Report in which the committee requests to be kept informed of development - Report No 340, March 2006

Case No 2314 (Canada) - Complaint date: 19-DEC-03 - Closed

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INTRODUCTION
A. The complainant organizations’ allegations
C. The Committee’s conclusions
The Committee's recommendations
Annex

Allegations: The complainant organizations allege legislative interference by the Government to cancel the trade union registrations of certain workers in social and health services (Bill No. 7) and childcare services (Bill No. 8). The Government is thereby depriving them of employee status under the Labour Code and is redefining them as independent workers, denying them the right to unionize; it obliges them to form “representative” organizations with responsibility for concluding agreements on working conditions, which are, in fact, at the mercy of the authorities, and is denying them the right to bargain collectively through independent trade union organizations

373. The complaint concerning Case No. 2314 is contained in communications dated 19 December 2003 and 10 February 2004 from the Confederation of National Trade Unions (CSN); it is supported by Public Services International (PSI) in a communication dated 6 July 2004.

374. The complaint concerning Case No. 2333 is contained in joint communications from the Centre of Democratic Trade Unions (CSD), the Quebec Trade Union Centre (CSQ) and the Quebec Workers’ Federation (FTQ), dated 30 March and 27 May 2004.
375. The Government of Canada has sent the replies of the Government of Quebec concerning the two complaints in communications dated 29 December 2004 and 21 November 2005.
376. 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), or the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant organizations’ allegations

The complainant organizations
377. In its communication of 19 December 2003, the complainant organization in Case No. 2314 (CSN) states that it has 280,000 members who form nearly 2,700 trade unions, which are, in turn, grouped into nine federations by sector of the economy, in both the private and public sectors. The CSN represents over 90 per cent of unionized workers in the childcare services sector – a total of more than 6,000 workers.
378. In their communications of 30 March and 27 May 2004, the complainant organizations in Case No. 2333 give the following facts. The Centre of Democratic Trade Unions (CSD) has close to 65,000 members and around 400 member unions, including unions in the social sector; it has made more than 30 applications for registration to represent workers working as intermediary and family resources; it is affiliated to the World Confederation of Labour (WCL). The Quebec Trade Union Centre represents around 170,000 workers in 250 trade unions and 13 federations, including in early-childhood education, health and social services. The Quebec Workers’ Federation (FTQ) is the oldest trade union organization and the main trade union centre in Quebec, with over half a million members in over 5,000 trade union sections, around 40 larger unions and 17 regional councils; at national level, it is a member of the Canadian Labour Congress, while at international level it is affiliated to the International Confederation of Free Trade Unions (ICFTU).
The general legislative framework
379. One of the essential concepts of the Labour Code, which governs collective labour relations in Quebec, is that of “employee”, since this definition determines whether or not a person has trade union rights. Only “employees” within the meaning of the Code enjoy the rights laid down therein, including the right to form unions, to protection against anti-union interference or intimidation, to registration, collective bargaining, arbitration of disputes, strike action, collective agreements and arbitration of grievances. Some categories of workers – for instance, management – are excluded from the scope of the Code by section 1(l). Others like the workers who are the subject of this complaint, can be excluded under other laws (the overwhelming majority of whom are women).
380. The complainant organizations challenge the following two laws (cf. relevant extracts reproduced in annex to the present document), which they believe to constitute violations of freedom of association:
– the Bill to amend the Act on health and social services (LSSSS) (Bill No. 7, which on enactment became L.Q. 2003, c.12, hereinafter known as the Act to amend the LSSSS);
– the Bill to amend the Act on early childhood centres and other early childhood care services (LCPE) (Bill No. 8, which on enactment became L.Q. 2003, c.13, hereinafter known as the Act to amend the LCPE).
These two Acts were adopted at the very moment Canada’s international commitments on freedom of association were explicitly recognized by the Supreme Court of Canada, the highest court in the land, in the Dunmore case.
Context of the Act to amend the LSSSS
381. The Act on health and social services (c.S-4.2) sets out a system of health and social services whose aim is to maintain and improve individuals’ physical, mental and moral capacity to achieve fulfilment in their own environment. With the aim of deinstitutionalizing rehabilitation services for people with mental disabilities, the competent Ministry decided in 1991 to abandon the system of accommodation in public institutions in favour of integration and care for people in more natural surroundings. This has given rise to the appearance of new home-based care and accommodation roles including “intermediary resources” (“ressources intermediaries” or RIs) and “family-type resources” (“ressources de type familial” or RTF). Since the last residential public institutions closed their doors in 1999, the RIs and RTFs have played the most important role in this area; they take care of adults with physical and mental disabilities and have to be approved by the public institutions, which establish the maximum number of adults they may accept and determine their level of pay, which varies according to the services provided and the number of persons cared for.
382. After receiving requests for certification from various trade union organizations, the competent administrative courts decreed that RIs and RTFs exhibited all the characteristics of employees, as defined by the Code, and should therefore be granted all the rights provided for by the Code: trade union registration, collective bargaining on working conditions, relevant legislative protection and so on. This judgement was confirmed by both the Superior Court and the Court of Appeal of Quebec. Following this, the Government adopted the Act amending the LSSSS, which entered into force on 18 December 2003, in order to revoke union certifications already obtained, prevent all collective bargaining and call into question the situation that had previously been settled in the courts for these workers. Moreover, the Attorney-General of Quebec and individual employers (on the basis, in particular, of the laws contested in this complaint) began judicial proceedings aimed at overturning the certifications held by the unions.
