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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Canada (Ratification: 2017)

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 also notes the observations of the Canadian Labour Congress (CLC), received on 31 August 2019 and on 30 September 2020, concerning issues examined in the present request. The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the CLC (social and economic measures taken to address the COVID-19 pandemic, scope of the Convention, and Articles 4 to 6 of the Convention) this year, as well as on the basis of the information at its disposal in 2019.

Social and economic measures taken to address the COVID-19 pandemic. The Committee notes that the CLC stresses that the COVID-19 pandemic has disproportionately affected low-income workers and marginalized groups and has reemphasized the relevance of freedom of association and collective bargaining rights. The CLC denounces that, in response to the pandemic, some provincial governments enacted pieces of legislation suspending collective bargaining rights. In Ontario, the enactment of Bill-195: The Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, led to the suspension of provisions in collective agreements concerning working time, holidays, leaves and termination of employment, impairing the acquired rights of specific categories of essential workers, in particular those in the health sector. Furthermore, the CLC denounces that Bill-195 allows the provincial government to maintain and modify emergency orders under the Emergency Management and Civil Protection Act for at least a year after the end of the declared emergency and removes the mechanism for democratic accountability. With regard to the latter, the Committee notes the Governments’ indication that: i) Bill-195 was enacted as part of the provincial plan to respond to the effects of the COVID-19 pandemic, providing Ontario with the necessary flexibility to ensure the provision of services and protect the health and safety of its population; ii) the law requires the Premier of Ontario to report on any amendments or extensions to the orders within 120 days of the bill coming into force, and iii) the government of Ontario maintains only the necessary powers and measures to continue to protect the safety and health of its population and the orders, as and when they become unnecessary, will not be renewed or will be amended accordingly, following the advice of public health experts.

The Committee fully acknowledges the exceptional circumstances being experienced in the country due to the COVID-19 pandemic and the absolute necessity to adopt urgent measures to protect public health. The Committee recalls that measures which unilaterally fix conditions of employment setting aside the application of collective agreements in force should be of an exceptional nature, be limited in time and include safeguards for the workers who are the most affected. The Committee further highlights that the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205) emphasizes the importance of social dialogue in general and collective bargaining in particular in responding to crisis situations, encouraging active participation of employers’ and workers’ organizations in planning, implementing and monitoring measures for recovery and resilience. The Committee therefore encourages the Government to engage in dialogue with the most representative employers’ and workers’ organisations of the sectors concerned with a view to limiting the impact and the duration of the above measures and ensuring the full use of collective bargaining as a means of achieving balanced and sustainable solutions in times of crisis. The Committee requests the Government to provide information in this respect.

Scope of the Convention. Categories of workers not covered by provincial labour laws. The Committee notes the Government’s indication that several categories of workers are not included in the scope of provincial labour laws. The Committee further notes that the Government states that, despite this exclusion from the general labour relations regime, these categories can exercise, to varying degrees, some of their collective rights.

Liberal professions. Architects, dentists, land surveyors, lawyers, engineers, doctors. The Committee notes that the labour legislation in Alberta, Ontario, Nova Scotia, Prince Edward Island and Saskatchewan excludes the above categories of workers from its scope. It further notes the Government’s indication that, while these categories of workers are excluded from the labour legislation, nothing prevents them from collectively making representations to their employers or from bargaining collectively outside the statutory regime. The Government adds that, under Canadian law, employers have an obligation to engage in good faith consultations regarding working conditions and that Labour Relations Boards may order the inclusion of their members (or members-in-training) in a bargaining unit if a majority so desires. For example, the Ontario Medical Association and Doctors Nova Scotia bargain on behalf of doctors and residents in their respective provinces, and lawyers in the Saskatchewan Legal Aid Commission are unionized and can bargain collectively. The Committee notes that, in its supplementary information, the Government points out that in Alberta: i) in the public sector, the Public Service Employee Relations Act (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 Labour Relations Code (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. The Committee further notes the Government’s indication that the current labour laws, originally enacted for industrial settings, are not always suited to non-industrial workplaces, such as private homes and professional offices.

