Individual Case (CAS) - Discussion: 2013, Publication: 102nd ILC session (2013)

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

A Government representative recalled that, in 2010, her Government had addressed this Committee explaining in detail the nature of the Canadian Constitution, under which 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. Considerable emphasis had been placed at that time by the Committee on the challenges of such division of legislative authority under the Constitution. She highlighted a number of initiatives and mechanisms designed to address this issue. For instance, the Government engaged with the provincial and territorial governments with a view to promoting implementation of Canada’s international labour obligations. The main forum for these discussions was the Canadian Association of Administrators of Labour Legislation. Also, an annual workshop brought together officials from the federal, provincial and territorial governments to discuss ILO issues, including reports to the ILO on ratified Conventions, comments by ILO supervisory bodies and the review of ILO Conventions for possible ratification, and the social partners were regularly invited. In addition, tripartite round tables on international labour issues were held annually, with the participation of ILO officials. In November 2010, the federal Minister of Labour had established the Advisory Council on Workplace and Labour Affairs, consisting of employer and worker representatives, which served as a forum for discussion and advice to the Minister on workplace and labour issues of federal, national and international importance.

Concerning the observations of the Committee of Experts, the Government representative indicated, with reference to the detailed 2011 and 2012 Government reports, that she would focus primarily on developments and information since the last report. As regards the allegations submitted by the International Trade Union Confederation (ITUC), the Canadian Labour Congress (CLC) and the Confederation of National Trade Unions (CNTU) in July and August 2012, some addressed cases before the Committee on Freedom of Association (CFA) that were closed, some did not relate to the application of the Convention and others would be addressed in the Government’s next reports on the Forced Labour Convention, 1930 (No. 29), the Equal Remuneration Convention, 1951 (No. 100), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). As to the allegation of increasing violations of the Convention by the federal Government, there had been no recent amendments to industrial relations legislation. However, since 2011, there had been three instances where the federal Government had introduced legislation to prevent or end work stoppages that threatened the public interest and the Canadian economy. Two of these cases were currently before the CFA. Following a recommendation of an independent study on the causes and impacts of work stoppages in the federal private sector, and the consensus of union and employer stakeholders on the need to work on their relationships, the Government had increased in 2011 resources for its Preventive Mediation Program, which provided services including training sessions on how to move from confrontation to more collaborative labour-management relations, approaches to problem solving and improving collective bargaining skills, as well as facilitating the resolution of workplace grievances. With respect to the 2007 Supreme Court Decision Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 (hereinafter: B.C. Health Services) referred to by the unions, in which the Court had found that the protection of freedom of association enshrined in the Canadian Charter of Rights and Freedoms extended to collective bargaining, the Government representative underlined that, in 2011, in its ruling Ontario (Attorney-General) v. Fraser, 2011 SCC 20 (hereinafter: Fraser), the Supreme Court had revisited its decision and had narrowed the protection afforded to collective bargaining under the Charter. As a result, there was continuing litigation regarding the scope of Charter protections.

