”; and (iii) according to the Special Advisors leading the Changing Workplaces Review (CWR) final report, commissioned by the Ministry of Labour and released in 2017, domestic workers, given their unique vulnerability and their practical lack of access to collective bargaining, suggested that the Government consider amending the legislation taking into account the particular nature of their work and its particular vulnerabilities.
Agricultural workers.  The Committee observes that, in Alberta and Ontario, agricultural workers are excluded from the labour legislation and are governed by special regimes. In Alberta, the Committee notes that in January 2018 the Enhanced Protection for Farm and Ranch Workers Act entered in force, providing waged, non-family, farm and ranch employees the same statutory rights as most other employees in the province regarding the opportunity to be represented by a bargaining agent and to bargain collectively with their employer, if they so choose. Nevertheless, the Committee notes with regret, that the Government informs in its supplementary report that, following province-wide consultations with agricultural industry stakeholders, the Alberta Farm Freedom and Safety Act, 2019, reinstated the farm and ranch sector exemption from the LRC, effective as of January 2020. In Ontario, the Agricultural Employees’ Protection Act (AEPA) provides for the right to form and join an employees’ association and to make representations to their employers through their association. The Committee observes however that the United Nations Economic and Social Council expressed its concern that certain categories of foreign workers, including temporary and seasonal migrant workers, remain vulnerable to employer exploitation (E/C.12/CAN/CO/6). It further observes that, according to the final report of the CWR, the AEPA: (i) does not provide the right to collective bargaining; (ii) contains no obligation for the parties to meet, engage in meaningful dialogue and make reasonable efforts to conclude a collective agreement; nor a mandatory dispute mechanism for the enforcement of collective agreements; and (iii) the protection provided against anti-union discrimination and acts of interference is insufficient.
Independent contractors. The Committee notes that the labour legislation in Alberta, Ontario, British Colombia and Newfoundland and Labrador, implicitly or explicitly excludes independent contractors from its scope. The Committee notes that, according to the CLC, the labour legislation is not adapted to workplaces with a small number of employees and non-standard forms of work. It also points out that there have been calls across Canada to recognize workers in the gig economy as employees rather than independent contractors.
With respect to the different categories listed above, the Committee duly notes the Government’s statement that, despite being excluded from the scope of provincial labour laws, these workers can exercise, to varying degrees, some of their collective rights. In this respect, the Committee acknowledges that compliance with the Convention does not necessarily require the categories listed above to be included in the general labour relations regime, insofar as the workers concerned can, in practice, exercise the rights recognized by the Convention through, for instance, specific regimes. At the same time, the Committee notes that some social partners have brought to its attention the specific obstacles that some of these categories may face in exercising their collective rights and, in particular, the lack of access to meaningful processes of collective bargaining. Emphasizing that, under the Convention, all workers, with the only possible exception of the members of the armed forces and the police, as well as public servants engaged in the administration of the State, shall enjoy adequate protection against acts of anti-union discrimination and interference and shall have access to meaningful collective bargaining mechanisms, the Committee requests the Government to specify the manner in which the different categories of workers examined above can effectively exercise the rights enshrined in the Convention. In this respect, the Committee requests the Government to provide information, for each category, on the number of collective agreements concluded and the number of workers covered. Bearing in mind their particular working and employment conditions, the Committee encourages the Government to take, in full consultation with the social partners concerned, tailored measures, including measures of a legislative nature when necessary, to ensure that the categories of workers indicated above have effective access to the rights enshrined in the Convention. The Committee requests the Government to provide information on the steps taken in this respect.
Articles 1 and 2 of the Convention. Adequate protection against acts of anti-union discrimination and acts of interference. The Committee notes that the Government indicates that: (i) all Canadian labour legislation provides that employers (and those acting on an employer’s behalf) may not refuse to employ, dismiss, threaten or penalize a person with respect to their employment due to trade union activity; (ii) employers are prohibited from imposing terms or conditions of employment that effectively restrain or prevent workers from joining or remaining members of a trade union; (iii) all Canadian labour legislation provides that employers (or those acting on their behalf) may not participate or interfere in the formation or administration of, or contribute financially to, a trade union; (iv) notwithstanding the above, employers are allowed to exercise their freedom of expression by expressing their personal views on the union as long as they do not use coercion, intimidation or undue influence; (v) similarly, in most jurisdictions, trade unions and their representatives are expressly prohibited from participating or interfering with the formation or administration of employers’ organizations; (vi) unfair labour practices are prohibited both during the union certification process and during the negotiation of a collective agreement; and (vii) both unfair labour practices and acts of interference may be subject to a complaint to the relevant labour boards. The Committee takes due note that the administration and enforcement of labour relations are carried out by independent, quasi-judicial and impartial bodies. The Committee requests the Government to provide further information regarding the regime applicable for public sector workers not engaged in the administration of the State at the federal and provincial levels, including the provisions that provide protection against acts of anti-union discrimination and interference, and to clarify the labour board or administrative tribunal that carries out the administration and enforcement of labour relations with respect to these workers. The Committee also requests the Government to provide information on the number of complaints of anti-union discrimination and interference, in both the public and private sectors (at the federal and provincial levels), made to the various competent authorities, the average duration of the relevant proceedings and their outcome, as well as the types of remedies and sanctions imposed in those cases.
The Committee notes the concerns raised by the CLC regarding recent changes introduced to union certification in Alberta, Ontario and Manitoba (Bill C-2: An Act to Make Alberta Open for Business, and Bill C-47: Making Ontario Open for Business Act, and Bill C-7: Labour Relations Amendment), which were addressed by the Committee in its observations regarding the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee notes that the CLC further alleges that these changes could have the negative effect of enabling greater employer interference and generating an imbalance of power between workers’ organizations and employers.  In view of the concerns raised by the CLC, the Committee requests the Government to provide its observations on the alleged effects of interference resulting from the recent changes introduced in union certification in Alberta, Ontario and Manitoba.
