Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

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

The Committee takes note of the Government’s report. The Committee also notes the comments made by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 19 July 2004 with regard to certain issues which have been the subject of previous observations by the Committee, as well as the Government’s response thereto. The Committee further takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in recent cases concerning Canada (Case No. 2277 (see 333rd Report, paragraphs 240-277 and 337th Report, paragraphs 347-360) and Case No. 2305 (see 335th Report, paragraphs 471-512)).

A. Article 2 of the Convention.  Right to organize of certain categories of workers. 1. Workers in agriculture and horticulture (Alberta, Ontario and New Brunswick). In its latest observation, the Committee took note of the information provided by the Government representative to the Conference Committee on the Application of Standards in 2004 as well as the discussion that followed, with regard to, inter alia, the exclusion from the scope of the labour relations legislation of workers in agriculture and horticulture, who are thereby deprived of full and complete protection of their right to organize. The Committee recalls from its previous comments that workers in agriculture and horticulture in the Provinces of Alberta, Ontario and New Brunswick are excluded from the coverage of labour relations legislation and thereby deprived of protection concerning the right to organize and collective bargaining.

The Committee notes with regret from the Government’s report that there are no plans for a legislative review in Alberta and New Brunswick (the Alberta government indicates that this issue may be addressed in the next review of the Labour Relations Code and the New Brunswick government maintains that limiting the scope of the law to workplaces with five or more agricultural employees is fair and equitable). As for Ontario, the Committee notes from the Government’s report that the Agricultural Employees Protection Act, 2002 (AEPA), which entered into force in June 2003, gives agricultural employees the right to form or join an employees’ association but does not provide a right to a statutory collective bargaining regime and maintains the exclusion of agricultural employees from the generally applicable legislation (Labour Relations Act (LRA)); in April 2004, the United Food and Commercial Workers filed an application in the courts challenging the constitutionality of the exclusion of agricultural workers from the LRA and the restriction on collective bargaining rights in the AEPA. The application has not been heard yet.

The Committee recalls once again that all workers without distinction whatsoever (with the sole possible exception of the armed forces and the police) have the right to organize under the Convention. It further notes the conclusions reached by the Conference Committee in June 2004, recalling the need to amend the legislative texts in different provinces with a view to guaranteeing the full application of the Convention in relation to the effective right of association in agriculture which has suffered from restrictions for many years. The Committee once again requests the Government to indicate in its next report any measures taken or contemplated by the governments of Ontario, Alberta and New Brunswick with a view to amending their legislation so as to guarantee the right of agricultural workers to organize.

2. Domestic workers, architects, dentists, land surveyors, lawyers and doctors (Ontario). The Committee further recalls from previous comments concerning Ontario that other categories of workers (domestic workers, architects, dentists, land surveyors, lawyers and doctors) are excluded from the scope of the labour relations law under section 13(a) of the Amended Labour Relations Act, 1995. The Committee notes with regret that according to the Ontario government, no legislative amendments are planned and therefore these categories of workers do not have access to a statutory collective bargaining regime; labour laws originally enacted with industrial settings in mind are not always suitable for non-industrial workplaces, such as private homes or professional offices, where employment obligations may not be compatible with the highly formalized terms and conditions of employment. The Committee, emphasizing that all workers without distinction whatsoever have the right to organize under the Convention, requests once again the Government to indicate any measures taken or contemplated by the government of Ontario to amend section 13(a) of the Amended Labour Relations Act, 1995, so as to guarantee the right to organize to several categories of workers (domestic workers, architects, dentists, land surveyors, lawyers and doctors) who are excluded from the scope of the labour relations law.