Concerning the follow-up by provincial governments, she indicated that a recent case before the CFA concerned Ontario legislation of 2012 (Bill 115) that imposed contracts on Ontario teachers. In January 2013, that Bill had been rejected by the Government of Ontario and the imposed contracts had since been amended through further collective bargaining. With regard to the right to organize of part-time employees of public colleges, the Government of Ontario wished to inform the Committee that the certification applications filed by the Ontario Public Sector Employees Union were being dealt with by the Ontario Labour Relations Board, an independent quasi-judicial body. There had been significant delays in the resolution of this application due to numerous procedural issues raised by both the applicant union and the employer, but the counting of the ballots was now expected to proceed. As to the exclusion, in some jurisdictions, of groups such as members of the medical, dental, architectural, legal and engineering professions, principals and vice-principals from industrial relations legislation, the speaker stressed that these groups were entitled to join associations of their own choosing for the defence of their professional interests. In relation to domestic workers, the New Brunswick Government wished to inform the Committee that it continued discussions regarding potential amendments to the Industrial Relations Act to remove or modify the exclusion of domestic workers. Further information would be provided to the Committee of Experts in the next report. The Government of Saskatchewan indicated that, in the context of its review of labour legislation, the definition of “employee” had been clarified and a new definition of “supervisory employee” had been added confirming their right to organize for collective bargaining, in bargaining units separate from the employees they supervised. Furthermore, in relation to Saskatchewan Bills 5 and 6, the Public Service Essential Service Act and amendments to the Trade Union Act, the speaker informed that the Saskatchewan Court of Appeal had found, in a decision dated 26 April 2013, that both acts were constitutionally valid. A copy of the decision would be provided with the Government’s next report. The Committee of Experts had also identified a number of legislative provisions which it considered to be inconsistent with the Convention. However, the social partners at the national level had not raised concerns about these long-standing provisions. The Government representative cited the following examples: (i) the legislation in Nova Scotia, Ontario and Prince Edward Island which designated individual trade unions as bargaining agents; (ii) the current system of binding arbitration under the Manitoba Public Schools Act; and (iii) section 87.1 of Manitoba’s Labour Relations Act which permitted the imposition of binding arbitration by the Labour Board at the request of one party after 60 days of a work stoppage (it should be noted that section 87.4 of the Act required that the Labour Management Review Committee review the operation of this section every two years and provide a report to the minister on its findings; the next review would be conducted in 2013). The Government recognized that the Canadian labour relations system was not perfect, and that work remained to be done to address a number of inconsistencies with respect to the Convention, as evidenced by legislation in all Canadian jurisdictions that recognized freedom of association and included measures to protect the exercise of the right to organize. However, her Government wished to remind the Committee of the overall commitment of Canada with respect to the application of the Convention. The Government would continue to work towards addressing the Committee of Experts’ comments, in collaboration with the provincial and territorial governments, and would provide additional information in its next report. The speaker assured the Committee of her Government’s continuing support for, and cooperation with, the ILO supervisory bodies.

The Employer members stated that the Committee of Experts’ observation also related to other ILO Conventions, such as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Domestic Workers Convention, 2011 (No. 189); however they would limit their remarks to Convention No. 87. The Employer members referred to Canada’s unique system of federalism which appeared to be underpinning the present case, as it dealt with a wide variety of issues all of which involved the provinces rather than the federal Government. They pointed out that federal laws regulated less than 5 per cent of the employers, whereas the provinces regulated the remaining 95 per cent. Most of the Committee of Experts’ comments had thus been directed at the provincial legislation. Since 1982, the Canadian Constitution contained an express right of freedom of association, and for over 30 years, the Canadian Supreme Court and the highest-level provincial courts had created an extensive body of jurisprudence on freedom of association by interpreting the Canadian Constitution. The Employer members stressed that, in several of its observations, the Committee of Experts was requesting the Government to take action with regard to legislation that the highest courts in Canada had not considered to violate the constitutional right to freedom of association. For example, the Committee of Experts had requested the Government to ensure that the Government of Ontario would take measures to amend the Agricultural Employees Protection Act (AEPA), considering that it violated the Convention. However, in 2011, the Supreme Court had found the AEPA to be constitutional. Another example involved the right to strike. The Committee of Experts had considered that the recent amendments to the Saskatchewan Trade Union Act violated the right to freedom of association and had cited a case that had been examined by the CFA in 2010. The Employer members raised a number of issues in this regard. Firstly, the CFA’s mandate was not to assess compliance with ILO Conventions, and both the Committee of Experts and the Conference Committee should exercise caution when considering the CFA’s conclusions and recommendations. Secondly, the Employer members did not agree with the Committee of Experts’ views on the right to strike and believed that the right to strike was a matter for national law. Thirdly, in keeping with the above, they underlined that Saskatchewan’s highest court, the Saskatchewan Court of Appeal, had recently held that the relevant portions of the Trade Union Act did not violate the right to freedom of association as enshrined in the Canadian Constitution.