Context of the adoption of the Act to amend the LCPE
383. In 1997, the Act on early childhood centres and other early childhood care services set up a national network of early childhood care services, largely subsidized by the State and serving children between birth and nursery-school age. Early childhood centres (“centres de la petite enfance” or CPEs) form the cornerstone of the network and coordinate early childhood care both in the home and at centres (educators working at centres are not included in the complaint as they do enjoy trade union rights). Early childhood care in the home is essentially a service provided in a private home by an individual, known as a “home child-care provider” (“responsable de service de garde en milieu familial” or RSG), for remuneration. RSGs have to obtain recognition from a CPE to carry out childcare services and, to this end, have to conform to a very detailed set of obligations, both for initial approval and for renewal of recognition. RSGs, the vast majority of whom are women, work a minimum of 50 hours per week, excluding the hours spent performing other related tasks, and do not enjoy any social benefits. The authorities have always considered them to be independent workers.
384. In 2001, the first certification applications were submitted by a number of trade union organizations for a first group of RSGs (in a period of two years, around 80 such applications were submitted by various organizations). These requests were accepted by the competent specialized bodies, who granted them the status of employees under the Labour Code, thereby entitling them to unionize and to enjoy the other provisions of the Code. These decisions were confirmed in May 2003 by the Labour Tribunal, and the registered unions then initiated bargaining for an initial collective agreement for the RSGs concerned. However, the Attorney-General and the CPEs affected appealed to the Superior Court against the judgement of the Labour Tribunal, and, without awaiting the Court’s judgement, the Government adopted the Act to amend the Act on early childhood centres and other early childhood care services (hereinafter referred to as the Act to amend the LCPE). This law entails various trade union rights violations; in particular, it revokes the union certifications obtained before its entry into force and denies RSGs the right to unionize and to bargain collectively.
Common aspects of the two laws
385. The complainant organizations claim that these two laws share the same purpose: to deny RIs, RTFs and RSGs employee status and, hence, to dismantle the trade union organizations that they had succeeded in forming, following long struggles and despite the isolation of the workers concerned, and for which they had obtained recognition as representative organizations for the purposes of collective bargaining with regard to working conditions.
386. In addition, these laws create an entire parallel framework in which RIs, RTFs and RSGs are forced into a system of groupings in which their representative organizations will be dependent on the goodwill of the Ministry, which constitute a violation of freedom of association and interference in the right to organize. Furthermore, the laws deny representative organizations any right to negotiate working conditions, thus reducing to nothing their right to bargain collectively.
387. These laws are all the more unjust as they discriminate against a whole socio-occupational category because it is made up of women. In forcing them to fight all over again to obtain recognition of their employee status and trade union associations, the revocation of employee status has clearly had damaging consequences for these women’s freedom of association, but it also has major repercussions on their social security, as employee status is the condition of access to various social programmes in Quebec. In forcing these female workers to fight the social battles of the last hundred years all over again, the Government is discriminating against them both as women and as an occupational group. The complainant organizations emphasize that these individuals do not enjoy any social benefits (such as paid public holidays, sick leave, maternity leave, parental leave, a retirement scheme or access to occupational equality or salary equity programmes). These laws perpetuate social stereotypes and selectively exclude an occupational group that works in isolated and very vulnerable conditions.
388. The complainant organizations allege that RSGs, RIs and RTFs are denied the freedom to choose a trade union organization, as the two laws under dispute allow recognition of the organizations for non-employees only. Thus, the Act to amend the LSSSS provides that “an intermediary resource shall be considered not to be in the employment, nor to be an employee, of the statutory body using her/his services and any agreement or contract reached between them … shall not be considered a contract of employment”. Similarly, the LCPE stipulates that a recognized home childcare provider “shall be a provider of services under the Civil Code, and shall be considered not to be in the employment, nor to be an employee, of the permit holder of the early childhood centre where she/he is recognized; the same shall apply for persons assisting her/him and any person employed by her/him”. In other words, only associations that do not demand employees’ working conditions will be recognized by the Ministry, and discussions will be held only on conditions for the provision of services, not on conditions of labour.
389. The provisions concerning consultation compound the Government’s interference in the freedom to join associations of choice. The Act to amend the LSSSS provides that the Ministry can conclude an agreement with one or more representative organizations of intermediary resources concerning general conditions for the exercise of their activities, the legislative framework for the living conditions of users and methods of payment for services. Similarly, the Act to amend the LCPE provides that the Ministry may conclude an agreement with one or more representative associations of RSGs concerning the exercise and financing of home childcare and the creation and maintenance of programmes and services to meet the needs of all RSGs. Therefore, it is impossible to discuss – let alone negotiate – the working conditions of RSGs, RIs and RTFs. All discussion on retirement schemes, occupational safety and health, salary equity, maternity leave or other social benefits is also ruled out, since everything relates to the conditions under which the service is provided, while the effect of those conditions on the providers of the services is ignored.
390. The retroactive scope of these amending Acts and the behaviour of the Attorney-General and the employers concerned (who have used the laws to attempt to have certifications revoked) are evidence of selective exclusion from employees’ associations. The Act to amend the LSSSS and the Act to amend the LCPE are defined as “declaratory” and as applicable even to an administrative, quasi-judicial or judicial decision made before their entry into force. The complainant organizations claim that the closure of existing employees’ associations, when those organizations are in the process of discussions for the conclusion of an agreement, violates the freedom to join trade unions of one’s own choice and constitutes improper interference on the part of the Government.
391. These laws also have the effect of excluding RSGs, RIs and RTFs from the legislative mechanisms that protect workers and their organizations from any interference in their freedom of association, as they contain no provisions for prohibiting and punishing interference or reprisals against an organization or management interference in the representative nature of a union, or even to preserve the confidential nature of union membership. On the contrary, the laws are incompatible with protections of this sort, as they do not deal with occupational relations but rather with the relationship between an enterprise and its service providers. The laws in question go so far as to allow the Minister to inspect the membership rolls of the “bodies” that he wishes to recognize as representative. The Act to amend the LSSSS (section 303.2, as amended) and the Act to amend the LCPE (section 73.5, as amended) provide that a representative association must, on demand, supply the Minister with up-to-date documents establishing its existence and the name and address of each of its members. This lack of any protection mechanism and the intrusion by the Minister into the membership rolls constitutes a direct violation of Articles 1 and 2 of Convention No. 98.
