Report in which the committee requests to be kept informed of development - Report No 330, March 2003

Case No 2182 (Canada) - Complaint date: 09-MAR-02 - Closed

1. 306. The complaint in the present case is contained in a communication from the Ontario Federation of Labour and the Canadian Labour Congress, dated 9 March 2002.
2. 307. In a communication of 10 October 2002, the Federal Government transmitted the reply of the Government of the Province of Ontario.
3. 308. 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. 309. The Ontario Federation of Labour (OFL), affiliated to the Canadian Labour Congress, is made up of 650,000 workers in more than 1,500 affiliated local unions. This complaint concerns some provisions of the Labour Relations Amendment Act, 2000 (Bill No. 139) which, according to the OFL, infringe guarantees of freedom of association and, in particular, ILO Conventions Nos. 87, 98 and 151. These provisions encourage the decertification of workers’ organizations by requiring employers to post and distribute in the workplace documents prepared by the Minister of Labour, setting out the process to terminate trade union bargaining rights.
2. 310. Bill No. 139 passed third reading and received royal assent in December 2000. These provisions are now contained in section 63.1 of the Labour Relations Act (the LRA), which provides:
3. 63. 1(1) Within one year after the day the Labour Relations Amendment Act, 2000, receives royal assent, the Minister shall cause to be prepared and published a document describing the process for making an application for a declaration that the trade union no longer represents the employees in a bargaining unit. ...
4. 63. 1(3) The document shall explain who may make an application, when an application may be made and the procedure, as set out in this Act and in any rules made by the chair of the Board ... that the Board follows in dealing with an application.
5. 63. 1(4) An employer with respect to whom a trade union has been certified as a bargaining agent ... shall use reasonable efforts:
   • (a) to post and keep posted a copy of a document published under this section in a conspicuous place in every workplace of the employer at which employees represented by the trade union perform work;
   • (b) to post and keep posted with that copy a notice that any employee represented by the trade union may request a copy of the document from the employer;
   • (c) once in each calendar year, to provide a copy of the document to all employees of the employer who are represented by the trade union; and
   • (d) upon the request of an employee ... to provide a copy of the document to him or her, even though the employer has previously provided or will subsequently provide the employee with a copy of the document.
6. 63. 1(5) An employer shall not be found to be in violation of this Act as a result of doing anything set out in subsection (4).
7. 311. In accordance with these provisions, the Minister of Labour prepared and published a document describing the process for decertification in December 2001. A copy of the poster and brochure were mailed that same month to all employers who had registered a collective bargaining relationship with the Ministry of Labour.
8. 312. The complainants allege that section 63.1 of the LRA contravenes Convention No. 87, ratified by Canada, and is entirely inconsistent with the Government’s obligations under international law to encourage, promote and protect the right of employees to bargain collectively. This provision constitutes a powerful message by the State of its opposition to the unionization of employees and a clear interference with that right. By virtue of freedom of association principles, all workers have the right to establish and join organizations of their own choosing; governments must take measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between unions and employers, and must allow trade unions to operate in full freedom.
9. 313. The complainants submit that this provision constitutes a significant interference with the rights of employees to join and participate in the activities of trade unions. Rather than meeting its obligations at international law to encourage the process of collective bargaining, the Government of Ontario clearly intends to weaken trade unions and to encourage individuals not to exercise their right to organize or to engage in collective bargaining. Rather than encouraging the exercise of the right to collective bargaining the Government has chosen in a discriminatory and one-sided manner to promote the decertification of existing trade unions by conducting a campaign which can only be seen as designed to encourage interference with the exercise of trade union freedoms.
10. 314. Labour relations boards and academics have consistently noted that communications by employers to employees interfering with decisions relating to certification and decertification constitute unfair labour practices. Given the responsive nature of the employment relationship, messages sent by an employer may overly influence employees in the exercise of their right to join a union. Where that message from an employer is coupled with the imprimatur of the State, it cannot but interfere with the rights of employees to join workers’ organizations and to participate in their activities. The fact that the distribution of such documents by an employer would otherwise be viewed as an unfair labour practice and unlawful interference with employees’ rights under the LRA is made plain by subsection 63.1(5) which absolves an employer from liability under the Act for complying with the requirements to post and distribute.
11. 315. The legislation in question is noteworthy in that it advises employees only of their rights to decertify under the Labour Relations Act. It does not mention any of the rights that are intended to protect freedom of association including the right to engage in certification and in lawful activities of trade unions and to be free from discrimination or anti-union reprisal, all matters which are covered by the LRA. There is simply no precedent for the selective highlighting of only one particular legislative provision, and there is no other requirement in the employment field for the distribution by an employer of legislative information to individual employees on an annual basis. The conclusion to be drawn from this selective posting, taken together with the unprecedented requirement of individual distribution on an annual basis to each individual employee, is that the provisions are calculated to influence and interfere with employees’ exercise of freedom of association.
12. 316. In addition, the Government has not chosen to require that similar posters or brochures be distributed in non-union workplaces advising employees of their rights to unionize, thus making it plain that the intention of the legislative provisions is not to inform employees about relevant labour relations laws in an even-handed fashion but is rather to interfere with the right of employees who have chosen to unionize. The Government may argue that employees did not have sufficient knowledge of their right to decertify, but the trade union movement has not been provided with empirical evidence that this is the case, nor do any such studies appear to have been performed by the Government. Further, while the Government may argue that employees receive information on unionization from trade unions, under Ontario law, unions are precluded from entering into workplaces by the operation of trespass laws. The fact that the Government is unwilling to place equivalent obligations on employers to inform employees of their rights to organize under the same legislation indicates that the Government wants to interfere in the employees’ choice, to erode the existing unionized base and to oppose collective bargaining as the preferred means for the resolution of disputes between employers’ and workers’ organizations.
13. 317. The provisions requiring employers both to post and distribute information cannot but send a powerful message that both the State and the employer prefer that employees not be unionized. There is nothing in the brochure which reassures employees as to their right to remain members of a trade union and not to be discriminated against as a result of union activity, and no mention is made of the employers’ obligation to recognize and bargain with trade unions. This skewed message can only be viewed as intended to, and having the effect of, discouraging unionization and interfering with the workers’ right freely to associate.