Article 4. Promotion of collective bargaining. Legislative matters. The Committee notes the Government’s indication that, although there is no uniform law across Canada governing the right to collective bargaining, there are a number of key features and principles that commonly appear in all Canadian statutory labour relations regimes: (i) the Supreme Court of Canada recognizes the right to bargain collectively as a protected right under section 2(d) of the Canadian Charter of Rights and Freedoms; (ii) exclusive collective bargaining rights may be granted to a trade union that has obtained majority support from employees in a bargaining unit (certification); (iii) majority support is either evidenced by signed union membership cards or ascertained by a secret ballot representation vote; (iv) once the trade union is certified, the union and the employer have the obligation to bargain in good faith and to make all reasonable attempts to voluntarily reach a collective agreement on the terms and conditions of employment; (v) work stoppages are prohibited while a collective agreement is in force; (vi) any disagreements regarding the interpretation or administration of the collective agreement must be submitted to binding arbitration; (vii) if the employer and union reach an impasse during the collective bargaining process, various mechanisms are provided to help resolve disputes and conclude a collective agreement, such as mediation, conciliation and/or voluntary interest arbitration; and (viii) in various jurisdictions, first contract arbitration is provided, and the parties can apply to the relevant labour board for assistance.
The Committee notes that, according to the CLC, while the current bargaining model (the Wagner Act model) is still relevant for workers employed in large, single-site workplaces with traditional hours of work and therefore should remain in these industries and sectors, it is not adapted to workplaces with a small number of employees and non-standard relationships (high rates of part-time, temporary, seasonal, self-employment and contract jobs). The Committee further notes that, in its 2020 observations, the CLC stresses that in the last years, workers in gig economy in Ontario have taken legal measures to be recognized as employees, rather than independent contractors, to enjoy their freedom of association and collective bargaining rights: (i) in February 2020, the Ontario Labour Relations Board recognized food delivery couriers as dependent contactors, and therefore declared that they have the right to organize and bargain collectively; and (ii) on 26 June 2020, the Supreme Court of Canada ruled against a ride-hailing platform that might open the door to the recognition of freedom of association and collective bargaining rights for these workers. The Committee notes that in its observations, the CLC encourages the Government to explore a range of models to ensure that these precarious workers, many of whom may be recent immigrants, women and ethnic minorities, have the opportunity to unionize and access the benefits and protections associated with unionization. The Committee further notes that, in the CWR final report, the Special Advisors stressed the fact that the current Wagner Act single employer and single enterprise model of certification does not provide for effective access to collective bargaining for a large number of employees and stressed the need to give meaningful access to collective bargaining to vulnerable employees in some sectors of the economy. Observing that in all jurisdictions, a trade union can only be certified as a bargaining agent (unless there is a voluntary recognition of the employer or a direct order of the labour board) if it receives majority support of the bargaining unit (50 per cent plus 1), the Committee draws the attention of the Government to the fact that such a system may raise problems of compatibility with the Convention, as it means that a representative union which fails to secure the absolute majority may thus be denied the possibility of bargaining (see the 2012 General Survey on the fundamental Conventions, paragraph 234). In view of the need, expressed by various stakeholders, to explore different solutions to adapt the current collective bargaining model to non-standard forms of work and in view of the recent judicial developments in this regard, the Committee invites the Government, in consultation with all relevant stakeholders, to find appropriate and agreed solutions so as to guarantee, in law and in practice, the right to collective bargaining to all workers covered by the Convention, paying a special attention to the most vulnerable categories of workers referred to in the present comment.
Articles 4 to 6. Limitations on the content of collective agreements applicable to public servants not engaged in the administration of the State. The Committee notes that the CLC denounces that, since the ratification of the Convention, the provincial governments of Alberta, Manitoba and Nova Scotia have adopted legislation aimed at unilaterally restricting or modifying the content of collective agreements regarding salaries and wages (Bill C-9: Public Sector Arbitration Deferral Act; Bill C-28: The Public Services Sustainability Act; Bill C-75: Teachers’ Professional Agreement and Classroom Improvement Act; and Bill C-148: Public Service Sustainability Act). The CLC also points out that, in June 2018, the Quebec Superior Court found that section 113(b) of the Federal Public Sector Relations Act - which restricts collective bargaining covering pensions and staffing and reserves unilateral discretion for the Government - is in violation of the freedom of association guaranteed in the Canadian Charter of Rights and Freedoms; that the decision was appealed by the Attorney General and the decision is pending. With respect to Bill C-28 in Manitoba, the Committee notes that, in its 2020 observations, the CLC indicates that the Court of Queen’s Bench ruled that this piece of legislation violates the right to freedom of association and collective bargaining of public sector employees in Manitoba and that the decision was appealed by the province. The Committee requests the Government to provide its comments in this regard and to provide information on the outcome of the judicial proceedings.
Back-to-work legislation. The Committee also notes the observations of the CLC relating to the use of back-to-work legislation, which is largely addressed in the framework of Freedom of Association and protection of the Right to Organise Convention, 1948 (No. 87). The Committee notes, however, that some of the allegations relating to back-to-work legislation also refer to limitations on collective bargaining and the imposition of compulsory arbitration. In this respect, the Committee wishes to recall that compulsory arbitration is generally not compatible with the promotion of free and voluntary collective bargaining required by Article 4 of the Convention and that compulsory arbitration in the context of collective bargaining is only therefore acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term (services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) and in the event of an acute national crisis.  The Committee hopes that the Government will refrain in future from adopting back-to-work legislation and imposing a compulsory arbitration process beyond the situations referred to above.

C108 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.
Possible ratification of the Seafarers’ Identity Documents Convention (Revised), 2003 (No. 185), as amended. The Committee had noted the Government’s information that further analysis and evaluation were required regarding potential technical upgrades of the existing seafarers’ identity documents system based on a two dimensional barcode, in relation with the possible ratification of Convention No. 185, as amended in 2016. The Committee notes that the Government indicates that as a result of the evaluation conducted, it has determined that it will not be proceeding with ratification of Convention No. 185. The Government reaffirms its commitment with the implementation of Convention No. 108, in particular with respect to the recognition of seafarers’ identity documents issued by other ratifying States in order to facilitate seafarers’ entry into the country for the purposes of shore leave, as well as transit, transfer or repatriation. The Committee recalls in this regard the Resolution adopted by the third meeting of the Special Tripartite Committee of the Maritime Labour Convention, as amended (MLC, 2006), whereby it expressed concern about the difficulties that seafarers continue to have in accessing shore leave and transiting in certain ports and terminals around the world, and recognized that, although an increased number of member States have ratified Convention No. 185, there still appear to be problems in ensuring that the Convention works in the way that it was originally intended. Noting that these problems have profoundly increased as a result of the restrictions imposed by governments around the world to contain the spread of the COVID-19 pandemic, the Committee invites the Government to inform of any reconsideration of its position on Convention No. 185.
