Observation (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)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government (mainly concerning the Government of Alberta) and the Canadian Labour Congress (CLC) this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes that in its supplementary observations the CLC points out that the COVID-19 pandemic has disproportionately impacted low-income workers and already marginalized groups and has reemphasized the relevance of freedom of association rights and the essential role unions play in providing workers with a voice in their workplace. It further notes the CLC’s indication that since the beginning of the pandemic, a large number of non-unionized workers have reached out to unions and begun organizing their workplaces.

Article 2 of the Convention. Right to organize of certain categories of workers. Province of Alberta. The Committee recalls that it had previously requested the Government to provide information on the outcome of the technical discussions with respect to the application of the Labour Relations Code (LRC) to agricultural workers, as well on the outcome of the review of the LRC and the Post-secondary Learning Act with respect to architects, dentists, land surveyors, lawyers, doctors, engineers, domestic workers, nursing personnel and higher educational staff in Alberta.

• -With respect to nursing personnel, the Committee notes with satisfaction that following a decision of the Alberta Labour Relations Board, on 25 November 2019, which declared that the exclusion of nursing practitioners from the right to associate was unconstitutional under the Canadian Charter of Rights and Freedoms, the Government passed in July 2020 the Restoring Balance in Alberta’s Workplaces Act to remove the exclusion of nurse practitioners from the LRC.
• -As to the extension of full associational and collective bargaining rights to academic staff at Alberta’s post-secondary institutions, the Committee notes that following the review of the Post-secondary Learning Act, five professions have been included in academic bargaining units, giving them a statutory right to organize and enjoy freedom of association rights.
• -Concerning agricultural workers, the Committee notes that in 2018 the Enhanced Protection for Farm and Ranch Workers Act came into force, granting waged, non-family farm and ranch employees the same statutory rights as most of the employees in Alberta including the opportunity to be represented by a bargaining agent. Nevertheless, the Committee notes with concern the Government’s indication that following province-wide consultations with agricultural industry stakeholders, the Alberta Farm Freedom and Safety Act, 2019, reinstated the farm and ranch sector exemption from the LRC, effective in January 2020.
• -With regard to provincial public service employees, the Committee notes that the enactment of the Ensuring Fiscal Sustainability Act, in December 2019, amended the Public Service Employee Relations Act (PSERA). This amendment resulted in the exclusion of budget officers, systems analysts, and auditors from the scope of application of the PSERA, which recognizes freedom of association rights to other public service employees.
• -Regarding the exclusion of certain categories of professional employees such as architects, dentists, land surveyors, lawyers, doctors and engineers the Government indicates that: (i) in public sector, the PSERA does not totally exclude professional employees (i.e. medical, dental, architectural, and engineering) from the provisions of the legislation and, according to its section 13(2), the Labour Relations Board may direct these employees to be members of a bargaining unit if the majority wishes so; (ii) a review of the Post-secondary Learning Act resulted in five professions (medical, dental, architectural, engineering and legal) being included in academic bargaining units, as provided under section 58.1(4) of the LRC; and (iii) some categories of professional employees, such as architects, have also the opportunity to be covered under the provisions of the Professions and Occupations Registration Act, which establishes the means by which professional associations in the province manage their affairs and the conduct of their professional members.
• -Regarding domestic workers the Government indicates that nothing prevents them from associating and organizing.

With respect to agricultural workers and budget officers, systems analysts, and auditors working in the public sector, noting the Government’s indication that these categories are excluded either from the LRC or from the PSERA, the Committee requests the Government to indicate the manner in which these workers can enjoy their right to organize and all guarantees under the Convention. As regards domestic workers, the Committee requests the Government to specify under which legislative provisions this category of workers may enjoy their right to organize and all guarantees under the Convention. Regarding specific professional categories of workers, such as architects, dentists, land surveyors, lawyers, doctors and engineers, in view of the information provided by the Government, the Committee requests the Government to confirm that all the above categories, from both public and private sector, can exercise all freedom of association rights under the Convention.

Province of Ontario. The Committee notes that the Agricultural Employees’ Protection Act (AEPA) was amended in order to expand its scope to ornamental horticulture starting on 3 April 2019. As to the exclusion of agricultural workers from the Labour Relations Act (LRA), the Government once again indicates that the AEPA protects the right of agricultural workers in Ontario to form and join associations. The Committee notes however that, according to the Changing Workplaces Review final report (CWR), commissioned by the Ministry of Labour and released in 2017, the AEPA does not clearly state that such employees have the right to join a trade union and participate in lawful activities, and neither does it provide agricultural workers with the right to strike nor any alternative dispute resolution. The Committee further notes that the Government once again indicates that it does not have any statistics on the number of workers represented by an employee association or trade union. Recalling the value of statistical information for assessing the effective implementation in practice of the Convention, the Committee requests the Government to gather and provide information on the number of workers represented by an employee association or trade union under the AEPA. It also requests the Government to take any additional measures to guarantee that agricultural workers enjoy the right in law and in practice to establish and join organizations of their own choosing, as well as other rights recognized in the Convention. With respect to the other excluded categories of workers (architects, dentists, land surveyors, lawyers, doctors, engineers, principals and vice-principals in educational establishments, community workers and domestic workers), the Committee had previously noted that the above exclusions of the LRA were going to be considered by the ongoing review of Ontario’s labour and employment legislation. In this respect, the Committee notes that despite the recommendations of the Special Advisers leading the CWR with regard to the repeal of those exclusions, no changes were made during the 2016–19 period. The Committee notes, furthermore, the Government’s indication that labour laws are not appropriate for non-industrial settings, such as private homes and professional offices.  While taking due note of the final report of the CWR and the Government’s statement on the inadaptability of the labour laws to non-industrial settings, the Committee invites the Government to take all necessary measures, in consultation with social partners, to ensure that the above categories have the right in law and in practice to establish and join organizations of their own choosing, as well as other rights recognized under the Convention.