The Worker members had taken note of the comments that the International Organisation of Employers (IOE) had formulated in 2012 and of the discussion on the mandate of the Committee of Experts and the link between freedom of association and the right to strike. Recalling the provisions of the Convention, they stressed that freedom of association was a human right and a precondition for healthy collective bargaining and social dialogue that benefited employers, workers and social peace. The Conference Committee and the CFA contributed to resolving difficulties in applying this fundamental right in countries all over the world, including Canada. The Worker members highlighted the complexity of Canada’s legislation on trade union rights and referred to the Committee of Experts’ in-depth analysis in its comment. In many provinces, the right to organize was still hampered as regards many groups of workers, especially agricultural workers in Ontario and Alberta, and domestic workers who were denied any legal trade union protection in Ontario, Nova Scotia, Alberta and Saskatchewan. Depending on the province, liberal professions might or might not be allowed to organize. There were also obstacles to freedom of association in the teaching profession in several provinces. In Ontario and Nova Scotia and in Prince Edward Island (as far as the civil service was concerned), only one union was recognized as being entitled to engage in collective bargaining. In Saskatchewan, the membership threshold for accreditation as a trade union was 45 per cent of the workforce. As to the right of trade unions to organize their activities, the Worker members cited the restrictions that several provinces placed on the education sector (British Columbia, Manitoba and soon Ontario) and on the health sector (a ban on collective action in Alberta). Moreover, in Manitoba, arbitration could be imposed unilaterally by one of the parties to the negotiations, while in Quebec the application of collective agreements could be imposed, thereby putting an end to the negotiations. The Worker members emphasized that trade union rights were more and more frequently being violated in Canada and that the provincial authorities appeared to be in no hurry to apply the Convention.

The Worker member of Canada observed that many of the Committee of Experts’ comments were a near repetition from previous reports, thus indicating that little progress had been achieved in improving legislation or practice. This year, the Committee of Experts had requested the Government to respond to allegations that violations of freedom of association had become the norm in Canada. In this regard, the speaker denounced the slowness of provincial authorities in giving effect to the Committee of Experts’ recommendations, which was illustrated by the long‑standing comments relating to the exclusion in law and practice from the right to organize of domestic workers, architects, dentists, land surveyors, lawyers, engineers and doctors. While some provincial governments had corrected this shortcoming, huge gaps still remained. She highlighted the slow pace of progress for domestic workers not only in Alberta and Ontario but in all provinces, as well as the situation of agriculture and horticulture workers in Alberta and Ontario, despite the decision of an Ontario court ruling that the AEPA recognized the right of agricultural employees to form or join employees’ associations. Nurse practitioners in Alberta still did not have the right to establish and join organizations of their own choosing. She also denounced slowness to act with regard to education workers in Alberta and teachers in Prince Edward Island, Nova Scotia and Ontario. The speaker further expressed concern about a questionable strategy by the Ontario Government in relation to the certification of part-time academic and support staff and the false argument made by the provincial Government that its decision not to interfere in the resolution of the case was shared by the National Union of Public and General Employees. She also expressed concern about the deteriorating circumstances in terms of negotiation process and abuses in defining the term “essential services” in the public sector, including in the education and health sectors of Alberta, British Columbia, Saskatchewan, Manitoba and Quebec. The speaker further denounced the fact that the federal Government had spearheaded attacks on collective bargaining by threatening or legislating workers back to work from a strike, although the Government had recognized the right to strike in other forums, such as in its trade agreement with Costa Rica, where this right was explicitly referred to. She expressed concerns about Bill C-377, which imposed financially onerous reporting requirements, gave employers access to detailed information on unions’ collective bargaining and organizing activities and violated privacy protection guarantees. Moreover, provincial governments were taking on “case-by-case” battles to narrow down the scope of a Supreme Court ruling of 2003, which had embraced collective bargaining as part of the right to association enshrined in the Constitution. The speaker also denounced several measures that the federal Government planned to introduce, such as Bill C-60 bringing in the Treasury Board as a third party to collective bargaining of crown corporations, Bill C-525 amending the certification and decertification processes of a bargaining agent in the federally regulated jurisdiction by making it harder to win representation and easier to decertify bargaining agents, and a proposal to eliminate the dues check-off system in Canada, known as the Rand Formula, which was a fundamental component of the Canadian labour relations system.