392. The offending laws explicitly deny RSGs, RIs and RTFs the freedom to bargain. Even in discussions on the conditions of the provision of services – themselves limited – the Minister is under no obligation to negotiate and conclude a collective agreement, and can choose with whom he will conclude an agreement. There is therefore no real obligation to negotiate, or any possibility for strike action to support workers’ demands, even though the right to conduct free and voluntary bargaining and the right to strike are both considered fundamental rights, linked to freedom of association.
393. The complainant organizations state that a judicial challenge has been launched at national level to have these two laws declared unconstitutional. Lastly, they request the Committee to recommend that the laws be completely repealed, or that legislative measures be adopted to give the workers concerned the same rights as all other employees in Quebec, particularly with regard to: the right to form organizations of their own choosing and take part in their activities; protection against acts of discrimination and interference; collective bargaining and the right to strike.
B. The Government’s replies
394. In its communication dated 29 December 2004, the Government of Quebec states that it has respected the principles of freedom of association with regard to the two laws challenged by the complainant organizations, and stresses that Canada has not ratified the Collective Bargaining Convention, 1981 (No. 154). The Government adds that these laws are not discriminatory, since they apply both to men and women without distinction and comply with the Canadian and Quebec Charters of rights and freedoms.
395. Concerning the historical and social context of the adoption of the Act to amend the LSSSS, the Government emphasizes that the organization of accommodation for people suffering from mental illnesses has been developing ever since a report in 1962 recommended that they be treated in institutions and that community resources be used for their accommodation. The concepts of intermediary resources (RI) and family-type resources (STF) were set out in the Act on health and social services of 1991, which thus enshrined the model of non-institutional accommodation. The Government stresses that 90 per cent of RIs and RTFs provide their services in their own homes; the accommodation thereby offered cannot, therefore, be considered an extension of the statutory bodies. The average annual remuneration is: CAD22,031 for an RI; CAD13,136 (per child) and CAD12,950 (per adult) for an RTF. Given the specific nature of their social contribution, RIs and RTFs who take individuals into their own principal residences enjoy an altered tax regime, as their payment is not classed as income and is therefore untaxed. The Act of 1991 also gave regional authorities the principal role in determining the payment of RIs and RTFs. Technical amendments to the 1991 Act, adopted in 1998, have brought about some alterations, but these have not changed the relationships between the various actors.
396. The Act to amend the LSSSS, which the complainant organizations challenge, is driven by the same spirit and provides (section 302.1) that the relation between an RI and a statutory body is a contract for the provision of services under the Civil Code, and therefore is outside the definition of a contract of employment. The law revokes the right of regional authorities to determine levels of pay and gives it to the Minister, who now has the power (section 303.1) to conclude an agreement with one or more representative organizations. Objective criteria of representativeness of organizations for the purposes of concluding an agreement are laid down in section 303.2 of the Act as amended (these provisions also apply to RTFs).
397. With regard to the freedom of association of RIs and RTFs, the Government states that there were bodies of RIs and RTFs, formed under the Companies Act, in existence even before the adoption of the Act to amend the LSSSS, functioning in various different ways according to the period in question (before 1990, 1990 to 2000 and since 2001). Since 2001, a Non-Institutional Accommodation Resources Coordination Committee (“Comité de coordination des ressources d’hébergement non institutionnel” or “RNI Coordination Committee”), which includes all actors, has met four times a year to discuss all the issues that arise: remuneration, contract clauses, insurance, selection and evaluation criteria for resources, definition of users’ needs, exchange of information between the establishment and the resources. The Government claims that this is evidence of the effective exercise of these workers’ freedom of association.
398. The Act to amend the LSSSS provides for the possibility of agreements between the Minister and one or more representative bodies of RIs and RTFs to determine general conditions for the exercise of their activities, the legislative framework for the living conditions of users and methods of payment for services. A body is considered representative if its membership comprises a minimum of either 20 per cent of the total number of resources or the number of resources required to serve a minimum of 30 per cent of the total number of users. These criteria, which are adapted according to whether the bodies to which they apply operate at national, local or regional level, apply to both RIs and RTFs, who may join an association of their own choosing, irrespective of its affiliation to a trade union. Since the entry into force of the Act to amend the LSSSS, several organizations have fulfilled the representativeness criteria for the conclusion of agreements: in June 2004, four organizations were recognized, of which one (the Assembly of Adult Residential Resources of Quebec or RESSAC) is a member of the CSD, one of the complainant organizations in Case No. 2333. Also in June 2004, the Ministry asked the representative organizations to confirm the names of their representatives as well as a list of the subjects they considered most important, in order to be able to initiate discussions with a view to concluding an agreement.
399. The Government refutes the arguments of the complainant organizations founded on the Dunmore case. It stresses that that case had to do with agricultural workers who had been excluded from Ontario legislation governing collective labour relations, and who had been unable to form trade unions because they were geographically isolated and had insufficient resources to be able to organize without State protection. In the present case, associations of RIs and RTFs have been able to form under the Companies Act, and these are able to represent and defend the interests of their members. Furthermore, the affiliation of a body to a trade union organization is not a criterion for exclusion from the conclusion of an agreement. The Government concludes that the Act to amend the LSSSS respects the principles of freedom of association laid down in Convention No. 87.
