Caso individual (CAS) - Discusión: 1999, Publicación: 87ª reunión CIT (1999)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Canadá (Ratificación : 1972)

A Government representative referring to an International Confederation of Free Trade Union's (ICFTU) document, noted at the outset that the ICFTU recognized in this publication that Canadian workers in both the public and private sectors had freedom of association to enable them to form and join trade unions. In addition, it was noted that Canadian legislation prohibited anti-union discrimination and required employers to reinstate workers fired for union activities, including strikes. He observed that other quotes from the document specified that workers in both the public (except for some police) and the private sectors had the right to organize and bargain collectively in law, although not always in practice and that most workers had the right to strike.

The speaker recalled that Canada recognized the key importance of observing ILO principles on the right to organize and collective bargaining and protecting workers' rights. However, he stressed that governments, including the federal, provincial and territorial governments of Canada, were elected to make decisions and exercise their responsibilities for the welfare of their populations as a whole. 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. Referring to the specifics of the Committee of Experts' observation, he recalled that the Canadian Constitution recognized that the provinces had full control over labour relations within their jurisdiction. The information, therefore, provided to the Committee and concerning provincial laws and practices, had been submitted by the provincial governments concerned.

Regarding the experts' observation on the procedure for the designation of "essential employees" under Newfoundland's Public Service Collective Bargaining Act, the speaker indicated that the public consultation process to which the Committee of Experts had referred had been completed. The joint labour and management Working Group of the Economic Advisory Council had submitted a detailed report with recommendations to the government concerned. A copy of the report would be provided to the Committee. The Working Group's recommendations on the issue of designation of essential employees were generally supportive of the provisions in the Public Service Collective Bargaining Act pertaining to essential employees. In addition, an interdepartmental working group of the Newfoundland Government had completed its analysis of the recommendations and is now awaiting final directions. The speaker also specified that in the early 1990's there was some activity at the provincial Labour Relations Board related to establishing the process to designate essential employees. In all instances, labour and management voluntarily came before the Labour Relations Board with a joint agreement on employees to be designated as essential. It appeared that this represented a full endorsement by both labour and management for the existing provisions in the Act. The Newfoundland Government, therefore, did not anticipate having to make further amendments to legislation governing essential employees at this time.

Turning to the right to strike for hospital workers under the Province of Alberta's Public Service Employee Relations Act, he informed the Committee that in Alberta, at approved hospitals as defined by the Minister of Health, employees did not have the right to strike, nor employers the right to lockout. Approved hospitals included acute care facilities, but did not include community health services, mental hospitals and some long-term care facilities. At these other facilities and services, employees did have the right to strike and the employer had the right to lockout. Under the relevant Alberta legislation, the right, or not, to strike/lockout depended more upon the nature of the organization providing the service rather than the type of work which employees performed within the organization. In fact the entire health care system in the province was regionalized about five years ago and although the government currently had no plan to amend its legislation, it continued to monitor how the labour relations framework was working, as service delivery evolved and became more integrated with a regionally coordinated system.

Regarding the Committee of Experts' observation on restrictions on the right to organize in agriculture and horticulture in the Provinces of Alberta, Ontario and New Brunswick the speaker indicated that, as regards Alberta, although primary agriculture farm workers were excluded from coverage under Alberta's labour relations legislation, there were no provisions in the labour legislation which would specifically prohibit any of these workers from voluntary negotiations with employers for whom they might perform services. In this regard, he gave the example of voluntary negotiations held outside the parameters of Alberta labour legislation between the province and the Alberta Medical Association. This group negotiated provincial fee schedules for its member physicians. Also, medical residents who were also excluded from the scope of the collective bargaining general scheme had negotiated terms of employment with the province's teaching hospitals.

As regards Ontario, the speaker stated that there were legitimate reasons for the exclusion of certain employees from statutory bargaining rights under Ontario's Labour Relations Act, but that the excluded workers continued to be free to form voluntary associations or unions outside the statutory collective bargaining regime. The unique characteristics of, and the nature of employment in, the agricultural sector raised serious questions as to the suitability and propriety of the regime of collective bargaining contemplated by the Labour Relations Act, in particular the dispute resolution mechanisms upon which collective bargaining depended, namely the right to strike and lockout, and compulsory arbitration.