Article 4(2) of the Convention. Requirements of seafarers’ identity documents. The Committee had requested the Government to insert a statement in the seafarer’s identity document indicating that it is a seafarer’s identity document for the purpose of the Convention, as required under its Article 4(2). The Committee notes with interest the Government’s indication that the seafarer’s identity document was updated to include an issuance date as well as the statement required by Article 4(2).

C144 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the additional information provided by the Government in light of the Governing Body’s decision at its 338th Session (June 2020). The Committee therefore examined the application of the Convention on the basis of the additional information provided as well as on the information available to it in 2019.
The Committee notes the observations of the Canadian Labour Congress (CLC), received on 30 August 2019 and 30 September 2020. The Committee requests the Government to provide its comments in this respect.
Article 2 of the Convention. Operation of the consultative procedures. In response to its previous comments requesting information on steps taken to strengthen the operation of procedures that ensure effective tripartite consultations at both national and provincial levels on matters covered by the Convention, the Government reports that the agendas for the annual tripartite roundtable on ILO issues, developed in consultation with the social partners had not included effective models for subnational social dialogue as a formal agenda item. The Government explains that this was because the agendas, primarily focused on International Labour Conference items and other ILO labour policy items, were already quite full and the tripartite constituents had not identified the issue of subnational social dialogue models as a key agenda priority. Thanking the CLC for its observations, the Government indicates that concerted efforts have been made in response to the social partners’ requests for enhanced provincial and territorial involvement during these annual tripartite roundtables. In its observations, the CLC notes that the annual International Labour Conference preparation meetings held during the reporting period have included provincial government representation. The CLC encourages strengthening provincial participation in discussions on ILO standards and Conference items and reiterates its request for more in-depth discussions at the federal level tripartite meetings on the promotion of provincial level social dialogue, considering that this would provide the opportunity to examine effective models of subnational social dialogue to help strengthen tripartism at national and provincial levels. The Committee requests the Government to continue to provide updated detailed information on the measures taken to strengthen and promote effective tripartite consultation at national and provincial levels with regard to the matters covered by the Convention.
Article 5(1). Effective tripartite consultations. The Government indicates that it continues to hold regular consultations with the social partners on the matters concerning international labour standards set out in Article 5(1) of the Convention. The Committee notes the information provided in the Government’s report in relation to replies to questionnaires concerning items on the agenda of the International Labour Conference (Article 5(1)(a)), proposals to be made to the competent authority in connection with the submission of instruments adopted by the Conference (Article 5(1)(b)), and proposals for the denunciation of ratified Conventions (Article 5(1)(e)). In respect of the application of Article 5(1)(c), the Committee notes with interest that on 17 June 2019, following consultations with the provinces, territories and the social partners, Canada ratified the Labour Inspection Convention, 1947 (No. 81), and the Protocol of 2014 to the Forced Labour Convention, 1930 (P29). The Committee welcomes the Government’s indication that it will continue to systematically consult the social partners on matters covered under Article 5(1) of the Convention. The Committee notes that in its supplementary report the Government informs that examples of tripartite consultations and discussions that have taken place since its 2019 report include consultations on the proposed abrogation and withdrawal of several ILO Conventions and Recommendations, discussions on the possible ratification by Canada of the Violence and Harassment Convention (No. 190), and meetings of the federal Labour Program. The Committee requests the Government to continue to provide detailed and up-to-date information on the content and outcome of tripartite consultations held on all of the matters related to international labour standards covered by Article 5(1)(a)–(e) of the Convention.
In the context of the global COVID-19 pandemic, the Committee recalls the comprehensive guidance provided by international labour standards. It encourages member States to engage in tripartite consultation and social dialogue more broadly as a solid foundation for developing and implementing effective responses to the profound socio-economic impacts of the pandemic. The Committee invites the Government to provide updated information in its next report on measures taken in this respect, in accordance with Article 4 of the Convention and Paragraphs 3 and 4 of Recommendation No. 152, including with regard to steps taken to build the capacity of the tripartite constituents and strengthen mechanisms and procedures, as well as challenges and good practices identified.

MLC, 2006 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the Government’s second report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014 and in 2016 entered into force for Canada on 18 January 2017 and on 8 January 2019 respectively. Based on its second review of the information and documents available, the Committee draws the Government’s attention to the following issues.
Impact of the COVID-19 pandemic. The Committee takes note of the observations of the International Transport Workers' Federation (ITF) and of the International Chamber of Shipping (ICS), received by the Office on 1 October 2020 and 26 October 2020 respectively, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with deep concern the impact of the COVID pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 on this issue.
Article II, paragraphs 1(i), 4 and 5, of the Convention. Definitions and scope of application. Ships, inland waters, waters within or closely adjacent to sheltered waters or areas where port regulations apply. In its previous comments, the Committee noted that various provisions of the legislation implementing the MLC, 2006 exclude totally or partially ships engaged on near coastal voyages Class 1 and Class 2. The Committee considered that the concept of near coastal voyages, as defined in the case of Canada, goes clearly beyond the exclusion contained in Article II, paragraph 1(i), of the Convention. The Committee requested the Government to explain how the exceptions provided for near coastal voyages Class 1 and Class 2 could be justified under Article II, paragraph 1(i). The Committee notes the Government’s indication that, in consultation with seafarers and shipowners, it defined the term “Near coastal voyage, Class 2”, which is considered the equivalent of “closely adjacent to sheltered waters”. The Government further indicates that amendments to the Marine Personnel Regulations (MPR) expected in 2021 are anticipated to remove the Near-Coastal, Class 1 voyage from the list of voyages in Canadian legislation. The Committee requests the Government to adopt the necessary measures to ensure that the national provisions implementing the Convention apply to all ships falling within its scope of application and to provide information on any developments in this regard.
