Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

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

A Government representative first outlined the main elements of the Canadian labour and human rights system to demonstrate how the principle of freedom of association was recognized and protected in her country. Under Canada’s Constitution, the federal Government, and each of the ten provincial and three territorial governments, had exclusive authority to legislate with respect to labour matters within their respective jurisdictions which meant that the federal jurisdiction only covered about 10 per cent of the workforce. Freedom of association was guaranteed under the Charter of Rights and Freedoms which was part of the Constitution. It was also enshrined in the Canadian Bill of Rights and in Quebec’s Charter of Human Rights and Freedoms, which applied to the Government of Quebec and to the private sector in that Province. Canadian industrial relations legislation guaranteed the workers’ right to join unions and to participate in their lawful activities. The Labour Code and equivalent laws in each jurisdiction ensured not only that the right to organize existed, but also that it was protected. Each jurisdiction had an independent labour board with equal worker and employer representation to administer its labour relations legislation. Bargaining agents and employers concerned had a duty to meet and bargain in good faith. Where good faith bargaining was felt to be absent, a complaint could be made to the appropriate labour board by either party in order to obtain a remedial order. The importance of conciliation and mediation as a means of helping the parties to reach an agreement voluntarily was recognized across the country.

Not all workers in Canadian jurisdictions were covered by industrial relations legislation. It was true, as the ILO supervisory bodies had recalled on various occasions, that groups such as members of the medical, dental, architectural, legal and engineering professions, agricultural workers and privately employed domestics were excluded from coverage under the legislation in some Canadian jurisdictions. However, even where workers were excluded from legislative regimes, they were entitled to join associations of their choosing and negotiate with their employers on a voluntary basis.

She recalled that the autonomy of the various jurisdictions inevitably gave rise to a diversity of provisions that provided opportunities for the Committee of Experts’ to make comments, more so possibly than in a country with a unified labour market. She drew attention to the fact that ensuring full implementation of international labour obligations in a context where the federal Government had the authority to ratify ILO Conventions, but was bound to rely on the provinces and territories to implement their provisions in areas of their exclusive authority, was a challenging task. It was in this context that the federal Government engaged the provinces and territories on a continuous basis with a view to promoting implementation of Canada’s international labour obligations and ensuring that full and transparent information was made available to the ILO supervisory bodies.

The speaker highlighted developments since the Government’s last report was submitted to the Committee of Experts in 2009. She mentioned first that there were questions currently before the Canadian courts related to access to statutory collective bargaining regimes and the scope of freedom of association protection. Of particular interest was the decision of the Supreme Court of Canada which was expected later this year on the constitutionality of the Ontario Agricultural Employees Protection Act, 2002, and collective bargaining rights for agricultural workers. This decision would no doubt have an impact on Canada’s future conformity with Convention No. 87. The Governments of Alberta and Ontario had advised that once the Supreme Court decision was delivered, reviews of its implications would be undertaken and further information would be provided to the Committee of Experts.

The New Brunswick Government had already undertaken discussions on the potential for amendments to the Industrial Relations Act to remove or modify the exclusion for domestic workers as well as the limits to collective bargaining for agricultural workers. In April 2010, a Bill was passed in the New Brunswick Legislature extending collective bargaining rights to casual government employees. With respect to the right of community workers to establish and join organizations of their own choosing, a review was undertaken by the Ontario Government taking into account the Committee of Experts’ observations and recent court decisions on related matters. The review of the 1998 amendments to the Ontario Works Act had been completed and the next steps were being considered by the Government of Ontario. Concerning part-time employees of Ontario colleges, the Government of Ontario was in the process of adopting new legislation which reviewed collective bargaining rights at colleges and recommended extending collective bargaining rights to part-time college workers.

With regard to Quebec, the speaker recalled that the right to freedom of association was enshrined in the Quebec Charter of Human Rights and Freedoms and the Quebec Labour Code. The unionization rate of 40 per cent represented a very high proportion for North America. A total of 8,788 collective agreements were in force, covering almost 1 million employees, mainly in the tertiary sector. In fact, specific provisions had sometimes been adopted to take account of the particular situation of certain groups of workers. Such had been the case in 2009 for female nursery education workers and family-type resources, in respect of which legislative measures had been adopted, providing in particular for recognition of associations representing such persons and the rules of collective bargaining.

