Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

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

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The Committee notes the observations of the Federally Regulated Employers – Transportation and Communications (FETCO), communicated with the Government’s report, which are of a general nature.

Article 2 of the Convention. Right to organize of certain categories of workers. Province of Alberta. In its previous comments, the Committee noted the exclusion of agricultural workers, as well as budget officers, systems analysts and auditors working in the public sector, from either the Labour Relations Code (LRC) or the Public Service Employee Relations Act (PSERA), and requested the Government to indicate the manner in which these workers could enjoy their right to organize and all guarantees under the Convention. The Committee also noted the Government’s indication that nothing prevented domestic workers from associating and organizing, and requested it to specify under which legislative provisions they could enjoy their right to organize and all guarantees under the Convention. The Committee notes with regret that the Government does not provide any new information in this regard. The Committee once again requests the Government to indicate how agricultural workers, as well as budget officers, systems analysts and auditors working in the public sector, can enjoy their right to organize and all guarantees under the Convention. The Committee also once again requests that the Government specify under which legislative provisions domestic workers may enjoy their right to organize and the guarantees provided by the Convention.

The Committee also noted the exclusion of certain categories of professional employees such as architects, dentists, land surveyors, lawyers, doctors and engineers from the LRC and the PSERA, and requested the Government to confirm that all these categories of workers, from both the public and private sector, could exercise all freedom of association rights under the Convention. The Committee notes the Government’s indication that under the LRC, land surveyors are considered employees, and while the other professional categories are excluded from its scope, these employees still benefit from the right to freedom of association. With respect to workplaces covered by the PSERA, the Government indicates that the above-mentioned categories of workers can apply to the Labour Relations Board to be included in a bargaining unit. Taking due note of the information provided regarding land surveyors and workplaces covered by the PSERA, the Committee requests the Government to indicate the manner in which workers from the other excluded professional categories, such as architects, dentists, lawyers, doctors and engineers, can enjoy the freedom of association rights provided by the Convention in workplaces covered by the LRC.

Province of Ontario. In its previous comments, the Committee noted that agricultural workers were excluded from the Labour Relations Act (LRA), and that the Agricultural Employees’ Protection Act (AEPA) did not clearly state that such employees had the right to join a trade union and did not grant them the right to strike. The Committee requested the Government to gather and provide information on the number of workers represented by an employee association or trade union under the AEPA, and to take any additional measures to guarantee that agricultural workers enjoy the rights recognized in the Convention. The Committee notes the Government’s indication that it considers that the AEPA protects the right of agricultural workers to form associations and does not prohibit them from exercising their freedom to collectively withdraw their services. The Committee notes with regret that the Government on the one hand, does not point to the specific provisions conferring trade union rights to agricultural workers and on the other, states that it does not plan to amend its legislation and does not have the requested data. Recalling that the guarantees under the Convention should apply, in law and in practice, to all workers, including agricultural workers, the Committee once again requests that the Government take the necessary measures to guarantee that this category of workers can benefit from the trade union rights enshrined in the Convention, both in law and practice. The Committee also reiterates its request that the Government collect and compile statistical data on the number of workers represented by an employee association or trade union under the AEPA.

Furthermore, the Committee noted the exclusion of other categories of workers (architects, dentists, land surveyors, lawyers, doctors, engineers, principals and vice-principals in educational establishments, community workers and domestic workers) from the LRA, and invited the Government to ensure that these categories have the rights recognized under the Convention. The Committee notes the Government’s indication that “professional engineer” is defined in section 1 of the LRA and not listed in any excluded category. The Government also states that no changes to the employee exclusions from the LRA were made during 2020-2023, and that labour laws originally enacted for industrial settings are not always suited to non-industrial workplaces, such as private homes and professional offices, which is the case with the above-mentioned categories of workers. The Committee recalls that Article 2 of the Convention applies to all workers, without distinction whatsoever (see the 2012 General Survey on the fundamental Conventions, paragraph 53). While noting the information provided with respect to engineers, the Committee once again invites the Government to take the necessary steps, in consultation with the social partners, to ensure that all other above-mentioned categories of workers benefit from the trade union rights provided by the Convention, both in law and practice.

Province of New Brunswick. The Committee previously expressed the hope that consultations held in 2016 regarding possible amendments to the Employment Standards Act, from which domestic workers were excluded, and an ongoing technical review of the Domestic Workers Convention, 2011 (No. 189), would be finalized in the near future, and that the Government would ensure that domestic workers enjoy the right to organize and other guarantees under the Convention. The Committee notes that the Government indicates that no legislative changes have been made to date, and that Canada’s recent ratification of the Violence and Harassment Convention, 2019 (No. 190), as well as its technical review of the Occupational Safety and Health Convention, 1981 (No. 155), have taken precedence over its technical review of Convention No. 189. The Committee requests the Government to take the necessary measures, including through the possible amendment of the Employment Standards Act, to ensure that domestic workers enjoy all rights under the Convention, and to keep it informed of any progress made in this regard.

Other provinces. Nova Scotia, Prince Edward Island and Saskatchewan. In its previous comments, the Committee noted the exclusion of architects, dentists, land surveyors, doctors and engineers in Nova Scotia, Prince Edward Island and Saskatchewan, as well as the Government’s indication that nothing impedes these categories from associating and organizing. The Committee requested the Government to specify under which legislative provisions these categories of workers enjoy the rights recognized in the Convention. The Committee notes the Government’s indication that: (i) according to section 6-4 of the Saskatchewan Employment Act, employees have the right to organize, form, join or assist in the establishment of a union of their choice, and no provisions exclude the above-mentioned categories of workers from the application of the Act; and (ii) Doctors Nova Scotia is an association that can bargain with the Government of Nova Scotia on behalf of doctors and residents, and a similar association exists in Saskatchewan. While taking due note of the above, the Committee notes that the Government does not provide any information regarding Prince Edward Island. The Committee once again requests the Government to indicate whether there are legislative provisions that expressly allow architects, dentists, land surveyors, doctors and engineers in these provinces to enjoy the rights recognized in the Convention.

The Committee also noted that domestic workers in Saskatchewan faced a practical limitation on organizing as a result of the definition of “employer” in the Saskatchewan Employment Act (defined as “an employer who customarily or actually employs three or more employees”), and invited the Government to ensure that they enjoy the rights provided under the Convention. The Committee notes that the Government does not provide any information in this respect, but also notes from publicly available information that, following an amendment to section 2-1 (g) of the Act in 2020, the definition of “employer” now encompasses “any person who employs one or more employees”. The Committee takes note of this positive development and requests the Government to indicate how domestic workers will now enjoy, in law and in practice, the right to organize under the Convention.

Article 3. Right of employers’ and workers’ organizations to organize their activities and to formulate their programmes. Province of Saskatchewan. Employment Act. The Committee previously pointed out that the definition of “employee” in the Employment Act excluded anyone exercising authority and performing managerial or confidential functions, and that the term “union”, “labour organization” and “strike” were defined with reference to the term “employee”. The Committee 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 the right 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 a substantial proportion of their present or potential membership. It hoped that the Government would bring the Act into full conformity with these considerations, while also requesting it to provide information on the number of employees declared “confidential”. The Committee notes the Government’s indication that the provisions which provided for the exclusion of supervisors from the same bargaining unit as employees were repealed from the Employment Act in January 2022. The Government also states that information on the number of employees declared “confidential” is not collected by the provincial government. Noting with interest the recent amendment to the Employment Act, the Committee requests the Government to indicate whether workers performing confidential functions may now also be allowed in the same bargaining unit as employees.

The Committee is raising other matters in a request addressed directly to the Government.