Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

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

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Article 2. Scope of the Convention. Other categories of workers. In its previous comments, the Committee noted the Government’s indication that nothing prevents workers in the gig economy in Alberta to associate outside of labour relations legislation and that to that end they could apply to the Labour Relations Board for certification under the provisions of the Labour Relations Code (LRC). The Committee requested the Government to specify the manner in which they could apply, and whether the Board would ensure that they benefit from all the guarantees provided by the Convention. The Committee also requested the Government to provide its comments concerning the situation in other provinces and invited it to consider, in consultation with the social partners, measures to ensure that workers in precarious work situations can benefit from the rights enshrined in the Convention. The Committee notes the Government’s indication that in Alberta, applications for certification must be made in writing, and that persons who are determined to be employees to the Board are afforded the rights of an employee under the LRC, including the right to form an association. With respect to the other provinces, the Government indicates that: (i) in Manitoba, the Labour Board does not differentiate certification applications by employment sector, and it is up to employers to challenge workers being employees under the Labour Relations Act; (ii) in Nova Scotia, when a trade union files an application for certification with the Labour Board, the latter determines whether the individuals affected are employees within the meaning of the Trade Union Act; (iii) in Ontario, the Labour Relations Board has recognized digital platform workers as dependent contractors, who are covered by the Labour Relations Act and may constitute or join a bargaining unit; (iv) in Prince Edward Island, the Labour Relations Board is authorized to certify bargaining agents in relation to an employee or employees, but it has not yet received any applications in relation to gig workers, so no determination of employee status has been made; (v) in Quebec, there is no specific legislation governing the situation of platform workers, but they can contact the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the Committee on standards, equity, and occupational safety and health) (CNESST) if they wish to be recognized as employees; and (vi) in Saskatchewan, the definition of “employee” in the Employment Act provides the Labour Relations Board with the discretion to determine whether an individual or group of individuals are employees (including dependent contractors) or independent contractors. Taking due note of this information, the Committee requests the Government to specify which criteria are used to determine whether workers in the gig economy in Manitoba, Nova Scotia, Prince Edward Island, Quebec and Saskatchewan are employees, and to indicate if these workers will benefit from all rights and guarantees provided by the Convention upon obtaining such status.

Right of workers to establish and join organizations. The Committee previously noted concerns raised by the Canadian Labour Congress (CLC) regarding modifications to the certification system which replaced the card-based system with a secret ballot vote in Alberta, Manitoba and Ontario, and encouraged the Government to review the certification procedures to ensure that these changes did not have a negative impact on freedom of association rights. The Committee notes the Government’s indication that: (i) in Alberta, the removal of automatic certification through the Act to Make Alberta Open for Business had no effect on the protection provided to employees by the LRC and the Public Service Employee Relations Act; (ii) in Manitoba, the intent behind the modifications was to allow all potential union members to exercise their democratic right to vote and participate fairly in the union certification process; and (iii) in Ontario, a secret ballot is considered to be generally the most reliable way for employees to express their choice of whether to certify a union in their workplace. While taking note of the above, the Committee encourages the Government to engage with the most representative workers’ and employers’ organizations with a view to ensuring that the actual application of these modifications does not have a negative effect in practice on the exercise of the freedom of association rights provided by the Convention. The Committee requests the Government to provide information on the outcome of such engagement.

Trade union pluralism. The Committee recalls its long-standing comments concerning the laws of Prince Edward Island (Civil Service Act), Nova Scotia (Teaching Professions Act) and Ontario (Education and Teaching Profession Act) specifically referring to a trade union recognized as the bargaining agent, which could raise problems of incompatibility with the Convention, and requested the Government to ensure that the respective provincial governments engage in discussions on this matter with the social partners. The Committee notes that the Government indicates that in Prince Edward Island, amendments to the Civil Service Act are currently being considered and the definition of “union” will be included in this review. The Committee notes with regret that the Government does not provide any information regarding Ontario and indicates that no recent discussions took place in Nova Scotia. The Committee recalls once again that legislation should not contain a specific reference to a trade union recognized as a bargaining agent and that such provisions could be replaced with, for instance, a reference to the most representative organization. The Committee hopes that these considerations will be taken into account during the current review of the Civil Service Act in Prince Edward Island and requests the Government to inform it of developments in this regard and to provide a copy of the amended text, once adopted. With respect to Ontario and Nova Scotia, the Committee once again requests that the Government take measures to ensure that the provincial governments engage in discussions on this matter with the social partners and provide information on the outcome of such discussions.