400. As regards the conditions for the provision of services, the Government recalls that the relationship between statutory bodies and RIs and RTFs is one of a contract for the provision of services, as governed by section 2098 of the Civil Code. This provision states that “a person, be it an entrepreneur or a provider of services, shall commit to supply another person, the client, with physical or intellectual labour or to provide a service for a price which the client shall be obliged to pay”. This being the case, the activities of RIs and RTFs do not constitute a work relationship and do not come under Convention No. 98. As it recognizes the particular nature of the service provided by RIs and RTFs, the Government has not wished to limit the contents of the model contract to the single question of remuneration: future agreements will deal with general conditions for the exercise of their activities, the legislative framework for the living conditions of users and measures for and methods of payment for services. The Government also states that it had meetings in April 2004 with representatives of organizations recognized as representative, at which discussions were held on the foundations and guiding principles that should direct the way that agreements were concluded, in accordance with the Act to amend the LSSSS. These meetings were continued in May and June 2004, and, with the participation of the RNI Coordination Committee, in September 2004.
The Act to amend the LCPE
401. The Government provides a detailed explanation of the historical and social context of the development of subsidized care services, which have progressively been established in response to the need of parents to reconcile their work and family commitments. The Act on childcare services, adopted in 1979, has two central pillars: day-care centres (“garde en garderie”) and home childcare (“garde en milieu familial”). The latter takes the form of care provided by an individual, for remuneration, in a private home. The Act set up home day-care agencies (“agences de services de garde en milieu familial”) – bodies authorized to coordinate all the care services provided by persons recognized by them as home childcare providers (“responsables de service de garde en milieu familial” or RSG); the Act also set up the Office of Child-care Services, whose role is to verify the overall quality of early childhood care services. These agencies have formed an association (RASGMFQ), which represents them before the Office and defends the interests of RSGs. In 1997, the LCPE created “early childhood centres”, not-for-profit, private organizations whose governing bodies are made up chiefly of parents. Permit holders of early childhood centres must provide their care services in centres (“installations”) (collective care) and are responsible for coordinating home early-childhood education services. Since RSGs are not considered employees, they can make deductions from their annual income under expenses related to the provision of services. This system of childcare at reduced rates (the parents pay CAD7 and the Government CAD17 per day) has been a great success: 100,000 places were created between 1997 and 2004 in addition to the 78,864 places that already existed; the Government is aiming for 200,000 places by 2006, 89,000 of which are to be home based. In March 2004, there were around 13,000 RSGs, under the coordination of permit holders of early childhood centres. The Government has dedicated a budget of over CAD1.3 billion to childcare services in the 2004-05 financial year; a significant proportion of this money is earmarked for home childcare services.
402. The Act to amend the LCPE, which is the subject of this complaint, exists to define the status of RSGs in greater detail by confirming that the relationship between an RSG and a parent is one of a provision of services under the Civil Code, not an employment relationship. For their part, permit holders at early childhood centres are responsible for coordinating and supervising home childcare services, particularly regarding the application of the Regulations on early childhood centres, which chiefly comprise standards to ensure the health and safety of the children. Hence, the relationship between RSGs and permit holders at early childhood centres cannot be described as an employment relationship either.
403. The Government stresses, however, that even though RSGs are not included in the general system of the Labour Code, they do enjoy the right of association; various associations, alliances, societies and federations have been formed, even before the adoption of the Act to amend the LCPE, under the Companies Act or the Act on trade unions (many of these have since disbanded voluntarily). An Association of Home Educators of Quebec (AEMFQ) was set up in 1999, in particular to promote the development and ensure the quality of home childcare services, to improve working conditions for RSGs – specifically their independent worker status – and to defend their rights. For its part, the Ministry for Family and Children has established discussion mechanisms on all issues relating to home childcare: an Issue Table (“Table de concertation”) in 2000; the National Forum on Home Child-care in 2001 (one of the complainant organizations, the CSN, has participated in the last three Forum meetings). Between April 2002 and Autumn 2003, the Ministry met several times with the AEMFQ, the CSQ and the CSN (the latter two organizations being among the complainant organizations), and a steering committee, set up within the Ministry, facilitated the follow-up for these meetings. The Government concludes that, even if they are not covered by the Labour Code, RSGs can rely on legally established associations to represent them, and that the exchange mechanisms and the numerous meetings that have taken place between these associations and the Ministry are both evidence that they are genuinely able to exercise their right of association.
404. The Government reiterates, with certain alterations that are relevant to RSGs, the arguments developed above with regard to RIs and RTFs concerning mechanisms of representation and the differences between this situation and the Dunmore case.
405. In respect of agreements on conditions for the provision of services, the Government recalls that RSGs do have a contract for the provision of services under the Civil Code, and that those services are paid for in part by parents and in part by the Government. The activities of RSGs cannot, therefore, come under the category of an employment relationship, nor can they be covered by Convention No. 98. The contents of agreements are stipulated by section 73.3 of the Act to amend the LCPE, which provides that the Minister may conclude an agreement with one or more representative associations of RSGs concerning the exercise and financing of home childcare and the creation and maintenance of programmes and services to meet the needs of all RSGs. An agreement could therefore include provisions concerning not only the financing of RSGs, but also other conditions relevant to home childcare, such as the creation of a process to mediate and settle disputes between RSGs and CPEs, the development of training programmes suited to the needs of RSGs, their remuneration, etc. The contents of an agreement are not the sole prerogative of the Minister, as the Minister is legally obliged to consult the representative bodies of RSGs. In the context of the implementation of the Act to amend the LCPE, the Ministry of Employment, Social Security and the Family (MESSF) created the “AEMFQ-MESSF supervision committee” in February 2004, charged with examining all the files in order to increase the accessibility and flexibility of home childcare services. The supervision committee held several meetings in 2004 regarding numerous different subjects in the area of home childcare. As a result of these exchanges, the Government, inter alia, amended the regulations on early childhood centres in order to act on one of the associations’ major concerns, the issue of the casual replacement of RSGs. Other issues have also been discussed at sessions of the supervision committee, and some have been resolved. The exchanges between the associations and the Ministry have therefore produced real, convincing results. Lastly, the Government points to the mechanism that has been introduced by section 2 of the Act to amend the LCPE, which provides for agreements to be extended to all RSGs, irrespective of whether they are members of one of the associations that concluded it.