3. Nurse practitioners (Alberta). Furthermore, the Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2277 (see 333rd Report, paragraphs 240-277 and 337th Report paragraphs 347-360) to the effect that nurse practitioners have been deprived of the right to establish and join organizations of their own choosing by the Labour Relations (Regional Health Authorities Restructuring) Amendment Act in Alberta, as well as the comments of the ICFTU on this issue. The Committee once again recalls that the words "without distinction whatsoever" used in Article 2 of the Convention mean that freedom of association should be guaranteed without discrimination of any kind. The Committee therefore, taking note of the recommendation made by the Committee on Freedom of Association in this respect, requests the Government to indicate in its next report any measures taken or contemplated by the Government of Alberta to amend the Labour Relations (Regional Health Authorities Restructuring) Amendment Act so that nurse practitioners recover the right to establish and join organizations of their own choosing.

4. Principals, vice-principals in educational establishments and community workers (Ontario). The Committee further recalls, with regard to Ontario, that its previous comments concerned the need to ensure that principals and vice-principals in educational establishments as well as community workers have the right to organize, pursuant to the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 1951 (325th Report, paragraphs 197-215) and Case No. 1975 (316th Report, paragraphs 229-274 and 321st Report, paragraphs 103-118). The Committee recalls in this respect the conclusions reached by the Conference Committee according to which problems remain, with regard to the right of workers in the education sector to organize, in several provinces, including Ontario.

The Committee notes with regret that the Ontario government indicates that it has nothing new to add on these issues. The Committee once again emphasizes that all workers without distinction whatsoever, have the right to establish and join organizations of their own choosing for the protection and promotion of their occupational rights and interests. The Committee once again requests the Government to indicate in its next report any measures taken or contemplated by the Ontario government to amend the legislation so as to guarantee, to principals and vice-principals in educational establishments as well as community workers, the right to establish and join organizations of their own choosing.

5. Education workers (Alberta). With regard to the right to organize of education workers in Alberta, the Committee recalls that its previous comments concerned the need to repeal the provisions of the University Act which empower the Board of Governors to designate the academic staff members who are allowed, by law, to establish and join a professional association for the defence of their interests. In the Committee’s view, these provisions allow for future designations to exclude faculty members and non-management administrative or planning personnel from membership of the staff associations whose purpose is to protect and defend the interests of these categories of workers.

The Committee notes with regret that according to the government of Alberta, there are no plans to amend this legislation but the issue could be re-examined the next time Alberta’s labour laws are reviewed. The Government once again draws attention to a previous decision of the Alberta Court of Queen’s Bench which found the designation sections of the Colleges Act, the Technical Institutes Act and the Universities Act, which have now been consolidated into the Post-secondary Learning Act, to be in conformity with freedom of association provisions in the Canadian Charter of Rights and Freedoms.

The Committee notes once again that the provisions on designation, which have been recently consolidated in the Post-secondary Learning Act, do not afford adequate guarantees against possible restrictions on the right of university staff to organize. It therefore requests once again the Government to indicate in its next report any measures taken or contemplated by the Alberta government with a view to ensuring that university staff are guaranteed the right to organize without any exceptions.

B. Article 2. Trade union monopoly established by law (Prince Edward Island, Nova Scotia and Ontario). The Committee notes from the information provided by the Government representative and the discussion which took place at the Conference Committee in June 2004, that serious problems remain in Prince Edward Island, Nova Scotia and Ontario with regard to the specific reference to the trade union recognized as the bargaining agent in the law of these provinces (Prince Edward Island Civil Service Act, 1983; Nova Scotia Teaching Professions Act; Ontario Education and Teaching Professions Act).

The Committee notes with regret from the Government’s report that there are no plans to amend the legislation in Prince Edward Island, Nova Scotia and Ontario. The Committee once again emphasizes 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, 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 requests once again the Government to indicate any measures taken or contemplated by the governments of Prince Edward Island, Nova Scotia and Ontario to repeal from their respective legislation the designation by name of individual trade unions as bargaining agents.

C. Article 3. Right to strike of workers in the education sector. The Committee recalls from its previous comments that problems remain in several provinces with regard to the right to strike of workers in the education sector (British Columbia, Manitoba and Ontario).

