Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

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, including copies of new federal and provincial legislation and the replies of provincial governments to the Committee's previous observations.

Articles 2 and 3 of the Convention: The right of workers and employers to establish and join organizations of their own choosing without previous authorization; the right to formulate their programmes

British Columbia

In its previous observation, the Committee requested the repeal of Section 80 of the University Act, which limited the right of university teachers to establish organizations of their own choosing by preventing the Industrial Relations Act from applying to university faculty. The Committee notes with satisfaction that the Province of British Columbia has repealed Section 80 of the University Act by the University Amendment Act, 1992, which came into force on 23 July 1992.

In its previous comment, the Committee asked the Government to keep it informed about several provisions of the Industrial Relations Act including: (1) any changes in the arbitration procedures over "ability to pay" that grant the Commissioner of the Industrial Relations Council discretion to modify awards; (2) the definition of essential services and the role of representatives in determining the definition of minimum service; and (3) the nature of conciliation and arbitration procedures offered when the right to strike has been restricted in an essential service.

The Committee notes with interest the adoption of the Labour Relations Code (No. 84) ("the Code"), which became law on 18 January 1993, and which replaces the Industrial Labour Relations Act ("the Act"). The Code provides, inter alia, that: (1) Statutory criteria for arbitrators in interest arbitration is eliminated; (2), (3) the definition of essential services is amended to cover only those services "necessary or essential to prevent immediate and serious danger to the health, safety and welfare of the residents of British Columbia", and the concept of a "limited strike" is available in areas not deemed essential.

The Committee notes from the Government's report that the unions believe that they maintain sufficient bargaining power under these provisions to achieve acceptable collective agreements for their membership.

The Committee further notes that the new Code deletes section 137.9(7) of the Act, which provided for broad employer discretion in disciplinary sanctions for refusal to obey back-to-work orders, and deletes section 4.1, concerning a prohibition on secondary boycott clauses in contracts.

Given the recent legislative approval, the Committee will examine the Code in greater detail during the next session.

Alberta

In several previous comments as well as in the follow-up to the September 1985 study and information mission, the Committee had requested the Government to repeal provisions of the Universities Act, which, like the British Columbia law, limited the freedom of academic staff members to establish and join organizations of their own choosing. The Committee notes the Government's comments that it awaits a court decision regarding the legality under the Canadian Charter of Rights and Freedoms of a similar section of another law, the province's Colleges Act, and that the Government will be considering the results in that case before making any decision about changing the Universities Act. Noting that the Universities Act restricts academic staff members from establishing and joining organizations of their own choosing the Committee would recall the need for the Government to amend the Universities Act in order to bring it into conformity with Article 2 of the Convention. The Committee urges the Government to inform it of any measures taken in this respect.

In its previous comments, the Committee also noted that the Government was pursuing its examination of the Public Service Employee Relations Act and the Labour Relations Code of 1988 which contain restrictions on the right to strike through an overly-broad definition of essential services. The Committee takes note of the Government's comments that the changes in these provisions are still under review. The Committee, like the Committee on Freedom of Association (Case No. 1247, 241st Report), points out again that the definition of essential services should be limited to the strict sense of the term, namely those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee requests the Government to indicate any changes in these provisions to limit the restrictions on the right to strike.

Newfoundland

In its previous observation, the Committee requested an update on proposed amendments to the Public Service (Collective Bargaining) Act, (No. 59) which, by its definition of "employees" excludes many public employees from belonging to the union of their own choice and restricts the right to strike in the public service. The Committee recalls that in the Government's previous report it indicated that a new law was drafted on the recommendation of the Legislation Review Committee which would bring all employees under the Labour Relations Act, as well as create a joint employer-employee consultation process for designating essential services. That Bill was to be introduced in the Newfoundland House of Assembly in February 1991. The Committee notes the Government's report stating that this Bill has not yet been passed.

The Committee would again remind the Government that prohibitions on the right to strike should be confined to public servants acting in their capacity as agents of the public authority, or to essential services, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committeee considers that when the parties disagree on which services should be designated as essential, it would be preferable that an independent body could be convened to make this determination. Furthermore, any limitation on the right to strike in the public service or in essential services should be compensated by adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards should, in all cases, be binding on both parties. The Committee asks the Government to indicate in its next report the specific steps that have been taken to enact the legislation since its planned submission in February 1991 and to provide a copy of the text as soon as the Bill is adopted.