As regards New Brunswick's labour relations legislation that a bargaining unit of agricultural workers comprised five or more employees, he stressed that this condition was necessary in order to free small agricultural, family farms from inappropriate legislative requirements.

The speaker expressed his Government's satisfaction at the positive comments made by the Committee of Experts in paragraph 3 of its observation, as regards the adoption of the federal legislation Bill C-19, an Act to amend the Canada Labour Code, and in particular, its prohibition of the use of replacement workers to undermine a union's representational capacity. Finally, he stressed his Government's acknowledgement and will to fully cooperate with the ILO supervisory system with respect to recently arisen cases currently before the Committee on Freedom of Association.

The Worker members expressed their gratitude to the Government for the information provided. They recalled that Canada had ratified the Convention in 1972 and that the Committee of Experts had reported several problems in the application of Articles 2 and 3 of the Convention in a number of provinces. In particular, the Committee had first and foremost requested additional information on the situation in the Province of Newfoundland. The Newfoundland Government had informed the Committee of Experts that it had introduced an effective procedure for the designation of "essential workers" and that the joint labour-employer working group had submitted a report proposing an amendment to the legislation on freedom of association. The Worker members had requested the Government to inform the Committee of Experts on the latest developments in this regard.

The Committee of Experts had also requested additional information from the Government of Alberta in respect of essential services in the health care sector. The Worker members expressed their support for the position clearly established by the Committee of Experts regarding the right to strike and regarding the few situations where this right could be restricted. The Worker members did not intend to discuss the modalities of the right to strike in the context of this case. Furthermore, they pointed out that trade union problems such as those experienced in the field would shortly be raised by the Worker member of Canada. Nevertheless, the Worker members had requested the Government's response to the issues raised by the Committee of Experts and the Government's assurances that the application of its legislation would be in conformity with Article 3 of the Convention, which provides that trade union organizations have the right to formulate their programmes of action. Moreover, the Worker members emphasized that point 3 of the Committee of Experts' report referred to fairly serious violations of Articles 2 and 3 of the Convention in the Provinces of Alberta, New Brunswick and Ontario. In particular, the Worker members criticized the recent laws passed in the Province of Ontario, which blatantly violated the Convention.

The Committee on Freedom of Association had recently received several complaints and it had formulated conclusions in Case No. 1900 regarding the denial of trade union rights to workers in the agricultural and horticultural sectors, kitchen workers, architects, lawyers, doctors and other categories of workers in the Province of Ontario. According to information received, several of these categories of workers had in fact established organizations and had concluded collective agreements. In Case No. 1900, the Committee on Freedom of Association had also noted that the new Act had also had negative repercussions on the right to organize in enterprises which had been bought out or taken over by the construction industry. Moreover, the Committee on Freedom of Association was currently examining Cases Nos. 1951 and 1975 concerning the prohibition on freedom of association for certain categories of workers, such as heads and deputy heads of schools and workers participating in social welfare programmes in the Province of Ontario. In this regard, the Worker members requested the members of the Committee on Freedom of Association to scrutinize the text of Case No. 1900, relative to the denial of trade unions rights to workers in the agricultural and horticultural sectors, to kitchen workers and other categories of workers. The 1995 Act had amended labour relations legislation in Ontario and now excluded categories of workers from essential legislation guaranteeing the effective exercise of the right to organize. The Worker members considered that this constituted an explicit and deliberate denial of a fundamental right and principle. They quoted in this regard the statement made by the Government of Ontario in paragraph 181 of Case No. 1900, referred to by the Committee of Experts: "The Committee notes that the Government considers that a statutory labour relations regime and collective bargaining dispute resolutions mechanisms are inappropriate for agricultural and non-industrial workplaces because of the low profit margins and unstructured, highly personal working relations". The Worker members considered that if this line of reasoning were to be followed, the majority of workers in the world especially in developing countries would be deprived of trade union rights. Moreover, the Government of Ontario had pursued a deliberate policy. Act No. 22, which took effect on 18 December 1998, pursued a specific and explicit objective mentioned as such in the text, namely, the Act denied workers participating in social assistance programmes the right to join trade union organizations. Another Act, dated 1 December 1997, excluded heads and deputy heads of schools from the scope of labour relations legislation and also significantly modified their collective rights. The Government of Ontario and the federal Government had also argued that these categories of workers could enjoy freedom of association under the common law system. However, under the Canadian legal system, freedom of association was ineffective beyond the framework of fundamental labour relations legislation.

