Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes the comments made by the International Organisation of Employers (IOE) on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee.

The Committee also notes the comments of the International Trade Union Confederation (ITUC), dated 31 July 2012, the Canadian Labour Congress (CLC), dated 27 August 2012, and the Confederation of National Trade Unions (CNTU), dated 31 August 2012, which relate to all the issues under examination. The Committee also notes the allegations of the ITUC and the CLC that there are increasing numbers of violations of trade union rights in Canada, and in particular that there is much evidence that violations of freedom of association have become the norm for the Federal Government. They also denounce the slowness of provincial authorities in giving effect to the recommendations of the Committee in relation to freedom of association, even though the Canadian Constitution entrusts them with primary responsibility in relation to labour legislation. The Committee requests the Government to provide its observations in reply to the allegations of the ITUC, the CLC and the CNTU.

Article 2 of the Convention. Right to organize of certain categories of workers. The Committee recalls that for many years it has been expressing concern at the exclusion of broad categories of workers from the statutory protection of freedom of association.

Workers in agriculture and horticulture (Alberta and Ontario). The Committee noted in its previous comments that workers in agriculture and horticulture in the Provinces of Alberta and Ontario are excluded from the coverage of the general labour relations legislation and are thereby deprived of the same statutory protection of the right to organize afforded to other workers. The Government referred to the ruling of the Supreme Court of Canada of 29 April 2011 in the case Ontario (Attorney General) v. Fraser, in which the constitutionality of Ontario’s Agricultural Employees Protection Act, 2002 (AEPA), was challenged on the basis that it infringed the rights of farm workers under subsection 2(d) of the Canadian Charter of Rights and Freedoms. The ruling found that the AEPA provides a meaningful process for agricultural workers in Ontario to bargain collectively, and therefore upheld the AEPA as constitutional.

The Committee recalls that in its previous comments it emphasized that, although the AEPA recognizes the right of agricultural employees to form or join an employees’ association, it however maintains the exclusion of this category of workers from the scope of the Labour Relations Act. The Committee notes the indication in the Government’s report that the Ontario Government still considers that the AEPA provides adequate protection to this category of workers, particularly to form associations, represent their interests and exercise their constitutionally protected rights. The Ontario Government indicates: (1) that if properly interpreted, the Act requires agricultural employers to consider workers’ representations, issues and concerns in good faith; and (2) that it does not intend to amend the legislation.

The Committee also recalls that it noted previously that the Government of Alberta did not envisage reviewing its legislation following the decision of the Supreme Court concerning Ontario’s AEPA. Noting the absence of information in this regard in the Government’s report, the Committee understands that the position of the Government of Alberta has not changed on this point. Noting the comments of the ITUC and the CLC, which denounce the status quo on this matter, the Committee is bound to recall once again that all workers without distinction whatsoever (with the sole possible exception of the armed forces and the police) shall have the right to organize under the Convention. Therefore, the Committee considers that any provincial legislation that would deny or limit the full application of the Convention in relation to the freedom of association of agricultural workers should be amended. The Committee consequently once again requests the Government to ensure that the Governments of Alberta and Ontario amend their legislation so as to fully guarantee the right of agricultural workers to organize freely and to benefit from the necessary protection to ensure observance of the Convention. The Committee also once again requests the Government to provide detailed information and statistics on the number of workers represented by trade unions in the agricultural sector in Ontario and, where appropriate, on the number of complaints lodged to assert the exercise of their rights under the Convention and on any related follow-up action taken.

Domestic workers, architects, dentists, land surveyors, lawyers and doctors (Ontario, Alberta, New Brunswick, Nova Scotia, Prince Edward Island and Saskatchewan). The Committee recalls that its previous comments related to the need to ensure that a number of categories of workers excluded from any statutory protection of freedom of association under the labour relations legislation (domestic workers, architects, dentists, land surveyors, lawyers, engineers and doctors) enjoy the protection necessary, either through a revision of the labour relations legislation or by means of specific regulations, to establish and join organizations of their own choosing.