Province of New Brunswick. The Committee notes that the Government acknowledges the negative effect of excluding domestic workers from the scope of the Employment Standards Act and that consultations were held in September 2016 regarding possible amendments to the aforementioned Act, which encompasses repealing the exclusion. The Government further informs that it is currently conducting a technical review of the Domestic Workers Convention, 2011 (No. 189). The Committee hopes that the consultations and the technical review will be finalized in the near future and that all necessary measures will be taken to ensure that domestic workers enjoy the right to organize and other guarantees under the Convention. The Committee requests the Government to keep it informed on any development in this regard.

Other provinces. Nova Scotia, Prince Edward Island and Saskatchewan. With regard to the exclusion of architects, dentists, land surveyors, doctors and engineers, the Committee notes that: (i) in Nova Scotia, although no legislative changes were made, doctors are de facto represented by Doctors Nova Scotia, an association bargaining with the Government on behalf of doctors and residents; (ii) in Prince Edward Island, no information was provided by the Government regarding the above exclusions; and (iii) in Saskatchewan, the above categories are not explicitly excluded from being certified as a bargaining unit and therefore do have the right to organize, for example, lawyers at the provincial Legal Aid Commission are unionized. With regard to the exclusion of domestic workers in Saskatchewan, the Committee notes the Government’s indication that some categories of workers, including domestic workers, face a practical limitation on organizing as a result of the definition of “employer”, defined as “an employer who customarily or actually employs three or more employees”, with the purpose of ensuring viability of the bargaining unit. While noting that nothing impedes architects, dentists, land surveyors, doctors, and engineers from associating and organizing, the Committee requests the Government to specify under which legislative provisions the above-mentioned categories enjoy their trade union rights as well as other rights recognized in the Convention. Regarding the practical limitation to unionization faced by domestic workers, the Committee invites the Government to take all necessary measures, in consultation with social partners, to ensure that domestic workers enjoy, in law and in practice, the right to organize, as well as other rights under the Convention.

Article 3. Right of employers’ and workers’ organizations to organize their activities and to formulate their programmes. Essential services. Economic Action Plan (Bill C-4). In its previous comments, the Committee had noted that the adoption of the Economic Action Plan Act in 2013 permitted the federal government the exclusive power to determine and designate unilaterally the essential services for the safety and security of the public and impose arbitration as the dispute resolution mechanism in cases where 80 per cent or more of the positions in a bargaining unit were deemed essential. The Committee notes with satisfaction that on 26 November 2018, Bill C-62 “An Act to Amend the Federal Public Sector Labour Relations Act and Other Acts” received royal assent and, as a result, the employer no longer has the exclusive right to determine which services are essential and designate positions necessary to deliver these services. The Committee further notes that, as a result, when a conciliation/strike has been selected by the bargaining agent as the dispute resolution mechanism in collective bargaining, the employer and the bargaining agent must collectively negotiate essential services and conclude an Essential Services Agreement.

Province of Saskatchewan. Employment Act. In its previous observations, the CLC expressed concern that the Saskatchewan Employment Act increased the number of employees not eligible for trade union membership by declaring their job duties confidential. On that occasion, the Committee pointed out that the definition of “employee” excluded anyone exercising authority and performing managerial or confidential functions, and that the term “union”, “labour organization” and “strike” were defined in the Act with reference to the term “employee”. The Committee notes the Government’s indication that there were extensive consultations in 2012 when considering the labour relations sections (Part IV) of the Employment Act and that some provisions in the Act required a review within a revolving ten-year period and therefore another review of the labour relations provision would occur around 2024. The Committee refers to its previous recommendations, in which it reminded the Government that although it is not necessarily incompatible with Article 2 to deny workers who perform managerial functions or are employed in its confidential capacity to belong to the same trade unions as other workers, this category should not be defined so broadly as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of substantial proportion of their present or potential membership.  The Committee hopes that the Government will take all appropriate measures in a near future to ensure the review of The Saskatchewan Employment Act, in consultation with social partners, with a view to bringing it into full conformity with the above-mentioned considerations. The Committee also requests the Government to provide information on the number of employees declared “confidential” and thus not eligible for trade union membership, disaggregated by enterprises or branches of employment.

The Committee is raising other matters in a request addressed directly to the Government.