Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

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), now the International Trade Unions Confederation (ITUC), in a communication dated 10 August 2006 as well as the Government’s reply thereto.

The Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in numerous cases concerning allegations of interference into the right to organize and carry out trade union activities, including collective bargaining, in various provinces of Canada. (Cases Nos 2314 and 2333, 340th Report, paragraphs 373–432; Case No. 2324, 336th Report, paragraphs 233–284; Cases Nos 2403, 2401 and 2343, 338th Report, paragraphs 536–603; Case No. 2349, 337th Report, paragraphs 361–407; Case No. 2405, 340th Report, paragraphs 433–457, and 343rd Report, paragraphs 318–338; Case No. 2430, 343rd Report, paragraphs 339–363; and Case No. 2467, 344th Report, paragraphs 461–587).

At the same time, the Committee notes with interest from the Government’s report that on 8 June 2007 the Supreme Court of Canada overruled 20 years of previous Supreme Court decisions in order to hold unanimously that freedom of association encompasses a measure of protection for collective bargaining under section 2(d) of the Canadian Charter of Rights and Freedoms (Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia, 2007 SCC 27). The Committee notes that in reaching its decision the majority of the Court referred to Convention No. 87 as well as the International Covenants on Civil and Political Rights, and on Economic, Social and Cultural Rights, noting that the “interpretation of these Conventions, in Canada and internationally, not only supports the proposition that there is a right to collective bargaining in international law, but also suggests that such a right should be recognized in the Canadian context under section 2(d)” (at paragraph 72). The Committee requests the Government to indicate in its next report the implications of the Supreme Court decision for the application of the Convention.

The Committee recalls that its previous comments concerned the exclusion of wide categories of workers from statutory protection of freedom of association and restrictions on the right to strike in several provinces.

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). 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 statutory protection of the right to organize.

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 in December 2001, the Supreme Court of Canada declared the exclusion of agricultural workers from the Labour Relations Act, 1995, to be unconstitutional in the absence of any other statutory protection of their freedom of association (Dunmore v. Ontario/Attorney-General, 2001, 207 DLR (4th) 193 (SCC)). The Agricultural Employees Protection Act, 2002 (AEPA), which was promulgated in June 2003 pursuant to the Supreme Court finding, 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 Labour Relations Act. In April 2004, the United Food and Commercial Workers (UFCW) filed an appeal challenging the constitutionality of this Act. The application was dismissed by the Superior Court on 10 January 2006. The UFCW advised that it intends to appeal the decision to the Ontario Court of Appeal; this appeal has not been heard yet. The Government adds that it is currently reviewing the impact that the subsequent decision by the Supreme Court of 8 June 2007 (see above) may have on Ontario’s labour laws.

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. It requests the Government in particular to assess the implications of the Supreme Court decisions of December 2001 (Dunmore) and June 2007 (Health Services and Support – Facilities Subsector Bargaining Association) with regard to the exclusion of agricultural employees from statutory protection of the right to organize in Ontario, Alberta and New Brunswick.

2. (a). Domestic workers, architects, dentists, land surveyors, lawyers and doctors (Ontario). The Committee recalls that, taking note of the conclusions and recommendations reached in Case No. 1900 by the Committee on Freedom of Association, it has been raising for a number of years the need to ensure that wide categories of workers in Ontario, who have been excluded from statutory protection of freedom of association under section 3(a) of the amended Labour Relations Act, 1995 (domestic workers, architects, dentists, land surveyors, lawyers and doctors), enjoy the protection necessary, either through the Labour Relations Act, or by means of occupationally specific regulations, to establish and join organizations of their own choosing (see Case No. 1900, 308th Report, paragraphs 139–194).

The Committee notes with regret that, according to the Ontario government, no legislative amendments are planned in this respect. With regard to domestic workers in particular, the Ontario government indicates that they have been defined narrowly by the Ontario Labour Relations Board (OLRB) so that their exclusion from statutory protection of freedom of association concerns individuals who reside with a family and provide childcare, cleaning and other domestic services, but does not include, as found by the OLRB, attendants employed to care for individuals with disabilities in their own apartments, or maintenance, dietary, infirmary and housekeeping staff employed in the residence of a religious order. With regard to professionals, such as architects, dentists, land surveyors, lawyers and doctors, the government of Ontario reiterates previously provided information and indicates that they have professional organizations that represent their interests and in some cases negotiate collectively (e.g. the Ontario Medical Association bargains on behalf of its members with the Province of Ontario on the issue of fee schedules).

