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

Individual Case (CAS) - Discussion: 2013, Publication: 102nd ILC session (2013)

A Government representative recalled that, in 2010, her Government had addressed this Committee explaining in detail the nature of the Canadian Constitution, under which the federal Government and each of the ten provincial and three territorial governments had exclusive authority to legislate with respect to labour matters within their respective jurisdictions. Considerable emphasis had been placed at that time by the Committee on the challenges of such division of legislative authority under the Constitution. She highlighted a number of initiatives and mechanisms designed to address this issue. For instance, the Government engaged with the provincial and territorial governments with a view to promoting implementation of Canada’s international labour obligations. The main forum for these discussions was the Canadian Association of Administrators of Labour Legislation. Also, an annual workshop brought together officials from the federal, provincial and territorial governments to discuss ILO issues, including reports to the ILO on ratified Conventions, comments by ILO supervisory bodies and the review of ILO Conventions for possible ratification, and the social partners were regularly invited. In addition, tripartite round tables on international labour issues were held annually, with the participation of ILO officials. In November 2010, the federal Minister of Labour had established the Advisory Council on Workplace and Labour Affairs, consisting of employer and worker representatives, which served as a forum for discussion and advice to the Minister on workplace and labour issues of federal, national and international importance.

Concerning the observations of the Committee of Experts, the Government representative indicated, with reference to the detailed 2011 and 2012 Government reports, that she would focus primarily on developments and information since the last report. As regards the allegations submitted by the International Trade Union Confederation (ITUC), the Canadian Labour Congress (CLC) and the Confederation of National Trade Unions (CNTU) in July and August 2012, some addressed cases before the Committee on Freedom of Association (CFA) that were closed, some did not relate to the application of the Convention and others would be addressed in the Government’s next reports on the Forced Labour Convention, 1930 (No. 29), the Equal Remuneration Convention, 1951 (No. 100), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). As to the allegation of increasing violations of the Convention by the federal Government, there had been no recent amendments to industrial relations legislation. However, since 2011, there had been three instances where the federal Government had introduced legislation to prevent or end work stoppages that threatened the public interest and the Canadian economy. Two of these cases were currently before the CFA. Following a recommendation of an independent study on the causes and impacts of work stoppages in the federal private sector, and the consensus of union and employer stakeholders on the need to work on their relationships, the Government had increased in 2011 resources for its Preventive Mediation Program, which provided services including training sessions on how to move from confrontation to more collaborative labour-management relations, approaches to problem solving and improving collective bargaining skills, as well as facilitating the resolution of workplace grievances. With respect to the 2007 Supreme Court Decision Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 (hereinafter: B.C. Health Services) referred to by the unions, in which the Court had found that the protection of freedom of association enshrined in the Canadian Charter of Rights and Freedoms extended to collective bargaining, the Government representative underlined that, in 2011, in its ruling Ontario (Attorney-General) v. Fraser, 2011 SCC 20 (hereinafter: Fraser), the Supreme Court had revisited its decision and had narrowed the protection afforded to collective bargaining under the Charter. As a result, there was continuing litigation regarding the scope of Charter protections.

