Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

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

The Committee notes the Government’s report, and the conclusions and recommendations of the Committee on Freedom of Association in the various cases concerning Canada.

I.  Issues common to several jurisdictions

A. Alberta, Ontario, New Brunswick. Right to organize of certain categories of workers. In its previous comments, the Committee had noted that workers in agriculture and horticulture in the provinces of Alberta, Ontario and New Brunswick were excluded from the coverage of labour relations legislation and thereby deprived of protection concerning the right to organize and collective bargaining. The Committee had also noted with regret that other categories of workers (domestic workers, architects, dentists, land surveyors, lawyers and doctors) were excluded in Ontario, under section 1(3)(a) of the amended Labour Relations Act, 1995.

The Committee notes that the Supreme Court of Canada held in December 2001 (in the Dunmore case, originating from Ontario) that the exclusion of agricultural workers was unconstitutional and gave the government of Ontario 18 months to amend the impugned legislation. The Committee notes that the government of Ontario introduced Bill 187 in October 2002 (Agricultural Employees Protection Act, 2002) which gives agricultural employees the right to form or join an employees’ association; it appears, however, that this legislation does not give agricultural workers the right to establish and join trade unions and to bargain collectively. The Committee recalls once again that all workers, with the sole possible exception of armed forces and police, have the right to organize under the Convention. It requests the Government to ensure that any new legislation introduced will guarantee full respect for this right for all the categories of workers mentioned above, and to keep it informed in its next report.

Noting that the governments of Alberta and New Brunswick are currently reviewing the implications of the decision, the Committee brings their attention to the abovementioned considerations; it requests them to amend their legislation accordingly and to inform it of developments in this respect in their next report.

B. Prince Edward Island, Nova Scotia, Ontario. Trade union monopoly established by law. In its previous comments, the Committee had noted that certain provincial laws designate by name the union recognized as the bargaining agent (Prince Edward Island, Civil Service Act, 1983; Nova Scotia, Teaching Professions Act; Ontario, Education Act and Teaching Professions Act). It had recalled that, although a system in which a single bargaining agent can be accredited to represent workers in a given bargaining unit and bargain on their behalf is compatible with the Convention, it nevertheless considers that a trade union monopoly established or maintained by the explicit designation by name of a trade union organization in the law is in violation of the Convention.

The Committee notes with regret that the government of Ontario has no plans to amend the Education Act. It notes that the government of Nova Scotia states that there have been no further developments in this matter. It notes the explanations of the government of Prince Edward Island to the effect that the Civil Service Act does not prohibit another union from making an application to represent civil servants, and is therefore broad enough to meet the requirements of the Convention. While noting the explanations of the government of Prince Edward Island, the Committee points out that the difficulty arises here in view of the reference by name to a given organization, which may have the effect of maintaining a de facto monopoly. The Committee requests, once again, the governments of these three provinces to repeal from their respective legislation the designation by name of individual trade unions and to keep it informed of developments in this respect in their future reports.

II.  Matters relating to specific jurisdictions

A. Alberta. The Committee recalls that its previous comments concerned the right to strike of certain categories of employees in the hospital sector and the right to organize of university staff. The Government states that a review committee of the Legislative Assembly has been set up to undertake a broader review of Alberta’s labour laws, and that no amendments are planned while this committee continues its work.

The Committee recalls once again, as regards the categories of hospital staff mentioned above, that 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 also recalls that all workers, without distinction whatsoever, with the sole possible exception of armed forces and police, have the right to establish and join organizations of their own choosing without previous authorization. It requests the Government to amend its legislation to ensure that kitchen staff, porters and gardeners are not denied this right, and that all university staff are given the right to organize, and to keep it informed in its next report of measures taken in this respect.

B. British Columbia. The Committee notes that the Act to bring an end to a collective dispute in certain provincial school commissions was repealed in July 2000, and that a report is expected in the near future on the collective bargaining regime for support staff. Hoping that the Government will refrain in future from adopting back-to-work legislation, the Committee requests it to keep it informed of developments in this respect.

C. Manitoba. 1. Arbitration imposed at the request of one party after 60 days (article 87.1(1) of the Labour Relations Act). The Committee notes the Government’s statement that strikes or lockouts that exceed 60 days are detrimental to employers, employees and the public interest, and that some safeguards are built into the dispute resolution system to ensure that fair collective bargaining has taken place prior to the process being used. The Committee further notes that the Labour Management Review Committee (LMRC), where labour and management organizations are equally represented, must review the operation of these provisions every two years and report to the Legislative Assembly.

