Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

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

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.

1. Following the September 1985 study and information mission, the Committee, along with the Committee on Freedom of Association (see 241st Report, Cases Nos. 1234, 1247 and 1260), has continued to raise various issues of concern and has requested the governments of the Provinces of Newfoundland and Ontario to take the necessary measures to give full effect to the Convention.

Alberta

As regards the Province of Alberta, the Committee had requested the Government for a considerable number of years: (a) to repeal the provisions of the University Act which empowered the Board of Governors to designate the sole 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 College Act, has not yet been heard by the court and that the Government undertook a public policy development process concerning advanced education in the province that was completed in October 1994 and where input from the faculty associations on desirable amendments were welcomed. The Committee takes note of the Government's comment that the possibility of legislative amendments is being considered.

As regards the Public Service Employee Relations Act and the Labour Relations Act, the Committee recalls that the provisions of these Acts prohibiting the right to strike of a broad range of provincial public servants go beyond acceptable limits on the right to strike recognized as derived from Article 3 of the Convention. The Committee takes note of the Government's comment that the review of these laws is continuing and that several sections of the Public Service Employee Relations Act have been updated.

Newfoundland

With regard to the Province of Newfoundland, the Committee refers to its previous comments regarding the necessity to amend the Public Service (Collective Bargaining) Act (No. 59) which by its definition of "employees" excludes many employees from belonging to the union of their choice and also restricts the right to strike in the public service, since section 10.1 of the Act which relates to the procedure for the designation of "essential employees" confers large powers on the employer in this respect. The Committee notes from the Government's report that consultation on a broad range of labour relations legislation and policy issues is still in process.

The Committee would first like to recall that the University Act of Alberta as well as the Public Service (Collective Bargaining) Act (No. 59) of Newfoundland restrict the right of workers to establish and join organizations of their own choosing and stresses the need to amend these pieces of legislation in order to bring them into full conformity with Article 2 of the Convention. The Committee urges the Government to provide information on any measures taken in this respect.

As regards the limitation on the right to strike in the Public Service Employee Relations Act and the Labour Relations Act of Ontario as well as in the Public Service (Collective Bargaining) Act (No. 59) of Newfoundland, the Committee further recalls that it has always been of the opinion that prohibition 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. The Committee emphasizes once again that limitations on strike action in the public service or 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. In the specific case of the Public Service (Collective Bargaining) Act (No. 59) of Newfoundland, the Committee reiterates its request to the Government to ensure that the government of this province reviews the provisions of this legislation concerning the designation of essential employees in order to facilitate access to independent arbitration in the event of dispute or to establish a negotiated minimum service in other services which are of public utility.

2. The Committee notes with concern from the conclusions of the cases examined by the Committee on Freedom of Association as well as from the last reports of the Government that, both at federal and provincial levels, legislation prohibiting strikes in various sectors that are not essential, such as agriculture, horticulture, ports, construction and education has been adopted. The Committee would ask the Government to ensure that restrictions on the right to strike are limited to essential services in the strict sense of the term, to public servants exercising authority in the name of the State or in cases of acute national crisis so as to be in compliance with the freedom of association principles.

The Committee is also addressing a direct request to the Government.