Concerning the follow-up by provincial governments, she indicated that a recent case before the CFA concerned Ontario legislation of 2012 (Bill 115) that imposed contracts on Ontario teachers. In January 2013, that Bill had been rejected by the Government of Ontario and the imposed contracts had since been amended through further collective bargaining. With regard to the right to organize of part-time employees of public colleges, the Government of Ontario wished to inform the Committee that the certification applications filed by the Ontario Public Sector Employees Union were being dealt with by the Ontario Labour Relations Board, an independent quasi-judicial body. There had been significant delays in the resolution of this application due to numerous procedural issues raised by both the applicant union and the employer, but the counting of the ballots was now expected to proceed. As to the exclusion, in some jurisdictions, of groups such as members of the medical, dental, architectural, legal and engineering professions, principals and vice-principals from industrial relations legislation, the speaker stressed that these groups were entitled to join associations of their own choosing for the defence of their professional interests. In relation to domestic workers, the New Brunswick Government wished to inform the Committee that it continued discussions regarding potential amendments to the Industrial Relations Act to remove or modify the exclusion of domestic workers. Further information would be provided to the Committee of Experts in the next report. The Government of Saskatchewan indicated that, in the context of its review of labour legislation, the definition of “employee” had been clarified and a new definition of “supervisory employee” had been added confirming their right to organize for collective bargaining, in bargaining units separate from the employees they supervised. Furthermore, in relation to Saskatchewan Bills 5 and 6, the Public Service Essential Service Act and amendments to the Trade Union Act, the speaker informed that the Saskatchewan Court of Appeal had found, in a decision dated 26 April 2013, that both acts were constitutionally valid. A copy of the decision would be provided with the Government’s next report. The Committee of Experts had also identified a number of legislative provisions which it considered to be inconsistent with the Convention. However, the social partners at the national level had not raised concerns about these long-standing provisions. The Government representative cited the following examples: (i) the legislation in Nova Scotia, Ontario and Prince Edward Island which designated individual trade unions as bargaining agents; (ii) the current system of binding arbitration under the Manitoba Public Schools Act; and (iii) section 87.1 of Manitoba’s Labour Relations Act which permitted the imposition of binding arbitration by the Labour Board at the request of one party after 60 days of a work stoppage (it should be noted that section 87.4 of the Act required that the Labour Management Review Committee review the operation of this section every two years and provide a report to the minister on its findings; the next review would be conducted in 2013). The Government recognized that the Canadian labour relations system was not perfect, and that work remained to be done to address a number of inconsistencies with respect to the Convention, as evidenced by legislation in all Canadian jurisdictions that recognized freedom of association and included measures to protect the exercise of the right to organize. However, her Government wished to remind the Committee of the overall commitment of Canada with respect to the application of the Convention. The Government would continue to work towards addressing the Committee of Experts’ comments, in collaboration with the provincial and territorial governments, and would provide additional information in its next report. The speaker assured the Committee of her Government’s continuing support for, and cooperation with, the ILO supervisory bodies.

The Employer members stated that the Committee of Experts’ observation also related to other ILO Conventions, such as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Domestic Workers Convention, 2011 (No. 189); however they would limit their remarks to Convention No. 87. The Employer members referred to Canada’s unique system of federalism which appeared to be underpinning the present case, as it dealt with a wide variety of issues all of which involved the provinces rather than the federal Government. They pointed out that federal laws regulated less than 5 per cent of the employers, whereas the provinces regulated the remaining 95 per cent. Most of the Committee of Experts’ comments had thus been directed at the provincial legislation. Since 1982, the Canadian Constitution contained an express right of freedom of association, and for over 30 years, the Canadian Supreme Court and the highest-level provincial courts had created an extensive body of jurisprudence on freedom of association by interpreting the Canadian Constitution. The Employer members stressed that, in several of its observations, the Committee of Experts was requesting the Government to take action with regard to legislation that the highest courts in Canada had not considered to violate the constitutional right to freedom of association. For example, the Committee of Experts had requested the Government to ensure that the Government of Ontario would take measures to amend the Agricultural Employees Protection Act (AEPA), considering that it violated the Convention. However, in 2011, the Supreme Court had found the AEPA to be constitutional. Another example involved the right to strike. The Committee of Experts had considered that the recent amendments to the Saskatchewan Trade Union Act violated the right to freedom of association and had cited a case that had been examined by the CFA in 2010. The Employer members raised a number of issues in this regard. Firstly, the CFA’s mandate was not to assess compliance with ILO Conventions, and both the Committee of Experts and the Conference Committee should exercise caution when considering the CFA’s conclusions and recommendations. Secondly, the Employer members did not agree with the Committee of Experts’ views on the right to strike and believed that the right to strike was a matter for national law. Thirdly, in keeping with the above, they underlined that Saskatchewan’s highest court, the Saskatchewan Court of Appeal, had recently held that the relevant portions of the Trade Union Act did not violate the right to freedom of association as enshrined in the Canadian Constitution.

