Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

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

1. The Committee takes note of the Government's report and of the conclusions of the Committee on Freedom of Association with regard to various cases concerning Canada.

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

Newfoundland

Recalling that its earlier comments concerned the need to amend section 10.1 of the Public Service (Collective Bargaining) Act (No. 59) which relates to the procedure for the designation of "essential employees" and confers broad powers on the employer in this respect, the Committee notes with interest the information in the Government's last report according to which an effective procedure has been established for defining "essential workers". In addition, the joint labour-employer working group, whose mandate includes a review of legislation affecting freedom of association with a view to proposing necessary reforms, has submitted its report, the conclusions of which are now under consideration. The Committee asks the Government to keep it informed of developments in this respect.

Alberta

The Committee recalls that its comments have concerned in particular section 117.1 of the Public Service Employee Relations Act as amended in 1983 by Act No. 44 which bans strikes by all hospital workers including kitchen staff, porters and gardeners, and therefore goes beyond the acceptable restrictions to the right to strike implicitly recognized in Article 3 of the Convention. The Committee notes with regret the information supplied by the Government in its report, according to which the amendments made to the Alberta Labour Code, to the Public Service Employee Relations Act and the Regional Health Authorities Act have not changed the situation of health workers with regard to the right to strike. The Committee recalls that, in its view, the right to strike is an intrinsic corollary of the right to organize and any restriction should be limited to public servants exercising authority in the name of the State or to essential services in the strict sense of the term. The Committee asks the Government to indicate whether kitchen workers, porters and gardeners in hospitals have the right to strike; if they do not, the Committee emphasizes that these categories of workers should not be denied this fundamental right.

3. In general, as regards the right to strike, the Committee notes with interest the adoption of Bill C-19, an Act to amend the Canada Labour Code (part I), section 87.4 of which defines the activities which must be maintained in the event of a strike or lockout, and section 94(2.1) of which expressly prohibits employers from using replacement workers in order to undermine a union's representational capacity, which thereby bring the legislation into greater conformity with the principles of freedom of association.

With regard to the right to organize in agriculture and horticulture, the Committee takes due note of the Government's information to the effect that workers in these sectors are covered by the provisions of the Labour Codes applicable in the Provinces of British Columbia, Saskatchewan, Manitoba, Quebec, Nova Scotia, Prince Edward Island, Newfoundland and the North West Territories and the Yukon, the federal Labour Code being applicable in the North West Territories and the Yukon. Nevertheless, the Committee notes that certain workers in the Provinces of Alberta (section 2 (2)(e) of the Labour Code), Ontario (section 3 (b) and (c) of the amended Labour Relations Act of 1995) and New Brunswick (section 1 (5)(a) of the Labour Code) are excluded from the coverage of labour relations legislation and thus do not enjoy the protection provided with regard to the right to organize and to negotiate collectively. In addition, with regard to Ontario, the Committee notes the conclusions of the Committee on Freedom of Association in case No. 1900 (308th Report, paragraphs 139-194), and observes with regret that domestic workers are also excluded from the coverage of the labour relations legislation (section 3(a) of the amended Labour Relations Act of 1995). Under the circumstances, the Committee must recall that the guarantees provided by the Convention apply to all workers without distinction whatsoever and that all workers must enjoy the right to establish and join organizations of their own choosing, with the sole possible exception of the armed forces and the police. The Committee therefore urges the Government to take the necessary measures to amend the aforementioned legislation in order to bring it into full conformity with the principles of freedom of association, and to keep it informed in this regard.

In addition, a request regarding certain points is being addressed directly to the Government.