Domestic workers. The Committee notes that domestic workers employed in private homes are excluded from the labour legislation in Alberta, Ontario, New Brunswick and Saskatchewan. The Committee notes that: (i) in New Brunswick, the Government, aware of the negative effect of excluding domestic workers from the Industrial Relations Act, held consultations in September 2016 regarding possible amendments to the labour legislation and is currently conducting a technical review of the Domestic Workers Convention, 2011 (No. 189); (ii) in Saskatchewan, domestic workers face practical limitations on the effective exercise of their rights, due to the definition of “employer” in the Saskatchewan Employment Act, which requires the employment of “three or more employees”; and (iii) according to the Special Advisors leading the Changing Workplaces Review (CWR) final report, commissioned by the Ministry of Labour and released in 2017, domestic workers, given their unique vulnerability and their practical lack of access to collective bargaining, suggested that the Government consider amending the legislation taking into account the particular nature of their work and its particular vulnerabilities.

Agricultural workers.  The Committee observes that, in Alberta and Ontario, agricultural workers are excluded from the labour legislation and are governed by special regimes. In Alberta, the Committee notes that in January 2018 the Enhanced Protection for Farm and Ranch Workers Act entered in force, providing waged, non-family, farm and ranch employees the same statutory rights as most other employees in the province regarding the opportunity to be represented by a bargaining agent and to bargain collectively with their employer, if they so choose. Nevertheless, the Committee notes with regret, that the Government informs in its supplementary report 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 as of January 2020. In Ontario, the Agricultural Employees’ Protection Act (AEPA) provides for the right to form and join an employees’ association and to make representations to their employers through their association. The Committee observes however that the United Nations Economic and Social Council expressed its concern that certain categories of foreign workers, including temporary and seasonal migrant workers, remain vulnerable to employer exploitation (E/C.12/CAN/CO/6). It further observes that, according to the final report of the CWR, the AEPA: (i) does not provide the right to collective bargaining; (ii) contains no obligation for the parties to meet, engage in meaningful dialogue and make reasonable efforts to conclude a collective agreement; nor a mandatory dispute mechanism for the enforcement of collective agreements; and (iii) the protection provided against anti-union discrimination and acts of interference is insufficient.

Independent contractors. The Committee notes that the labour legislation in Alberta, Ontario, British Colombia and Newfoundland and Labrador, implicitly or explicitly excludes independent contractors from its scope. The Committee notes that, according to the CLC, the labour legislation is not adapted to workplaces with a small number of employees and non-standard forms of work. It also points out that there have been calls across Canada to recognize workers in the gig economy as employees rather than independent contractors.

With respect to the different categories listed above, the Committee duly notes the Government’s statement that, despite being excluded from the scope of provincial labour laws, these workers can exercise, to varying degrees, some of their collective rights. In this respect, the Committee acknowledges that compliance with the Convention does not necessarily require the categories listed above to be included in the general labour relations regime, insofar as the workers concerned can, in practice, exercise the rights recognized by the Convention through, for instance, specific regimes. At the same time, the Committee notes that some social partners have brought to its attention the specific obstacles that some of these categories may face in exercising their collective rights and, in particular, the lack of access to meaningful processes of collective bargaining. Emphasizing that, under the Convention, all workers, with the only possible exception of the members of the armed forces and the police, as well as public servants engaged in the administration of the State, shall enjoy adequate protection against acts of anti-union discrimination and interference and shall have access to meaningful collective bargaining mechanisms, the Committee requests the Government to specify the manner in which the different categories of workers examined above can effectively exercise the rights enshrined in the Convention. In this respect, the Committee requests the Government to provide information, for each category, on the number of collective agreements concluded and the number of workers covered. Bearing in mind their particular working and employment conditions, the Committee encourages the Government to take, in full consultation with the social partners concerned, tailored measures, including measures of a legislative nature when necessary, to ensure that the categories of workers indicated above have effective access to the rights enshrined in the Convention. The Committee requests the Government to provide information on the steps taken in this respect.