With regard to the situation of domestic workers, the Committee notes the indication by the Government of New Brunswick that it is continuing consultations with stakeholders regarding potential amendments to the Industrial Relations Act to remove the exclusion of domestic workers. The Committee also notes that the Government of Prince Edward Island indicates that domestic workers are covered under the Labour Act. The Committee notes that the Government’s report does not contain any information with regard to the Governments of Ontario or Alberta on whether any amendment to the legislation is envisaged to remove the exclusion of domestic workers from the scope of industrial relations legislation.

With regard to the other categories, including architects, dentists, land surveyors, lawyers, doctors and engineers, the Committee notes the indication by the Government of New Brunswick that the Industrial Relations Act does not contain exclusions for architects, dentists, land surveyors, lawyers, doctors or engineers. The Committee notes the indication by the Government of Prince Edward Island that architects, engineers, lawyers and doctors who are entitled to practice and who are employed in a professional capacity are excluded from the Labour Act, but that their interests are represented by their associations. With regard to Saskatchewan, the Committee notes the indication by the Government of the Province that in May 2012 it began a comprehensive review of its labour legislation, including the labour relations legislation. The objective of the review is to modernize and simplify the legislation, including a possible revision of the definition of the terms “employer” and “employee”, which will help to identify more accurately the relations between employees and employers within the meaning of the definitions.

Taking duly into account the information provided, the Committee requests the Government to ensure that the Governments of Alberta, Nova Scotia, Ontario and Prince Edward Island take the necessary measures to guarantee that architects, dentists, land surveyors, lawyers, doctors and engineers enjoy the right to establish and join organizations of their own choosing, in accordance with the principles of the Convention. The Committee also requests the Government to indicate in its next report the outcome of the examination undertaken by the Government of the Province Saskatchewan on its labour legislation and its impact in terms of determining the categories of workers which can establish organizations of their own choosing under the terms of the Trade Union Act.

The Committee also trusts that the Government’s next report will include information on the tangible measures adopted or envisaged by the Governments of Ontario and Alberta to amend their legislation in relation to the exclusion of domestic workers from the scope of their labour relations legislation. The Committee hopes that the Government will also report progress in the revision of the Industrial Relations Act of the Province of New Brunswick with a view to removing the exclusion of domestic workers.

Nurse practitioners (Alberta). In its previous comments, the Committee noted that, under the terms of the Labour Relations (Regional Health Authorities Restructuring) Amendment Act of the Province of Alberta, nurse practitioners do not have the right to establish and join organizations of their choosing. Noting that the Government’s report does not contain any information on this subject, the Committee urges the Government to ensure that the Government of Alberta takes the necessary measures to amend the above Act so that nurse practitioners have the right to establish and join organizations of their own choosing, in accordance with the principles of Article 2 of the Convention.

Principals and vice-principals in educational establishments and community workers (Ontario). The Committee recalls its previous comments concerning 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 of the Committee on Freedom of Association in Cases Nos 1951 and 1975. The Committee notes that the Government’s report does not contain any information on this point. The Committee trusts that the Government’s next report will contain information on the progress achieved in law and practice by the Government of Ontario in ensuring that principals and vice-principals in educational establishments, and community workers, enjoy the fundamental right to establish and join organizations of their own choosing for the defence of their professional interests.

Part-time employees of public colleges (Ontario). In its previous comments, the Committee noted the entry into force of the amended Colleges Collective Bargaining Act (CCBA), which gives part-time academic staff and support staff in the colleges of Ontario the full right to organize and to bargain collectively. The Committee also noted that the same Act establishes a procedure to change, establish or eliminate bargaining units, including the possibility for colleges to challenge the number of union members holding cards, which the colleges allegedly use widely to delay the certification process. In this respect, the Ontario Public Service Employees’ Union had filed certification applications to represent both part-time academic staff and part-time support staff units. In both cases, representation votes had been held and the ballot boxes had been sealed pending a decision by the Ontario Labour Relations Board (OLRB) concerning the issues that remained at dispute between the parties.

The Committee notes the Government’s indication that, on 27 March 2012, the OLRB noted that the parties had reached agreement on the outstanding challenges in respect of one college (Centennial College), and that the parties had asked the OLRB to confirm the agreement and to determine a timeline as to how to move forward to deal with the challenges in relation to other colleges. The process and timeline for moving forward are reported to have been agreed. The Government of Ontario emphasizes the importance of the adjudicative role played by the OLRB in the process of certification established by law and considers that it would be inappropriate to interfere with or influence the procedure. It adds that this position is shared by the National Union of Public and General Employees. Noting the positive developments in the treatment of this matter, the Committee requests the Government to indicate any further developments in this regard.

