Definitive Report - Report No 234, June 1984

Case No 1226 (Canada) - Complaint date: 14-JUL-83 - Closed

1. 46. The Christian Labour Association of Canada (CLAC) submitted a complaint of violations of trade union rights against the Government of Canada in a communication dated 14 July 1983. The Government sent its reply to the complaint in a communication dated 16 January 1984.
2. 47. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 48. In its communication of 14 July 1983, the CLAC alleges serious discrimination against CLAC-organised workers in the construction industry in the Provinces of Ontario, British Columbia and Alberta as a result of their exclusion or expulsion from construction projects. According to the CLAC, the perpetrators of these boycotting tactics are construction unions affiliated to the American Federation of Labour - Congress of Industrial Organisations (AFL-CIO) and the Canadian Federation of Labour (CFL) which are increasingly concluding collective agreements with employers' associations containing "subcontracting" clauses. A typical clause of this type reads as follows: "The contractors shall only let or sublet work to contractors who are in contractual relationship with local unions that are affiliated with the Building Trades Council (AFL-CIO-CFL), or who have given written notice of their intention to enter into such a contractual relationship".
2. 49. The CLAC refers to a second type of discrimination current in British Columbia in the form of "non-affiliation" clauses in collective agreements. A typical clause of this type reads as follows. "It shall not be considered a violation of the no-strike section of the collective agreement if members of trade unions that are affiliated with the local Building Trades Council (AFL-CIO-CFL) refuse to work alongside workers not so organised". This situation, states the CLAC, allows international construction unions to remove their members from a construction project the moment CLAC-organised crews appear there.
3. 50. The CLAC cites various British Columbian Labour Relations Board decisions which have upheld such clauses as valid. It adds that appeals against these decisions to the Provincial Court of Appeal and Supreme Court have been unsuccessful. On the other hand, the Ontario Labour Relations Board and Courts have not approved "non-affiliation" clauses but have upheld the "subcontracting" clauses. In the Province of Alberta, the Labour Relations Board has officially approved the "subcontracting" clauses. The CLAC does not consider that the intent of labour legislation in Canada or its Provinces is to give favoured status to one group of unions. It believes, however, that the rulings of the Labour Relations Board and the Courts are encouraging the AFL-CIO-CFL-affiliated unions to establish a monolithic trade union structure. Although the provincial Boards do grant certificates of recognition under the various Labour Relations Acts or Labour Codes to independent unions, like the CLAC, whenever a group of employees voluntarily and by majority chooses to be organised by an independent union, the CLAC considers the exercise of this might be seriously undermined if other unions can, with impunity, exclude these workers from construction projects.
4. 51. According to the CLAC, its numerous submissions to the Provincial Governments involved asking them to enact legislation that would adequately and effectively protect workers from such discrimination, have been unsuccessful.
5. 52. From a copy of the CLAC Constitution (attached to its communication) it appears that this organisation "bases its programme and activities on the Christian principles of social justice and love as taught in the Bible" (Article 2) and that it aims "to organise workers in craft, trade, industrial, occupational or general workers locals for the purpose of propagating, establishing and maintaining justice in the sphere of labour and industry, and of promoting the economic, social and moral interests of the workers through the practical application of Christian principles in collective bargaining and other means of mutual aid or protection" (Article 3). The CLAC currently has valid collective agreements with some 210 construction firms in the Provinces concerned, employing approximately 2,000 construction workers. (It also represents some 3,000 employees in the health-care sector and general industry.)

B. The Government's reply

1. 53. In its communication dated 16 January 1984 the Government of Canada transmits the separate replies of the Provincial Governments of Ontario, British Columbia and Alberta to the complaint. The Provincial Government of Ontario explains that the Ontario Labour Relations Act specifically permits certain types of provisions to be included in collective agreements, such as union security clauses concerning preferential hiring for union members, compulsory union membership or compulsory union dues and deductions for all employees covered by a collective agreement. While agreeing with the complainant that non-affiliation clauses have not been approved either by the Ontario Labour Relations Board or the Courts, the Provincial Government considers that it could be argued that such clauses, to the extent that they purport to permit strikes during the term of a collective agreement, would conflict with the Act (which prohibits strikes during the term of a collective agreement) and thus be unenforceable. The CLAC in that case being an interested party could apply to the Board for relief. In addition, the Provincial Government points out that any attempt to demand the insertion of such a clause in a collective agreement with the result that the demand becomes a strike issue during bargaining could be a violation of the duty to bargain in good faith, and would accordingly be remedied by the Board.
2. 54. As regards subcontracting clauses, the Provincial Government stresses that these exist or are inserted in collective agreements as a result of free collective bargaining between employers and trade unions. The Provincial Government has taken no action to encourage or compel the inclusion of such clauses and the Labour Relations Act is silent on this point. According to the Provincial Government, the fact that it has not passed specific legislation prohibiting such clauses does not mean that it sanctions them. Pointing out that the inclusion of such clauses in construction industry agreements is a well-established practice in Ontario, the Provincial Government states that the traditional justification for them lies in the protection of the trade union's work jurisdiction and thus the preservation of its bargaining strength and job security. According to the Provincial Government, the Board and Court decisions which have upheld particular subcontracting clauses should be viewed in the context of the particular cases that were at issue; the Courts have given no conclusive general determination as to the validity of such clauses in whatever agreement they might appear. In summary, there is machinery available (even under the anti-trust legislation or at common law) to the CLAC to challenge the validity of such clauses in Ontario which, the Government points out, the complainant has not yet used. It denies that there is any violation of Conventions Nos. 87 and 98.
3. 55. The British Columbian Government states that its Labour Code specifically permits the parties to negotiate closed shop or other union security provisions but that it is silent on the subject of subcontracting clauses which may, therefore, be negotiated; a special feature of British Columbia legislation is that it permits the inclusion in collective agreements of non-affiliation clauses.
4. 56. According to the Provincial Government the ability of the craft unions to monopolise heavy construction work lies in the fact that certain of their unions have had complete control over key occupations. This monopoly is enforced by subcontracting and closed shop provisions in collective agreements, and by the unwillingness of other craft unions to work alongside non-union labour or union labour outside the British Columbia and Yukon Building Trades Council pursuant to the non-affiliation clauses in their collective agreements. The Provincial Government states that market forces currently appear to weigh heavily against construction at union rates so that now a number of non-union general contractors work in the Province; it suggests that this trend in practice could solve the CLAC's problem.
5. 57. The Government of Alberta considers that its legislation and Alberta Labour Relations Board practice does not infringe the rights of the complainant organisation. It points out that 60 per cent of collective agreements concluded in Alberta restrict employer flexibility in contracting out in keeping with common union security provisions found in the Canadian construction industry. Furthermore, states the Provincial Government, neither the Board nor the Courts have made any specific decisions concerning the status of this kind of provision under the Alberta Labour Relations Act. The CLAC is free to include such provisions in the agreements to which it is a party: the Provincial Government stresses that there is no statutorily sanctioned or supported trade union monopoly in the construction industry of Alberta.
6. 58. According to this Provincial Government, individual trade union size and prevalence is not related to the collective bargaining framework, but rather the attractiveness, at the individual worker level, of the programmes and services offered by specific trade unions. The Provincial Government points out in this connection that the CLAC's multi-trade industrial approach to construction industry unionism is very different to the approach of other unions, and its interest in industries other than construction could play a major role in its perceived ability to meet the needs and expectations of those workers whose free choice ultimately determines individual union strength.

