Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

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

The Committee takes notes 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.

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: (a) to repeal the provisions of the Universities Act which empowered the Board of Governors to designate those academic staff members who were allowed, by law, to establish and join a professional association for the defence of their interests; and (b) to introduce an independent system of designation where the parties could not reach agreement for the purpose of joining academic staff associations. The Committee notes the Government's comments that the action concerning the legality, under the Canadian Charter of Rights and Freedoms of a similar section of the Colleges Act, has not yet been heard by the court, and that the Government will consider the results of this case before making any decision about changing the Universities Act.

Noting that the Universities Act restricts the right of academic staff to establish and join organizations of their own choosing, the Committee would recall once again, as did the Committee on Freedom of Association in relation to Case No. 1234 (241st Report, November 1985), the need for the Government to amend the Universities Act in order to bring it into full conformity with Article 2 of the Convention. The Committee urges the Government to provide information on any measures taken in this respect.

In its previous comments, the Committee also noted that the Government was pursuing its examination of the provisions of the Public Service Employee Relations Act and the Labour Relations Code of 1988 which banned strikes. The Committee takes note of the Government's comments that a review of the said provisions is continuing.

The Committee, like the Committee on Freedom of Association (Case No. 1247, 241st Report), emphasizes once again 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 exercising authority in the name of the State (1994 General Survey on Freedom of Association and Collective Bargaining, paras. 158 and 159). The Committee requests the Government to inform it of any measures taken to limit the restrictions on the right to strike, in conformity with the above-mentioned principles.

Newfoundland

In its previous observation, the Committee had requested the Government to indicate the specific steps that had been taken to enact certain 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 choice and restricts the right to strike in the public service. The Committee recalls that in previous reports the Government 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 regrets to note from the Government's reply that it has not passed any legislation which would bring all employees under the Labour Relations Act and that there is no draft legislation presently before the House of Assembly. The Government further states that public servants in Newfoundland and Labrador, with only limited exceptions, have the right to strike and that these exceptions relate primarily to firefighters and essential employees. Moreover, essential employees are defined in relation to duties necessary for the health, safety or security of the public and where all employees in a unit are deemed essential employees, then matters in dispute between the employer and the bargaining agent, including compensation issues, are referred to adjudication which provides a binding decision.

While noting the above information, the Committee would emphasize that its previous comments addressed the need to amend section 10.1 of the Public Service (Collective Bargaining) Act which relates to the procedure for the designation of "essential employees" for the very reason that 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 could also make it difficult for "essential employees" to have access to independent arbitration in the event of a dispute.

The Committee would once again remind the Government that workers without distinction whatsoever should have the right to belong to an organization of their own choosing (Article 2). The Committee further recalls that prohibitions on the right to strike should be confined to public servants exercising authority in the name of the State, or to essential services in the strict sense of the term, and that when the parties disagree on the extent of minimum services to be maintained, 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 (1994 General Survey, op. cit., paras. 158-164).

The Committee notes the Government's statement that it has encouraged the establishment of a Labour Management Consultative Committee to advise on appropriate policy and programme reforms and that this Committee, which includes representatives of public sector unions, may be asked to review the above-mentioned issues. The Committee trusts that the Labour Management Consultative Committee will review these issues and propose amendments to the legislation with a view to bringing it into full conformity with the Convention. It requests the Government to inform it in its next report of any progress made in this regard.