The speaker also referred to some inconsistencies identified by the Committee of Experts which nonetheless worked well in the Canadian context and had not raised concerns at the national level. For instance, concerning the Manitoba Public Schools Act, the current system of binding arbitration for collective bargaining disputes had been in place for more than 50 years and none of the interested parties had raised concerns about these provisions. Another example was the provision of Manitoba’s Labour Relations Act on compulsory arbitration to end lengthy work stoppages. This mechanism could only be used where a strike or lockout had lasted for at least 60 days, if the party making the application had bargained sufficiently and seriously, conciliation or mediation had been attempted without success, and the Board had determined that the parties were in a situation of clear deadlock and not likely to conclude a collective agreement within 30 days. In the Government’s view, this was a sensible and balanced approach to resolving lengthy work stoppages and applications under this provision were very rare.

In conclusion, her Government recognized that a number of inconsistencies persisted with respect to Convention No. 87, but considered that significant progress had been made in addressing the Committee of Experts’ comments and that Canada remained committed to observing the Convention.

The Employer members highlighted at the outset that Canada had ratified Convention No. 87 but not the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), nor the Labour Relations (Public Service) Convention, 1978 (No. 151). Consequently, they urged that the present examination would focus only on the ratified Convention. They noted that the federal Government had assumed its obligations under the ILO, whereas criticisms regarding its application of the Convention had historically been directed at legislation enacted by the various provincial governments.

In the interest of time efficiency, the Employer members limited their remarks to the following general observations: (1) while workers in agriculture and horticulture in some provinces, i.e., Alberta and Ontario, were excluded from provincial labour relations legislation, agriculture and horticulture workers in Ontario were expressly included in the Agricultural Employees Protection Act (AEPA); however, the scope of freedom of association protection under this Act was currently before the Supreme Court of Canada and thus, until a decision from the Court, the Conference Committee could not make a conclusion; (2) the exclusion of domestic workers, architects, dentists, land surveyors, lawyers and doctors from statutory protection of freedom of association under the 1995 Labour Relations Act appeared to violate Convention No. 87, as these workers should enjoy the same rights, prerogatives, and means of recourse as others; (3) the Committee on Freedom of Association was not a body mandated to assess compliance with ILO Conventions and thus the Conference Committee should exercise caution when considering their observations on the application of Conventions; (4) the right to organize of university staff in Alberta provided that the appointment of academic staff was conditioned on the prohibition of joining a professional organization, in violation of the Convention; and (5) the trade union monopoly established by law in Prince Edward Island, Nova Scotia and Ontario in the education sector constituted a clear violation of the Convention because it effectively excluded other unions from the possibility of engaging in collective bargaining.

In addition, the Employer members reaffirmed that Convention No. 87 guaranteed neither the right to strike nor certain strike action. Recalling the firm view expressed on this question in this year’s general discussion, they requested that the following observations be clearly set out in the conclusions in this case: Article 11 of the Convention required members to undertake “all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise”; the Conference decided in 1948 that the right to strike was not included in the Convention; the Committee of Experts could not regulate in detail a general right to strike as it was seeking to do in this case; and a “one-size-fits-all” approach to Canada failed to recognize the difference in economic and industrial development throughout its provinces. They made reference to the 1953 General Survey on Conventions Nos 87 and 98, which stated that the object of Convention No. 87 was to define as concisely as possible the principles governing freedom of association, whilst refraining from prescribing any code or model regulations. They further stated that members had the right to define “essential services” and concluded that the Conference Committee was tasked with considering Canada’s application of the Convention and not more.

The Worker members observed that the case of Canada could be summed up as a catalogue of exclusions, exceptions, limitations and derogations from the right to organize, the right to collective bargaining, the right to strike and the exercise of freedom of association in a whole series of provinces. In several provinces, whole categories of workers did not benefit from the exercise of freedom of association, while in others the legal monopoly of a single trade union was set out in law. The right to strike was limited in some provinces to certain sectors or by the imposition of compulsory arbitration after 60 days of work stoppage. In the same way as the Committee of Experts, the Worker members recalled that they considered that the right to strike formed part of the protections afforded by Convention No. 87 and that any restriction on this right should be confined to essential services in the strict sense of the term, and that neither teaching nor the whole of the health sector, and certainly not the whole of the public sector, could be considered as an essential service.