Article 3. Right of employers’ and workers’ organizations to organize their activities and to formulate their programmes. Province of Alberta. Replacement workers and limitations to the right to strike. In its previous comments, the Committee noted 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 requested the Government to provide detailed information on the scope and application in practice of that provision. The Committee notes that the Government confirms that in the event of a work stoppage, the LRC grants employers providing an essential service discretion to determine whether to use designated essential workers or replacement workers. The Government adds that the removal of the replacement worker ban gives employers operating under essential services legislation more options for how to manage essential services during a strike or lockout. In this regard, the Committee recalls once again 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 take the necessary measures to amendsection 95.201 of the LRC, with a view to ensuring fully the right of workers’ organizations to organize their activities and formulate their programmes. The Committee requests the Government to keep it informed of any progress made in this regard.

Moreover, the Committee requested the Government to provide its observations on concerns raised by the CLC regarding the introduction of the omnibus Bill 32: Restoring Balance in Alberta’s Workplace Act, which allegedly introduced amendments aimed at restricting freedom of association rights, including restrictions on secondary picketing and the removal of the capacity of the Labour Relations Board to automatically certify unions. The Committee notes the Government’s indication that in 2020, the Restoring Balance in Alberta’s Workplace Act made changes to the LRC’s rules on picketing, and that such changes do not preclude unions from picketing, but only require the Labour Relations Board’s approval prior to secondary picketing occurring. As regards the certification of unions, the Government clarifies that in 2019, the Act to Make Alberta Open for Business restored the requirement for a secret ballot prior to a union being certified by the Board, which returned the certification provisions to their formulations prior to 2017. The Committee recalls that restrictions on strike pickets and workplace occupations are only acceptable where the action ceases to be peaceful (see the 2012 General Survey on the fundamental Conventions, paragraph 149). The Committee requests that the Government take the necessary measures to review the LRC, in consultation with the most representative workers’ and employers’ organizations, in order to ensure that its provisions on picketing are in conformity with the abovementioned principle, and to provide information on developments in this regard.

Province of Manitoba. Education sector. The Committee 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 noted that the province established a commission to undertake a comprehensive review of the education system and hoped that the matter would be discussed with the social partners concerned during that review. The Committee notes the Government’s indication that the K to 12 Education Action Plan was launched in April 2022, but that there have been no updates on the status of the teachers’ right to strike. In this regard, the Committee recalls that restrictions to the right to strike are only acceptable in situations of acute national or local crises; for public servants exercising authority in the name of the State; and with respect to essential services in the strict sense of the term, and that the public education system does not constitute an essential service in the strict sense of the term. The Committee requests the Government to take necessary measures, in consultation with the social partners, to amend the Public School Act with a view to bringing the legislation into line with the Convention, and to inform it of any progress made in this regard.

The Committee also reiterated its long-standing recommendation that the Government 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 to initiate the dispute settlement process when a work stoppage exceeds 60 days, and requested it provide information on the application of that provision. The Committee notes the Government’s indication that several bills proposing to repeal section 87.4 of the Act (which requires the Labour Management Review Committee, an advisory tripartite body on labour matters, to review the operation of sections 87.1 and 87.3 every two years) have been introduced but ultimately were not proceeded with. The Committee therefore once again requests the Government to take the necessary steps, including through the review mechanism provided by section 87.4 of the Labour Relations Act, to amend the Act with a view to ensuring that an arbitration award may only be imposed in cases involving essential services in the strict sense of the term, public servants exercising authority in the name of the State or where both parties to the collective dispute so agree.

Province of Nova Scotia. Essential services. In its previous comments, the Committee requested the Government to bring sections 3(1)(a) and 2(f) of the Essential Health and Community Service Act, which provided for a broad definition of essential services, into full conformity with the Convention, and to inform it of the outcome of a legal challenge to these provisions. The Committee notes that the Government merely states that the legal challenge has not been proceeded with. The Committee once again requests the Government to take necessary measures to ensure that the Essential Health and Community Service Act is amended so as to ensure that certain categories of employees, such as hospital labourers and gardeners, may not be deprived of the right to strike by virtue of a legislative provision.