Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

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

A Government representative began her presentation by briefly outlining the main elements of the Canadian labour relations system, to demonstrate that, in Canada, freedom of association and the right to organize were both recognized and protected. The Government of Canada wished to emphasize that the principle of freedom of association was enshrined in the Canadian Charter of Rights and Freedoms, which applied to the federal, provincial and territorial governments. The Charter was part of Canada's Constitution, and could only be changed by constitutional amendment. The Canadian Bill of Rights, a statute applicable to the federal Government, also enshrined the principle of freedom of association. Under the Constitution, each of Canada's 14 governments, that is the federal Government, the ten provincial governments and the three territorial governments, had exclusive authority to legislate with respect to labour matters within its own jurisdiction. Most Canadian workers were subject to the labour laws of the provinces, with the federal jurisdiction covering about 10 per cent of the workforce.

Generally, Canadian industrial relations legislation - whether federal, provincial or territorial - guaranteed workers in both the public and private sectors the right to join unions and to participate in their lawful activities. The Canada Labour Code, and equivalent laws in each jurisdiction, ensured not only that the right to organize existed, but also that it was protected. There were provisions to protect workers' and employers' organizations from interference by the other party, and to prohibit unfair labour practices. Mechanisms were in place for the enforcement of these protective measures. Each jurisdiction had labour legislation regulating collective bargaining, and an independent labour relations board with equal worker and employer representation, to administer the legislation. The legislation generally promoted free collective bargaining and recognized the right to strike or lock out. Legislation set out conditions for the exercise of strike and lockout rights and, at the same time, encouraged the parties to engage in meaningful bargaining to achieve an effective collective agreement which would meet their respective socio-economic needs. Bargaining agents and employers concerned had a duty to meet and bargain in good faith. This was understood to mean that they would meet for collective bargaining and make every reasonable effort to conclude a collective agreement. A complaint could be made by either party to the appropriate labour board, where good faith bargaining was felt to be absent, in order to obtain a remedial order. The parties' right to negotiate collective agreements was thus guaranteed in all jurisdictions. The importance of conciliation and mediation as a means of helping the parties to come to an agreement voluntarily was recognized across Canada.

Her Government acknowledged that not all workers in Canadian jurisdictions were covered by collective bargaining legislation. The statutory definitions of employee and bargaining unit and the relevant case law developed on these issues determined who could participate in collective bargaining. Also, as the ILO supervisory bodies had recalled on various occasions, groups such as members of the medical, dental, architectural, legal and engineering professions, when employed in their professional capacity, agricultural workers and privately employed domestics were excluded from coverage under the legislation in a few Canadian jurisdictions. However, even where workers were excluded from legislative regimes, they were entitled to negotiate with their employers on a voluntary basis.

The Government pointed out that, although there was a large consensus among the jurisdictions on the rights of employers and workers within their regime of labour relations, the autonomy of the various jurisdictions gave rise to a diversity of provisions. In the Government's view, this diversity, characterized by each jurisdiction's labour market circumstances, could provide opportunities for Experts' comments, more so possibly than in a country with a unified labour market. Nevertheless, she stressed that governments had both a mandate and a duty in democratic societies, to reconcile legitimate, but divergent interests and conflicting demands for the greater public good. Hence, ensuring full implementation of international labour obligations in a context where the federal Government had the authority to ratify ILO Conventions, but had to rely on the provinces and territories to implement their provisions in areas of their exclusive authority, presented certain challenges. It was in this context that the Government wished to inform this Committee of some of the initiatives undertaken at the federal level to engage the provincial and territorial governments, as well as the social partners, with respect to Canada's international labour obligations.

Canada had always met its reporting obligations in a thorough and timely manner. To achieve this, the International Labour Affairs Unit of Human Resources and Skills Development Canada engaged on a continuous basis with representatives in the provinces and territories, to ensure that full and transparent information was made available to the ILO with respect to ratified Conventions, and that other reporting obligations were met. To further facilitate access to accurate information on Canadian labour laws, the Labour Law Analysis Unit of the Department annually compiled and made available on the Internet a report on all legislative and regulatory changes related to labour issues in all Canadian jurisdictions.