To bring an end to all these restrictions, the federal Government needed to ensure that the provincial governments brought their legislation into conformity with Conventions Nos 87 and 98, but it did not seem to have the power to impose such changes. The federal Government was not guilty, but it had to answer for this failing, while the provincial governments were guilty, but were sheltered from any condemnation. In these circumstances, the 2007 decision by the Supreme Court of Canada could augur a favourable outcome, as it held that freedom of association and collective bargaining were protected by the Canadian Charter of Rights and Freedoms and referred explicitly to Convention No. 87. Certain texts had accordingly been amended, although the changes remained insufficient in view of the substantial number of legislative texts that were contrary to ILO instruments. The whole of the national legal arsenal needed to be re-examined in the light of this decision. This would make it possible to prevent the federal composition of the country in Canada, as elsewhere, becoming a means of circumventing the international treaties that the country had ratified.

The Employer member of Canada thanked the Government for the measures it had taken and processes put in place, like the Advisory Committee on International Labour Affairs, to engage in social dialogue with the social partners regarding labour law, policies, and implementation of international labour objectives. She stated that the Canadian Employers Council did not believe that cases arising under the Committee on Freedom of Association were directly relevant to the consideration of the application of Convention No. 87. She also reminded the Committee that it was only examining Canada’s application of Convention No. 87, and not Convention No. 98, which Canada had not ratified. Moreover, she noted that, contrary to the findings of the Committee of Experts regarding the freedom of association of agricultural workers in certain provinces, these workers in Ontario were granted the statutory right under the Agricultural Employees Protection Act (AEPA) to form and join employees’ associations and the right to protection against interference, coercion and discrimination in the exercise of freedom of association, that this issue was being examined by the Supreme Court of Canada, and that meaningful statutory protections concerning freedom of association could be contained in legislation other than the Labour Relations Act. Finally, she stressed that the Canadian Employers Council shared the view of the Employer spokesperson in this year’s general discussion that the Convention did not contain the right to strike. Thus, a government could regulate strikes and lockouts in accordance with its national requirements and remain in compliance with the Convention. It appeared inappropriate that the Committee of Experts made efforts to regulate in detail the ability to strike under this Convention.

The Worker member of Canada pointed out that, as evidenced by the Committee of Experts’ report, there was little progress with respect to Canada’s compliance with the Convention since provinces continued to violate both the letter and spirit of Convention No. 87. She called upon the Office to undertake a direct contacts mission with a view to discussing the issues raised in the Committee of Experts’ report not only with the federal Government but also with provincial and territorial governments. An ILO mission would be able to observe the constant undermining of the right of freedom of association in Canada and would confirm concerns regarding the many barriers or exclusions affecting numerous categories of workers in direct violation of Articles 2 and 3 of the Convention.

In February 2009, the federal Government released a report with the explicit aim of identifying mechanisms to limit the frequency and duration of work stoppages. Similarly, in November 2009, the federal Government introduced Bill C-61 requiring striking railway workers to return to work, much like another piece of legislation introduced in 2007. A number of provinces had repeatedly manipulated the use of the term “essential services” to prohibit or restrict workers from taking strike action, even in situations without so-called “serious national impact”.

Referring to the landmark decision by the Supreme Court of Canada in 2007 confirming that freedom of association and collective bargaining were protected by the Canadian Charter of Rights and Freedoms, the speaker indicated that what was needed was the undertaking of a comprehensive legal inventory and analysis of Canadian law relative to provincial, territorial and national legislation to identify possible inconsistencies with ILO Conventions. This comprehensive review needed to be a tripartite process involving the social partners, the federal Government and the provinces and territories for defining a legislative agenda for the implementation of new legislation and regulations.

Across Canada, restrictions had been placed on the rights of workers to organize in both public and private sectors. Collective agreements had been sidelined, freely negotiated wages and benefits had been revoked and employer-dictated processes had been legislatively imposed on workers. For example, as noted in the Committee of Experts’ report, in Quebec, collective bargaining was eliminated for public sector workers, the right to strike directly removed, and severe sanctions were imposed on unions and individual workers for contravening the legislation. Saskatchewan public sector workers had effectively had their right to strike removed by expansion of the definition of “essential services” and workers had new restrictions placed on their right to organize. These restrictions on workers traditionally represented by unions were further exacerbated by the restrictions and exclusions placed on other workers such as agricultural and domestic workers and live-in caregivers. Governments had continued to exclude these workers from protections, and where they had made attempts to include them, such as in Quebec for domestic workers, the legislation had restrictions that continued to exclude large numbers and thereby undermined the protections of those who had finally gained some recognition.

