Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee takes note of the comments from the International Trade Union Confederation (ITUC) dated 4 August 2011 which relate to a number of issues under examination, as well as the Government’s reply thereto.

The Committee takes note of the discussions which took place within the Conference Committee on the Application of Standards in June 2010 on the implementation of the Convention by Canada. The Committee notes that in its recommendation, the Conference 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 Conference Committee stressed the importance of ensuring to all workers, without distinction whatsoever, the right to form and join the organization of their own choosing and, accordingly, expressed the firm hope that all necessary measures would be adopted in the near future to provide full guarantees of the rights set forth in the Convention to all workers.

The Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in a number of cases concerning allegations of interference into the right to organize and carry out trade union activities, including collective bargaining, in various provinces of Canada (Case No. 2173, 357th Report, paragraphs 30–34; Case No. 2257, 358th Report, paragraphs 31–36; Case No. 2430, 358th Report, paragraphs 37–42; and Case No. 2654, 356th Report, paragraphs 313–384).

Article 2 of the Convention. Right to organize of certain categories of workers. The Committee recalls that it has been expressing concern for many years on the exclusion of wide categories of workers from statutory protection of freedom of association and on the restrictions on the right to strike in several provinces.

Workers in agriculture and horticulture (Alberta and Ontario). The Committee recalls from its previous comments that workers in agriculture and horticulture in the Provinces of Alberta and Ontario are excluded from the coverage of the general labour relations legislation and thereby deprived of the same statutory protection of the right to organize afforded to other workers. The Committee notes from the report of the Government the indication that on 29 April 2011 the Supreme Court of Canada issued its decision in the matter of Ontario (Attorney General) v. Fraser, in which the constitutionality of Ontario’s Agricultural Employees Protection Act, 2002 (AEPA) was challenged on the basis that it infringed farm workers rights under subsection 2(d) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of association, by failing to provide effective protection for the right to organize and bargain collectively. The Committee observes that in its ruling, the Supreme Court determined that the AEPA does provide a meaningful process for agricultural workers in Ontario to bargain collectively, and therefore upheld the AEPA as constitutional.

In this regard, the Committee notes with regret from the Government’s report that the Government of Alberta has no plan for a legislative review following the Supreme Court’s decision on Ontario’s AEPA, although it is stated that the Government of the Province will continue to monitor the impacts of the Ontario (Attorney General) v. Fraser decision, particularly as other courts and tribunals may apply the decision in other cases.

As for Ontario, the Committee recalls that in its previous comments it noted that, although the AEPA gave agricultural employees the right to form or join an employees’ association, it however maintained the exclusion of agricultural employees from the Labour Relations Act and did not provide a right to a statutory collective bargaining regime. The Committee observes from the Government’s report that, pursuant to the Ontario (Attorney General) v. Fraser decision of the Supreme Court, the Province seems to consider that the rights of agricultural workers, under the AEPA, to form associations to represent and communicate their interests and exercise their constitutionally protected rights are adequate. While acknowledging the Supreme Court decision upholding the constitutionality of the AEPA, the Committee nevertheless notes with regret that the Government of Ontario is not considering any amendments to the AEPA aimed at ensuring sufficient guarantees for the full exercise of freedom of association rights by agricultural workers, particularly bearing in mind the obstacles to organizing that are inherent to the nature of this work, as well as the conditions necessary to enable these workers to have recourse to industrial actions without sanction.

The Committee is bound to recall once again that all workers without distinction whatsoever (with the sole possible exception of the armed forces and the police) shall have the right to organize under the Convention. Therefore, any provincial legislation that would deny or limit the full application of the Convention in relation to the freedom of association of agricultural workers should be amended. Consequently, the Committee once again urges the Government to ensure that the Governments of Alberta and Ontario take all necessary measures to amend their legislation so as to fully guarantee the right of agricultural workers to organize freely and to benefit from the necessary protection to ensure observance of the Convention. It requests the Government, in particular, to provide detailed information and statistics with its next report on the number and scope of coverage of trade unions in the agricultural sectors in Ontario and on any complaints as to the challenges in exercising their rights under this Convention in practice.