The Committee recalls, from the conclusions of the Committee on Freedom of Association in Case No. 1900, that the exclusion of these categories of workers from the Labour Relations Act, 1995, has had as a result that, although they can still exercise their right to associate under the Common Law, their associations are devoid of the higher statutory protection provided for in the Labour Relations Act, 1995, and this can function as an impediment to their activities and discourage membership. The Committee therefore once again requests the Government to indicate any measures taken or contemplated by the government of Ontario to amend section 3(a) of the amended Labour Relations Act, 1995, so as to ensure that several categories of workers (domestic workers, including those who provide childcare, cleaning and other domestic services, architects, dentists, land surveyors, lawyers and doctors) are able to benefit either from the general collective labour rights system or specific legislation which allows them to form organizations that enjoy the same rights, prerogatives and means of recourse as other workers’ organizations. The Committee also requests the Government to assess the implications of the Supreme Court decisions of December 2001 (Dunmore) and June 2007 (Health Services and Support – Facilities Subsector Bargaining Association) with regard to the exclusion of the above categories of employees from statutory protection of the right to organize.

(b). Alberta, New Brunswick, Nova Scotia, Prince Edward Island and Saskatchewan. The Committee further notes that, according to information provided by the Government, domestic workers are excluded from legislation in the following provinces in addition to Ontario: Alberta (section 4(2)(f) of the Labour Relations Code); New Brunswick (section 1(1) of the Industrial Relations Act); Newfoundland and Labrador, unless the employer has two or more employees (section 2(1)(x) of the Labour Relations Act); Nova Scotia, unless the employer has two or more employees (section 2(1)(x) of the Trade Union Act); and Saskatchewan, unless the employer has three or more employees (not covered if at least one of the three employees is a member of a trade union that includes as members employees of more than one employer (section 2(g) of the Trade Union Act).

The Committee also notes from information provided by the Government that the exclusion of architects, dentists, land surveyors, lawyers and doctors is not limited to Ontario; other provinces contain similar exclusions in their labour laws, which extend moreover to include engineers: Alberta (section 1(1) of the Labour Relations Code); Nova Scotia (section 2(2) of the Trade Union Act); and Prince Edward Island (section 7(2) of the Labour Act). Moreover, these workers might be excluded also in Newfoundland and Labrador and Saskatchewan if the employer has less than two or three employees respectively. The Committee finally notes that the government of Alberta indicates that it has no intention to amend these exclusions and that the professionals in question can establish associations which function in ways similar to a labour union in representing the interests of their members, including through bargaining.

The Committee refers to the comments made above with regard to Ontario and requests the Government to indicate any measures taken or contemplated by the governments of Alberta, New Brunswick, Nova Scotia, Prince Edward Island and Saskatchewan to remedy the exclusion of the above categories of workers from the statutory protection of freedom of association, and to assess the implications of the Supreme Court decisions of December 2001 (Dunmore) and June 2007 (Health Services and Support – Facilities Subsector Bargaining Association) in this regard.

3. Nurse practitioners (Alberta). The Committee’s previous comments concerned 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 comments by the ICFTU on this issue. The Committee notes from the Government’s report that there are no planned reviews of the status of nurse practitioners who constitute an emerging and important health-care occupation and play an important role, especially in rural areas, between that of a physician and a registered nurse. 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, once again 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 (see 325th Report, paragraphs 197–215) and Case No. 1975 (see 316th Report, paragraphs 229–274, and 321st Report, paragraphs 103–118).

The Committee notes with regret that the Ontario government reiterates previously provided information and indicates that it has no plans to amend the existing legislation. 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. Public colleges part-time employees (Ontario). The Committee further takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2430 (see 343rd Report,
paragraphs 339–363) with regard to the provisions of the Colleges Collective Bargaining Act, RSO 1990, Chapter 15 that denies all public colleges part-time employees the right to join a union for collective bargaining purposes. The Committee, following the conclusions and recommendations of the Committee on Freedom of Association, recalls that all workers, without distinction whatsoever, whether they are employed on a permanent basis, for a fixed-term or as contract employees, should have the right to establish and join organizations of their own choosing. It requests the Government to indicate in its next report any measures taken or contemplated by the Ontario government to ensure that academic and support part-time staff in colleges of applied arts and technology fully enjoy the right to organize, as any other workers.