406. In its communication dated 21 November 2005, the Quebec Government confirms that the workers concerned are not wage-earners. It therefore considers that the description of the employment relationship with the statutory bodies concerned and the presentation of the point of view of the highest employers’ organization at the provincial level are irrelevant in the circumstances. The Government describes the context in which the intermediate and family-type resources and the persons responsible for a home childcare service are called upon to take action. The Government delegates to an administrative body the authority to apply an administrative framework to the protection of the users where intermediate and family-type resources are involved, and to the protection of the children where persons responsible for home care services are involved. Distorting the relations between the public establishments and the intermediate or family-type resources and the relations between the day-care centres and the persons responsible for home care services and turning them into private law relations implying that a contractual relationship, and hence a labour contract, exists would have the effect of denying the relations arising out of the aforementioned delegated authority, which itself is a product of the law.
407. The Government emphasizes that the intermediate and family-type resources provide non-institutional accommodation so that numerous vulnerable people can live in an environment that is as close as possible to a natural environment. This natural living environment, which it is impossible to reproduce in the context of an institution, is fundamental to the rehabilitation of these people and to their reintegration into society. More specifically, the role of the intermediate resources is to provide a user with an environment that it suited to his or her needs so as to maintain or integrate him or her in the community. The role of family-type resources – foster family – is to accommodate one or more exceptional children in their home so as to meet their needs and offer them living conditions that are conducive to a parental relationship in a family context. The role of family-type resources – foster home – is to accommodate one or more adults or elderly people so as to meet their needs and offer them living conditions that are as close as possible to those of a natural living environment. Although some intermediate resources take the form of a corporation or are administered by physical persons assisted by employees in physical installations, most of them, like the family-type resources, are people who receive one or more users into their homes. In practice, almost 90 per cent of the intermediate and family-type resources accommodate the users in their private domicile.
408. The Government maintains that the relationship between an intermediate or family-type resource and a public establishment does not constitute an employer/employee relationship but, instead, can be assimilated to a contract for services rendered that is governed by the Quebec Civil Code, as distinct from a labour relationship. In order to confirm this rule of law, the Health Services and Social Services Act Amendment Act introduced section 302.1 into the Health Services and Social Services Act (see annex). This was essential since the relations between the public establishments and the intermediate or family-type resources are essentially of an administrative nature, geared first and foremost to the protection of the users.
409. Regarding the background to the administrative supervision, the Government states that the concept of administrative supervision was introduced into the law in 1974, when the legislative body brought foster families under the control and supervision of the social services centres so as to protect the beneficiaries and guarantee the exercise of their rights. By doing so, the legislative body conferred on the latter a power of administrative control over the foster families, which is anything but indicative of an employer/employee relationship.
410. Following the reform of the health and social services network initiated by the Act on Health and Social Services and to Amend Various Legislative Provisions (1991 Act), this power was devolved to the public establishments identified by the regional management boards. Over the years, the emergence of other kinds of resources was also encouraged by the approach taken by Quebec society towards intellectual deficiency and mental health, which focuses on the integration and social participation of people suffering from an intellectual deficiency or from mental health problems. The 1991 Act recognizes the existence of these other kinds of resources by introducing the concept of intermediate resources. The Act also introduces the concept of family-type resources, which comprises the foster family for exceptional children and the foster home for adults. Even more important, the 1991 Act provides for the administrative supervision of the intermediate resources, as well as of family-type resources. The administrative framework governs relations between the intermediate or family-type resources and the public establishments to which they are linked; it does not create the kind of private law link between them that characterizes an employer/employee relationship. The 1991 Act accordingly stipulates inter alia that:
(a) the Minister establishes a classification of the services offered by the intermediate resources that is based on the degree of support or assistance required by the users (section 303);
(b) the Minister determines the levels of remuneration for the services rendered (section 303);
(c) the Minister identifies the guidelines that regional rules and regulations must follow in determining the conditions of access to the resources of the intermediate resources, including the general criteria for admission to these resources (section 303);
(d) the regional management boards establish for their respective regions the conditions of access to the services of the intermediate resources (section 304);
(e) the regional boards determine the criteria for recognizing intermediate resources, recognizes them and maintains a record of known resources by type of clientele (section 304);
(f) the regional boards identify the public establishments in their respective regions which may resort to the services of intermediate resources and which must monitor their performance (section 304);
(g) the regional boards allocate to the establishments concerned the necessary monies for the payment of intermediate resources, in accordance with the applicable rates of remuneration (section 304);
(h) the regional boards ensure the institution and the functioning of the machinery for consultation between the establishments and their intermediate resources (section 304);
(i) the regional boards may examine a misunderstanding between a public establishment and an intermediate resource and rule on the matter after having given the parties an opportunity to present their observations (section 307).
It is clear from these provisions that they establish a set of rules and regulations for the protection of the users rather than a form of subordination typical of an employer/employee relationship.
411. The Health Services and Social Services Act Amendment Act (2003 Act), in addition to clarifying the nature of the relations between the public establishments and the intermediate and family-type resources, also confers on the Minister of Health and Social Services the authority to conclude an agreement with bodies representing the intermediate and family-type resources so as to determine the general conditions governing the exercise of their activities, as well as the rules and regulations governing the living conditions of the users and the remuneration of their services. Moreover, the 2003 Act establishes the criteria for the representativity of these bodies.
412. Over the years, the legislative body has always been concerned to respect the approach of Quebec society towards older people who are losing their autonomy, towards exceptional children and towards the intellectually or mentally deficient and the mentally handicapped. It is an approach that seeks, first and foremost, to provide such people with a living environment that resembles as far as possible that of a home. The role of the public establishments, for their part, is clearly to apply the rules and regulations established for the protection of the users. That is why the contract between the intermediate or family-type resources and the public establishments is not an employment contract. It is more an agreement which, because the rules and regulations for the protection of the users have already been established and the remuneration of the intermediate or family-type resources has already been fixed in terms of the needs of the users, sets out the conditions for the provision of services, which is governed by the Quebec Civil Code. The Government of Quebec accordingly reiterates that the activities of the intermediate and family-type resources are not covered by Convention No. 98 since they are not governed by a work relationship.