The Worker members had taken note of the comments that the International Organisation of Employers (IOE) had formulated in 2012 and of the discussion on the mandate of the Committee of Experts and the link between freedom of association and the right to strike. Recalling the provisions of the Convention, they stressed that freedom of association was a human right and a precondition for healthy collective bargaining and social dialogue that benefited employers, workers and social peace. The Conference Committee and the CFA contributed to resolving difficulties in applying this fundamental right in countries all over the world, including Canada. The Worker members highlighted the complexity of Canada’s legislation on trade union rights and referred to the Committee of Experts’ in-depth analysis in its comment. In many provinces, the right to organize was still hampered as regards many groups of workers, especially agricultural workers in Ontario and Alberta, and domestic workers who were denied any legal trade union protection in Ontario, Nova Scotia, Alberta and Saskatchewan. Depending on the province, liberal professions might or might not be allowed to organize. There were also obstacles to freedom of association in the teaching profession in several provinces. In Ontario and Nova Scotia and in Prince Edward Island (as far as the civil service was concerned), only one union was recognized as being entitled to engage in collective bargaining. In Saskatchewan, the membership threshold for accreditation as a trade union was 45 per cent of the workforce. As to the right of trade unions to organize their activities, the Worker members cited the restrictions that several provinces placed on the education sector (British Columbia, Manitoba and soon Ontario) and on the health sector (a ban on collective action in Alberta). Moreover, in Manitoba, arbitration could be imposed unilaterally by one of the parties to the negotiations, while in Quebec the application of collective agreements could be imposed, thereby putting an end to the negotiations. The Worker members emphasized that trade union rights were more and more frequently being violated in Canada and that the provincial authorities appeared to be in no hurry to apply the Convention.

The Worker member of Canada observed that many of the Committee of Experts’ comments were a near repetition from previous reports, thus indicating that little progress had been achieved in improving legislation or practice. This year, the Committee of Experts had requested the Government to respond to allegations that violations of freedom of association had become the norm in Canada. In this regard, the speaker denounced the slowness of provincial authorities in giving effect to the Committee of Experts’ recommendations, which was illustrated by the long‑standing comments relating to the exclusion in law and practice from the right to organize of domestic workers, architects, dentists, land surveyors, lawyers, engineers and doctors. While some provincial governments had corrected this shortcoming, huge gaps still remained. She highlighted the slow pace of progress for domestic workers not only in Alberta and Ontario but in all provinces, as well as the situation of agriculture and horticulture workers in Alberta and Ontario, despite the decision of an Ontario court ruling that the AEPA recognized the right of agricultural employees to form or join employees’ associations. Nurse practitioners in Alberta still did not have the right to establish and join organizations of their own choosing. She also denounced slowness to act with regard to education workers in Alberta and teachers in Prince Edward Island, Nova Scotia and Ontario. The speaker further expressed concern about a questionable strategy by the Ontario Government in relation to the certification of part-time academic and support staff and the false argument made by the provincial Government that its decision not to interfere in the resolution of the case was shared by the National Union of Public and General Employees. She also expressed concern about the deteriorating circumstances in terms of negotiation process and abuses in defining the term “essential services” in the public sector, including in the education and health sectors of Alberta, British Columbia, Saskatchewan, Manitoba and Quebec. The speaker further denounced the fact that the federal Government had spearheaded attacks on collective bargaining by threatening or legislating workers back to work from a strike, although the Government had recognized the right to strike in other forums, such as in its trade agreement with Costa Rica, where this right was explicitly referred to. She expressed concerns about Bill C-377, which imposed financially onerous reporting requirements, gave employers access to detailed information on unions’ collective bargaining and organizing activities and violated privacy protection guarantees. Moreover, provincial governments were taking on “case-by-case” battles to narrow down the scope of a Supreme Court ruling of 2003, which had embraced collective bargaining as part of the right to association enshrined in the Constitution. The speaker also denounced several measures that the federal Government planned to introduce, such as Bill C-60 bringing in the Treasury Board as a third party to collective bargaining of crown corporations, Bill C-525 amending the certification and decertification processes of a bargaining agent in the federally regulated jurisdiction by making it harder to win representation and easier to decertify bargaining agents, and a proposal to eliminate the dues check-off system in Canada, known as the Rand Formula, which was a fundamental component of the Canadian labour relations system.

