Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

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

Article 2 of the Convention. Scope of the Convention. Other categories of workers. The Committee noted that the Canadian Labour Congress (CLC) considers that, in general terms, labour legislation is not adapted to workplaces with a small number of employees and non-standard forms of work, that there have been calls across Canada to recognize workers in the gig economy as employees rather than independent contractors, and that workers from food delivery couriers and ride-hailing platforms are pushing to unionization. In its supplementary observations, the CLC stresses that, in Ontario, workers in the gig economy have taken legal measures to be recognized as employees, rather than independent contractors, and to enjoy their freedom of association rights, noting in particular that: i) in February 2020, the Ontario Labour Relations Board recognized food delivery couriers as dependent contactors, and therefore declared that they can exercise their freedom of association rights; and ii) on 26 June 2020, following a class-action suit against a ride-hailing platform, in which drivers demanded to be recognized as employees, the Supreme Court of Canada ruled that there is jurisdiction to address their claim in Canadian courts; according to the CLC, this may open the door to the recognition of freedom of association and collective bargaining rights for these workers. The Committee had further noted that some provincial governments had also pointed out the inadaptability of labour laws for non-industrial workplaces and that the Changing Workplaces Review final report (CWR, independent report commissioned by Ontario’s Ministry of Labour) noted, among other recent trends, a decline of unionization in private sector, and highlighted the need for reform labour relations legislation in order to provide protection to vulnerable workers and those in precarious work situations, in particular part-time, temporary, seasonal and contractual workers. In this respect, the Committee notes the Government’s indication in its supplementary report that, in the province of Alberta, nothing prevents workers in the gig economy to associate outside of labour relations legislation, and that, depending on the circumstances of their employment relationships, the concerned workers could apply to the Labour Relations Board for certifications under the provisions of the Labour Relations Code. The Committee requests the Government to specify the manner in which workers in the gig economy can apply to the Labour Relations Board for certification and if the Board will ensure that they will benefit from all the guarantees provided by the Convention. Furthermore, in view of the ongoing developments, the Committee requests the Government to provide its comments concerning the situation in other provinces, and invites it, in consultation with social partners, to consider any necessary measures to ensure that these other categories of workers, such as those in the gig economy, can benefit from the trade union rights enshrined in the Convention.

Article 2. Right of workers to establish and join organizations. The Committee takes note of the concerns expressed by the CLC regarding some pieces of legislation in Ontario, Manitoba and Alberta (Bill 47, Making Ontario Open for Business; Bill 7, Labour Relations Amendment; and Bill C-2: An Act to Make Alberta Open for Business), alleging, among other issues, that they replaced the card-based certification system with a secret ballot vote (even when a majority of employees of the bargaining unit signed the cards), drastically reducing the amount of time during which an employee’s application for membership in a trade union constitutes proof of employee support and automatic access to first collective agreements in cases where employers contravene the respective labour law. According to the confederation, the modifications introduced will have a negative impact on their right to organize. The Committee notes the Government’s indication that, in Alberta, the decision to reinstate a secret ballot vote in union certifications, and remove the provision allowing certification based on evidence of 65 per cent card-based support, was taken to ensure that employees have the opportunity to express their views on a bargaining agent in a private manner, free from any possible influence. In view of the information provided by the Government and the concerns raised by the CLC regarding recent modifications to the certification system in the provinces of Alberta, Manitoba and Ontario, the Committee encourages the Government to review, in consultation with the most representative workers’ and employers’ organizations, the certification procedures in order to ensure that these changes do not have a negative impact on the freedom of association rights guaranteed under the Convention. The Committee further invites the Government to provide its observations concerning the provinces of Ontario and Manitoba.

Trade union pluralism. For many years, the Committee has brought to the attention of the Government that laws of Prince Edward Islands (the Civil Service Act, 1983), Nova Scotia (The Teaching Professions Act) and Ontario (the Education and Teaching Profession Act) specifically referring to a trade union recognized as the bargaining agent, could raise problems of incompatibility with the Convention. Noting the Government’s reiteration that the social partners at the national level have not raised concerns about these long-standing provisions, the Committee once again recalls that legislation should not contain a specific reference to a trade union recognized as a bargaining agent and that it would be appropriate to amend such provisions and replace it with, for example, a reference to the most representative organization.  In view of the lack of progress in this respect, the Committee requests once again the Government to take measures to ensure that the respective provincial governments engage in discussions on this matter with the social partners and to provide information on the outcome of these discussions.