In conclusion, the Worker members requested that the conclusions take account of the fact that the fundamental rights and principles were being jeopardized in the Provinces of Alberta, New Brunswick and Ontario. Moreover, they insisted on the importance of Articles 2 and 3 of Convention No. 87, namely, that all workers, without distinction whatsoever, should have the right to establish and join trade union organizations and that these organizations should have the right to formulate their programmes of activity. Finally, the Worker members emphasized that the pertinent legislation should be amended without delay to enable Canada to respect its international obligations with regard to the rights and fundamental principles recognized in Articles 2 and 3 of the core Convention.

The Employer members noted the information provided by the Government representative which supplemented the facts illustrated in the observation by the Committee of Experts. He further noted that a part of the Committee of Experts' comments had highlighted recent legislative developments in the country. The observation, however, contained some aspects with which the Employer members could not agree. He said that the right for workers and employers to establish organizations of their own choosing without previous authorization, including the right to formulate their programmes, as enshrined in Articles 2 and 3 of the Convention, constituted a good point of departure for the comments that had been made by the Committee of Experts. With reference to the situation in Newfoundland, he noted the statement by the Government representative to the effect that the social partners had agreed on the necessary legislative reform process, which had shown that tripartite consultations on the subject had taken place. In this respect, he supported the Committee of Experts' wish to be kept informed of developments in this regard. As regards the Province of Alberta, the situation was different, and the restrictions concerning the right to strike for hospital workers had been imposed by law. However, the strike ban was not applicable to all hospitals but only to some. The speaker referred to the Committee of Experts' point of view on the right to strike, which was considered to be a right substantially deriving from the right to organize and that, therefore, any restriction thereof should be limited to public servants exercising authority in the name of the State or to essential services in the strict sense of the term as defined by the Committee of Experts. In contrast, the Employer members were of the opinion that the State had the right to define the term "essential services". They emphasized that the concept "essential services" could not be understood by a mere reference to the text of Convention No. 87. Although the Committee of Experts might wish to discuss the question whether or not work by kitchen staff, porters and gardeners constituted essential services in hospitals, such a discussion could not be part of a discussion regarding the application of the Convention. With respect to the rather positive observations regarding the adoption of Bill C-19, an Act to amend the Canada Labour Code (Part 1), which according to the experts had brought the legislation into greater conformity with the principle of freedom of association, he thought that in this respect the provisions concerning the right to strike and the right to lock-out had no relevance regarding the implementation of the principle of freedom of association. As regards the right to organize in agriculture and horticulture, they recognized certain lacunae in the law in this respect. However, the question whether or not the right to strike was restricted in this sector was neither a subject related to the Convention nor an issue raised by the Committee in their observation. In conclusion, the speaker recalled that the Employer members had always had a different view than the Worker members regarding the right to strike and that the Employer members agreed to disagree on this point. For this reason, he refrained from once again reiterating the well-known Employer members' argument on the subject. However, the arguments underlying the Employer members' view on the subject would be found in paragraphs 115 to 134 of the 1994 Conference Committee's report as well as explanations regarding the mandate of the Committee of Experts which has existed since 1926.