Article II, paragraphs 1(i) and 4. Definitions and scope of application. Ships engaged in drilling. The Committee notes that part 3 of the MPR implementing most of the provisions of the Convention does not apply to vessels capable of engaging in the drilling for, or the production of, oil or gas, which are not engaged in navigation (section 301(3)(c) of the MPR). The Committee recalls that under Article II(4), all ships “ordinarily engaged in commercial activities”, regardless of whether they are engaged in navigation, fall within the scope of the Convention. The Committee requests the Government to: i) specify whether the “vessels capable of engaging in the drilling for, or the production of, oil or gas not engaged in navigation” are considered as ships; and ii) explain why those vessels are excluded from the scope of application of the Convention.
Article II, paragraphs 6 and 7. Definitions and scope of application. Ships under 200 gross tonnage. The Committee previously noted that some provisions of the MPR, for example sections 308 and 309, exclude from their application ships of less than 100 gross tonnage, including those engaged on international voyages and requested the Government to provide information in this regard. The Committee notes the Government’s information that “sections 308 and 309 of the Marine Personnel Regulations apply to all Canadian vessels that engage on unlimited voyages or international voyages. To extend the protections of the Convention to more vessels, Canada has elected to apply elements to Canadian vessels of 100 gross tonnage or more engaged on a voyage considered closely adjacent to sheltered waters”. The Government further indicates that with respect to section 309 of the MPR, amendments expected in 2021 will extend its application to all Canadian vessels engaged in voyages outside domestic waters. The Committee recalls that ships navigating in domestic waters other than “inland waters or waters within, or closely adjacent to, sheltered waters or waters where port regulations apply” fall within the scope of application of the Convention. It also recalls that Article II, paragraph 6, provides flexibility with respect only to the application of “certain details of the Code”, that is Standard and Guidelines, to a ship or particular categories of ships of less than 200 gross tonnage that do not voyage internationally, under certain requirements (determination of competent authority in consultation with shipowners’ and seafarers’ organizations; subject matter dealt with differently by national legislation, collective agreements or other measures). The Committee requests the Government to indicate the measures taken to guarantee that the provisions of the Convention are implemented with regard to all seafarers working on board all ships covered by the Convention and to provide information on any developments in this regard.
Regulation 1.1 and Standard A1.1, paragraph 4. Minimum age. Hazardous work. In its previous comment, noting that the Canada Shipping Act, 2001 (CSA) does not appear to contain provisions on types of work prohibited by reason of age, the Committee requested the Government to take the necessary measures to bring its legislation into line with Standard A1.1, paragraph 4 by ensuring that admission to hazardous work for seafarers is prohibited under the age of 18 years. The Committee notes the Government’s information that regulations amending the MPR expected in 2021 will provide additional clarity that hazardous work is prohibited for seafarers under 18 years of age. The Committee requests the Government to provide information on any developments in this regard. It also requests the Government to take the necessary measures to determine, after consultation with the shipowners’ and seafarers’ organizations concerned, the types of work which is likely to jeopardize the health or safety of seafarers under 18 years and is therefore prohibited for these persons.
Regulation 1.4 and Standard A1.4, paragraph 3. Recruitment and placement. Services operated by a seafarers’ organization. The Committee notes that under section 304(3) of the MPR, the requirement of license does not apply in respect of a seafarer recruitment and placement service operated by a trade union that has been certified under the Canada Labour Code by the Canada Industrial Relations Board as the bargaining agent for the employees in a bargaining unit. The Committee requests the Government to provide information on the implementation of Standard A1.4, paragraph 3 of the Convention (including with respect to the requirements of paragraph 5 of the Standard and the system of protection under paragraph 5(c)(vi)) with regard to seafarer recruitment and placement services operated by trade unions certified by the Canada Industrial Relations Board.
Regulation 2.1 and Standard A2.1, paragraphs 1(a) and 4. Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative. Content. The Committee previously requested the Government to provide information on whether the SEA signed by the master provides concrete information on the identity of the shipowner. The Committee notes the Government’s information that in addition to the information required by section 91(2) of the CSA, section 308(2)(b) of the MPR requires the articles of agreement (SEAs) to contain the shipowner’s name and address. The Committee takes note of this information, which addresses its previous request.
Regulation 2.1 and Standard A2.1, paragraph 4. Seafarers’ employment agreements. Content. The Committee noted that some of the particulars listed under Standard A2.1, paragraph 4, are not mentioned in section 308 of the MPR and requested the Government to indicate how it ensures compliance with Standard A2.1, paragraph 4(g), (h) and (i). The Committee notes the Government’s statement that anticipated amendments to the MPR expected in 2021 will provide greater clarity that all SEAs must contain all of the particulars required by Standard A2.1, paragraph 4(g), (h) and (i) of the MLC, 2006. The Committee requests the Government to provide information on any developments in ensuring full conformity with Standard A2.1, paragraph 4 of the Convention.
Regulation 2.1 and Standard A2.1, paragraph 1(b). Seafarers’ employment agreement. Examination and advice before signing. Noting that according to the Certification Guide for Seafarer Recruitment and Placement Service Providers (SRPS) and section 306(1)(c) of the MPR, every person recruited or placed by SRPS shall have the possibility to examine their contract of employment before joining a ship, the Committee requested the Government to indicate how Standard A2.1, paragraph 1(b) is implemented with regard to all seafarers covered by the Convention. The Committee notes the Government’s reference to section 91(1) and (2) of the CSA in which the Minister places an obligation on the vessel master to ensure each seafarer understands their rights and obligations under their employment contracts before or in the process of engagement. The Government further indicates that regulations amending the MPR will provide additional clarity ensuring that seafarers fully benefit from the protection offered by Regulation 2.1 and Standard A2.1, paragraph 1(b) of the Convention. The Committee requests the Government to provide information on any development in this regard.
Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee previously noted that sections 319-321 of the MPR are not in full conformity with the Convention insofar as: i) the working time regime applicable to ships engaged on near coastal voyages is different depending on whether they navigate in the waters of a country having ratified or not the Convention: ii) no system has been fixed by the competent authority in conformity with Standard A2.3, paragraph 2. The Committee also noted that the East Coast and Great Lakes Shipping Employees Hours of Work Regulations 1985, and the West Coast Shipping Employees Hours of Work Regulations contained exceptions to the provisions on hours of work, which were not in conformity with the Convention. The Committee notes the Government’s indication that the maritime labour certificate is considered a “Canadian maritime document” under the CSA and it is issued under the provisions of Article V and Title 5 of the MLC, 2006, hence all the requirements of Standard A2.3, paragraph 5 become conditions that must be respected. The Government further indicates that compliance with the hours of work and rest requirements contained in the MPR (sections 319-323) is required of all masters and crew subject to the MPR. The exceptions to the hours of work contained in the Labour Code and pursuant regulations do not permit contravention of the MPR. The Committee refers to its previous comments in which it detailed the inconsistencies between sections 319-321 of the MPR and the Convention and indicated that the exceptions contained in the above cited Regulations are not in conformity with the Convention. The Committee requests the Government to address these inconsistencies to ensure that its legislation gives full effect to Standard A2.3 with regard to all seafarers working on ships covered by the Convention, providing for legal certainty and predictability to all constituents.
Regulation 2.4 and the Code. Entitlement to leave. In its previous comment, noting that section 184 of the Labour Code, which provides for a period of two weeks of paid leave per year, is not in conformity with Standard A2.4, paragraph 2, the Committee requested clarifications in this regard. The Committee notes the Government’s information that all employees covered by the Canada Labour Code, including those employed on ships, are entitled to a minimum of two weeks of annual vacation after one year of continuous employment. As of September 1, 2019, annual vacation entitlements increased to three weeks after five years and four weeks after ten years of continuous employment. The Government further indicates that employees covered by the East Coast and Great Lakes Shipping Employees Hours of Work Regulations, 1985 or the West Coast Shipping Employees Hours of Work Regulations may be entitled to additional leave with pay where their employer establishes a lay-day plan (under which employees are entitled to leave with pay in exchange for longer standard hours of work – i.e. a higher threshold before overtime hours become payable). Hence, employees under a lay-day plan can accumulate up to 45 lay days with pay (or more, with a permit issued by the Minister of Labour). Referring to its previous comments, the Committee reiterates that section 184 of the Labour Code is not in conformity with Standard A2.4, paragraph 2, of the Convention, which provides for all seafarers a minimum of 2.5 calendar days for each month of service as the basis for the calculation of paid annual leave. Moreover, according to Guideline B2.4.1, paragraph 3, for seafarers employed for periods shorter than one year or in the event of termination of the employment relationship, entitlement to leave should be calculated on a pro-rata basis. With regard to the entitlement to leave under the East Coast and Great Lakes Shipping Employees Hours of Work Regulations, 1985 and the West Coast Shipping Employees Hours of Work Regulations, the Committee observes that it is not clear what the annual leave per month is for seafarers covered by the Regulations. In this regard, the Committee recalls that compensatory leave of any kind should not be counted as part of annual leave with pay (Guideline B2.4.1, paragraph 4(d)). The Committee requests the Government to take the necessary measures without delay to bring the Labour Code and the East Coast and Great Lakes Shipping Employees Hours of Work Regulations, 1985 and the West Coast Shipping Employees Hours of Work Regulations, in conformity with Standard A2.4, paragraph 2 giving due consideration to Guideline B2.4.1, paragraphs 3 and 4 (d) of the Convention.
Regulation 2.5 and Standard A2.5.2. Financial security in the event of abandonment. In its previous comments, the Committee requested the Government to provide information on the implementation of Standard A2.5.2. The Committee notes the Government’s information that seafarers are provided financial security for repatriation pursuant to section 328 of the MPR and that the same section specifies the conditions under which a seafarer is considered abandoned. The Government also indicates that anticipated amendments to the MPR expected in 2021 will provide greater clarity about the shipowner’s obligation to have an expeditious and effective financial security system to assist seafarers in the event of abandonment, as well as on the cases in which a seafarer is considered abandoned. The Committee notes that under section 328(2) of the MPR, “The authorized representative of a Canadian vessel shall have insurance or other financial arrangements sufficient to compensate crew members for any monetary loss that they may reasonably incur as a result of a failure of the authorized representative to meet its obligations to them under subsection 94(1) of the Act or subsection (1)”. Section 94(1) of the CSA concern payment by the authorized representative of the expenses for the return of crew when “crew member is left behind when a Canadian vessel sails or is shipwrecked”. The Committee observes that section 328(2) of the MPR is not in full conformity with Standard A2.5.2, insomuch as the latter requires the establishment of a system of financial security for abandonment, which is defined in wider terms than those provided under section 328(2) of the MPR. The Committee requests the Government to adopt the necessary measures to ensure full conformity with Standard A2.5.2. It requests the Government to provide information on the implementation of the detailed requirements of Standard A2.5.2.
Regulation 2.5 and Standard A2.5.1, paragraphs 1 and 2 (a). Repatriation. Circumstances. Prohibition of advance payment and to recover costs from seafarers. In its previous comments, the Committee observed that under section 94(1) of the CSA and section 328(1) of the MPR circumstances in which seafarers shall be entitled to repatriation do not fully coincide with those provided by Standard A2.5.1, paragraph 1. It also noted that section 328(1) of the MPR excludes the payment of costs of repatriation by the authorized representative in case of mutual agreement, which is not in conformity with the Convention. The Committee requested the Government to take the necessary measures to bring its legislation in full conformity with Standard A2.5.1, paragraphs 1 and 3 of the Convention, as well as to specify the maximum period of service on board ship following which a seafarer is entitled to repatriation (Standard A2.5.1, paragraph 2). The Committee notes the Government's information that anticipated amendments to the MPR expected in 2021 will fully align repatriation requirements for Canadian seafarers with those provided by Standard A2.5.1, paragraphs 1-3. The Committee requests the Government to adopt the necessary measures to ensure full compliance with these provisions of the Convention and to provide information on any developments in this regard.
Regulation 2.7 and Standard A2.7, paragraph 3. Manning Levels. Food and catering. In its previous comments, the Committee requested the Government to indicate how the determination of the safe manning levels takes into account the requirements under Regulation 3.2 and Standard A3.2 concerning food and catering. The Committee notes the Government's information that the provision of quality food for seafarers is addressed in both the MPR (sections 173, 227 and 329) and the Maritime Occupational Health and Safety Regulations (made under the Canada Labour Code) (hereinafter, MOHS, sections 80-85). Noting that the Government does not provide specific information on the question previously raised, the Committee requests the Government to indicate how the requirements on manning level take into account the need to have on board a ship’s cook or catering staff as required by Standard A2.7, paragraph 3. The Committee requests the Government to provide a typical example of a safe manning document or equivalent issued by the competent authority (Standard A2.7, paragraph 1), together with information showing the type of ship concerned, its gross tonnage and the number of seafarers normally working on it.