1. British Columbia. With respect to British Columbia, the Committee recalls that its previous comments concerned the need to repeal the provisions of Bill No. 18 (the Skill Development and Labour Statutes Amendment Act) which declared education to be an essential service, and to adopt provisions ensuring that workers in the education sector may enjoy and exercise the right to strike, pursuant to the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2173 (see 330th Report, paragraphs 239-305).

The Committee notes with regret from the Government’s report that there are no developments to report in this respect. The Committee once again requests the Government to indicate in its next report any measures taken or contemplated by the British Columbia government with a view to amending the legislation so as to ensure that essential services, in which strikes may be restricted or even prohibited, are limited to those services the interruption of which could endanger the life, personal safety or health of the population and ensuring that workers in the education sector, which does not qualify as an essential service in the strict sense of the term, may enjoy and exercise the right to strike without undue restrictions.

The Committee further recalls that in its previous comments concerning British Columbia it had requested information on the new collective bargaining regime for support staff in certain provincial school commissions after the repeal of an act, which had served to end a collective dispute in these commissions, in July 2000. A report was expected and the Government had indicated that it had initiated a broad dialogue on this issue which might expand to include areas such as the health and public sectors. The Committee notes from the Government’s latest report that the review of the collective bargaining regime for school support staff was not completed and the report was never made. The Committee requests the Government to keep it informed of any development in the future concerning the collective bargaining regime and, in particular, dispute settlement regulations or machinery to apply in the case of school support staff as well as health or public employees in British Columbia.

2. Manitoba. With regard to Manitoba, the Committee recalls that its previous comments concerned the need to amend section 110(1) of the Public School Act which prohibits strikes by teachers. The Committee notes with regret from the Government’s report that there are no plans to make amendments to the Public Schools Act at this time. The Committee once again notes 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 requests the Government to indicate in its next report any measures taken or contemplated by the Manitoba government to amend its legislation so that school teachers, who do not provide essential services in the strict sense of the term and do not qualify as public servants exercising authority in the name of the State, may exercise the right to strike without undue restrictions.

3. Ontario. The Committee further recalls from its previous comments concerning Ontario that it had emphasized, pursuant to the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2025 (320th Report, paragraphs 374-414) the need to amend the legislation, in particular, Bill No. 22 and the Back to School Act, 1998, which brought an end to a legal strike by teachers, so as to ensure that teachers may exercise the right to strike. The Committee further takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2305 (335th Report, paragraphs 471-512) according to which the Government adopted the Back to School Act, 2003 (Bill No. 28) which came into force at the beginning of June 2003 and terminated a legal work-to-rule campaign of an elementary teachers’ bargaining unit, prohibited any further strike, imposed a mediation-arbitration process and extended the definition of strikes, thereby placing new restrictions on the right to strike for all Ontario teachers. Deploring that the Government should have decided, for the third time in a few years (September 1998, November 2000 and June 2003) to adopt ad hoc legislation which takes away from educational institutions and education workers a legal right, which they have in theory, the Committee on Freedom of Association urged the Government to consider establishing a voluntary and effective dispute prevention and resolution mechanism rather than having recourse to back-to-work legislation. It further requested the Government to ensure that recourse to arbitration for the settlement of disputes be voluntary and that such arbitration be truly independent (335th Report, paragraphs 505 and 512).

The Committee notes from the Government’s report that teachers and school boards have a general right to strike. The Back to School Act, 1998, was introduced by the previous government in order to end strikes at eight school boards. The new government in Ontario, elected in 2003, has expressed its commitment to creating a climate where unions and school boards can negotiate collective agreements that are mutually beneficial. For the first time in the sector’s history, 100 per cent of the 122 negotiations between publicly funded school boards and their teachers have been settled with four-year agreements, and there have been no strikes in this government’s administration. The Ministry of Education indicates that it has successfully been able to replace a confrontational environment between the government and teachers with a collaborative one. Taking note of this information with interest, the Committee requests the Government to provide information in its next report as to measures taken or contemplated by the Ontario government with a view to establishing a voluntary and effective dispute prevention and resolution mechanism based on the voluntary recourse to independent arbitration machinery.