Furthermore, deputy ministers from federal, provincial and territorial departments and agencies responsible for labour met twice a year, in a forum known as the Canadian Association of Administrators of Labour Legislation, or CAALL. ILO issues had always been prominent on the meeting agenda but, in recent years, international labour obligations had become a much greater focus of discussions. In recent years, federal-provincial-territorial ministers responsible for labour had also met annually and, again, Canada's international labour obligations had been discussed. In 2002, the federal Minister of Labour established an Advisory Committee on International Labour Affairs, composed of senior representatives of Canadian workers' and employers' organizations. Since then, the Advisory Committee had examined a wide range of international labour issues, primarily related to the social dimension of globalization and Canada's labour cooperation agreements with its trading partners. At its last meeting, in February 2004, the Advisory Committee's opinion was sought on how the federal Government could more effectively promote the principles of the ILO Declaration in Canada, better engage the provinces and territories with respect to Canada's international labour obligations, and how the social partners could support such initiatives. These were some of the more recent measures which the Government of Canada had undertaken to better engage the provinces and territories with respect to Canada's obligations as a Member of the ILO and, in particular, with respect to implementation of ratified ILO Conventions.

Turning to some of the observations of the Committee of Experts in its report, the speaker first of all indicated that, when Canada submitted its last report on Convention No. 87, an election was under way in the Province of Ontario. As a result, the report did not include developments with respect to the Committee of Experts' observations on a number of issues in that province. The Government therefore wished to inform the Committee of the most recent information provided by the Government of Ontario. The Government of Ontario was currently engaged in a review of its labour and employment law statutes, including the Labour Relations Act. At the most general level, the Government was committed to restoring balance to Ontario's labour relations regime and to working with stakeholders to ensure that the province's labour laws were fair to employees, unions and employers alike. While it was not possible to comment on specifics at this point in time, the Government of Ontario had already made a public commitment to repeal certain provisions that had been serious irritants to organized labour. Developments would be fully reported on in Canada's next report to the Committee of Experts.

With respect to the right to strike of workers in the health sector in the Province of Alberta, the Government of Alberta was responsible for implementing and ensuring compliance with health-care policy. Patients' access to health services and patients' safety could therefore not be compromised. It was the view of the Government that, like police officers and firefighters, health-care employees of regional health authorities provided essential services. In response to the Experts' specific question, the Government of Alberta confirmed that the Labour Relations (Regional Health Authorities Restructuring) Amendment Act did extend the prohibition on strikes and lockouts to all employees and employers within the regional health authorities. This reflected the growing interdependence and integration of health-care delivery within the regional health authorities, where the withholding of services could have potentially life-threatening consequences for Alberta citizens whose legitimate health-care needs needed to be met. The Government of Alberta believed that public health-care employees should have a common, fair, objective and transparent means to resolve labour disputes without jeopardizing public safety, and that the Act provided for this.

With respect to discussions undertaken by the Government of British Columbia with employers and unions in the education sector, in particular regarding dispute settlement regulations or machinery, the Government of British Columbia advised that section 5 of Bill No. 27 (the Education Services Collective Agreement Act) provided for the appointment of a commission to review the structure and procedure of collective bargaining in the education sector. In September 2003, the Minister of Skills, Development and Labour appointed an individual to consult with interested parties and to recommend terms of reference of the review commission. Based on the report, the Minister appointed a one-person commission in December 2003. The commissioner was consulting with groups in the education sector and reviewing procedures used in other jurisdictions to recommend procedures for a new collective bargaining arrangement. It was anticipated that the commission would complete its work by the fall of 2004. Finally, she invited the Deputy Minister of Labour for Newfoundland and Labrador to provide updated information with respect to changes to the Fishing Industry Collective Bargaining Act.