The Worker member of Canada stated that violations of the Convention in Canada were a persistent reality. To support this statement, he recalled the large number of cases concerning Canada which were brought before the Committee on Freedom of Association (CFA) and in which the CFA adopted conclusions calling on the Government to take measures to comply with the Convention. He regretted that very rarely, if ever, were the conclusions complied with. He recalled that, in 1985, a study and information mission was sent to Canada in view of the numerous cases of violations of basic principles of freedom of association. Ten years later, in 1995, the Government rejected the recommendation of the CFA that it make use of the assistance of the Office, in particular through an advisory mission. Shortly after, Bill No. 7 was introduced in which the Government of Ontario excluded agricultural and domestic workers and certain specified professionals from access to collective bargaining and the right to strike; terminated the existing organizing rights of these workers; nullified their current collective agreements; removed the statutory measures for protection against anti-union discrimination and interference on the part of the employer; removed successor rights and related employers' rights from Crown employees; and eliminated successor employer protection from workers in the building services sector. Bill No. 7 gave rise to an additional case before the CFA (Case No. 1900). In its recommendation on this case, the CFA strongly recommended that necessary measures be taken to ensure that these workers enjoyed the protection necessary to establish and join organizations of their own choosing; to ensure that the right to strike was not denied; to guarantee access for these workers to machinery and procedures which facilitated collective bargaining; to ensure that these workers enjoyed effective protection from anti-union discrimination and employer interference; to ensure that these organizations were re-certified; to revalidate the collective agreements pertaining to agricultural workers and professional employees; to ensure that the right to organize and collective bargaining rights were adequately protected in building services; and to draw the attention of the Committee of Experts to the legislative aspects of this case. The speaker stated that these recommendations had not yet been complied with. On the contrary, in the 309th Report of the CFA (March 1998) the Government indicated that it did not intend to amend the legislation to remove the exclusion of agricultural workers from any such statutory labour relations scheme. The speaker considered that this position was particularly questionable considering that agricultural workers and domestic workers were among the most vulnerable workers and that this type of work was often done by immigrant workers who worked in an environment where decent working conditions did not exist. Underlining the Government's statement that Bill No. 7 had established the appropriate balance of power between unions and employers and had facilitated productive collective bargaining, which the Government views as an important component of its strategy to strengthen the economy and create jobs, the speaker considered that to take away such fundamental rights such as the right to join a union, the right to strike and the right to negotiate from groups of workers was a strange way to establish an appropriate balance of power. The same was true for the Alberta case, where the right to strike was also denied to a group of workers who were not in any essential services in hospitals, such as gardeners.

The speaker noted the oral information provided by the Government as regards the case of Newfoundland and looked forward to examining the report to which the Government referred.

The speaker went on and recalled that, since Case No. 1990, six new complaints had been filed before the CFA. The first concerned Manitoban teachers to whom the right to strike was denied and for whom certain matters were excluded from collective bargaining or from the jurisdiction of interest arbitrators (Case No. 1928 (Manitoba), 310th Report).

The second case dealt with the Government interference in arbitration and labour tribunals (Case No. 1943 (Ontario), 310th and 311th Reports).

The third case in which ILO assistance was recommended concerned the taking away of the principals' and vice-principals' right to organize, to strike and to negotiate; the interference in the collective bargaining process and the elimination of other protections (Case No. 1951 (Ontario)).

The fourth case dealt with a legislation entitled An Act to prevent unionization. This law ensured that people who were on social assistance and forced to work for the State so as to receive their social assistance would not have the right to join a union to be able to negotiate working conditions that used to exist for this type of work. For the speaker, in Canada, "workfare" was a new name introduced so as not to use "forced labour" (Case No. 1975 (Ontario)).

The fifth case concerned a back-to-work legislation introduced to end a strike in the postal service. The law was introduced right at the beginning of the strike to ensure that the right to strike provided by law was not going to be available to the workers. In this case the right to strike was taken away so that workers would have no collective strength to negotiate, the main reason to join a union, and so that the Government could impose to the arbitrator appointed under this legislation, some of the provisions that supported the employers' position. The speaker questioned whether, in this case, the federal Government shared the view of the Ontario Government that taking away the rights of workers recognized by law was an appropriate way to establish a balance of power between unions and employers (Case No. 1985 (federal)).

Lastly, the sixth case also dealt with a back-to-work legislation introduced against the power workers (Case No. 1999 (Saskatchewan)). In addition to these cases, the speaker informed the Committee that, recently, laws taking away the right to strike of workers in Saskatchewan, Newfoundland and at the federal level had been introduced.

The speaker concluded that he supported the position taken by the Worker members. He insisted that the right to strike is part of the collective strength workers are looking for when joining a union. Otherwise, he wondered what would be the incentive to form unions.