The Employer member of Canada agreed substantially with the observations of the Government representative. Labour legislation in all ten Canadian provinces and the federal jurisdiction were highly detailed and directed towards ensuring an equality of bargaining power between employers and unions, and the promotion of voluntary negotiations and freely negotiated collective agreements. This legislation provided both parties with certain rights and obligations in the collective bargaining process, government support for collective bargaining including comprehensive conciliation, mediation and facilitation services, and strong protection against unfair practices. Notably, an important feature of this system was a prohibition on strike and lockout activity during the term of a collective agreement, and until certain stages of the collective bargaining process had been reached. The Canadian labour relations system also provided for extremely comprehensive quasi-judicial dispute resolution processes including compulsory arbitration of grievances regarding the interpretation of collective agreements, tripartite labour relations boards to interpret and adjudicate disputes under the labour relations acts and, if necessary, access to the judicial system. The Canadian Charter of Rights and Freedoms that was an essential component of the Canadian Constitution provided, under section 2(d), that everyone had the fundamental right to freedom of association. As regards the comments made by the Committee of Experts respecting Canada’s compliance with Article 3 of the Convention, and specifically with respect to the “right to strike”, the speaker highlighted that Canadian courts had concluded that there was no constitutional right to strike. Since 2007, the Supreme Court had issued two major decisions regarding the scope of the constitutional protection for freedom of association established in section 2(d) of the Charter. In the 2007 decision B.C. Health Services, the Supreme Court had held that the constitutional protection for freedom of association in the Charter included the right to a process of collective bargaining. However, the Supreme Court had been careful to emphasize that the constitutional protection for collective bargaining was limited as follows: (i) it only extended to instances of state action in relation to collective bargaining; (ii) it only guaranteed a general process of collective bargaining; and (iii) it only protected against state interferences in collective bargaining that were so substantial that they discouraged workers from negotiating terms and conditions of employment; if state interference was significant but occurred alongside a process of good faith consultation that reflected the principles of voluntary collective bargaining, it was unlikely that the protection for freedom of association would be violated. In its 2011 Fraser decision, the Supreme Court had clarified the scope of the constitutional protection for freedom of association in the labour relations context. In particular, the Court had determined that section 2(d) of the Charter of Rights and Freedoms required that employee associations (including unions) be able to participate in a meaningful workplace dialogue with their employer, which included the right to make collective representations to the employer and to have those representations considered by the employer in good faith. The Supreme Court had further stated that only legislation that made good faith resolution of workplace issues between employees and their employer effectively impossible would be found to violate freedom of association. Moreover, the Supreme Court had rejected the argument that freedom of association guaranteed employees access to a particular model of labour relations, or access to specific dispute resolution mechanisms of their choice. Rather, freedom of association guaranteed employees a process of meaningful consultation and negotiation with their employer. The Supreme Court had considered and relied on international labour law principles in the Fraser decision and had reaffirmed its earlier conclusion in the B.C. Health Services decision that international labour principles informed the meaning of the Charter’s protection for freedom of association. In both decisions, the Supreme Court had specifically stated that prior jurisprudence holding that the protection for freedom of association in the Charter did not include a right to strike, was still valid. The speaker underlined that the Supreme Court had considered the application of freedom of association principles in light of Canada’s mature, stable and well-balanced labour relations system, which had been carefully designed, operated quite seamlessly and efficiently in practice and was respected by both employers and unions. In the Canadian employers’ view, the Committee of Experts’ position on the right to strike attempted to impose a “one-size-fits-all” vision of freedom of association without regard to the unique and established features of the Canadian labour relations system. In light of the above, as well as the fact that the right to strike was nowhere established in the Convention (or any other ILO Convention), the Canadian employers considered that it would be entirely inappropriate to conclude that the carefully tailored restrictions on the strike activity, as adopted by democratically elected legislatures and consistently reaffirmed by independent courts, violated a “right to strike”.