Education workers (Alberta). The Committee recalls that its previous comments concerned the need to amend the provisions of the Post-Secondary Learning Act which empower the board of a public post-secondary institution to designate categories of employees who are allowed, by law, as academic staff members, to establish and join a professional association for the defence of their interests. Noting that the Government’s report does not contain any information on this point, the Committee once again requests it to ensure that the Government of Alberta takes all the necessary measures to ensure that all higher education staff without exception have the right to organize.

Article 2. Trade union monopoly established by law (Prince Edward Island, Nova Scotia and Ontario). The Committee recalls that its previous comments concerned the specific reference to the trade union recognized as the bargaining agent in the law of Nova Scotia (the Teaching Professions Act), Ontario (the Education and Teaching Professions Act) and Prince Edward Island (the Civil Service Act, 1983). Noting that the Government’s report does not contain any information on this matter, the Committee once again requests the Government to ensure that the Governments of Nova Scotia, Ontario and Prince Edward Island take all necessary measures to bring their legislation into full conformity with the standards of freedom of choice on which the Convention is based by removing any specific designation of individual trade unions as bargaining agents and replacing it with a neutral reference to the most representative organization.

Article 3. Right of employers’ and workers’ organizations to organize their activities and to formulate their programmes. Education sector. The Committee’s previous comments concerned the recurrent problems in the exercise of the right to strike by workers in the education sector in several provinces (British Columbia and Manitoba). The Committee also notes the allegations of the CLC dated 31 August 2012 that the Government of Ontario announced that it would introduce a bill against education workers and school boards that would block any possible strike for up to two years and end all negotiations, particularly on teachers’ wages. The Committee requests the Government to provide its observations in reply to these allegations.

British Columbia. The Committee previously requested information on any decision by the Labour Relations Board of British Columbia with regard to essential service levels in the education sector. The Committee notes the interim order issued on 28 February 2012 by the Labour Relations Board on an application by the British Columbia Teachers Federation (BCTF), which found as follows: (1) the British Columbia Public School Employers’ Association (BCPSA) and the BCTF will work with the Board to designate essential service levels for the BCTF bargaining unit; (2) the interim order will be reviewed on a weekly basis commencing at the beginning of the week of 12 March 2012, and may be varied, modified or amended as the circumstances require and the Board finds to be appropriate; and (3) any issue relating to the application or interpretation of the interim order will be raised as soon as possible and will be dealt with by the Board as expeditiously as possible.

With regard to the discussions between the Government of the Province and the BCTF concerning the Public Education, Flexibility and Choice Act, the Committee notes the Government’s indication that these discussions were held between May and November 2011, and that the Government subsequently introduced the Education Improvement Act (Bill No. 22) in February 2012, which was adopted in March 2012. The Committee notes all of this information.

Manitoba. The Committee recalls that its previous comments concerned the need to amend section 110(1) of the Public School Act, which prohibits teachers from engaging in strike action. The Committee notes once again that the Government does not envisage amending the Public School Act. The Government adds that teachers in the Province voluntarily gave up the right to strike in 1956 in exchange for binding arbitration, and that neither teachers nor school boards have formally petitioned the Manitoba Government to restore the right to strike to teachers. The Act currently provides for a process of arbitration in resolving collective bargaining disputes. Recalling that the right to strike should not be restricted for teachers, the Committee requests the Government to ensure that the Government of Manitoba takes the necessary measures to amend the Public School Act accordingly.

Certain categories of employees in the health sector (Alberta). The Committee’s previous comments concerned the prohibition of strikes for all employees within the regional health authorities, including various categories of labourers and even gardeners governed by the Labour Relations (Regional Health Authorities Restructuring) Amendment Act. The Committee notes that the Government’s report does not contain any information on this subject and requests it to ensure that the Government of Alberta takes the necessary measures to ensure that all workers in the health sector who are not providing essential services in the strict sense of the term are guaranteed the right to strike.

