Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

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

The Committee takes note of the information contained in the Federal Government's report which transmits the replies of provincial governments to its previous comments.

Articles 2 and 3 of the Convention. Newfoundland. In its previous comment, the Committee asked for the amendment of the provisions of the Public Service (Collective Bargaining) Act (No. 59) which relate to the designation of the employees of a bargaining unit who exercise essential functions. By conferring broad powers on the employer in this respect, this provision could impair the right of employees who are not designated as "essential" to resort to a strike in the event of a dispute and also make it difficult for the employees of the bargaining unit to have access to independent arbitration to settle their employment conditions.

It also asked the Government to review the provisions of Act No. 59 which exclude many workers from the definition of "employee", so as to allow these workers, without distinction whatsoever, to belong to a union of their own choosing.

The Committee notes with interest from the information provided by the Federal Government that, following the recommendations of the Legislation Review Committee set up by the Government of Newfoundland in 1986, a draft Bill was prepared which provides: (a) for the repeal of the Public Service (Collective Bargaining) Act and the application of the Labour Relations Act to employer-employee relations in the public services; (b) that the employees exercising essential functions will be designated jointly by the employer and the trade union concerned and that, in the event of the parties failing to agree, the final decision will be made by a joint body; and (c) where more than 33 per cent of the bargaining unit is agreed to be essential, the trade union of the unit concerned can opt for independent arbitration. There has also been a recommendation concerning the issue of the exclusion of certain workers from the definition of "employee". According to the information supplied by the Government, the Bill should be submitted to the Newfoundland House of Assembly in February 1991.

The Committee asks the Government to indicate in its next report whether the Bill has been adopted and to provide a copy of the final text.

Alberta. 1. In its previous comment, the Committee asked the Government (a) to repeal the provisions of the Universities Act, as amended in 1981, which empower the Board of Governors to designate those academic staff members who may, by law, establish and join a professional association for the defence of their interests; and (b) to introduce an independent system of designation where the parties cannot reach agreement for the purpose of joining academic staff associations.

According to the information contained in the report of the Federal Government, the Government of Alberta has indicated that no changes are contemplated to the Universities Act.

The Committee therefore recalls once again, as did the Committee on Freedom of Association in relation to Case No. 1234 (241st Report), that, in order to ensure full observance of the right of academic staff to establish and join trade union organisations, in conformity with Article 2 of the Convention, the Government of Alberta should envisage introducing the above-mentioned amendments. In this connection, the Committee draws the Government's attention to Article 8(2) of the Convention which provides that the law of the land shall not be such as to impair the guarantees provided for in this Convention.

In these circumstances, the Committee urges the Government to provide information on the measures that are envisaged to ensure full observance of the Convention in this respect.

2. In its previous observation, the Committee asked the Government to report on the progress made, in the framework of the current review of the legislation, in giving effect to the recommendations of the Committee on Freedom of Association (Case No. 1247, 241st Report) and on the Committee's comments concerning the need to limit restrictions or prohibitions on the right to strike to essential services in the strict sense of the term and to public servants acting in their capacity as agents of the public authority.

The Committee takes note of the information transmitted by the Federal Government to the effect that the Government of Alberta is pursuing its examination of the provisions of the Public Service Employee Relations Act and the Labour Relations Code of 1988 which ban strikes, and that the comments of the Committee will be taken into account.

Recalling that the right to strike is one of the essential means available to workers' organisations to defend their occupational interests, the Committee trusts that the Federal Government in its next report will be able to provide information on the measures that have been taken or are envisaged by the Government of Alberta to limit the restrictions on the right to strike, in conformity with the above-mentioned principles.

British Columbia. The Committee notes the conclusions reached by the Committee on Freedom of Association in Case No. 1547 (277th Report, February-March 1991). In particular, it notes that the exclusion of university teachers from the Industrial Relations Act (by virtue of section 80 of the University Act) results in their losing protection of their trade union rights which are accorded to other workers by the former Act.

Recalling that Article 2 of the Convention provides that workers without distinction whatsoever shall have the right to establish organisations of their own choosing, the Committee requests the Federal Government to invite the provincial government of British Columbia to consider repealing section 80 of the University Act, or to take any other appropriate measure so that university teachers, like any other workers, can enjoy the rights and guarantees set out in the Convention.