The speaker stressed that, in this era of globalization, it was important to establish the credibility of labour standards as a cornerstone of international trade and development. The Government had signed the North American Free Trade Agreement (NAFTA) with Mexico and the United States in 1994. A key feature of NAFTA was the inclusion of the North American Labour Cooperation Agreement, as a side deal, which was promoted as a means of ensuring that there would be no downward pressure on labour standards in North America, but contained very weak provisions for enforcing labour standards, and no provisions for improving labour standards. Yet, clearly, weak enforcement of ILO Conventions within trade agreements was synonymous with adopting a policy of “a race to the bottom” on social standards.

She believed that the way forward to achieve a positive industrial relations climate was for the federal Government to set an example for the provinces and territories through policies and actions that sought to respect ILO Conventions. The ILO should be requested to facilitate such a process by undertaking a direct contacts mission that would help define the terms of reference for a study and a follow-up in a spirit of genuine dialogue and tripartite consensus.

The Worker member of Colombia stated that there could be no doubt of Canada’s failure to comply with its obligations under the Convention and recalled the repeated comments of the Committee of Experts concerning restrictions on certain workers’ exercise of freedom of association, collective bargaining and the right to strike. He indicated that, despite serious violations of the Convention, Canada signed trade agreements in which it undertook to guarantee compliance with the fundamental ILO Conventions, including with countries that, according to him, also failed to meet their obligations under those Conventions, as was the case with his country. He deplored the fact that Canada hid behind provincial autonomy to systematically violate the provisions of the Convention, and called on the Conference Committee to find ways of ensuring that such evasion by certain countries did not continue with impunity. He urged the Government to implement the provisions of the Convention and to guarantee trade union freedoms for all workers, without exception. Lastly, he requested the Committee to call in its conclusions for a mission to be sent to examine the situation and recommend ways to resolve it, and for the Committee to be informed of any activities at the next session of the Conference.

The Government member of Belarus stated that the Committee of Experts had noted the decision of the Supreme Court of Canada that Convention No. 87 was an international legal instrument that was binding on Canada. Unfortunately, the right to freedom of association did not apply to the agricultural workers in Alberta and Ontario. The speaker asked the Government to put pressure on those provincial governments to ensure that the rights of specific groups of workers in those provinces were recognized. The governments in those provinces were not implementing fully the provisions of Convention No. 87, as was noted by the Committee of Experts with regret. It was necessary to ensure that the Convention’s provisions were implemented fully and that the Conference Committee and the ILO assisted the Government in their implementation. He stated that the Committee’s conclusions should address only the federal Government, and not ask the federal Government to bring its influence on local governments.

The Worker member of Sweden observed that specific elements of this case were worrying and that it was clear from the Committee of Experts’ report that the federal structure in Canada was being used as a shield to avoid international obligations arising from its ILO membership. He expressed concern on behalf of the Nordic Trade Union Confederations about such practice and recalled that similar developments were observed within the European Union. All federal entities were founded upon a division of competence and jurisdiction between federal and state levels. It was important, however, that no entity within a federal structure escaped its responsibility to adhere to the core ILO Conventions. The federal Government of Canada could not therefore escape its obligations simply on account of the country’s federal structure. The speaker stated that it was ironic that the federal Government demanded adherence to the ILO’s core Conventions in trade agreements with third countries while provincial governments continued to apply legislation that at times breached ILO core labour standards. He regretted such policy of double standards and stressed the need for appropriate solutions. Perhaps it was time the ILO invited provincial governments directly to participate at the ILO Conference. Thought could also be given to the possibility of a direct contacts mission. At the very least, the federal Government should seek technical assistance from the ILO with a view to familiarizing provincial governments with the obligations arising from ratified international labour Conventions.

Speaking on two points of order, the Employer members objected to any comparisons to, or analogy drawn with, any country which was not in the Committee’s list of cases for discussion and they requested that any such reference be struck from the record. In response to these objections, the Worker member of France and the Worker member of the United States expressed their surprise at the attempted censorship and cautioned against the risk of setting dangerous precedent.