Domestic workers, architects, dentists, land surveyors, lawyers and doctors (Ontario, Alberta, New Brunswick, Nova Scotia, Prince Edward Island and Saskatchewan). The Committee recalls that it has been raising for many years the need to ensure that a number of categories of workers in Ontario, who have been excluded from statutory protection of freedom of association under sections 1(3) and 3(a) of the Labour Relations Act, 1995 (domestic workers, architects, dentists, land surveyors, lawyers and doctors), enjoy the protection necessary, either through the Labour Relations Act, or by means of specific regulations, to establish and join organizations of their own choosing.

In its previous comments, the Committee also noted that legislative provisions in other provinces (Alberta, New Brunswick, Nova Scotia, Prince Edward Island and Saskatchewan) contain similar exclusions of domestic workers, architects, dentists, land surveyors, lawyers, doctors and engineers from the scope of industrial relations law. Moreover, these workers might be excluded also in Newfoundland, Labrador and Saskatchewan if the employer has less than two or three employees, respectively.

The Committee notes the statement by the Government of New Brunswick according to which it continues to consult stakeholders on the potential for amendment of the Industrial Relations Act to remove the exclusion of domestic workers. It notes with regret that the Government’s report does not contain any information from the Governments of Ontario, Alberta and Prince Edward Island that legislative amendments are planned in respect of the exclusion of domestic workers from the industrial relations laws. With regard to Nova Scotia, the Committee notes that domestic workers are not excluded under the Trade union Act.

With regard to the other professionals, such as architects, dentists, land surveyors, lawyers, doctors and engineers, the Committee notes the statement of the Government of Nova Scotia which reiterates that these professionals in question are generally members of professional organizations that represent their interests, including through collective bargaining. Hence, they cannot be considered disadvantaged in the labour market. As for Saskatchewan, the Committee takes note of the Government’s indication that the Trade Union Act does not explicitly exclude architects, dentists, land surveyors, lawyers and doctors but is designed to capture the relationship between employees and employers as per the definitions set in the Act. The Province of Saskatchewan has other pieces of legislation instituting those professions as associations for the purposes of acting collectively.

The Committee is bound to recall once again its view that the exclusion of these categories of workers from the labour relations law has had as a result that, although they can still exercise their right to associate under the common law, their associations are devoid of the higher statutory protection provided for in the labour relations law, and this can function as an impediment to their activities and discourage membership. Consequently, the Committee once again urges the Government to ensure that the Governments of Alberta, Nova Scotia, Ontario and Prince Edward Island take all necessary measures to remedy the exclusion of professionals, such as architects, dentists, land surveyors, lawyers, doctors and engineers, from the statutory protection of freedom of association and to amend their legislation or to adopt specific regulations so as to ensure that these professionals are allowed to establish and join organizations of their own choosing and that these organizations enjoy the same rights, prerogatives and means of recourse as other workers’ organizations under the Convention. The Committee requests the Government to indicate in its next report whether, in the Province of Saskatchewan, these categories of professionals could form organizations of their own choosing under the Trade Union Act, and to indicate whether under the other pieces of legislation instituting these professions as associations for the purposes of acting collectively, the latter enjoying the same rights, prerogatives and means of recourse as other workers’ organizations formed under the Trade Union Act.

Furthermore, the Committee expects that the next report of the Government will include information on concrete measures taken or contemplated by the Governments of Ontario, Alberta and Prince Edward Island to amend their legislation in respect of the exclusion of domestic workers from their labour relations law. The Committee expects that the next report of the Government will also include information on the outcome of discussions held on the amendment to the Industrial Relations Act to remove the exclusion of domestic workers and any measures taken thereon by the Government of the Province of New Brunswick.