Another Government representative, referring to the Fishing Industry Collective Bargaining Act (Bill No. 31) of Newfoundland and Labrador, informed the Committee of the background to the present case. He said that in 1997, following a 15-week strike in the fishing sector, the Government of Newfoundland and Labrador had indicated to the social partners that the province could not afford to lose such a vital part of its economy in the future and set up a task force to find a peaceful solution in consultation with the social partners. The solution agreed to was the so-called "final offer selection process" (FOS), which the social partners had agreed following a two-year Pilot Project that the process should be set out in legislation, with the provision for either party to opt out of the process every two years. The final offer selection process had been in force since 1998, but last year one of the social partners had opted out, bringing the mechanism to an end. As a consequence, the Fishing Industry Collective Bargaining Act had reverted to its traditional format, which included the right to strike and to lock out. Very recently, the question had arisen once again in relation to a dispute concerning crab fishing. It had been very important to find an amicable collective solution so that the critical period for crab fishing was not missed. It had therefore been incumbent upon all those concerned to find a rapid solution. In conclusion, he reaffirmed the importance attached to ILO-related matters at the annual meeting of Deputy Ministers of Labour as well as the provincial level in Canada and indicated that in Newfoundland and Labrador there was an official concerned solely with ILO matters.

The Worker members stated that, despite the explanations provided by the Government on the application of the Convention, the observation of the Committee of Experts contained a long list of cases concerning violations of the right to organize, the right to strike and the right to collective bargaining. They noted that measures had been taken to resolve these problems, particularly with respect to Newfoundland and Labrador. In the provinces of Alberta, New Brunswick and Ontario, legislation on labour relations did not apply to agricultural or horticultural workers, with the result that workers in this sector did not benefit from protection of the right to organize and to collective bargaining. With respect to the Province of Ontario, domestic workers, architects, dentists, land surveyors, lawyers and doctors were also excluded from the application of this law. However, the governments of these provinces were not considering modifying their legislation, nor was the Government of Ontario, despite a ruling of the Supreme Court of Canada in December 2001, which found that Ontario's impugned provincial legislation was unconstitutional. In certain provinces, workers did not have the right to organize freely. In this respect, in the provinces of Prince Edward Island, Nova Scotia and Alberta, certain laws designated by name the union recognized as the bargaining agent. Finally, in some provinces, workers did not have the right to strike or to collective bargaining. This was the case in Alberta, where certain categories of workers in the hospital sector did not have the right to strike. The adoption of a law in 2003 had not changed the situation. This restriction on exercising the right to strike also applied to personnel who did not provide essential services, such as cooks, porters and gardeners in hospitals. In British Columbia, the right to strike was limited or removed in the health sector. Workers did not benefit from an impartial procedure for resolving disputes, as the final offer of the employer was imposed. In Manitoba, arbitration could be imposed at the request of one of the parties following the expiry of a 60-day period. In Ontario, teachers did not have the right to strike. In Newfoundland and Labrador, Bill No. 31 on collective bargaining in the fishing industry had been amended to allow workers the right to strike in that sector. This enumeration demonstrated the violation of the rights set forth in the Convention, especially in the public education and hospital sectors. These violations should be condemned.

The Employer members observed that the comments of the Committee of Experts addressed various cases of the violation of the principle of freedom of association in several provinces and referred to comments received from the ICFTU. However, they would confine their comments to the general subjects raised, rather than going into details concerning each province. The Employer members noted that workers in agriculture and horticulture were excluded from the coverage of the labour relations legislation and therefore deprived of protection relating to the right to organize and collective bargaining, which was a clear violation of the Convention. The Supreme Court had ruled that the exclusion of agricultural workers was unconstitutional and had instructed the provincial government concerned to amend the legislation in question. Although a bill had been introduced conferring to agricultural workers the right to form or join an association of employees, the Committee of Experts suspected that it did not give them the right to establish and join trade unions and to bargain collectively. The Employer members wondered how the Committee of Experts had come to this conclusion, which did not appear to be based on the indications available. Turning to the trade union monopoly established by law in certain provinces for the education sector, the Employer members said that this constituted a clear violation of the Convention. The designation by name of the union recognized as the bargaining agent had the effect of excluding other unions from the possibility of engaging in collective bargaining. With regard to the right to organize of university staff, the Employer members indicated that the appointment of academic staff under the condition that they could not join a professional association was a violation of the Convention. They noted the statement by the Government representative that elections had taken place in the province concerned and that a further report would be provided by the province on this issue. It would therefore be opportune to await the submission of the new report.

