Report in which the committee requests to be kept informed of development - Report No 324, March 2001

Case No 2083 (Canada) - Complaint date: 17-APR-00 - Closed

Allegations: Violation of the right to bargain collectively of certain public sector employees

1. 235. This complaint was presented in a communication dated 17 April 2000 from the Canadian Labour Congress (CLC) and the Canadian Union of Public Employees (CUPE), supported by the International Confederation of Free Trade Unions (ICFTU) in a communication of 27 April 2000.
2. 236. The Government provided its observations in a communication dated 10 January 2001.
3. 237. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151) nor the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants' allegations

1. 238. In their communication of 17 April 2000, the complainant organizations submit that the Public Service Labour Relations Act, R.S.N.B. 1973, Ch. P-25 (the "PSLRA") violates the ILO Conventions on freedom of association in that it excludes certain workers from the definition of "employee" under the Act, namely those persons "not ordinarily required to work more than one-third of the normal period for persons doing similar work" (section 1 (C.1)) and those "employed on a casual or temporary basis unless the person has been so employed for a continuous period of six months or more" (section 1(e)).
2. 239. The combined effect of these provisions is that casual workers are excluded either because the non-continuous nature of their employment (even if it extends beyond six months), because their employment (even where continuous) is for less than one-third of the normal working time of persons doing similar work, or yet because their continuous employment is cut off before six months (e.g. seasonal workers). While the exact number of workers in this situation is not known, the current estimate is that there are over 6,000 casuals working for the provincial government, without employee status. Because they are excluded from the coverage of the PSLRA, they cannot avail themselves of the right to join unions of their own choosing or to bargain collectively, as is otherwise open to "employees" under section 25 of the Act.
3. 240. The complainants add that casual workers often do not attain employee status after working six months. In fact, many casuals have worked for many years without the right to unionize and to be covered by a collective agreement. These casuals work side-by-side with those who have attained employee status (including some part-time workers who have acquired employee status) but are not covered by collective agreements and have very different terms and conditions of employment. The complainants refer to a series of court cases which demonstrate how the legislation makes it extremely difficult for casuals to obtain employee status under the PSLRA. Throughout this jurisprudence, the courts have made it clear that the statutory definition of "employee" would have to be amended, for casuals and other workers in similar situations, to enjoy the rights and protections of the PSLRA and collective agreements, which led for instance a court to conclude: "Therein lies an anomaly … under the terms of the Act, the employer can prevent an employee hired as a casual from obtaining "employee" status under the Act by interrupting any regular or defined basis of employment before a six-month period has elapsed. I believe this is the way the employer perceives the law to be and from my reading of the law, I think this is correct. A response as to whether such a situation is appropriate lies with the legislature, not with the courts" (Stewart et al. (1985), 70 N.B.R. 93, Justice Creaghan, p. 99).
4. 241. Employees not covered by the PSLRA or other statute regulating collective bargaining are governed by the common law, as applied in the Canadian context. As a result, without statutory protections, such workers are vulnerable to penalties (including dismissal) and to legal action being taken against them for various acts of combination (including the torts of directly and indirectly inducing breach of contract, and conspiracy to do so); the employer is under no obligation to bargain with them over terms and conditions of employment. In short, such workers are denied the ability to organize and bargain collectively, protection from reprisals for engaging in protected union activity, and to enter into enforceable collective agreements.
5. 242. Article 2 of Convention No. 87 provides that all workers "without distinction whatsoever" should have the right to organize, which the Committee on Freedom of Association has considered to mean that this freedom should be guaranteed without discrimination of any kind. Not only are casual workers in the public service treated differently from "employees", they are also discriminated against when compared with the situation prevailing in the private sector where, under the Industrial Relations Act (R.S.N.B. 1973, C. 1-4, "IRA") no such distinction exists. To illustrate this discriminatory situation, casual hospital workers in the public sector do not enjoy the protection of the PSLRA, whereas casual nursing home workers in the private sector are covered by the IRA. The same discriminatory results obtain when comparing, for instance, provincial transportation workers and municipal workers.
6. 243. In its communication of 17 April 2001, the CUPE gives concrete examples of the application of this double standard, as regards:
   • - length of employment: some casual workers have been working for the Government for many years, with hiring dates of anywhere between 1975 and 1999;
   • - working hours: in Region 4 (Edmunston) the average working hours of 119 casuals in the hospital sector was 18.87 hours a week in 1998; in Region 6 (Chaleur) the average working hours of 144 casuals was 15.95 hours during the last six months of 1998; in Region 2 (Saint John) the average working hours of 312 casuals was 19.74 hours during the last three months of 1998; in the George Dumont Hospital (Moncton) casuals worked 125,452 hours in 1998 which, translated in full-time positions, means 64 jobs;
   • - wages and benefits: in the hospital sector, the differential of the compensation package is $3.96 an hour, or 37.25 per cent, for two persons doing exactly the same work; at the New Brunswick Liquor Corporation, casual workers get paid $4.50 less than full-time employees and receive no benefits;
   • - pensions: casual workers are not eligible to the pension plan available to the vast majority of government employees (including part-time and seasonal employees);
   • - discipline: casuals can be dismissed and disciplined without any protection, e.g. recourse to grievance arbitration.
7. 244. The complainants submit that the PSLRA contravenes Conventions Nos. 87, 98, 151 and 154 and that it should be amended to bring it into line with ILO standards.