413. Regarding the status of persons responsible for a home care service, the Government recalls that home care is a service provided by a physical person, for payment, in a private residence. Since the relationship between the person responsible for a home care service and the parent, i.e. the person requiring the service, is of a contractual nature, the Government repeats that that relationship is governed within the framework of a contract for services rendered in the sense of the Quebec Civil Code, as distinct from a work relationship. To guarantee the provision of quality care services in order to protect the health and safety of the children and ensure their development, the Government has introduced a number of administrative measures. The administrative supervision of the home care services has been entrusted to the day-care centres (CPE). The CPE’s role in ensuring this administrative supervision of the services provided by persons responsible for home care services who have chosen to be recognized by the CPE in question does not constitute an employer/employee relationship.
414. This is why, in the Act to Amend the Act on Day-care Centres and Other Childcare Services (LCPI Amendment Act), the legislative body confirmed the nature of this supervision, as follows:
8.1. A person recognized as a person responsible for a home care service is, as far as the services he or she provides to the parents in that capacity are concerned, a service provider in the Civil Code sense.
Notwithstanding any irreconcilable provision, a person responsible for a home care service shall be deemed not to be an employee or wage-earner of the person in charge of a day-care centre that has recognised him or her when he or she is acting within the framework of the services rendered. The same shall apply to the person who assists him or her or any person in his or her employment.
415. As to the background to the administrative supervision in this matter, the Government states that the Day-care Services Act (1979 Act) recognized that home care services, i.e. care services provided by a physical person, for payment, in a private residence, existed. The 1979 Act authorized the administrative supervision of the persons responsible for a home care service, when they chose to be recognized by a home care services agency constituted by virtue of the said Act. Recognition of a person responsible for a home care service was granted by an agency, on the one hand, in terms of the Act itself, and on the other in term of a set of rules adopted by the Home Care Services Office in 1993, which established the conditions of admissibility and the procedure for granting that recognition under the rules and regulations governing home care agencies and services.
416. For the agency this recognition entailed the exercise of certain powers vis-à-vis the administrative supervision that the persons responsible for home care services were required to accept. The supervision related to a series of standards with regard to health, hygiene, safety, facilities, heating, lighting, equipment and furnishing that persons responsible for home care services are required to comply with. Moreover, the regulations stipulates that the training course that a person recognized as being responsible for a home care service must attend deals, inter alia, with the development of the child, its diet and the organization and stimulation of the living environment.
417. The remuneration of the person responsible for a home care service used to be established by the latter and paid by the parents, except in the case of low-income families. In 1997, the Act on the Ministry of Family and Childhood and to Amend the Childcare Service Act (1997 Act) amended the 1979 Act. It also created the Ministry for the Family and Childhood and gave the CPE the power, previously exercised by the agencies, to provide the administrative supervision established by the Day-care Centres Regulations that persons responsible for home care services must observe. These Regulations took the place of the Home Care Agencies and Services Regulations. The 1997 Act also introduced a “reduced contribution” programme whereby the Government can fix the contribution due to a care service provider by a parent in the case of certain care services determined by the Government. In other words, the parent pays a reduced contribution for the daily care that his or her child receives while the Government pays an additional contribution to the care service provider. Today, recognition by a CPE is still not required for a person to be able to provide parents with paid home care services. Where there is no such recognition, however, the parent is not entitled to the government contribution.
418. By requiring that the persons responsible for home care services meet the standards set out in the Day-care Centres Regulations, whose implementation is entrusted to the CPE, the legislative body made the latter responsible for the administrative supervision of persons responsible for home care services, which is different from an employer/employee relationship. The Government repeats that the relationship between a person responsible for a home care service and a parent is to be assimilated to the provision of services in the sense of the Quebec Civil Code, and that the LCPE Amendment Act establishes clearly that the relations created by the legislative body between persons responsible for home care services and the CPE do not constitute an employment contract. The Government therefore reiterates that the activities of persons responsible for home care services do not constitute a labour relationship and are not covered by the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
419. In conclusion, the Government submits that the Act to amend the LSSSS and the Act to amend the LCPE take account of the choices of Quebec society with regard to the development of non-institutional accommodation services and home early-childhood education, while still conforming to both domestic and international regulations on the right of association. It is the compliance of these laws with the Constitution that is currently being contested in the courts by the complainants.

C. The Committee’s conclusions

420. The Committee notes that the complainant organizations allege legislative interference by the Government to cancel the trade union registrations of certain persons working from home in the social services, health and childcare sectors, thereby depriving them of “employee” status under the Labour Code and denying them all the related rights and protections. In particular, the complainant organizations contest the Act to amend the Act on health and social services, hereinafter referred to as the “Act to amend the LSSSS”, and the Act to amend the Act on early childhood centres and other childcare services, hereinafter referred to as the “Act to amend the LCPE” (cf. the relevant extracts reproduced in annex to this document).
421. The Government replies that the specific nature of the services provided at home by these individuals, for people suffering from mental disabilities or in caring for children of pre school age, means that this case does not deal with labour relations as governed by the Labour Code, but with contracts for the provision of services by independent workers. The Government also claims that these workers can join organizations and associations of their own choosing, and that these organizations and associations are able to defend their rights and interests through agreements concluded with the Ministry.
422. The Committee observes that, beyond the apparent complexity of the historical and social context and the institutional regime that has arisen as a result, the central question, from the perspective of the principles of freedom of association, is the right of the workers concerned to form organizations of their own choosing with the same rights and guarantees as any other worker. The main point in dispute is therefore not fundamentally different from that which arose in Case No. 2257, which the Committee recently decided and which also concerned Quebec. In that case, managerial employees were excluded from the Labour Code because of the restrictive definition of the term “employee”; those managers were also able to form associations that enjoyed significant prerogatives in discussions on working conditions [see 335th Report, paras. 412-470].