Articles 1 and 2 of the Convention. Adequate protection against acts of anti-union discrimination and acts of interference. The Committee notes that the Government indicates that: (i) all Canadian labour legislation provides that employers (and those acting on an employer’s behalf) may not refuse to employ, dismiss, threaten or penalize a person with respect to their employment due to trade union activity; (ii) employers are prohibited from imposing terms or conditions of employment that effectively restrain or prevent workers from joining or remaining members of a trade union; (iii) all Canadian labour legislation provides that employers (or those acting on their behalf) may not participate or interfere in the formation or administration of, or contribute financially to, a trade union; (iv) notwithstanding the above, employers are allowed to exercise their freedom of expression by expressing their personal views on the union as long as they do not use coercion, intimidation or undue influence; (v) similarly, in most jurisdictions, trade unions and their representatives are expressly prohibited from participating or interfering with the formation or administration of employers’ organizations; (vi) unfair labour practices are prohibited both during the union certification process and during the negotiation of a collective agreement; and (vii) both unfair labour practices and acts of interference may be subject to a complaint to the relevant labour boards. The Committee takes due note that the administration and enforcement of labour relations are carried out by independent, quasi-judicial and impartial bodies. The Committee requests the Government to provide further information regarding the regime applicable for public sector workers not engaged in the administration of the State at the federal and provincial levels, including the provisions that provide protection against acts of anti-union discrimination and interference, and to clarify the labour board or administrative tribunal that carries out the administration and enforcement of labour relations with respect to these workers. The Committee also requests the Government to provide information on the number of complaints of anti-union discrimination and interference, in both the public and private sectors (at the federal and provincial levels), made to the various competent authorities, the average duration of the relevant proceedings and their outcome, as well as the types of remedies and sanctions imposed in those cases.

The Committee notes the concerns raised by the CLC regarding recent changes introduced to union certification in Alberta, Ontario and Manitoba (Bill C-2: An Act to Make Alberta Open for Business, and Bill C-47: Making Ontario Open for Business Act, and Bill C-7: Labour Relations Amendment), which were addressed by the Committee in its observations regarding the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee notes that the CLC further alleges that these changes could have the negative effect of enabling greater employer interference and generating an imbalance of power between workers’ organizations and employers.  In view of the concerns raised by the CLC, the Committee requests the Government to provide its observations on the alleged effects of interference resulting from the recent changes introduced in union certification in Alberta, Ontario and Manitoba.

Article 4. Promotion of collective bargaining. Legislative matters. The Committee notes the Government’s indication that, although there is no uniform law across Canada governing the right to collective bargaining, there are a number of key features and principles that commonly appear in all Canadian statutory labour relations regimes: (i) the Supreme Court of Canada recognizes the right to bargain collectively as a protected right under section 2(d) of the Canadian Charter of Rights and Freedoms; (ii) exclusive collective bargaining rights may be granted to a trade union that has obtained majority support from employees in a bargaining unit (certification); (iii) majority support is either evidenced by signed union membership cards or ascertained by a secret ballot representation vote; (iv) once the trade union is certified, the union and the employer have the obligation to bargain in good faith and to make all reasonable attempts to voluntarily reach a collective agreement on the terms and conditions of employment; (v) work stoppages are prohibited while a collective agreement is in force; (vi) any disagreements regarding the interpretation or administration of the collective agreement must be submitted to binding arbitration; (vii) if the employer and union reach an impasse during the collective bargaining process, various mechanisms are provided to help resolve disputes and conclude a collective agreement, such as mediation, conciliation and/or voluntary interest arbitration; and (viii) in various jurisdictions, first contract arbitration is provided, and the parties can apply to the relevant labour board for assistance.