B. The Government’s reply

1. 318. In its communication of 3 October 2002, the Government of Ontario submits that the obligation made to employers in unionized workplaces to post a decertification information poster under Bill No. 139 does not violate ILO Conventions Nos. 87, 98, 151 and 154.
2. 319. The Labour Relations Amendment Act, 2000 (Bill No. 139), which received royal assent on 21 December 2000, among other things, amended the Labour Relations Act, 1995 (LRA) to require within one year the publication of a document describing the process for making an application for a declaration that a trade union no longer represents the employees in a bargaining unit. The decertification document was published on 14 December 2001. One English and one French copy of each of the poster and the brochure, together with an explanatory cover letter, were sent out to all employers who had filed a copy of their collective agreement with the Ministry of Labour as required by the LRA.
3. 320. The document sets out neutral factual information about union decertification. It explains who may make an application, when an application may be made and the procedure as set out in the Act and in the rules of the Ontario Labour Relations Board (OLRB). Every unionized employer is required to use reasonable efforts to post a copy of the document in the workplace, provide a copy of the document to every unionized employee once per calendar year and provide a copy to unionized employees who request it. Compliance with these reasonable efforts requirements by an employer will not constitute an unfair labour practice under the Act.
4. 321. Generally, the statutory reasonable efforts to post and distribute apply to employers with a collective bargaining relationship governed by the LRA. These requirements do not apply to employers who have no unionized employees or employers whose unionized employees are governed under other statutes, for example, firefighters covered by the Fire Protection and Prevention Act, 1997; police and related employees covered by the Police Services Act or the Public Service Act; employees of a college covered by the Colleges Collective Bargaining Act; or teachers covered by the Education Act and the Provincial Schools Negotiations Act.
5. 322. The law provides that if the Minister believes that the document has become out of date for various reasons, the Minister must ensure that a new document is prepared and published within one year after the previous document becomes out of date. The OLRB is responsible for the interpretation and enforcement of the LRA. There is no specific enforcement mechanism in section 63.1 of the LRA. However, in the event of a complaint and a determination that there has been a contravention of the LRA, the OLRB has broad powers to enforce the Act.
6. 323. The Government of Ontario submits that these provisions support workplace democracy and the individual right of workers freely to decide whether they wish to be represented by a union and continue with union representation. Certification information is made available to employees by unions during an organization drive but, until now, there had been little information available to employees about decertification. Unions did not provide it and employers were generally prohibited from doing so. The purpose of the decertification poster is simply to inform employees of their rights under the LRA, which they may otherwise not be aware of, by providing neutral, factual information.
7. 324. The complainants have provided no evidence of how the posting of information about employees’ rights to choose whether to continue to be represented by a union prevents employees who wish to remain represented by a union from doing so. In fact, under the LRA, employees are protected from an employer’s influence in a decertification process. The document clearly states that the employer must not be involved in the decertification process under section 63 of the LRA. Employees are protected from employer interference with their right to freedom of association pursuant to section 63(16) of the LRA, which states as follows: “Despite subsections (5) and (14), the Board may dismiss the application [for decertification] if the Board is satisfied that the employer or a person acting on behalf of the employer initiated the application or engaged in threats, coercion or intimidation in connection with the application”.
8. 325. Several sections of the LRA provide further protections for employees of their right to unionize: section 5, which provides that every person is free to join a trade union of the person’s own choice and to participate in its lawful activities; section 72, which prohibits employers from interfering with employees’ rights on the basis of their trade union membership; section 76, which prohibits the use of intimidation or coercion to compel any person to become, refrain from becoming, to continue or cease to be a member of a trade union, or exercising other rights under the LRA; section 80, which provides rights of reinstatement of employees in case of violation; and enforcement provisions (sections 96 and 104).
9. 326. As regards the complainants’ arguments that unions are prevented from entering into workplaces to distribute information to non-unionized employees due to trespass laws, which allegedly created an imbalance that favours decertification of unions and disadvantage employees’ attempts to decide to join unions and engage in collective bargaining, the Government states that unions are free to distribute information about employees’ right to join a union, and exercise this right in Ontario. Under the LRA, union organizers who do not work for a particular employer generally do not have the right to enter that employer’s property to persuade employees to join their union. However, where employees live on property either owned or controlled by the employer, such as in remote logging or mining camps, the OLRB may direct that a trade union representative be provided access to the property for the purpose of persuading the employees to join a trade union. The law is an attempt to balance property rights with the right of employees to join a union. However, employees of a workplace are not prohibited from persuading their fellow employees at the same workplace to sign union cards before work or during a break. Unions are also not prohibited from distributing leaflets to employees as they enter or leave a workplace. Furthermore, in response to Bill No. 139, the complainant indicated that it would be distributing “how to join a union” materials to assist organizing drives in non-union workplaces.
10. 327. As regards the complainants’ allegation that the Government failed to consult workers’ organizations prior to implementing Bill No. 139, the Government states that it is committed to strengthening individual worker rights. Prior to the introduction of Bill No. 139, workers’ organizations and the general public were able to express their views about reforms both by direct communications with the Government and through the legislative process.