The Worker member of the United States expressed his support for comments made by the Worker members and the Worker member of Canada. He indicated that he was compelled to comment on the Canadian case, citing the close trade and investment relationship between the United States and Canada. He pointed out that many of the structures of the labour law regimes of the two countries were very similar, including the system of union certification based on majority worker authorization in defined bargaining units and the system of collective bargaining in the private sector. Additionally, many of the North American trade union structures were based on trade, craft and industry and were known as internationals, with affiliates from both Canada and the United States. Despite these similarities, however, the United States labour movement had also noted critical differences between the two systems. For example, the Canadian provinces had included more expedited bargaining unit representative certification processes, as well as legislation limiting or prohibiting permanent striker replacement. In his view, such differences partly explained the higher degree of worker organization in Canada as opposed to the United States. Therefore, he expressed deep concern with developments in Canadian labour law and practice limiting freedom of association rights for Canadian workers and increasing the possibility of employer interference in the exercise of the rights of workers to organize, strike and collectively bargain. Referring to the Committee of Experts' report as well as to the ICFTU's Annual survey of labour rights, he noted that certain job classifications were being excluded from protection under the labour laws in various Canadian provinces. In Ontario, the labour legislation excluded agricultural workers, domestic workers, architects, dentists, land surveyors, lawyers and doctors from legal guarantees securing workers' rights to organize and bargain collectively. Other categories of workers excluded were contract service workers, such as cleaning crews, food service workers and security guards, in the event of the sale of a business or a change of contractor. Additionally, amendments to the Ontario legislation prohibited workers participating in workfare programmes from forming unions, collectively bargaining or striking, as a condition for receiving welfare benefits. He indicated that this issue was of particular concern to workers in the United States, in light of the welfare reforms in his country. Recent amendments in Ontario labour laws also removed critical anti-scabbing provisions, which allowed employers to permanently replace striking workers. Concerning Alberta's labour legislation, he considered that the report of the Committee of Experts was self-explanatory in addressing Alberta's unreasonable definition of essential services. He referred to recent Canadian jurisprudence which, in finding that Canadian rural letter carriers were independent contractors and not employees, denied those letter carriers the legal guarantees of organizing and collective bargaining. In conclusion, he fully supported the Committee of Experts' comments and urged the Government to take the necessary measures to amend its legislation to bring it into full conformity with the Convention. He underscored that such measures would affect the welfare of all workers in North America.

The Worker member of South Africa initially emphasized the importance of the Convention as a full implementation of this Convention was a key measure of democracy and social justice. Expressing his support for the statements made by the Worker members, he noted with deep concern the fact that agricultural and domestic workers, who were some of the most vulnerable groups of workers, were excluded from the right to exercise their freedom of association. He added that Canadian agricultural workers included a large number of immigrants, who were in particular need of protection. He further noted that the denial of the right to strike of certain employees within public hospitals in Alberta stood in complete contrast with the long-standing practice of the Committee on Freedom of Association. He finally noted with concern the fact that teachers in Manitoba were also denied the right to strike. He strongly urged the federal Government of Canada to ensure that the pertinent domestic legislation be amended to conform with Convention No. 87.

The Worker member of Germany supported the statements made by the Worker members, stating that this case was of fundamental importance with respect to the principles enshrined in the Convention. He recalled that the Committee on Freedom of Association had examined a number of cases in this regard and that it had always expressed great concern regarding restrictions placed on the guarantees secured by the Convention. Commenting on the restrictions imposed on the right to strike by legislation in the Province of Alberta, he pointed out that the comments of the Committee of Experts made clear that no restrictions should be placed on the right to strike. In his view, the Government and the employers should therefore be asked to explain why categories of workers such as kitchen staff and gardeners in the health sector had been deprived of this right. He urged the Government to accept the comments of the Committee of Experts and take immediate steps to bring its legislation into conformity with the provisions of the Convention. Recalling the Employer members' comments on the right to strike in the general discussion and the references thereto today, he noted that many of these arguments were of a historical nature and indicated that the Committee of Experts had adopted an objective and systematic interpretation. Today, the Worker members were celebrating the 50th anniversary of Convention No. 98, just as 1998 had marked the 50th anniversary of Convention No. 87. The case before the Committee, which involved issues concerning freedom of association, collective bargaining and the right to strike, clearly demonstrated that these issues were relevant topics even for industrialized countries. He expressed his hope that Canada would set a positive example for other countries and immediately implement the principles enshrined in the Convention, otherwise the impression could arise that only developing countries were under special pressure to implement ILO Conventions.