The Committee notes that, according to the CLC, while the current bargaining model (the Wagner Act model) is still relevant for workers employed in large, single-site workplaces with traditional hours of work and therefore should remain in these industries and sectors, it is not adapted to workplaces with a small number of employees and non-standard relationships (high rates of part-time, temporary, seasonal, self-employment and contract jobs). The Committee further notes that, in its 2020 observations, the CLC stresses that in the last years, workers in gig economy in Ontario have taken legal measures to be recognized as employees, rather than independent contractors, to enjoy their freedom of association and collective bargaining rights: (i) in February 2020, the Ontario Labour Relations Board recognized food delivery couriers as dependent contactors, and therefore declared that they have the right to organize and bargain collectively; and (ii) on 26 June 2020, the Supreme Court of Canada ruled against a ride-hailing platform that might open the door to the recognition of freedom of association and collective bargaining rights for these workers. The Committee notes that in its observations, the CLC encourages the Government to explore a range of models to ensure that these precarious workers, many of whom may be recent immigrants, women and ethnic minorities, have the opportunity to unionize and access the benefits and protections associated with unionization. The Committee further notes that, in the CWR final report, the Special Advisors stressed the fact that the current Wagner Act single employer and single enterprise model of certification does not provide for effective access to collective bargaining for a large number of employees and stressed the need to give meaningful access to collective bargaining to vulnerable employees in some sectors of the economy. Observing that in all jurisdictions, a trade union can only be certified as a bargaining agent (unless there is a voluntary recognition of the employer or a direct order of the labour board) if it receives majority support of the bargaining unit (50 per cent plus 1), the Committee draws the attention of the Government to the fact that such a system may raise problems of compatibility with the Convention, as it means that a representative union which fails to secure the absolute majority may thus be denied the possibility of bargaining (see the 2012 General Survey on the fundamental Conventions, paragraph 234). In view of the need, expressed by various stakeholders, to explore different solutions to adapt the current collective bargaining model to non-standard forms of work and in view of the recent judicial developments in this regard, the Committee invites the Government, in consultation with all relevant stakeholders, to find appropriate and agreed solutions so as to guarantee, in law and in practice, the right to collective bargaining to all workers covered by the Convention, paying a special attention to the most vulnerable categories of workers referred to in the present comment.

Articles 4 to 6. Limitations on the content of collective agreements applicable to public servants not engaged in the administration of the State. The Committee notes that the CLC denounces that, since the ratification of the Convention, the provincial governments of Alberta, Manitoba and Nova Scotia have adopted legislation aimed at unilaterally restricting or modifying the content of collective agreements regarding salaries and wages (Bill C-9: Public Sector Arbitration Deferral Act; Bill C-28: The Public Services Sustainability Act; Bill C-75: Teachers’ Professional Agreement and Classroom Improvement Act; and Bill C-148: Public Service Sustainability Act). The CLC also points out that, in June 2018, the Quebec Superior Court found that section 113(b) of the Federal Public Sector Relations Act - which restricts collective bargaining covering pensions and staffing and reserves unilateral discretion for the Government - is in violation of the freedom of association guaranteed in the Canadian Charter of Rights and Freedoms; that the decision was appealed by the Attorney General and the decision is pending. With respect to Bill C-28 in Manitoba, the Committee notes that, in its 2020 observations, the CLC indicates that the Court of Queen’s Bench ruled that this piece of legislation violates the right to freedom of association and collective bargaining of public sector employees in Manitoba and that the decision was appealed by the province. The Committee requests the Government to provide its comments in this regard and to provide information on the outcome of the judicial proceedings.

Back-to-work legislation. The Committee also notes the observations of the CLC relating to the use of back-to-work legislation, which is largely addressed in the framework of Freedom of Association and protection of the Right to Organise Convention, 1948 (No. 87). The Committee notes, however, that some of the allegations relating to back-to-work legislation also refer to limitations on collective bargaining and the imposition of compulsory arbitration. In this respect, the Committee wishes to recall that compulsory arbitration is generally not compatible with the promotion of free and voluntary collective bargaining required by Article 4 of the Convention and that compulsory arbitration in the context of collective bargaining is only therefore acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term (services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) and in the event of an acute national crisis.  The Committee hopes that the Government will refrain in future from adopting back-to-work legislation and imposing a compulsory arbitration process beyond the situations referred to above.