423. In this case, the exclusion is not the result of a particular provision of the Labour Code, but of particular provisions in the two contested laws. The Act to amend the LSSSS provides that persons whom it covers shall be considered not to be in the employment, nor to be an employee, of the statutory body using their services, and that any agreement concluded to determine provisions for their relations shall not be considered a contract of employment (section 302.1). The Act to amend the LCPE stipulates that home childcare services constitute a contract for the provision of services under the Civil Code, and that an individual recognized as responsible for a home childcare service is considered not to be in the employment, nor to be an employee, of an early childhood centre (section 8.1). The exclusion may be based on a different mechanism, but the outcome is similar. Where the workers in question succeed in forming associations or organizations in spite of the difficulties inherent in their particular situation and status (it does appear that these associations are sometimes – albeit rarely – affiliated to trade union organizations) they, like the managerial workers in Case No. 2257, enjoy significant prerogatives; however, they lack all the rights granted to other workers by the Labour Code. The Committee must therefore remind the Government once again that the only possible exclusions provided for by Convention No. 87 concern the armed forces and the police, and underlines yet again that these exclusions should be defined in a restrictive manner [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 219-222]. The workers in this complaint should therefore be able to enjoy the provisions of the Labour Code as other workers in Quebec, or enjoy genuinely equivalent rights.
424. The conclusions of the Committee regarding the other aspects of the complaint follow from the main conclusion above, with appropriate adaptations.
425. With regard to the revocation of certifications that had already been obtained, the Committee notes that the workers concerned have been designated independent workers – what is more with retroactive effect – under the two laws under dispute. The laws have the practical effect of overturning the decisions of specialized bodies and of the Labour Tribunal, even though these are competent to pronounce judgement on disputes regarding certification and in particular in this case, to rule on the employee status of workers. In reality, events unfolded as follows: overcoming the hurdles of their geographical and social isolation, these workers applied to the competent body to form a trade union, invoking the relevant provisions of the Labour Code; that body recognized their employee status under the Code and the rights thereto pertaining; this decision was affirmed by the Labour Tribunal; the trade union organizations gave notice to begin bargaining for an initial collective agreement, in accordance with the Code; the Government, through legislation, intervened to change the designation of their relationship from an employment relationship to a contract for the provision of services, and appealed to the courts to revoke the certifications already obtained. The Committee is forced to conclude that even though, formally and legally, it is a tribunal that will pronounce the final ruling on the consequences for legally certified trade union sections of the adoption of these laws, the situation in reality is that existing certifications will be revoked through legislation, which is contrary to the principles of freedom of association [see Digest, op. cit., paras. 675-676]. Noting that the Attorney-General has appealed to the Superior Court to have the previously obtained certifications revoked, and that the complainant organizations have launched a judicial appeal to have the laws declared unconstitutional, the Committee expects that the various rulings that will be pronounced by the courts at national level with regard to these cases will fully take account of the principles of freedom of association set out above. The Committee requests the Government and the complainant organizations to keep it informed of the outcome of the various current judicial appeals and to provide it with copies of the judgements in question.
426. With regard to the representativeness of the groups with which the Minister may conclude agreements (referred to as “representative bodies” in the Act to amend the LSSSS and as “representative associations” in the Act to amend the LCPE), the Committee notes that the Acts in question do set out precise and objective criteria for representativeness. It nevertheless observes that, given the isolated situation of the workers, who are spread over a vast area, the thresholds stipulated (20 per cent of the total number of resources or the number of resources required to serve a minimum of 30 per cent of the total number of users; 350 home childcare workers) are so high as to risk hindering – even rendering impossible – the formation of representative associations or bodies [see Digest, op. cit., paras. 254-258]. The mechanisms for extending the scope of agreements concluded in this way to include all the workers concerned (section 303.1, paragraph 2, of the Act to amend the LSSSS, as amended; section 73.4 of the Act to amend the LCPE, as amended) would solve this problem up to a point, as persons not represented by an association would be able to apply to themselves the content of agreements concluded with the Minister. However, that leaves untouched the main issue, namely, that the workers are not considered as employees under the Labour Code and do not enjoy the rights and protections provided therein.
427. With regard to the determination of labour conditions, the Committee notes that section 73.3, paragraph 2, of the Act to amend the LCPE establishes a consultation mechanism, accompanied, if necessary (section 73.7 of the same Act) by the intervention of a third party, if the parties deem that such intervention would facilitate the conclusion of an agreement (… the Act to amend the LSSSS is less explicit on these two aspects). However, this mechanism is not a genuine process of collective bargaining according to the principles of freedom of association and, in any case, offers far less in terms of rights and guarantees than the general system of labour relationships established by the Code. The Committee also notes that, owing to their exclusion from the Labour Code, the workers concerned cannot make use of the mechanism provided in sections 93.1 to 93.9 of the Code, which is intended to facilitate the adoption of an initial collective agreement. Such provisions are important for precisely these types of vulnerable workers, for whom organization and bargaining are difficult.
428. Given all these elements, the Committee considers that the mechanism set up by the laws under dispute does not constitute a set of measures to encourage and promote the development and utilization of the broadest possible voluntary bargaining procedures with a view to the regulation of conditions of employment by collective agreements.
429. In addition, the Committee draws attention to other provisions in the laws contested by the complainant organizations that pose problems under the principles of freedom of association, for example: section 73.5, paragraph 4, of the Act to amend the LCPE, which gives the authorities broad powers of surveillance over associations and their members, who are obliged to supply the Minister, on demand, with their names and addresses.