The Worker member of Germany stated that consideration should also be given by the Committee to the following developments and circumstances prevailing both in Germany and Canada since several years, which impacted negatively on the exercise of freedom of association and the right to strike: high levels of unemployment, increase in precarious employment and low-paid jobs, growing number of fixed-term contracts, increase in temporary agency work, privatization of the health sector, etc. These factors had resulted in a considerable and ever increasing number of employees who were no longer able to survive on their wages and thus depended on social security benefits (“working poor”). This bitter reality substantially hampered the ability of trade unions to fight for freedom of association and the right to strike.

The Worker member of Nigeria declared that he was concerned by the situation in the public sector of Canada and the larger implications for effective public service delivery. Canada was once a model country in advancing trade union and workers’ rights but this was no longer the case. There had been legislation passed suspending the collective bargaining rights of public sector workers. Collective bargaining was deteriorating as the Government was attacking the negotiation process directly, restricting the terms for organizing workers, or changing the use of the term “essential services” to restrict workers or unions from striking. It was troubling to find so many examples where the right to strike had been restricted in the public sector, especially at the federal level. It was also worrisome that some countries, such as Canada, where Nigeria’s public service had drawn inspiration to improve the lives of its citizens and communities through promotional service delivery, were considerably demoting these gains, in spite of the economic difficulties faced by their citizens.

The Worker member of the United States declared that her union, United Steelworkers, represented workers in the United States and Canada. She was troubled to learn that some legislators in Canada wanted to abolish the “Rand formula”, or the dues check-off system. Legislative changes would seek to weaken unions by making it harder for them to sustain themselves financially. Politicians trying to eliminate the right to bargain a dues check-off provision claimed that doing so would create jobs and help the economy. However, she underlined that politicians in the United States were pushing similar laws prohibiting union security clauses in some states. Studies had concluded that these laws had no significant impact on job creation whatsoever. States with these laws, such as North Carolina, Mississippi, South Carolina and Nevada, had some of the highest unemployment rates in the country, as well as the lowest rates of unionization. However, states like Vermont and Hawaii, permitting workers to negotiate union security clauses, had some of the lowest unemployment rates in the United States. She also underlined that American workers in states without union security clauses made less money than those living in states that permit these clauses. She expressed the hope that the Government would comply fully with the Convention and preserve the dues check-off system.

The Worker member of the Netherlands underlined that violations of trade union rights were widespread in the country and affected a diverse group of workers, in both the private and public sector, including domestic workers, architects, lawyers, doctors, agricultural workers and educational workers. Despite the specific federal governance structure of the country, it appeared that federal and provincial authorities were blaming each other, while justifying and continuing serious violations of trade union rights. The provincial governments had been slow to implement the Convention, and the federal Government had not been proactive in ensuring that these provincial governments fully guaranteed the rights of workers to organize freely and to benefit from the necessary protection of their rights. Respect for fundamental labour standards, including the Convention, at all levels of government was particularly important in light of ongoing negotiations between the Government and the European Union (EU) on economic and trade cooperation. All parties to any agreement in this regard should commit to the full and effective implementation of the core labour standards of the ILO, including those related to freedom of association and the right to collective bargaining.