C. The Committee’s conclusions

1. 328. The Committee notes that this case concerns section 63.1 of the Labour Relations Act of Ontario (the “LRA”) which provides that employers in unionized settings must post and circulate information, prepared by the Ministry of Labour, on rules and procedures for trade union decertification. The complainants allege in essence that these provisions violate ILO Conventions and freedom of association principles on the right to organize and bargain collectively. The Government of Ontario denies that the provisions amount to such a violation and replies that the purpose of the decertification information is simply to provide employees with neutral and factual information on their rights under the Act, which they may otherwise be unaware of.
2. 329. The Committee recalls that measures should be taken to guarantee freedom of association, which includes the effective recognition of collective bargaining. This necessarily implies the taking of positive steps, conducive to achieving freedom of association and the collective regulation of employment terms and conditions.
3. 330. The Committee considers that the provisions challenged in the present case cannot promote and encourage freedom of association. Quite the contrary, the poster and accompanying notice, being information prepared by the Ministry of Labour and posted in unionized workplaces with the Ministry’s formal endorsement may be considered, at best, as a message by the Government that a decertification application would be entertained favourably and, at worst, as an incitement to apply for decertification, thus contravening Convention No. 87 ratified by Canada.
4. 331. The Government’s argument that the object of this provision is to provide neutral and factual information might have been more convincing had the amending legislation introduced parallel provisions, with the official endorsement of the Labour Ministry, to inform workers in all non-unionized workplaces (not only in “remote logging or mining camps”) of their right to organize and the procedures to do so, and of the various existing legal guarantees to ensure the free exercise of that right, e.g. protection against trade union discrimination (before and during certification), protection against employer interference, etc.
5. 332. The Committee further notes the contents of section 63.1(5), which provides that: “An employer shall not be found to be in violation of this Act as a result of doing anything set out in subsection (4).” Subsection 63.1(4) requires in some detail employers to “use reasonable efforts”: to post and keep posted the decertification document in a conspicuous place in every unionized workplace [s. 63.1(4)(a)]; to post and keep posted a notice informing any unionized employee that they may request a copy of the document [s. 63.1(4)(b)]; once a year, to provide a copy of the document to all unionized employees [s. 63.1(4)(c)]; and, upon request of a unionized employee, to provide a copy of the document even though the employee has already been provided with the document [s. 63.1(4)(d)]. The Committee can only conclude that section 63.1(5) constitutes a pre-emptive provision to avoid possible unfair labour practices proceedings from being filed by trade unions; this also removes much weight to the Government’s argument as to the wide redress powers of the OLRB, in respect of acts done by employers in accordance with section 63.1.
6. 333. The Committee considers that section 63.1 of the LRA does not encourage the promotion of freedom of association, is not conducive to harmonious labour relations and may rather ultimately prove counterproductive by creating a recurring climate of confrontation over certification issues. The Committee considers that it would be actually advantageous for the Government to avoid this type of provision and therefore requests it to repeal section 63.1 of the LRA and to keep it informed of developments in this respect.

The Committee's recommendations

1. 334. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government of Ontario to repeal section 63.1 of the Labour Relations Act and to keep it informed of developments in this respect.