430. In view of all the preceding points, the Committee requests the Government to amend the provisions of the Act to amend the LSSSS and of the Act to amend the LCPE, in order for the workers concerned to be able to form organizations of their own choosing under the general collective labour rights system or in a framework whereby they are genuinely offered similar rights and protections. The Committee requests the Government and the complainant organizations to keep it informed of the development of all the aspects mentioned above.
431. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of these cases.

The Committee's recommendations

432. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
- (a) The Committee requests the Government to amend the provisions of the Act to amend the Act on health and social services and of the Act to amend the Act on early childhood centres and other childcare services, in order for the workers concerned to be able to benefit from the general collective labour rights system and to form organizations that enjoy the same rights, prerogatives and means of recourse as other workers’ organizations, in accordance with the principles of freedom of association.
- (b) The Committee expects that the various rulings that will be pronounced by the courts at national level with regard to these cases will fully take account of the principles of freedom of association. It requests the Government and the complainant organizations to keep it informed of the outcome of the various judicial appeals undertaken and to provide it with copies of the judgements in question.
- (c) The Committee requests the Government and the complainant organizations to keep it informed of the development of the situation concerning all the matters mentioned above, in particular the measures taken to bring the legislation into line with the principles of freedom of association.
- (d) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of these cases.

Annex

Act to amend the Act on health and
social security services
(extracts; emphasis added)
Section 1 (section 302.1) – Notwithstanding any provision to the contrary, an intermediary resource shall be considered not to be in the employment, nor to be an employee, of the statutory authority using her/his services, and any agreement or contract reached between them to establish rules and methods for their relations with regard to the conduct of the activities and duties expected of the intermediary resource shall not be considered a contract of employment.
…
Section 3 (section 303.1) – The Minister may, with the consent of the Government, conclude an agreement with one or more representative bodies of intermediary resources to determine general conditions in which all of these resources will carry out their activities as well as the legislative framework for the living conditions of the users for whom they are responsible and to set out various measures and methods for the remuneration of the services provided by the intermediary resources.
An agreement of this sort shall cover the regional health and social services boards, the authorities and all intermediary resources, irrespective of whether or not they are members of the body that concluded the agreement.
(Section 303.2) – A representative body of intermediary resources shall, at national level, include any resource fulfilling the body’s specific criteria, and its members shall include either a minimum of 20 per cent of the total number of these resources at national level or the number of resources necessary to serve a minimum of 30 per cent of the total number of users of these resources at national level.
The same shall apply for a group consisting of bodies of intermediary resources acting only at local or regional level, as long as these bodies as a whole meet the same representativeness criteria as those required in the first subparagraph above.
A representative body must, on demand, provide the Minister with up-to-date documents establishing its existence, as well as the name and address of each of its members.
Similarly, a group must provide up-to-date documents establishing its existence, the name and address of the bodies it represents and, for each of them, the name and address of each of its members.
Where a representative body is a group of bodies, only [the greater group] shall be authorized to represent each of its member bodies.
No intermediary resource may be a member of more than one representative organization, for the purposes provided for in section 303.1, other than a group [of bodies].
…
Section 7 – The provisions of section 302.1 of the Act on health and social services, enacted by section 1 of this Act, shall be declaratory. They shall apply equally to administrative, quasi-judicial or judicial decisions made before [… the entry into force of the Act].
Act to amend the Act on early childhood
centres and other childcare services
(extracts; emphasis added)
Section 1 (section 8.1) – A person recognized as a home childcare provider shall, with regard to the services she/he provides to parents in this capacity, be a provider of services under the Civil Code.
Notwithstanding any provision to the contrary, the person recognized as a home childcare provider shall be considered not to be in the employment, nor to be an employee, of the permit holder of the early childhood centre where she/he is recognized and where her/his services are used. The same shall apply to persons assisting her/him and any persons employed by her/him.
Section 2 (section 73.3) – The Minister may conclude an agreement with one or more representative associations of home childcare providers concerning the carrying out and financing of home childcare and the establishment and maintenance of programmes and services to meet the needs of all home childcare providers.
Before concluding such an agreement, the Minister shall consult those representative associations of home childcare providers and of permit holders of early childhood centres that have notified him of their formation and sent the proposed agreement to the Government for approval.
(Section 73.4) – The provisions of this agreement shall apply to all home childcare providers, whether or not they are members of the association that concluded it, as well as all permit holders of early childhood centres.
(Section 73.5) – An association shall be considered representative where it comprises only home childcare providers and has a membership of at least 350, or a group of associations whose members consist only of home childcare providers and which has a total membership of at least 350 such persons …
A representative association must, on demand, provide the Minister with up-to-date documents establishing its existence, as well as the name and address of each of its members, and, in the case of a representative association of home childcare providers, the name of the permit holder of the early childhood centre at which each of those persons is recognized.
Similarly, a group must provide up-to-date documents establishing its existence, the name and address of each of the associations of home childcare providers or permit holders of early childhood centres represented by it, the name and address of each of the members of each association that it represents and, in the case of associations of home childcare providers, the name of the permit holder recognizing them.
Where a representative association is a group of associations, only [the greater group] shall be authorized to represent each of its member associations.
No home childcare provider may be a member of more than one representative association, for the purposes of section 73.3, other than a group [of associations]. The same shall apply to permit holders of early childhood centres.
(Section 73.6) – No permit holder of an early childhood centre, nor any association or group of associations of such permit holders, nor any person acting on behalf of a permit holder, may represent a representative association of home childcare providers or participate in the formation or management of such an association.
(Section 73.7) – When, during the process undertaken for the conclusion of an agreement, the parties deem that the intervention of a third party could be useful to provide advice on any matters that could potentially be covered by an agreement or to assist them in concluding such an agreement, they may agree to appoint such a third party and the terms and conditions of its appointment.
Section 3 – The provisions of section 8.1 of the Act on early childhood centres and other childcare services, enacted by section 1 of this Act, shall be declaratory. They shall apply equally to administrative, quasi-judicial or judicial decisions made before [… the entry into force of the Act].