The Government member of the Islamic Republic of Iran recalled that freedom of association and the right to collective bargaining were human rights and were principles at the core of the ILO mandate. He stated that an increasing number of violations of freedom of association took place in Canada and had become the norm for the federal Government. He called on the Government to uphold its international obligations, including those related to freedom of association.

The Worker member of Colombia considered it unacceptable that the Government of a developed country was preventing the free exercise of freedom of association on the basis of arguments that appeared absurd to the world’s working class, and especially to the working class in the developing world. Freedom of association must be ensured by all countries, even those that took refuge in not having ratified the Convention. Attempting to justify failure to comply fully with the Convention on the grounds of the type of activities that workers carried out was unacceptable. The ILO itself recognized, in a number of instruments, that workers in rural areas were an integral part of the working class, and this applied equally to health, education and other workers. He emphasized that it did not make sense for the Government to invoke a voluntary agreement of 1956 to maintain that workers had renounced the exercise of the right to strike, as that would invalidate 57 years of concessions. As the economy had become globalized, so had rights, and he therefore demanded equal rights for all.

The Government representative indicated that the report and the conclusions of the Conference Committee would be brought to the attention of the federal, provincial and territorial governments. The Government remained committed to full cooperation with the ILO and the supervisory system, and would continue to welcome technical assistance and advice from the International Labour Standards Department on the application of Convention No. 87 and other Conventions. Acknowledging that the Committee of Experts had identified a number of areas that were not, in its view, in strict conformity with the Convention, the speaker highlighted that these anomalies existed in a broad labour relations and human rights system that supported the right to organize, and supported independent workers’ and employers’ organizations. Turning to the legislation in Manitoba, which permitted the imposition of binding arbitration by the Labour Board at the request of one party after 60 days of work stoppage, the speaker underlined that the only requests made in this regard had been from trade unions. In addition, no government in Canada had adopted any legislation which sought to revoke the “Rand formula”. When a proposition in this respect had been made by an opposition party in one province, it had been rejected by the provincial government. The Government would provide further information in response to the Committee of Experts’ observation in its report due in September 2013.

The Employer members acknowledged that, due to the unique federal system in the country, it would be difficult for the federal Government to make demands on the provincial governments regarding compliance with the Convention. It appeared that the Government was doing what was necessary with regard to the application of the Convention. The conclusions of the Conference Committee should focus only on issues raised by the Committee of Experts relating to Canada’s application of the Convention, and not to issues raised by the Committee on Freedom of Association or relating to other Conventions. The Employer members welcomed the Government’s indication that it was interested in ILO technical assistance.

The Worker members indicated that the situation of trade union rights in Canada had further deteriorated. They called on the Government to do everything it could to persuade the provincial authorities to bring their legislation into line with the Convention. They also requested that a list be made of the laws and regulations that needed to be reviewed in light of the Convention.

Conclusions

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

It noted that the comments concerned 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 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 once again stressed that some inconsistencies raised by the Committee of Experts had not given rise to concerns at the national level. The Government representative referred to initiatives and mechanisms designed to bring the provincial and territorial governments and the social partners together to address ILO and international labour issues and promote implementation of its international obligations. The Committee further noted the Government’s indication that resources for its Preventive Mediation Program were increased in 2011. As for the provinces, the Committee noted with interest: the rejection of the Ontario Bill 115, which imposed contract settlements; the Government of New Brunswick’s indication that it is discussing potential amendments to remove or modify the exclusion of domestic workers from the coverage of the Industrial Relations Act; and the clarification in Saskatchewan labour legislation of the definition of “employee” and the addition of “supervisory employee”.

The Committee did not address the right to strike in this case as the employers do not agree that there is a right to strike recognized in Convention No. 87.

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. It asked the Government to pursue its efforts to bring these matters to the attention of the provincial authorities and expressed the firm expectation that appropriate solutions in conformity with the Convention would be found in the near future in full consultation with the social partners concerned. 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.