6. 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; the government adds that post-secondary employees who are not represented by a faculty association are in fact represented by a support staff union at the same institution. The Committee once again requests the Government to indicate in its next report any measures taken or contemplated by the Alberta government with a view to ensuring that all university staff are guaranteed the right to organize without any exceptions.

7. Workers in social, health and childcare services (Quebec). The Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Cases Nos 2333 and 2314 concerning two Acts (Act modifying the Act on health and social services (LQ, 2003, c.12) and Act modifying the Act on early childhood centres and other nursery services (LQ, 2003, c.13)) by which the Government redefined workers in social and health services and childcare services as “independent workers”, thus divesting them of the status of “employee” and denying them the right to unionize, leading to the cancellation of their trade union registrations. The Committee notes that the Government indicates that the issue is pending before the domestic courts and therefore it reserves its comments until a judgement has been rendered. The Committee notes that the Convention does not exclude any of the above categories of workers who should have the right to establish and join organizations of their choosing and hopes that, in rendering their judgement, the courts will take into account the provisions of the Convention. The Committee, following the recommendations made by the Committee on Freedom of Association in Cases Nos 2333 and 2314, requests the Government to indicate in its next report the outcome of the judicial proceedings under way as well as any measures taken or contemplated by the Quebec government so as to amend the provisions of the Act modifying the Act on health and social services (LQ, 2003, c.12) and the Act modifying the Act on early childhood centres and other nursery services (LQ, 2003, c.13), in order for the workers concerned to be able to benefit either from the general collective labour rights system or specific legislation which allows them to form organizations that enjoy the same rights, prerogatives and means of recourse as other workers’ organizations.

8. Prosecutors (Quebec). The Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2467 (see 344th Report, paragraphs 461–587) with regard to the Prosecutors Act (as amended by the Act amending the Act respecting Attorney-General’s Prosecutors and the Labour Code, LQ 2004, c.22) which denies prosecutors the right to join a trade union and deprives them of protection against hindrances, reprisals or sanctions related to the exercise of trade union rights. The Committee notes that the Government does not provide specific information on this issue. The Committee, following the recommendations of the Committee on Freedom of Association, requests the Government to indicate in its next report measures taken or contemplated by the government of Quebec so as to ensure that prosecutors have the right to join the organization of their choice.

B. Article 2. Trade union monopoly established by law (Prince Edward Island, Nova Scotia and Ontario). The Committee’s previous comments concerned the specific reference to the trade union recognized as the bargaining agent in the law of Prince Edward Island, Nova Scotia and Ontario (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 Ontario government indicates that teachers’ bargaining agents were identified in legislation for the first time in 1975, thus capturing existing practices at the time with the agreement of school boards and unions. 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 and other trade unions which have in the meantime become majority organizations should be able to request accreditation to represent workers. 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 and suggests giving consideration to a neutral reference to the most representative organization.

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 have been no measures to amend or repeal the provisions in question and that the British Columbia government continues to hold the position that teachers represent an essential service that permits children to have full access to their education throughout the school year. 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 suggests that the British Columbia government give consideration to establishing an effective and voluntary dispute settlement mechanism in this regard, on the basis of consultations with all organizations concerned.

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. The Committee notes from the Government’s report that the parties have subsequently successfully negotiated collective agreements.

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 current system has existed since 1956 and had the agreement of the social partners. 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 schoolteachers, 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, and suggests that the Manitoba government give consideration to the establishment of a voluntary and effective dispute settlement mechanism in this regard, on the basis of consultations with all organizations concerned.

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 (see 320th Report, paragraphs 374–414) and Case No. 2305 (see 335th Report, paragraphs 471–512), the need 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 (see 335th Report, paragraphs 505 and 512).