Regulation 3.1 and Standard A3.1, paragraph 1. Accommodation and recreational facilities. Legislation. The Committee previously noted that a number of provisions of the MOHS and the Crew Accommodation Regulations (CAR) provide for exceptions to the accommodation requirements which are not allowed under the Convention. It requested the Government to indicate the measures taken or envisaged to ensure compliance with Standard A3.1, paragraphs 20 and 21. The Committee notes the Government's information that Standard A3.1, paragraphs 20 and 21 have been fully implemented. In this regard, the Government indicates that the Maritime Labour Certificate is considered a “Canadian maritime document”, which under paragraph 20(1)(b) of the CSA may lose validity if “the term or condition attached to the document has been contravened.” The Government adds that the Maritime Labour Certificate states at the top of the document that it is issued under the provisions of Article V and Title 5 of the MLC, 2006. As a consequence, all of the requirements of Standard A3.1. paragraphs 20 and 21 must be met in order for the maritime labour certificate to be issued. While the Committee takes note of the Government's statement, it recalls that Standard A3.1, paragraph 1 calls for the adoption of laws and regulations to implement the accommodation standards detailed in Standard A3.1. Referring to its previous comments, which specify the inconsistencies between relevant legislation and the Convention, the Committee requests the Government to take the necessary measures to bring the Maritime Occupational Health and Safety Regulations and the Crew Accommodation Regulations in full compliance with Standard A3.1.
Regulation 4.2 and Standard A4.2.1, paragraph 3(a). Shipowners’ liability. Work-related sickness. In its previous comments, the Committee requested the Government to confirm whether and, if so, in what manner, section 239.1(2) of the Labour Code applied to all seafarers covered by the Convention, and whether the shipowner continued to pay full wages to the seafarer during periods of absence from work due to work-related illness or injury. The Committee notes the Government’s reply indicating that section 239.1(2) of the Labour Code provides a general requirement applicable to all federally regulated works, undertakings and businesses, primarily meant to bridge any gaps in coverage under existing provincial workers’ compensation schemes, and that with respect to seafarers, the applicable scheme is the Merchant Seamen Compensation Act, 1985 (MSCA). The MSCA, as indicated by the Government, provides coverage, in case of work accident, to every seaman (with the exception of pilots, apprenticed pilots and fishers) regardless of residency status, who are employed or engaged on a ship registered in Canada or chartered by demise to a person resident in Canada or having their principal place of business in Canada. The Government also indicates that the MSCA applies to seaman who are not covered by the Government Employees Compensation Act, 1985 (GECA) or by provincial or territorial workers' compensation legislation. The Committee observes that, while the GECA covers both accidents and diseases contracted in relation to work, coverage under the MSCA is limited to work accidents, and does not include occupational or industrial diseases. As regards the amount of the compensation paid to seafarers in case of suspension of wages due to work-related injury, the Committee notes that, according to section 38(9) of the MSCA (compensation in case of temporary total disability), compensation in case of work accident consists in a weekly payment equal to 75% of the seaman’s average weekly earnings. The Committee recalls that, according to Regulation 4.2, Standard A4.2.1(3)(a), the shipowner shall be liable for the payment of full wages to seafarers who suffer an employment-related injury or sickness, as long as the sick or injured seafarers remain on board or until the seafarers have been repatriated. The Committee requests the Government to indicate whether there are any measures in place providing for the payment of the 25% difference between the seafarer’s full wage and the amount of compensation due under the MSCA (e.g. whether it is paid by the shipowner) while the injured seafarer remains on board or is repatriated. The Committee also requests the Government to provide information on the coverage of seafarers for employment-related injury and sickness under provincial or territorial workers' compensation acts, and to specify the amount or level of compensation to which seafarers are entitled under the relevant provincial and territorial legislation. Finally, the Committee requests the Government to indicate the measures through which the coverage of occupational or industrial diseases, or employment-related sickness, is ensured, outside of the scope of the GECA and in the absence of provincial or territorial legislation to this effect.
Regulation 4.2 and Standard A4.2.1, paragraph 3(b). Shipowners’ liability. Non-work related sickness. In its previous comments, the Committee requested the Government to provide information on the protection available under Regulation 4.2 in case of non-work related illness occurring when seafarers are serving under a seafarer’s employment agreement or arising from their employment under such agreement, as well as to specify, both for employment-related and non-employment related sickness, the requirements implementing Standard A4.2.1, paragraphs 1(c) and 3, and the eventual limits to the liability of shipowners provided under Standard A4.2.1, paragraphs 2 and 4, of the Convention. The Committee notes the Government’s indications concerning the protection of seafarers in case of sickness under the Employment Insurance Act, 1996, which provides for wage replacement up to 15 weeks after a waiting period of one week. The Committee recalls that, under Standard A4.2.1, paragraphs 3 and 4, of the Convention, shipowners are liable for the payment of wages from the day of the commencement of the illness, until seafarers are repatriated or, if earlier, until they are entitled to cash benefits under the national legislation. It requests the Government to indicate whether wages continue to be paid to seafarers who are incapable of working due to illness during the 1-week waiting period before benefits are paid under the Employment Insurance Act.
Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee previously requested the Government to provide information on the implementation of the 2014 amendments to the Code (Standards A4.2.1, paragraphs 8-14 and A4.2.2). The Committee notes the Government’s indication that the MSCA ensures that merchant seamen injured in work-related accidents receive eligible health benefits and medical compensation. If the workplace injury or illness leads to a permanent disability, the seamen may be entitled to disability payments based on a percentage of previous wages. In the case of death, coverage includes burial costs as well as ongoing payments to children, spouses or other dependents. The federal Minister of Labour is responsible for the Act and the Labour Program adjudicates claims made under the Act. The Committee notes that with regard to the implementation of Standard A4.2.1, paragraph 8, the Government refers generically to various sections of the MSCA. The Committee requests the Government to provide more detailed information on how it gives application to the requirements of Standard A4.2.1, paragraph 8, as well as on the arrangements to settle claims relating to compensation (Standard A4.2.2, paragraph 3). The Committee notes the Government’s indication that the national legislation does not implement the requirements provided by Standard A4.2.1, paragraphs 9-11, 12 and 14. It requests the Government to take the necessary measures to bring national legislation in full conformity with the detailed requirements of Standard A4.2.1, paragraphs 9-11, 12 and 14 and Appendix A4-I, and to provide information on any developments in this regard.