Nurse practitioners (Alberta). The Committee had been noting for many years that nurse practitioners are deprived of the right to establish and join organizations of their own choosing by the Labour Relations (Regional Health Authorities Restructuring) Amendment Act of the Province of Alberta. The Committee notes with regret from the Government’s report that there are no planned reviews of the status of nurse practitioners. The Committee once again recalls that the expression “all workers and employers without distinction whatsoever” used in Article 2 of the Convention means that freedom of association should be guaranteed without discrimination of any kind. The Committee urges the Government to ensure that the Government of the Province of Alberta takes all necessary measures to amend the Labour Relations (Regional Health Authorities Restructuring) Amendment Act so that nurse practitioners have the right to establish and join organizations of their own choosing.

Principals, vice-principals in educational establishments and community workers (Ontario). The Committee recalls that its previous comments concerned the need to ensure that principals and vice-principals in educational establishments as well as community workers have the right to organize, pursuant to the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 1951 and Case No. 1975.

The Committee notes from the Government’s report that, in February 2010, the Ministry of Education released Policy/Program Memorandum No. 152, Terms and Conditions of Employment of Principals and Vice-Principals, the purpose of which was to set out provincial standards of practice to assist school boards in establishing terms and conditions of employment for principals and vice-principals. The Memorandum explicitly states that, when negotiating terms and conditions of employment, principals and vice-principals shall have the right to representation by their local principal and vice-principal association. The Government further indicates that all boards were required to implement the Memorandum by 31 March 2011. With regard to community workers, the Government indicates that the Ontario Ministry of Community and Social Services led a review of the ILO’s comments regarding community placements, with consideration given to recent court decisions on related matters and in the context of the Ontario Works Program. According to the report, options identified during the review are being evaluated in light of the recent decisions of the Supreme Court of Canada, and will be brought forward for consideration by government decision-making bodies.

The Committee recalls its view that it is not necessarily incompatible with freedom of association principles to deny managerial or supervisory employees the right to belong to the same trade union as other workers. It also considers that such categories of workers should have the right to form their own associations to defend their interests and should not be defined so broadly as to weaken the organizations of other workers by depriving them of a substantial portion of their present or potential membership. Taking due note of the latest positive developments referred to by the Government with regard to the representation of principals and vice-principals by their association as well as the review made by the Ministry of Community and Social Services on the representation of community workers, the Committee expects that the next report of the Government will contain full particulars on progress made in law and practice in the Province of Ontario to guarantee to these categories of workers, the fundamental right to establish and join organizations of their own choosing for the defence of their professional interests.

Public colleges’ part-time employees (Ontario). In its previous comments, the Committee took note with interest of the amended Colleges Collective Bargaining Act which would allow part-time academic and support staff workers in Ontario’s colleges to fully enjoy the right to organize. The Committee takes note of the conclusions and recommendations reached in November 2010 by the Committee on Freedom of Association in Case No. 2430 (see 358th Report, paragraphs 37–52), and observes that the Colleges Collective Bargaining Act (CCBA) came into effect in October 2008 and gave part-time academic staff and part-time support staff at Ontario’s colleges the right to bargain collectively. However, the Act also provides for a process to change, establish or eliminate bargaining units, including the possibility for colleges to challenge the number of cards union members have signed, which they allegedly take advantage of to delay the certification process. In this regard, the Committee notes the indication that the Ontario Public Service Employees’ Union had filed certification applications to represent both the part-time academic staff and part-time support staff units. In both cases, representation votes have been held and the ballot boxes have been sealed pending a decision by the Ontario Labour Relations Board (OLRB) concerning issues that remain in dispute between the parties. Ultimately, the complainant’s allegations that mediation and costly litigation at the OLRB can take months or even years had not been answered by the Government. Recalling the importance that part-time academic and support staff in colleges of applied arts and technology in Ontario fully enjoy without delay the right to organize, as enjoyed by other workers, and the need to lift any obstacle in law and practice which would hinder these rights as provided in the Convention, the Committee requests the Government to indicate in its next report any decision taken by the OLRB on the matters currently pending before it.