The Employer members observed that all the other issues referred to by the Committee of Experts involved the right to strike and recalled that they did not agree with the conclusions of the Committee of Experts on this matter, as the Convention neither provided for a right to strike, nor guaranteed certain forms of strike action. With regard to the restriction of the right to strike in certain provinces in the case of workers in the health sector, they indicated that, even though the right to strike was not provided for in the Convention, this restriction was not in any case a violation of the Convention, as the effects of a strike in the sector could constitute a serious danger to the health of the population. Moreover, the definition of essential services used by the Committee of Experts was somewhat outdated, as it only took into account specific production sectors. They added that strikes in the education sector concerned not only the parties involved, but society as a whole, in view of the danger that children would be denied education. With regard to the issue of arbitration imposed at the request of one party after 20 days if no solution to industrial action appeared to be possible, the Employer members referred to the 1994 General Survey in which the Committee of Experts did not completely exclude the right of the State to intervene in the collective bargaining process. However, the Government representative had indicated that the Government was prepared to amend the legislation and should therefore be requested to supply the relevant information in a report. Finally, with regard to the issue of the relations between federal and provincial governments, the Employer members recalled that it was the federal Government which had assumed an obligation with regard to the ILO to ensure the application of the Convention. They therefore welcomed the indications provided of the efforts that were being made by the federal Government in this respect. The Government would have to decide whether it was willing to pursue its efforts to apply the Convention, or be the subject of continued criticism by the Committee of Experts. The Government should be requested to provide a report addressing all the issues discussed by the Conference Committee.

The Worker member of Canada indicated that the main interest of the statement made by the Government representative resided in its general aspect. The long list of violations of the Convention contained in the observation made by the Committee of Experts concerned a number of provinces individually or collectively. Canada had only ratified four out of eight fundamental Conventions. Since 1982, Canada had only ratified Convention No. 182, as well as two out of 30 Conventions adopted since that date. A total of 67 complaints, that is three a year, had been submitted to the Committee on Freedom of Association against the federal and provincial governments, and 54 out of 67 complaints had been declared receivable. Of that number, the Committee on Freedom of Association had found that there were violations of the principles set out in the Convention in 40 cases. Three-quarters of the complaints submitted to the Committee on Freedom of Association concerned some 70 laws which had been adopted in Canada since 1982 and which had been or continued to be in violation of the obligations arising from the ratification of the Convention. The cases mentioned in the observation of the Committee of Experts concerned eight provinces out of ten. An additional province would also be cited shortly.

He added that, in addition to the earlier measures taken by the Government of British Columbia to outlaw the right to strike in the health and education sectors, it had continued to use its near legislative monopoly to erode rights, repeal standards and undermine social and economic equity in the province. Its legislative agenda targeted areas including employment standards, training, forest tenure, safety standards, the regulation of private universities and trainers and the governance of the teachers' organizations. For example, the Health Sector Partnerships Agreement Act (Bill No. 94) stipulated that collective agreements could not limit contracting out, thereby fundamentally limiting the ability of trade unions to represent the interests of their members. The Coastal Forest Industry Dispute Settlement Act (Bill No. 99) made collective agreements in force prior to 2003 binding on the trade union and the employer concerned. The University of British Columbia Services Continuation Act (Bill No. 21) authorized the Minister, despite the provisions of the Labour Relations Code, to impose a cooling-off period during which strikes and lockouts were illegal. In Ontario, following a Supreme Court ruling, the response of the Government had been to adopt legislation allowing agricultural workers to make representations to an employer through an employees' association, but did not expressly afford them the rights guaranteed to unions under the Labour Relations Act. Also in Ontario, a proposed change would compel employers to post prominently at the workplace the procedures to be followed for the decertification of trade unions. In conclusion, the speaker noted that, despite the inclusion of the right to freedom of association in the Canadian Charter of Rights, it had to be concluded that provinces such as those mentioned, as well as others, cared nothing about the internationally recognized fundamental rights set out in the Convention and would do everything possible to undermine them. He therefore called for the Government of Canada, with the assistance of the ILO, to ensure that the Convention was implemented and respected in practice.