The Government member of Australia noted that while certain legislation to which the Committee of Experts had referred appeared not to apply to some categories of workers, the Canadian Government had made the important point that those categories of workers remained free to form voluntary associations and to bargain collectively outside the formal statutory regime. In the Australian Government's view the Committee of Experts' report on the application of Convention No. 87 in Canada did not contain sufficient information that would enable all members of the Conference Committee to give consideration to the issues raised. A much more comprehensive exposition of the issues involved would be required for this Committee to properly consider the matter. He noted that the Committee of Experts' report necessarily contained no considered discussion of any information submitted to it by the Canadian Government and that the Committee of Experts had asked the Canadian Government to provide further information on some issues. In this context, rather than this Committee further examining this matter at this stage, he considered that it would be helpful if the Canadian Government be given the opportunity to present additional information to the Committee of Experts.

The Worker member of Finland, speaking on behalf of the Worker members of the Nordic countries, supported the statements made by the Worker members and the Worker member of Canada. He thanked the Government representative for the information provided. Noting that Canada had ratified the Convention No. 87 but not the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), he expressed interest in the Government representative's statement during the general discussion to the effect that the Government firmly intended to continue the dialogue with the ILO concerning the possible ratification of Convention No. 98. He regretted, however, that such a developed and industrialized country had not been able to comply with the provisions of the Convention, particularly concerning the right to strike and the right to organize and negotiate collectively. He asserted that the violations of the Convention had become a persistent reality in Canada. Noting that some minor legislative amendments had been made in order to bring the Canada Labour Code into closer conformity with the principles of freedom of association, he expressed the hope that the Government would be able to report further positive developments in the near future. The Employer members' persistent questioning of the interpretation of the ILO supervisory bodies concerning the right to strike was raised with concern, as well as the fact that the Government also did not seem to accept such interpretation. He emphasized that the right to strike is a universal right tacitly inferred from the ILO Constitution and from the interpretation of Conventions Nos. 87 and 98 by the Committee of Experts and the Committee on Freedom of Association. The right to strike was recognized not only as a legitimate, but indeed as an essential means available to workers to defend their occupational interests. He was of the view that the interpretations of the ILO supervisory bodies were validly founded upon Articles 3, 8 and 10 of the Convention. He pointed out that, pursuant to Article 8 of the Convention, in exercising the rights under the Convention, the law of the land was to be respected; however, such laws should not impair the guarantees provided for in the Convention. With particular reference to the right to strike of the public sector in the Province of Alberta, he recalled that while a general ban on strikes was in contradiction with the Convention, certain restrictions were permitted including the case of essential services in the strict sense of the term, and public servants exercising authority in the name of the State. In conclusion, he asserted that in this context the law and practice in the Canadian Province of Alberta had not met the requirements set out in the Convention, as interpreted by the supervisory bodies, and called on the Government to take responsibility for what was taking place in the various provinces.

The Worker member of Zimbabwe recalled that the principle of the right to strike was derived from Article 10 of the Convention, which provides that worker organizations may act with a view to furthering and defending the interests of their members. This definition was of fundamental importance as it defined the purpose of such organizations. Furthermore, contrary to what the Employer members seem to believe, essential service workers were defined in the strict sense of the word in the Digest of decisions and principles of the Committee on Freedom of Association. Therefore, there could be no doubt that the kitchen workers, porters and gardeners, referred to in the Alberta Labour Code amendment, did not fall into this category of workers, although they worked in hospitals. Furthermore, the amendment of the New Brunswick Labour Code, which excluded certain categories of workers from protection, constituted a direct violation of the Convention. He, therefore, strongly urged the Government of Canada to take the necessary measures to amend this legislation in order to bring it into full conformity with the principle of freedom of association as observed by the Committee of Experts.

The Worker member of Greece declared that he was stunned by the length of the discussion which had gone on for two hours and which concerned the application of a fundamental Convention by an outstanding country such as Canada. With reference to the observations made by the Employer members, he noted that although States were free to choose the measures taken to implement the Convention, they were still under obligation to ensure compliance with the Convention. Furthermore, as regards the opposition between the right to strike and lockout he noted that in his country lockout had been prohibited since 1982 without any complaints from the employers. According to the speaker, equality between workers and employers could not be measured by the level of recognition of the right to strike or to lockout. One could only talk of equality once workers had acquired the same level of power as employers. Finally, he stressed that Canada should take every measure to ensure that its legislation be brought into conformity with the Convention in order, at the very least, to avoid the embarrassment of the present situation as well as the bad publicity arising from it.