C. The Committee's conclusions

1. 59. The Committee notes that this complaint concerns alleged discrimination and inter-union rivalry in the construction industry in three Canadian Provinces as a result of the inclusion of various union security clauses in collective agreements which have the practical effect of denying work on certain construction sites to members of the complainant union.
2. 60. The Committee has previously declined to examine cases that concern inter-union disputes over union security arrangements basing its reasoning on the statement of the Committee on Industrial Relations appointed by the International Labour Conference in 1949, according to which Convention No. 87 can in no way be interpreted as authorising or prohibiting union security arrangements, such questions being matters for regulation in accordance with national practice. [34th Report, Case No. 188 (Denmark), para. 34.] It has, however, examined complaints alleging discrimination by one workers' organisation against another if the terms of the complaint bring the application of the principles of freedom of association by the government of the country concerned into question, for example, if the acts complained against are such that the government is under a duty to prevent them by virtue of its having ratified an international labour Convention [73rd Report, Case No. 322 (Sierra Leone), para. 11.]
3. 61. In the present case, the complainant claims that the widespread use of certain types of union security clauses and the lack of specific legislation prohibiting them seriously undermines the individual worker's right to join an organisation of his own choosing (Article 2 of Convention No. 87, ratified by Canada). Furthermore, while noting that the Provincial Governments concerned suggest technical, legal or practical avenues to the complainant organisation to remedy the situation, the Committee also observes that the legislation of all three Provinces concerned specifically permits the inclusion of certain types of union security clauses in collective agreements, and the relevant judicial authorities have upheld such clauses as valid. In addition, all three Provincial Governments point out that the principles of freedom of association are not being infringed, but that, on the contrary, the principles are respected as, a result of non-interference in free collective bargaining. The Committee therefore considers that it is obliged to examine the¡ substance of the case.
4. 62. Although the Committee is not competent to interpret ILO Conventions on freedom of association in the light of States' practice in the field of union security arrangements, it considers that it must take a stand where the legal basis for such clauses or the consequences of such clauses lead either to a restriction on the individual workers' choice of a union or to discrimination at the workplace based on that choice once made.
5. 63. The Committee has stated in the past that by placing one organisation at an advantage in relation to the others, a government may either directly or indirectly influence the choice of workers regarding the organisation to which they intend to belong, since they will undeniably wish to belong to the union best able to serve them even if their natural preference would have led them to join another organisation for occupational, religious, political or other reasons [See 211th Report, Cases Nos. 1035 and 1050 (India), para. 115.] In the present case the Committee notes that the relevant clauses to which the complainant union takes exception are clauses that have been inserted in collective agreements concluded between employers and the most representative organisations in their capacity as sole bargaining agents for the large majority of the workers in the industry concerned. The Committee understands that the purpose of these clauses is to protect the economic and employment interests of the majority of the workers by excluding subcontractors who may be prepared to offer labour on conditions that are inferior to those which the majority unions have been able to negotiate for their members. It also notes that the complainant union itself has signed over 200 collective agreements with employers in the provinces concerned. In the circumstances of the present case, to the extent that the insertion of subcontracting or non-affiliation clauses in collective agreements is the result of free negotiation between the majority unions and the employers and that there is no explicit or implicit favouritism on the part of the Government, the Committee cannot conclude that there is any infringement of the individual worker's right to belong to the union of his choice.
6. 64. The Committee, accordingly, considers that this case does not call for further examination.

The Committee's recommendations

1. 65. In these circumstances, the Committee recommends the Governing Body to approve this report and, in particular, the following conclusions:
   • (a) The Committee considers that the inclusion of non-affiliation clauses in collective agreements does not, in itself, infringe the individual worker's right to choose a union. In the circumstances of the present case, the Committee also finds that the inclusion of subcontracting clauses does not infringe this right.
   • (b) The Committee, accordingly, considers that this case does not call for further examination.