The Government representative thanked all the speakers and assured them that points made in the discussion would be conveyed to the jurisdictions concerned and that her Government would report any further developments to the Committee of Experts. The Government of Canada also looked forward to further support from the ILO with regard to the application of the Convention.

The Worker members indicated that they had noted the information supplied by the Government, by virtue of which, the federal Government was not competent in labour law, insofar as the provinces exercised competence to legislate on labour issues. However, a member State could not invoke its Constitution and shared competences as an excuse for failing to fulfil its responsibilities. Moreover, the provinces could not simply say that they would not amend their legislation. It was necessary to recall the principles set out in the Convention. First, all workers had the right to establish and join organizations of their own choosing without previous authorization, with the sole possible exception of members of the armed forces and the police. Second, the right to strike was a corollary of the right to organize and any restrictions on the exercise of that right should only concern public servants exercising authority in the name of the State or essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the population. Despite the fact that the Government was making certain efforts to resolve the situation, the Worker members called for a technical mission to Canada to explain to the federal and provincial authorities, especially in the provinces of British Columbia and Ontario, the principles enshrined in the Convention, with the involvement of social partners.

The Employer members observed that the Government representative had referred to all the various matters raised by the Committee of Experts. With regard to the right to strike, they expressed the opinion that no legislative changes were required. Although the Committee of Experts had developed the view over the years that the right to strike derived from the Convention, they recalled that the Conference, as the legislator, had clearly decided in 1948 that the right to strike was not dealt with by the Convention, as indicated in all the preparatory documents. Indeed, during the preparatory work, the majority of member States had indicated that the right to strike should not be addressed within the framework of the Convention.

The Committee noted the information provided by the Government representative and the discussion that followed. The Committee noted that the comments of the Committee of Experts related to a number of discrepancies between the law and practice in various provinces, on the one hand, and the Convention on the other. The Committee noted that the issues that were pending related in particular to the exclusion of agricultural and horticultural workers from the coverage of the labour relations legislation, as a result of which they were denied full protection in relation to freedom of association. Other issues raised by the Committee of Experts related to the explicit designation by the law of a particular trade union as a collective bargaining agent and the rights of teaching staff and workers in the education sector in a number of provinces. The Committee noted the action taken by the federal Government, in cooperation with the ILO, to draw the attention of the provincial governments to the comments of the Committee of Experts. The Committee noted the information provided by the Government on the various measures that were being taken in a number of provinces, particularly in Newfoundland and Labrador, in order to promote the full application of the Convention. It also noted that the provinces were largely sovereign in relation to labour legislation. The Committee nevertheless recalled the need to amend certain legislative texts in different provinces with a view to guaranteeing the full application of the Convention, particularly in relation to the right of association in general and the right to engage in trade union activities in such an important sector as agriculture, which had suffered from restrictions for many years. The Committee accordingly expressed the firm hope that all the necessary measures would be adopted in the near future to provide full guarantees of the rights set forth in the Convention for all workers. The Committee requested the Government to provide detailed information in its next report to the Committee of Experts on the measures adopted in this connection. It requested the Government to continue examining the matters raised with regard to the application of the Convention. It also reminded the Government of the possibility to request technical assistance from the Office in order to facilitate the implementation of the Convention.