Article 3. Right of employers’ and workers’ organizations to organize their activities and to formulate their programmes. Back-to-work legislation. The Committee recalls that in its previous comments it noted the use of back-to-work legislation with respect to certain federally regulated industries, particularly the postal service, as well as certain provincially regulated sectors such as the education and energy sectors (in the province of Ontario) and the construction sector (in the province of Quebec). The Committee notes the observations of the CLC denouncing the use of back-to-work legislation in 2017 and 2018 with respect to: (i) the postal service (Bill C-89); (ii) the electrical and education sector in Ontario (Bills C-2 and C-67); and (iii) the construction sector in Quebec (Bill C-142). The Committee also notes the Government’s observations according to which: (i) in general terms, the use of back-to-work legislation arises when the public interest requires an exceptional and temporary solution in response to a clear deadlock in order to facilitate the conclusion of an agreement; (ii) with respect to the postal sector, the matter is before the Committee on Freedom of Association (CFA) and therefore all relevant information was communicated to the latter; (iii) with respect to the educational sector, the Industrial Inquiry Commission appointed by the Ministry of Labour concluded that in view of the impasse, interest arbitration was the only possible outcome for the dispute; (iv) with respect to the electrical sector, public safety and economic reasons forced the recourse to such legislation; (v) with respect to the construction sector, all its four sectors reached an agreement through mediation or arbitration. In the light of the foregoing, the Committee is bound to recall that the ILO supervisory bodies have recurrently stressed the importance to make every effort to avoid having recourse to back-to-work legislation in non-essential services. The Committee once again recalls that whenever a total and prolonged strike in a vital sector of the economy might cause a situation in which the life, health or personal safety of the population might be endangered, a back-to-work order might be lawful, if applied to a specific category of staff in the event of a strike whose scope and duration could cause such a situation. However, a back-to-work requirement outside such cases unduly restricts the right of workers’ organizations to organize their activities and defend workers’ interests. The Committee also observes that recourse to back-to-work legislation in the postal sector has previously been examined by both the Committee and the CFA. In Case No. 1985, the CFA considered that postal services could be regarded as a public service in which a minimum service can be foreseen and therefore trade union organizations should be able to participate in the definition of the minimum service, along with employers and the public authorities. Regarding recourse to back-to-work legislation in the education sector, examined in the framework of Cases Nos 2145 and 2025, the Committee notes that on both occasions the CFA invited the Government to take measures to ensure that teachers could exercise their right to strike, that recourse to arbitration be voluntary and to ensure full and good faith consultations with the parties.  Recalling once again that restrictions to the right to strike are only acceptable for public servants exercising authority in the name of the State, essential services in the strict sense of the term, and situations of acute national or local crises, and that in public services of fundamental importance recourse may be had to negotiated minimum services, the Committee expresses the firm hope that the Government will refrain from resorting to back-to-work legislation to unduly restrict the exercise of the right of workers’ organizations to carry out their activities and programmes in full freedom.

Province of Alberta. Replacement workers and limitations to the right to strike. The Committee notes the Government’s indication that the Ensuring Fiscal Sustainability Act, 2019, amended the Labour Relations Code (LRC) by removing the ban on the use of replacement workers during a strike or a lock-out in essential services. It notes that according to section 95.201 of the LRC, within a reasonable time after the parties are required to begin negotiations for essential services agreements, an employer shall elect to use the services of either designated essential service workers or replacement workers to perform essential services during a strike or a lock-out. The Committee understands therefore that this provision grants an employer, in the event of a strike or a lock-out, discretion to determine whether to use designated essential workers or replacement workers. In this respect, the Committee recalls that the replacement of striking workers is an impediment to harmonious labour relations and may violate the workers right to strike. The Committee requests the Government to provide its observations in this respect, including detailed information on the scope and application in practice of section 95.201 of the LRC.

The Committee further notes the concerns raised by the CLC regarding the introduction of the omnibus Bill 32: Restoring Balance in Alberta’s Workplace Act, which would introduce amendments aimed at restricting freedom of association rights, including restrictions on secondary picketing and the removal of the capacity of the Alberta Labour Relations Board to automatically certify unions. In view of the concerns raised by the CLC, the Committee requests the Government to provide its observations in this regard.

Province of Manitoba. Education sector. The Committee had previously referred to 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 the Government’s reply that no changes are anticipated with respect to the prohibition of strikes by teachers, that Manitoba teachers voluntarily gave up their right to strike in 1956 in exchange for binding arbitration and that neither teachers nor school boards have formally petitioned the provincial government to restore the right to strike. On the other hand, the Committee notes that the province established a commission to undertake a first comprehensive review to the education system in 50 years, that governance structures and teachers’ unions are among the commission’s areas of focus and that the commission’s final report is expected to be released in March 2020.  Recalling that the public education system does not constitute an essential service in the strict sense of the term, the Committee hopes that this matter will be discussed with the social partners concerned during the review of the education system and requests the Government to provide information on any new development in this regard.

With respect to its long-standing recommendation to amend section 87.1(1) on the Labour Relations Act (which allows 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 exceeds 60 days), the Committee recalls that it awaited information on the outcome of the biannual reviews undertaken by the Labour Management Review Committee (LMRC). The Committee takes due note that, according to the Government, although section 87.4 of the Labour Relations Act requires that the LMRC, an advisory tripartite body on labour matters, review the operation of sections 87.1 and 87.3 every two years, in November 2018 the LMRC supported a proposal to remove the biennial review requirement given that the provisions have been working well and no changes have resulted from reviews since 2004.  Reiterating its previous recommendations, the Committee requests the Government to provide information on any development in this regard, as well as on the application of section 87.1 of the Labour Relations Act.

Province of Nova Scotia. Essential services. In its previous comments, the Committee had noted that sections 3(1)(a) and 2(f) of the Essential Health and Community Service Act provided for a broad definition of essential services and therefore requested the Government to take all appropriate measures to bring these dispositions into full conformity with the Convention. In this respect, the Government indicates that: (i) the parties subject to the Essential Health and Community Services Act are required to negotiate an Essential Service Agreement (ESA) outlining agreed staffing levels during a labour dispute; (ii) the Labour Board imposes an ESA if the parties are unable to negotiate one; (iii) hospital labourers and gardeners are unlikely to be included in any ESA since unions will not agree and the Labour Board would be unlikely to deem them as “essential” after hearing arguments; and (iv) the legislation is currently subject to a legal challenge.  Reiterating its previous recommendations, the Committee requests the Government to provide information on the outcome of the legal challenge to sections 3(1)(a) and 2(f) of the Essential Health and Community Service Act.