Public sector (Quebec). The Committee recalls that its previous comments concerned Act No. 43, which put a unilateral end to negotiations in the public sector by imposing the application of collective agreements for a determined period, thereby depriving the workers concerned, including teachers, of the right to strike (the labour law in Quebec prohibits strikes during the term of a collective agreement). The Committee also requested the Government to amend the following provisions: (1) section 30, which establishes severe and disproportionate sanctions in the event of infringements of the provisions prohibiting recourse to strike action (suspension of the 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); (2) section 32, which provides for a reduction of employees’ salaries by an amount equal to the salary that they would have received for any period during which they are in infringement of the Act, in addition to not being paid during that period; and (3) section 38, which prohibits the facilitation of class actions against an association of employees by reducing the conditions required by the Code of Civil Procedure for such an action; and (4) sections 39 and 40, which establish severe penal sanctions.

The Committee notes the Government’s indication that the Act is still subject of litigation before the courts of the Province and that the Government of Quebec therefore reserves its comments until the courts have issued their decisions. The Committee requests the Government to provide full particulars on the decisions of the provincial courts, and the action taken as a result, and hopes that the amendments will be made as requested.

Arbitration imposed at the request of one party after 60 days of work stoppage (section 87.1(1) of the Labour Relations Act) (Manitoba). The Committee recalls that its previous comments concerned the need to amend section 87.1(1) of the Labour Relations Act, which allows a party to a collective dispute to make a unilateral application to the Labour Board so as to initiate the dispute settlement process when a work stoppage has exceeded 60 days. The Committee notes the Government’s indication that no changes are anticipated in the Labour Relations Act. The Committee once again requests the Government to ensure that the Government of the Province of Manitoba takes the necessary measures to amend the above Act so that an arbitration award may only be imposed in cases involving essential services in the strict sense of the term, public servants exercising authority in the name of the State or where both parties to the collective dispute so agree.

Compliance of the Public Service Essential Services Act and of the Act to amend the Trade Union Act of the Province of Saskatchewan. The Committee recalls that its previous comments concerned the Public Service Essential Services Act (Bill No. 5) and the Act to amend the Trade Union Act (Bill No. 6), which were adopted by the Government of Saskatchewan in May 2008. The Committee also observed that these texts were the subject of a complaint before the Committee on Freedom of Association (CFA) (Case No. 2654), and it referred to the March 2010 conclusions and recommendations of the CFA, which drew the attention of the Committee to the legislative aspects of the case. The Committee recalls that, in accordance with the recommendations of the CFA, the provincial authorities are called upon, in consultation with the social partners; (1) to amend the Public Service Essential Services Act (Bill No. 5) so as to ensure that the Labour Relations Board may examine all aspects relating to the determination of an essential service and act rapidly in the event of a challenge arising in the midst of a broader labour dispute; (2) to amend the Public Service Essential Services Act, which sets out a list of prescribed essential services; (3) to make compensatory guarantees available to workers whose right to strike may be restricted or prohibited under the Public Service Essential Services Act; and (4) to amend the Trade Union Act (Bill No. 6), so as to lower the requirement, set at 45 per cent, for the minimum number of employees required to express support for a trade union in order to begin the process of a certification election.

The Committee noted previously that a number of national and provincial trade unions had filed a complaint with the provincial court in July 2008 to have Bills Nos 5 and 6 declared unconstitutional for violating, among other fundamental texts, the Canadian Charter of Rights and Freedoms and the international Conventions ratified by Canada. The Committee notes the Government’s indication that the Court of Queen’s Bench for Saskatchewan rendered a decision on 6 February 2012 on the bills. With regard to Bill No. 6, the court found that the amendments were constitutional and, consequently, the Government of Saskatchewan has no intention of changing the amendments made to the Act in 2008. With regard to Bill No. 5, the court found that the amendments were unconstitutional and that the legislation as written infringes upon freedom of association by limiting the right to strike. The Committee notes the indication that the Government of Saskatchewan is appealing the decision of the court and therefore notes that the matter is once again before the courts. The Committee refers to the conclusions of the CFA regarding the need to amend the Trade Union Act, as amended by Bill No. 6, and requests the Government to provide information on any decision taken by the competent jurisdiction concerning the appeal made by the Government of Saskatchewan against the finding that the Public Service Essential Services Act (Bill No. 5) is unconstitutional, and any action taken as a result, taking into account the recommendations of the CFA concerning the amendments to be made to that Act.