Education workers (Alberta). With regard to the right to organize of education workers in the Province of Alberta, the Committee recalls that its previous comments concerned the need to amend provisions of the Post-secondary Learning Act which empower the board of a public post-secondary institution to designate categories of employees as academic staff members – who are allowed, by law, to establish and join a professional association for the defence of their interests. The Committee previously expressed its view that such provisions would allow for future designations to exclude faculty members and non-management administrative or planning personnel from membership of the staff associations whose purpose is to protect and defend the interests of these categories of workers. The Committee notes with regret that the Alberta Government states that it has no present plans to amend section 60(2) of the Post-secondary Learning Act. The Committee urges the Government to ensure that the Government of the Province of Alberta takes all necessary measures with a view to ensuring that all university staffs are guaranteed the right to organize without any exceptions.

Article 2. Trade union monopoly established by law (Prince Edward Island, Nova Scotia and Ontario). The Committee recalls that its previous comments concerned the specific reference to the trade union recognized as the bargaining agent in the law of Nova Scotia (Teaching Professions Act), Ontario (Education and Teaching Professions Act) and Prince Edward Island (Civil Service Act, 1983).

The Committee notes with regret from the Government’s report that there are still no plans to amend the legislation in these three provinces. The Committee is bound to recall that, although it may consider a system in which a single bargaining agent can be accredited to represent workers in a given bargaining unit and bargain on their behalf to be compatible with the Convention, a trade union monopoly established or maintained by the specific designation of a trade union in the law is in violation of the Convention, thus suppressing any freedom of choice. The Committee urges the Government to ensure that the Governments of Nova Scotia, Ontario and Prince Edward Island take all necessary measures to bring their legislation into full conformity with the standards of freedom of choice laid down in the Convention by removing the specific designation of individual trade unions as bargaining agents and replacing them with a neutral reference to the most representative organization.

Article 3. Right to strike of workers in the education sector. The Committee recalls from its previous comments that problems remain in several provinces with regard to the right to strike of workers in the education sector (British Columbia and Manitoba).

British Columbia. The Committee recalls that its previous comments concerned the Skill Development and Labour Statutes Amendment Act (Bill No. 18), which declares education to be an essential service, and the need to adopt provisions ensuring that workers in the education sector may enjoy and exercise the right to strike pursuant to the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2173. The Committee also noted the information pertaining to measures undertaken to support and facilitate the bargaining process between teachers and school employers resulting in the parties achieving, through collective bargaining, a five-year collective agreement effective 1 July 2006.

The Committee notes from the Government’s report that the settlement reached in the health-care sector following the Supreme Court of Canada’s decision in Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia, 2007 SCC27 has indeed serve as an inspiration for the settlement of grievances prevailing in the education sector, since the Government of British Columbia is now in discussions with the British Columbia Teachers Federation (BCTF) over the repercussions of the B.C. Supreme Court decision pertaining to Bill 28 (the Public Education Flexibility and Choice Act). The Committee previously requested the Government to indicate any decision taken by the Labour Relations Board (LRB) with regard to the essential service level (minimum service) in the education sector and the factors taken into consideration in doing so. The Committee notes the Government’s indication that the LRB has never been called upon to issue a decision setting minimum essential service levels in the education sector. The Government however specifies that the LRB has issued on July 2011 a decision involving the designation of essential services for students and eligible children under the School Act, setting essential service levels for what BCTF has characterized as “Phase 1” of its job action plan. This decision reflects an agreement that had been reached between the British Columbia Public School Employers’ Association (BCPSEA) and the BCTF. The Government indicates that subsequent phases of the BCTF’s job action plan may require further applications to the LRB, which may in turn require the LRB to set essential service levels in the education sector. Finally, the Committee takes due note of the indication of the Government according to which the provisions of the Skills Development and Labour Statutes Amendment Act that make education an essential service do not take away the right of teachers to enter into strike or to engage in other job action as part of the collective bargaining process. The Committee requests the Government to ensure that the Government of the Province of British Columbia continues to provide information on any decision from the Labour Relations Board with regard to essential service levels in the education sector, and to indicate the outcome of discussions with the British Columbia Teachers Federation on the Public Education Flexibility and Choice Act.