Regulation 4.3, paragraph 2. Health and safety protection and accident prevention. National guidelines. The Committee previously requested the Government to provide information on the development of national guidelines on occupational safety and health on board, as required under Regulation 4.3, paragraph 2. It notes the Government's information that it develops national occupational health and safety guidelines in consultation with representative shipowners’ and seafarers’ organizations at the Canadian Maritime Advisory Council and through ad hoc working groups. The Committee requests the Government to provide copy of such guidelines.
Regulation 4.3 and Standard A4.3, paragraph 2(d). Health and safety protection and accident prevention. Ship’s safety committee. In its previous comments, the Committee requested the Government to provide information on the implementation of Standard A4.3, paragraph 2(d). The Committee notes the Government's information that there is an exception under Canada Labour Code (section 135(2)) that states that the employer is not required to establish a workplace health and safety committee for a workplace that is on board a ship in respect of employees whose base is the ship. In cases where the employer is not required to establish a workplace health and safety committee, such as workplaces with fewer than 20 employees or the workplace is on board a ship, the Canada Labour Code (section 136(1)) requires the employer to appoint a health and safety representative for that workplace. The Government also indicates that it is presently working to ensure full implementation of Standard A4.3, paragraph 2(d) articulating the requirements of a ship’s safety committee. Recalling that Standard A4.3, paragraph 2(d) requires the establishment of such a committee on board a ship on which there are five or more seafarers, the Committee requests the Government to indicate the measures taken to fully comply with this provision of the Convention.
Regulation 4.5 and Standard A4.5, paragraph 3. Social security. Protection for seafarers ordinarily resident in its territory. I. Employment injury benefits, invalidity benefits and survivors’ benefits. In its previous comments, the Committee noted that the scope of application of the MSCA does not cover all seafarers ordinarily resident in the Canadian territory. It requested the Government to indicate how it ensured that social security coverage as regards employment injury benefits, invalidity benefits and survivors’ benefits was granted to all seafarers ordinarily resident in its territory who work on board ships covered by the Convention, including those who work on ships which do not fly the Canadian flag, and to their dependants, in conformity with Regulation 4.5. The Committee notes the Government’s reply concerning the Canada Pension Plan (CPP), a contributory social insurance scheme that provides benefits in the event of retirement, disability and death, including benefits for the survivors of a contributor, who meet qualifying conditions. The Government indicates that a member of the crew of a ship is subject to the CPP if all three of the following conditions are met: i) the employer who has engaged the crew has a place of business in Canada; ii) the ship is operating under an agreement entered into in Canada with the crew; and iii) the crew member is a Canadian citizen or a permanent resident of Canada with a permanent place of residence in Canada. The Committee therefore notes that the status of ordinary residence in Canada of a seafarer per se does not grant the coverage under the CPP. The Committee further notes the Government’s indications concerning the coverage of work-related disability or death compensation under provincial or territorial workers’ compensation schemes. The Committee requests the Government to provide clarifications on the social security coverage of seafarers ordinarily resident in Canada who are not covered by the MSCA or the CPP, e.g. those working on board foreign-flagged ships with a non-Canadian shipowner. The Committee also requests the Government to provide information on: i) the coverage of seafarers and their survivors in case of permanent disability or death resulting from a work-related injury or sickness under provincial and territorial legislation; ii) the qualifying conditions for entitlement to benefits; and iii) the level of benefits.
II. Sickness, maternity and unemployment benefits. The Committee notes the information provided by the Government in reply to its previous comments concerning the notion of “insurable employment” and the conditions under which seafarers ordinarily resident in Canada become eligible for sickness, maternity and unemployment benefits. The Committee takes note of this information.
Regulation 4.5 and Standard A4.5, paragraphs 3, 4 and 8. Social security. Bilateral or multilateral agreements. The Committee notes the information provided by the Government in reply to its previous comments in relation to the bilateral and multilateral social security agreements concluded pursuant to Standard A4.5, paragraphs 3, 4 and 8. The Committee takes note of this information.
Regulation 5.1.3 and the Code. Maritime labour certificate and declaration of maritime labour compliance. In its previous comments, in relation to section 333(1) and (2) of the MPR, recalling that Regulation 5.1.3 also applies to ships of 500 GT or more flying the flag of a Member and operating from a port, or between ports, in another country, the Committee requested the Government to indicate whether any such ships operate in Canada. If so, it requested the Government to indicate how it ensures that Regulation 5.1.3 is applicable to those ships. The Committee notes the Government’s information that vessels subject to the MLC, 2006 engage on voyages between Canadian ports and operate in international waters. The Committee takes note of this information.
Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Flag State responsibilities. Declaration of Maritime Labour Compliance. Content. In its previous comments, the Committee observed that the DMLC, Part I supplied by the Government only contains reference to sections of applicable legislation, without providing further details on the content of the relevant provisions. The Committee requested the Government to consider amending the DMLC, Part I, to better implement Regulation 5.1.3, paragraph 10. The Committee notes the Government’s information that the DMLC form is presently being updated to ensure it provides “concise information on the main content of the national requirements” and will be formally released in the fall of 2020. The Committee requests the Government to supply a copy of the DMLC, part I, once updated.