The Committee recalls that arbitration imposed by the authorities at the request of one party is contrary to the principle of voluntary bargaining and the autonomy of the parties (General Survey of 1994 on freedom of association and collective bargaining, paragraph 257) and requests the Government to take the necessary measures to ensure that recourse to arbitration for the settlement of conflicts is voluntary. It requests the Government to communicate in its next report the conclusions of the LMRC.

2. Prohibition of strikes by teachers, section 110(1) of the Public Schools Act. The Committee notes the Government’s statement that both the prohibition of strikes and the system of compulsory binding arbitration that have existed since 1956 were enacted following joint recommendations by the Manitoba Teachers’ Society (representing teachers) and the Manitoba Association of School Trustees (representing employers). In essence, the amendments brought by Bill 42 made the collective bargaining under the general legislation applicable to public schools, but compulsory binding arbitration was retained in a somewhat different format. Bill 42 also introduced the recommendations of the Freedom of Association Committee concerning the jurisdiction of interest arbitrators. The Committee further notes that, commenting on the relevant amendments before the legislative committee, a representative of the Manitoba Teachers Society indicated that Bill 42 would give teachers fair treatment and would improve their relations with the school boards.

The Committee recalls that the right to strike should only be restricted for public servants exercising authority in the name of the State and in essential services in the strict sense of the term, and that arbitration imposed by the authorities at the request of one party is contrary to the principle of the voluntary negotiation of collective agreements and the autonomy of the partners. While taking due note of the Government’s indication that the strike prohibition came about following a joint recommendation between the Manitoba Teachers’ Society and the Association of School Trustees as far back as 1956, the Committee observes that this agreement was codified in the Manitoban legislation by the Public School Amendment Act of 1996, which explicitly prohibits the right to strike under section 110(1). In this respect, the Committee considers that any voluntary renunciation of the right to strike should not be codified in legislation, which by its nature has no set time limitation. Furthermore, any desire to reclaim such a right is placed out of the hands of those concerned, but rather may be set forth in legally binding agreements, which may be reviewed by the parties concerned in accordance with such agreements. It therefore requests once again the Government to amend its legislation accordingly and to keep it informed of developments in its next report.

D. Ontario. In its previous comments, the Committee had noted the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1975 (316th Report, paragraphs 229-274; 321st Report, paragraphs 103-118; persons taking part in community participation activities prohibited from joining a trade union), Bill 22 and Case No. 2025 (320th Report, paragraphs 374-414) concerning the Back to School Act, 1998, which brought an end to a legal strike by teachers. The Committee had requested the Government to take the necessary measures so that community workers are guaranteed the right to organize and that teachers may exercise the right to strike, and requested it to avoid having recourse to back-to-work legislation in future.

The Committee notes with regret that the Government merely maintains its position concerning Bill 22 and that no legislative amendments are "planned or envisaged", and that "there are no updates regarding Ontario’s position" in respect of the Back to School Act, 1998. The Committee further notes from the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1951 (325th Report, paragraphs 197-215) that principals and vice-principals are still denied the right to organize. The Committee requests the Government to amend its legislation so that these categories of workers are guaranteed the right to establish and join organizations of their own choosing, in conformity with the Convention.

The Committee recalls, once again, that the only exceptions as regards the right to organize are armed forces and police, and that teachers should be allowed to strike. It requests the Government to amend its legislation and to keep it informed in its next report.

E. Newfoundland and Labrador. 1. The Committee notes that during a recent public sector labour dispute, the designation of employees entrusted with ensuring the essential services proceeded with the cooperation of all parties, to ensure the health and safety of the public.

2. The Committee notes that the collective bargaining legislative model in the fishing industry was developed and endorsed by the main bargaining agent in the sector. The parties chose a final offer selection process as the agreed dispute resolution mechanism. In 2002, out of 12 rounds of negotiations, nine settlements were achieved through negotiations and three through arbitration. The Committee recalls that the right to strike should only be restricted for public servants exercising authority in the name of the State and in essential services in the strict sense of the term. It further recalls its above comment for Manitoba concerning the renunciation of the right to strike. It therefore requests the Government to amend its legislation accordingly and to keep it informed of developments in its next report.