Manitoba. The Committee recalls that its previous comments concerned the need to amend section 110(1) of the Public School Act which prohibits teachers from engaging in strike action. The Committee once again notes with regret from the Government’s report that there are no plans to make amendments to the Public Schools Act in the immediate future. The Committee is bound to recall that the right to strike should only be restricted for public servants exercising authority in the name of the State and in essential services in the strict sense of the term. The Committee once again urges the Government to ensure that the Manitoba Government takes measures in order to amend the Public School Act so that schoolteachers, who do not provide essential services in the strict sense of the term and do not qualify as public servants exercising authority in the name of the State, may exercise the right to strike without undue restrictions. The Committee also suggests that the Manitoba Government give consideration to the establishment of a voluntary and effective dispute-settlement mechanism in this regard, on the basis of consultations with all organizations concerned.

Article 3. Right to strike of certain categories of employees in the health sector (Alberta). The Committee recalls that its previous comments concerned the prohibition on strikes for all employees within the regional health authorities, including various categories of labourers and gardeners under the Labour Relations (Regional Health Authorities Restructuring) Amendment Act. The Committee notes with regret that the Government merely reiterates that the Act in question does not take away the right to strike for the vast majority of gardeners and labourers in the health-care sector, and states that these employees were rather prohibited from striking as staff members of facilities on designated hospital lists prior to the enactment of the Act. The Committee, recalling its view that gardeners and labourers do not provide essential services in the strict sense of the term, urges the Government to ensure that the Government of the Province of Alberta takes all necessary measures in order to ensure that all workers in the health-care sector, who are not providing essential services in the strict sense of the term, are not deprived of the right to strike.

Article 3. Right to strike in the public sector (Quebec). The Committee recalls that its previous comments concerned Act No. 43, which put a unilateral end to negotiations in the public sector by imposing collective agreements for a determined period, and depriving the workers concerned, including teachers, of the right to strike (the labour law in Quebec prohibits strikes during the term of a collective agreement). Furthermore, Act No. 43 provides for:

• -severe and disproportionate sanctions in the event of an infringement of the provisions prohibiting recourse to strike action (suspension of the deduction of trade union dues merely by the employer declaring that there has been an infringement of the Act for a period of 12 weeks for each day or part of a day that the infringement is observed (section 30));
• -the reduction of employees’ salary by an amount equal to the salary they would have received for any period during which they infringe the Act, in addition to not being paid during that period – a measure applicable also to employees on trade union release during the period in question (section 32);
• -the facilitation of class actions against an association of employees by reducing the conditions required by the Code of Civil Procedures for such an action (section 38); and
• -severe penal sanctions (sections 39–40).

The Committee notes the Government’s statement that this Act is still under appeal before the provincial courts, that the hearings before the Superior Court will begin in December 2011 and may last until spring 2012, and that the Government of Quebec is reserving his comments until the courts have made their judgments. The Committee once again urges the Government to ensure that the Government of the Province of Quebec takes all necessary measures with a view to: (i) ensuring that strikes may only be restricted or prohibited in essential services and, if so, adequate compensatory guarantees are afforded to the workers concerned, for example, conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be fully impartial and independent by the parties concerned and leading to binding awards which should be implemented rapidly and fully; (ii) reviewing the excessive sanctions provided for in the Act in order to ensure that they may be applied only in cases where the right to strike may be limited in accordance with the principles of freedom of association and that they are proportionate to the infringement committed. In this regard, the Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers; and (iii) reviewing the provisions facilitating class actions against an association of employees, as there is no reason, in the Committee’s view, to treat such actions differently from other class actions in the Code of Civil Procedures. The Committee further requests the Government to indicate the outcome of the appeal pending on Act No. 43 before the provincial courts.