D. Article 3. Right to strike of certain categories of employees in the health sector (Alberta). The Committee recalls with regard to Alberta, that in its previous comments it had requested information on whether kitchen staff, porters and gardeners working in the hospital sector and who, according to the Committee, do not constitute workers in an essential service, are covered by the prohibition of strikes in the Labour Relations (Regional Health Authorities Restructuring) Amendment Act. The Committee notes moreover the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2277, according to which, the Labour Relations (Regional Health Authorities Restructuring) Amendment Act extends the prohibition on strikes to all employees within the regional health authorities, including various categories of labourers and gardeners (333rd Report, paragraphs 240-277). The Committee finally notes the comments of the ICFTU according to which this Act put an end to the right to strike for the remaining 10 per cent of health-care workers in Alberta who still had that right.

The Committee notes from the Government’s report that the government of Alberta reaffirms its responsibility to provide publicly funded and administered health services with patient access and safety as key priorities. According to the Government, the prohibition on strikes to all employees within the regional health authorities and other approved hospitals reflects the growing interdependence and integration of health-care delivery in the province; withholding services could have potentially life-threatening consequences for Alberta citizens whose legitimate health-care needs must be met. The Government adds that some employees who provide health-care services outside the regional health authorities or approved hospitals, may still have access to strikes, e.g., municipal emergency medical services, some nursing homes and group homes and some medical laboratories.

The Committee notes that although the health and hospital sectors can be seen as essential services in the strict sense of the term, in which the right to strike can be restricted or even prohibited, certain categories of employees within these essential services, e.g. labourers and gardeners, should not be deprived of their right to strike. The Committee therefore requests the Government to indicate in its next report all measures taken or contemplated by the Alberta government in order to ensure that those workers in the health and hospital sectors who are not providing essential services, in the strict sense of the term, are not deprived of the right to strike.

E. Article 3. Arbitration imposed at the request of one party after 60 days of work stoppage (article 87.1(1) of the Labour Relations Act) (Manitoba). The Committee recalls that its previous comments concerned the need to amend article 87.1(1) of the Labour Relations Act which allowed a party to a collective dispute to make a unilateral application to the Labour Board so as to initiate the dispute settlement process, where a work stoppage exceeded 60 days. The Committee notes from the Government’s report that in October 2004, the Labour Management Review Committee (LMRC) was asked by the Minister of Labour and Immigration to conduct its second biennial review of the operation of the provisions of sections 87.1 to 87.3 of the LRA. The Labour Caucus and Management Caucus of the LMRC consulted with their respective constituencies and reported to the Minister that amendments were not required with respect to these sections of the LRA at this time. At this stage, the Government continued to hold the conviction that lengthy work stoppages were detrimental to employees, employers, unions and the public interest and that the alternative dispute settlement mechanism set out in the LRA was reasonable and justifiable. Since the enactment of this provision, the average number of person-days lost per month due to work stoppages in Manitoba was reduced by half.

Notwithstanding the effects of lengthy work stoppages, the Committee considers that strikes are an essential means available to workers and their organizations to promote their economic and social interests; provisions which allow for one of the parties to refer a dispute to compulsory arbitration seriously limit the means available to trade unions to further and defend the interests of their members as well as their right to organize their activities and formulate their programmes and is not compatible with Article 3 of the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 148 and 153). The Committee once again requests the Government to indicate in its next report any measures taken or contemplated by the Manitoba government to amend the Labour Relations Act so that an arbitration award may only be imposed in cases of essential services in the strict sense of the term, public servants exercising authority in the name of the State or where both parties agree.