The Worker member of Brazil wished to refer to the situation of domestic workers excluded from the protection afforded by the legislation in relation to freedom of association at a time when the Conference was discussing the adoption of an instrument on this category of workers. The situation was all the more worrying as the provinces concerned indicated that they had no intention of changing the situation, even though those workers were covered by the Convention. In view of the links that existed between the principles of freedom of association, the role played by unions and collective bargaining, the legal restrictions placed on the exercise of collective bargaining by agricultural workers and part-time workers in public colleges in the Province of Ontario were also a cause for concern. As an illustration of the limitations imposed by law on the right of trade unions to defend the interests of their members, he referred to the case of a Brazilian enterprise installed in the Provinces of Newfoundland, Ontario and Manitoba. The workers in the enterprise who had taken part in a strike, following the failure of negotiations for a collective agreement, had been the victims of intimidation and harassment. Legal action had been taken against the union, the enterprise had made use of other workers to replace the striking workers, mediation had not been successful and the enterprise had rejected the union’s request for compulsory arbitration. This was only one example of the numerous enterprises that were in violation of Convention No. 87 in Canada by failing to engage in bargaining in good faith, attempting to go to court against trade union action and restricting access to the machinery that was intended to give effect to the right to strike.

The Government representative thanked the Committee members who participated in the discussion and reiterated her Government’s commitment to the Organization and to full cooperation with the supervisory bodies. She recalled that Canada’s Constitution represented certain challenges for the federal Government due to the fact that it gave authority to provincial governments on labour issues. However, the federal Government was engaged in constant dialogue with the provincial governments through annual meetings and regular tripartite round tables, often with the participation of ILO officials who were invited to explain the scope and content of international labour standards. She concluded by stating that the results of these discussions would be communicated to the Office, and the Committee of Experts would be kept fully informed of all future developments concerning the application of Convention No. 87.

The Worker members emphasized that the Canadian authorities should stop using their country’s institutional structure as a pretext for not implementing the Convention, at the same time ignoring the provisions of the Canadian Charter of Rights and Freedoms and Supreme Court decisions on freedom of association and collective bargaining. The present discussion should form the starting point for a process of positive social dialogue, to include, in the near future, a direct contacts mission to the country to explain to the various courts the exact scope of the principles and provisions set out in Conventions Nos 87 and 98. Subsequently, the entire body of Canadian legislation should be examined in order to identify provisions that were not in conformity with the Convention, with technical assistance from the Office if necessary.

The Employer members cautioned to take careful note of what was said with reference to Convention No. 87 and the adoption of federal, provincial, and territorial legislation on freedom of association and the right to organize. They reiterated that the conclusions should focus on Convention No. 87 only and not issues arising under Convention No. 98, Committee on Freedom of Association cases or trade agreement disputes. They urged the federal Government to ensure that provincial governments fully complied with strict freedom of association and right to organize requirements for the benefit of all workers. They did not, however, consider that an ILO direct contacts mission was a reasonable or proportionate response to the Committee of Experts’ report and categorically objected to such a proposal. They further stated that the Conference Committee’s conclusions should only focus on Canada and not draw comparisons to cases that were not before the Committee, as set out in article 7 of the Standing Orders. Moreover, conclusions should reflect that Convention No. 87 did not embody the right to strike.

The Worker members stressed that they did not intend to open a discussion on the right to strike. However, as the Employer members had raised the issue, the Worker members reaffirmed their interpretation of the right to strike in the context of Convention No. 87. Furthermore, with regard to the Committee’s working methods, it ought to be possible to compare various situations during the examination of certain cases.

Conclusions

The Committee noted the information provided by the Government representative and the discussion that followed.

It noted that the comments of the Committee of Experts related to a number of discrepancies between the laws and practices 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 a variety of workers from the coverage of the labour relations legislation in a number of provinces.

The Committee took note of the information provided by the Government representative that, while it was true that not all workers in Canadian jurisdictions were covered by industrial relations legislation, they were entitled to join associations of their own choosing. In addition, the Government maintained that some inconsistencies raised by the Committee of Experts actually made sense within the Canadian context and had not raised concerns at the national level. The Government representative further referred to a variety of efforts made by the Federal Government to bring the provincial authorities and the social partners together to review the matters raised, on several occasions with the collaboration of the ILO.

The Committee recalled that certain legislative texts needed to be amended in some provinces with a view to guaranteeing the full application of the Convention. In particular, it stressed the importance of ensuring to all workers, without distinction whatsoever, the right to form and join the organization of their own choosing. 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. It noted with interest in this regard the general invitation extended by the Government for continuing ILO advice and assistance. 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, including as regards developments on appeals before the Supreme Court of Canada.