Regulation 5.1.3 and Standard A5.1.3, paragraphs 14-17. Flag State responsibilities. End of validity and withdrawal of the Maritime Labour Certificate and the Declaration of Maritime Labour Compliance. The Committee previously noted that section 16(4) of the CSA cited by the Government refers in general to a “Canadian maritime document” and does not take into account all the requirements of Standard A5.1.3, paragraph 14. It requested the Government to indicate how it gives effect to this provision of the Convention. The Committee notes the Government's indication that since the Maritime Labour Certificate is considered a “Canadian maritime document”, there is very broad authority for the Minister of Transport to suspend, cancel or refuse to renew a maritime labour certificate. Since the Maritime Labour Certificate states at the top of the document that it is issued under the provisions of Article V and Title 5 of the MLC, 2006, all of the requirements of Standard A5.1.3, paragraph 14 become conditions where the certificate ceases to be valid. The Government adds that anticipated amendments to the MPR expected in 2021 will provide even greater clarity by setting out the circumstances when a Maritime Labour Certificate ceases to be valid, which will align requirements with Standard A5.1.3, paragraph 14 of the Convention. The Committee requests the Government to provide information on the measures taken to ensure full conformity with Standard A5.1.3, paragraph 14 of the Convention. The Committee notes that the applicable legislation does not give effect to Standard A5.1.3, paragraphs 15-17. It requests the Government to take the necessary measures to ensure conformity with these provisions of the Convention.
Regulation 5.1.4 and the Code. Inspection and enforcement. In its previous comments, the Committee requested the Government to indicate how the requirements of Standard A5.1.4, paragraphs 5 and 7(c) (investigation on cases of non-compliance and detention of ships), are implemented in practice in cases of non-conformity with the provisions of the Convention. It also requested the Government to specify the frequency of inspections on ships flying its flag (Standard A5.1.4, paragraph 4) and the measures taken to give effect to Standard A5.1.4, paragraph 12 (obligation of inspectors to submit reports). The Committee notes the Government's information that detailed work instructions have been issued to marine safety inspectors providing guidance of their responsibilities under the MLC, 2006, the CSA, MPR, the Canada Labour Code, and the MOHS Regulations. If a marine safety inspector believes on reasonable grounds that provisions of the CSA or its regulations (which capture the requirements of the MLC, 2006) have been contravened by or in respect of a vessel, he/she may make a detention order against the vessel. Moreover, marine safety inspectors have the power to require that any deficiency is remedied and, where they have grounds to believe that deficiencies constitute a serious breach of the requirements of the Canadians regulations (including seafarers’ rights), or represent a significant danger to seafarers’ safety, health or security, to prohibit a ship from leaving port until necessary actions are taken. The Government further indicates that, regarding the frequency of inspections, as part of the Marine Safety Management System, there is a documented procedure that all Maritime Labour Certificates and DMLCs be valid for a period of five years and subject to an intermediate inspection between the second and third anniversary date of the certificate. Appropriate endorsements by Transport Canada Marine Safety and Security must be made to the certificate. With respect to the obligation of inspectors to submit reports, the Government indicates that as part of the Transport Canada Marine Safety Management System, there is a documented work instruction following completion of each MLC, 2006 inspection that requires: the delegated marine safety inspector preparing and submitting a report which is recorded in Transport Canada’s Ship Inspection Reporting System (SIRS); and two copies of the inspection be provided to the master - one copy for the master’s file and one copy to be posted on the ship’s notice board for the information of the seafarers and, upon request, sent to their representatives. The Committee takes note of this information, which addresses its previous comments.
Regulation 5.1.5 and the Code. On-board complaint procedures. The Committee previously noted the Government’s reference to section 332 of the MPR on on-board complaint procedures and observed that the established procedure is limited to alleged breaches of relevant national legislation. It requested the Government to indicate how it ensures that the on-board procedures may be used by seafarers to lodge complaints related to any matter that is alleged to constitute a breach of the requirements of the Convention, including seafarers’ rights. The Committee notes the Government's information that, in addition to the on board complaints procedure under section 332 of the MPR, it provides a comprehensive on-board complaint procedure to all seafarers under section 127.1 of the Labour Code. The Committee observes, however, that section 332(11) of the MPR provides that “this section does not apply in respect of complaints to which section 127.1 of the Canada Labour Code applies”. The Committee requests the Government to clarify which provision implements Standard A5.1.5, paragraph 1, of the Convention.
Regulation 5.1.5, paragraph 2 and Standard A5.1.5, paragraphs 3 and 4. Flag State responsibilities. On-board complaint procedures. Victimization. Information on procedure. The Committee previously requested the Government to indicate how it gives effect to Regulation 5.1.5, paragraph 2 (prohibition of victimization), as well as to indicate how it gives effect to Standard A5.1.5, paragraph 4 (arrangements to ensure that seafarers are provided with copy of the on-board complaint procedures). The Government indicates that the Regulation 5.1.5, paragraph 2 is implemented by section 147 of the Labour Code (prohibition to dismiss, suspend, refuse to pay remuneration, bring or threaten to bring disciplinary action against the employee who acted as specified in section 147(a), (b) and (c)). Where an employer fails to meet her/his obligations under section 147, an employee may submit a complaint for investigation under section 133. With regard to the implementation of Standard A5.1.5, paragraph 4, the Government indicates that section 125(1)(d) of the Labour Code requires employers to post, among other things, a copy of the Labour Code and associated regulations, which contain the process to file a complaint, in a conspicuous place accessible to every employee. The Committee notes that the provisions cited by the Government appear to be limited to occupational safety and health (Part II). The Committee requests the Government to take the necessary measures to ensure that victimization of seafarers for filing a complaint under Regulation 5.1.5 is prohibited and penalized (Regulation 5.1.5(2)) and that all seafarers are provided with a copy of the on-board complaint procedures (Standard A5.1.5(4)).
Regulation 5.1.6, paragraph 1. Flag State responsibilities. Marine casualties. Official inquiry. In its previous comment, noting that the applicable legislation (Canadian Transportation Accident Investigation and Safety Board Act) does not provide for the obligation in all cases to hold an official inquiry into any serious marine casualty leading to injury or loss of life, involving a ship flying the Canadian flag, the Committee requested the Government to indicate how it gives effect to Regulation 5.1.6, paragraph 1. The Committee notes the Government's information that the MOHS Regulations outline the requirement of an employer to investigate accidents, occupational diseases or other hazardous occurrences affecting their employees (section 276). The Government also indicates that it is the federal Labour Program policy to investigate all hazardous occurrences that cause injuries that may result in death or serious body injuries. The Committee recalls that Regulation 5.1.6, paragraph 1 provides for the obligation to hold an official inquiry into any serious marine casualty leading to injury or loss of life, involving a ship flying the Member's flag. The Committee requests the Government to take the necessary measures to fully comply with this provision of the Convention.
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