B. The Government's observations

1. 245. In its communication of 10 January 2001, the government of New Brunswick states that the regime governing the public sector is determined in four Acts, including the PSLRA which is closely modelled on federal legislation and distinguishes between regular and temporary employees.
2. 246. The Government stresses that civil servants are not "employed", but "appointed" as officials, under a competitive process designed to foster impartiality and neutrality, and selected on the basis of merit. Casual workers are engaged for limited periods and are not subject to these processes.
3. 247. The PSLRA provides that those engaged in work less than one-third of the normal period for persons doing similar work and those engaged on a casual or temporary basis for less than six months are not deemed to be employed in the public service. Significantly, these persons are not required to perform work when called upon to do so and can refuse such work without becoming ineligible for future engagement. They are asked to work, and agree to do so, in order to meet time-limited requirements arising, for instance, by reason of sickness of regular employees, sudden and temporary need for staff, and other like contingencies. Since the circumstances of these temporary employees are quite different from those of regular public service employees, particularly in view of the fact that they are not obliged to work when asked to do so, they are not deemed to be employees for purposes of collective bargaining.
4. 248. The Government points out that the legislative definition of "employee" and the exclusion of these two categories of workers have been upheld in a variety of court cases, including in proceedings before the Supreme Court of Canada in the early 1980s.
5. 249. The Government states that while the PSLRA does not violate Convention No. 87 as it does not restrict in any way the freedom of casual employees to join unions of their choosing, the Act does contain provisions which establish that bargaining agents can represent "employees" (thereby excluding casuals). According to the Government, the terms under which casual employees are engaged in the public service are so fundamentally different from those of regular employees that this warrants the definitional distinction in the Act.

C. The Committee's conclusions

1. 250. The Committee notes that this case concerns the exclusion of casual workers from the definition of "employee" in the Public Service Labour Relations Act of New Brunswick, which entails a number a consequences for said workers as regards, for instance, status, tenure, pay and benefits, pensions and disciplinary regime, and raises two issues in respect of freedom of association: the right of casual workers to organize and their right to bargain collectively.
2. 251. As regards the first issue, the Committee notes that the Government declares, in direct contradiction with the complainants' allegations, that the PSLRA does not restrict in any way the freedom of casual employees to join unions of their choosing, without substantiating that statement in any way, e.g. by providing examples of such workers being members of trade unions. The Committee seriously questions this assertion, in view of the interplay of the various PSLRA definitions where the term "employee" appears in article 1, and which have the effect of excluding casual workers from the right to join organizations of employees, e.g.:
   • - "bargaining agent" means an employee organization;
   • - "bargaining unit" means a group of two or more employees;
   • - "employee" means a person employed in the public service, other than:
   • - (c.1) a person not ordinarily required to work more than one-third of the normal period for persons doing similar work;
     • - (e) a person employed on a casual or temporary basis unless the person has been so employed for a continuous period of six months or more;
   • - "employee organization" means an organization of employees the purposes of which include the regulation of relations between the employer and its employees for the purpose of this Act.
3. 252. Given these statutory definitions, at the very least, casual workers could not join public service employee organizations because they are not "employees" within the meaning of the PSLRA. On the basis of available evidence, the Committee can therefore only conclude that casual workers cannot join organizations of their own choosing, and enjoy the various related rights.
4. 253. The Committee 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 [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 236]. The Committee further notes the uncontradicted evidence that casual workers are being treated differently depending on whether they work in the private or the public sector, in that the former enjoy the protection of the IRA whereas the latter are not covered by the PSLRA or any other statute. The Committee recalls in this respect that the denial of the right of workers in the public sector to set up trade unions where this right is enjoyed by workers in the private sector involves discrimination [see Digest, op. cit., para. 216]. It requests the Government to take appropriate measures in the near future to ensure that casual and other workers, currently excluded from the definition of employees in the PSLRA, be granted the right to establish and join organizations of their own choosing, in conformity with principles of freedom of association, and to keep it informed of developments in this respect.
5. 254. Concerning the second issue, the Committee notes that the Government does not challenge the complainants' allegation that casual workers in the public service do not enjoy collective bargaining rights, but rather argues that their terms of employment are so fundamentally different from those of regular employees that this justifies the existing distinction in the PSLRA. The Committee recalls in this regard that all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights [see Digest, op. cit., para. 793] and that, according to the principles of freedom of association, staff having the status of contract employee should enjoy this right [see Digest, op. cit., para. 802]. It requests the Government to take appropriate measures in the near future to ensure that casual and other workers, currently excluded from the definition of employees in the PSLRA, be granted the right to bargain collectively, in conformity with principles of freedom of association, and to keep it informed of developments in this respect.
6. 255. The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

The Committee's recommendations

1. 256. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take appropriate measures in the near future to ensure that casual and other workers, currently excluded from the definition of employees in the Public Service Labour Relations Act, be granted the right to establish and join organizations of their own choosing, and to bargain collectively, in conformity with principles of freedom of association, and to keep it informed of developments in this respect.
   • (b) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.