Article 3. Arbitration imposed at the request of one party after 60 days of work stoppage (article 87.1(1) of the Labour Relations Act) (Manitoba). The Committee recalls that its previous comments concerned the need to amend article 87.1(1) of the Labour Relations Act which allowed a party to a collective dispute to make a unilateral application to the Labour Board so as to initiate the dispute-settlement process, where a work stoppage exceeded 60 days. The Committee notes from the Government’s report that the Labour Management Review Committee (LMRC), an advisory body on labour matters to the Manitoba Government with equal representation from workers and employers, recently reviewed sections 87.1 to 87.3 of the Labour Relations Act concerning the settlement of subsequent agreements. The LMRC made no recommendations on these provisions, and therefore no legislative changes to these provisions are anticipated at this time. Although it notes the indication that, during the reporting period, the Manitoba Labour Board ordered an end to work stoppages and settled new collective agreements on only two occasions, in both instances at the request of the union, the Committee is bound to recall once again that provisions which allow for one of the parties to refer a dispute to compulsory arbitration seriously limit the means available to trade unions to further and defend the interests of their members as well as their right to organize their activities and formulate their programmes (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 148 and 153). The Committee urges the Government to ensure that the Government of the Province of Manitoba takes all necessary measures to amend the Labour Relations Act so that an arbitration award may only be imposed in cases involving essential services in the strict sense of the term, of public servants exercising authority in the name of the State or where both parties to the collective dispute agree.

Article 3. Compliance of the Public Service Essential Services Act and of the Act to amend the Trade Union Act of the Province of Saskatchewan. In its previous comments, the Committee took note of communications of September 2008 and August 2009 from the ITUC denouncing the Public Service Essential Services Act (Bill No. 5) and the Act to amend the Trade Union Act (Bill No. 6) which were proclaimed into law in May 2008 by the Government of the Province of Saskatchewan. The ITUC indicated that Bill No. 5 weakened the right of workers to organize, permitted employers to potentially designate every worker individually as providing an essential service without recourse to such potential avenues as binding arbitration, reducing the bargaining rights of workers. The ITUC further alleged that Bill No. 6 weakened the rights of workers and unions to organize into associations and it potentially permitted employers to use coercive means to prevent the creation of union associations, and punish workers for engaging in union activities.

The Committee further noted that the National Union of Public and General Employees (NUPGE) had presented in 2008 a complaint before the Committee on Freedom of Association in relation to Bills Nos 5 and 6. In this regard, the Committee notes the conclusions and recommendations reached by the Committee on Freedom of Association when it examined in March 2010 the complaint lodged by the NUPGE (Case No. 2654). The Committee notes in particular that its attention is drawn to a number of legislative amendments recommended by the Committee on Freedom of Association: (i) the provincial authorities are requested to take the necessary measures, in consultation with the social partners, to amend the Public Service Essential Services Act so as to ensure that the Labour Relations Board may examine all aspects relating to the determination of an essential service, in particular, the determination of the sectors in question, classification, number and names of workers who must provide services and act rapidly in the event of a challenge arising in the midst of a broader labour dispute; (ii) the Public Service Essential Services Regulations, which set out a list of prescribed essential services, should be amended in consultation with the social partners; (iii) the provincial authorities are requested to take the necessary measures so that compensatory guarantees are made available to workers whose right to strike may be restricted or prohibited under the Public Service Essential Services Act; and (iv) the provincial authorities are requested to take the necessary measures to amend the Trade Union Act so as to lower the requirement, set at 45 per cent, for the minimum number of employees expressing support for a trade union in order to begin the process of a certification election.

The Committee previously noted that a number of national and provincial trade unions have filed in the provincial court in July 2008 to have Bills Nos 5 and 6 declared unconstitutional for violating, among other fundamental texts, the Canadian Charter of Rights and Freedoms and international Conventions ratified by Canada. The Committee notes from the Government’s report that this case is still before the courts. The Committee requests the Government to provide information on any decision reached by the courts in this regard, and on any follow-up given thereto. The Committee firmly hopes that the next report of the Government will include particulars on steps taken by the Government of the Province of Saskatchewan to give effect to the recommendations made in March 2010 by the Committee on Freedom of Association with regard to amendments to be made to the Public Service Essential Services Act, the Public Service Essential Services Regulations and the Trade Union Act.