The Government member of South Africa stated that his Government noted with concern the comments by the Committee of Experts in the case of Canada in relation to the Convention. Some five years ago his Government had tackled and resolved the very challenges that the Canadian Government had committed to tackle almost 27 years ago. The South African Government had also recognized that domestic and agricultural workers represented the most vulnerable groups of workers in its society and certainly this would also be true in the case of Canada. His Government urged the Canadian Government to bring its legislation and practice into line with this Convention as soon as possible.

The Government representative thanked all the participants in the debate for their contributions. He assured that each opinion expressed as well as the conclusions of the Committee would be transmitted to the relevant authorities in his country.

The Employer members stated that although they had not shared all the views expressed in discussion regarding freedom of association and collective bargaining, there was a general consensus on the subject and diverging opinions had been expressed only with respect to certain specific questions. Although a fundamental discussion on the right to strike should not be reopened, they noted that the Digest of decisions and principles of the Committee on Freedom of Association (CFA), which had been cited on various occasions, was merely a compilation of comments and observations made by the CFA. In this respect, they considered that the quotation of the Digest had become a self-generating element in discussions on the subject. With reference to the statement by a Worker member of Germany, according to which restrictions on the right to strike had constituted a restriction of a basic right, they were of the opinion that the term "basic right" needed to be defined first. In principle, the Employer members were not against the recognition of the right to take industrial action which included the right to strike and the right to lock-out. However, this right did not derive from the Convention. Recognizing the right to undertake industrial action, the question concerned the legal basis for the right to strike. For further details, reflecting the Employers' general position on the subject, they referred to the 1994 report of the Conference Committee (paragraphs 115 to 134). In conclusion, they emphasized that the Convention was not the legal basis for the right to strike. However, with a view to the divergencies between the Employer and Worker members' opinions on the subject, the Employer members emphasized that existing agreements on the Employer and Worker members' positions regarding most elements of freedom of association should also be pointed out, since the ILO and its member States attached great importance to freedom of association. Moreover, the Government should provide additional information with regard to measures taken in order to bring the legislation into conformity with the provisions of the Convention.

With reference to the observations by the Employer members, the Worker members recalled that all were aware of the differences of opinion between the two groups as regards the right to strike and, in particular, whether it should be included in the scope of freedom of association. Although the Worker members regretted that there had been no progress in this respect this year, they expressed the hope that the Employer members would continue to analyse the situation prevailing in different countries and, in particular, the interpretation of freedom of association given by these countries and what it represented and that the dialogue and exchange of views in this respect should continue within the Committee.

The Committee noted the statement made by the Government representative and the discussion which took place thereafter. The Committee noted with interest the information relating to the establishment of effective procedures for defining "essential workers" undertaken by the Newfoundland Government through tripartite consultations. While noting with interest recent legislative developments relating to the adoption of Bill C-19 amending the Canada Labour Code, the Committee observed that for a number of years the Committee of Experts and the Committee on Freedom of Association had been making comments on a number of issues relating to the application of the Convention. These issues included the excessive restrictions on the right of workers' organizations to formulate their programmes without undue interference from the public authorities resulting from federal and/or provincial legislation. The Committee further noted that labour relations legislation in some Provinces (Alberta, New Brunswick, Ontario) excluded a number of workers from their coverage, including workers in agriculture and horticulture or domestic workers, thereby denying them the protection provided with regard to the right to organize and to negotiate collectively. The present Committee, like the Committee of Experts, stressed that the guarantees provided under the Convention applied to all workers without distinction whatsoever, and that all workers should enjoy the right to establish and join organizations of their own choosing to further and defend their occupational interests. The Committee further stressed that workers' organizations should enjoy the right to formulate their programmes without interference from the public authorities. The Committee expressed the firm hope that the Government would supply a detailed report to the Committee of Experts on the concrete measures taken to bring its legislation and practice into full conformity with the Convention.