The Committee notes with interest from the Government’s report that in addition to the fact that all bargaining agents in the education sector have the right to establish a voluntary and effective dispute prevention and resolution mechanism based on the voluntary recourse to independent arbitration machinery, the new government in Ontario has been successful in replacing a confrontational environment between the government and teachers with a collaborative one. Thus, for the first time in the history of Ontario, teacher unions and school boards settled four-year collective agreements in all 72 publicly funded school boards (for the period September 2004 to August 2008) without any strikes. In addition, the government has established an “Educational Partnership Table” in which representatives from unions and employers in the education sector as well as students, parents and school principals undertake to work toward consensus. The first meeting was held on 6 March 2004 and meetings are held on a quarterly basis. The Government has also established the Provincial Stability Commission (PSC) to assist the parties should disputes arise regarding the implementation of provisions contained in collective agreements. The Commission will maintain an environment of good will and proactively address any issues that may arise from the implementation of the four-year collective agreements; promote problem solving over formal or adversarial dispute resolution; and solve problems and develop best practices concerning teacher supervision of students to ensure student safety. As a first step, the PSC will be providing effective dispute resolution mechanisms for the parties to the 31 teacher collective agreements in the public elementary sector. Three out of six teacher bargaining agents have agreed to refer to the PSC issues around teacher supervision of students that cannot be resolved at the local level. The Committee requests the Government to provide in its next report information on the functioning of the Educational Partnership Table and the Provincial Stability Commission as well as any other voluntary mechanisms for effective dispute prevention and resolution in the education sector.

D. Article 3. Right to strike of certain categories of employees in the health sector (Alberta). The Committee recalls that its previous comments concerned the prohibition on strikes to all employees within the regional health authorities, including various categories of labourers and gardeners under the Labour Relations (Regional Health Authorities Restructuring) Amendment Act. In previous comments, the Committee took note of the relevant conclusions and recommendations of the Committee on Freedom of Association in Case No. 2277 (see 333rd Report, paragraphs 240–277) as well as 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 Act in question did not take away the right to strike for the vast majority of gardeners and labourers in the health-care sector, but rather prohibited these employees from striking as staff members of facilities on the designated hospitals list. The Committee recalls its view that gardeners and labourers do not provide essential services in the strict sense of the term. It 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. Right to strike in the public sector (Quebec). The Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2467 (see 344th Report,
paragraphs 461–587) with regard to Act 43 putting a unilateral end to negotiations in the public sector by imposing collective agreements for a determined period, and thereby depriving the employees concerned, including teachers, of the right to strike (labour law in Quebec prohibits strikes during the term of a collective agreement); imposing severe and disproportionate sanctions in the event of an infringement of the provisions prohibiting recourse to strike action (suspension of deduction of trade union dues merely by the employer declaring that there has been an infringement of the Act for a period of 12 weeks for each day or part of a day that the infringement is observed (section 30, Act 43); reduction of employees’ salary by an amount equal to the salary they would have received for any period during which they infringe the Act, in addition to not being paid during that period – a measure applicable also to employees on trade union release during the period in question (section 32, Act 43); facilitation of class actions against an association of employees by reducing the conditions required by the Civil Procedures Code for such an action (section 38, Act 43); severe penal sanctions (sections 39–40, Act 43)). The Committee notes that according to the Government, Act 43 is currently under appeal before the domestic courts. The Committee, following the recommendations of the Committee on Freedom of Association, requests the Government to indicate in its next report the outcome of the appeal pending on Act 43 before the domestic courts as well as any measure taken or contemplated by the government of Quebec with a view to: (i) ensuring that, where the right to strike may be restricted or even prohibited, adequate compensatory guarantees are afforded to the workers concerned, for example, conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be fully impartial and independent by the parties concerned and leading to binding awards which should be implemented rapidly and fully; (ii) reviewing the excessive sanctions provided for in Act 43 in order to ensure that they may be applied only in cases where the right to strike may be limited in accordance with the principles of freedom of association and that they are proportionate to the infringement committed; (iii) reviewing the provisions facilitating class actions against an association of employees, as there is no reason, in the Committee’s view, to treat such actions differently from other class actions in the Civil Procedures Code.

F. 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 the Manitoba government reiterates its previous position according to which the alternative dispute settlement mechanism set out in the Labour Relations Act is reasonable and justifiable; having an impartial third party settle the dispute will likely result in a fair and reasonable settlement and will bring an end to the hardships that a work stoppage creates.

Notwithstanding the effects of lengthy work stoppages, the Committee recalls that 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 (see General Survey of 1994 on freedom of association and collective bargaining, 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.