The Employer member of Canada agreed substantially with the observations of the Government representative. Labour legislation in all ten Canadian provinces and the federal jurisdiction were highly detailed and directed towards ensuring an equality of bargaining power between employers and unions, and the promotion of voluntary negotiations and freely negotiated collective agreements. This legislation provided both parties with certain rights and obligations in the collective bargaining process, government support for collective bargaining including comprehensive conciliation, mediation and facilitation services, and strong protection against unfair practices. Notably, an important feature of this system was a prohibition on strike and lockout activity during the term of a collective agreement, and until certain stages of the collective bargaining process had been reached. The Canadian labour relations system also provided for extremely comprehensive quasi-judicial dispute resolution processes including compulsory arbitration of grievances regarding the interpretation of collective agreements, tripartite labour relations boards to interpret and adjudicate disputes under the labour relations acts and, if necessary, access to the judicial system. The Canadian Charter of Rights and Freedoms that was an essential component of the Canadian Constitution provided, under section 2(d), that everyone had the fundamental right to freedom of association. As regards the comments made by the Committee of Experts respecting Canada’s compliance with Article 3 of the Convention, and specifically with respect to the “right to strike”, the speaker highlighted that Canadian courts had concluded that there was no constitutional right to strike. Since 2007, the Supreme Court had issued two major decisions regarding the scope of the constitutional protection for freedom of association established in section 2(d) of the Charter. In the 2007 decision B.C. Health Services, the Supreme Court had held that the constitutional protection for freedom of association in the Charter included the right to a process of collective bargaining. However, the Supreme Court had been careful to emphasize that the constitutional protection for collective bargaining was limited as follows: (i) it only extended to instances of state action in relation to collective bargaining; (ii) it only guaranteed a general process of collective bargaining; and (iii) it only protected against state interferences in collective bargaining that were so substantial that they discouraged workers from negotiating terms and conditions of employment; if state interference was significant but occurred alongside a process of good faith consultation that reflected the principles of voluntary collective bargaining, it was unlikely that the protection for freedom of association would be violated. In its 2011 Fraser decision, the Supreme Court had clarified the scope of the constitutional protection for freedom of association in the labour relations context. In particular, the Court had determined that section 2(d) of the Charter of Rights and Freedoms required that employee associations (including unions) be able to participate in a meaningful workplace dialogue with their employer, which included the right to make collective representations to the employer and to have those representations considered by the employer in good faith. The Supreme Court had further stated that only legislation that made good faith resolution of workplace issues between employees and their employer effectively impossible would be found to violate freedom of association. Moreover, the Supreme Court had rejected the argument that freedom of association guaranteed employees access to a particular model of labour relations, or access to specific dispute resolution mechanisms of their choice. Rather, freedom of association guaranteed employees a process of meaningful consultation and negotiation with their employer. The Supreme Court had considered and relied on international labour law principles in the Fraser decision and had reaffirmed its earlier conclusion in the B.C. Health Services decision that international labour principles informed the meaning of the Charter’s protection for freedom of association. In both decisions, the Supreme Court had specifically stated that prior jurisprudence holding that the protection for freedom of association in the Charter did not include a right to strike, was still valid. The speaker underlined that the Supreme Court had considered the application of freedom of association principles in light of Canada’s mature, stable and well-balanced labour relations system, which had been carefully designed, operated quite seamlessly and efficiently in practice and was respected by both employers and unions. In the Canadian employers’ view, the Committee of Experts’ position on the right to strike attempted to impose a “one-size-fits-all” vision of freedom of association without regard to the unique and established features of the Canadian labour relations system. In light of the above, as well as the fact that the right to strike was nowhere established in the Convention (or any other ILO Convention), the Canadian employers considered that it would be entirely inappropriate to conclude that the carefully tailored restrictions on the strike activity, as adopted by democratically elected legislatures and consistently reaffirmed by independent courts, violated a “right to strike”.

The Worker member of Germany stated that consideration should also be given by the Committee to the following developments and circumstances prevailing both in Germany and Canada since several years, which impacted negatively on the exercise of freedom of association and the right to strike: high levels of unemployment, increase in precarious employment and low-paid jobs, growing number of fixed-term contracts, increase in temporary agency work, privatization of the health sector, etc. These factors had resulted in a considerable and ever increasing number of employees who were no longer able to survive on their wages and thus depended on social security benefits (“working poor”). This bitter reality substantially hampered the ability of trade unions to fight for freedom of association and the right to strike.

The Worker member of Nigeria declared that he was concerned by the situation in the public sector of Canada and the larger implications for effective public service delivery. Canada was once a model country in advancing trade union and workers’ rights but this was no longer the case. There had been legislation passed suspending the collective bargaining rights of public sector workers. Collective bargaining was deteriorating as the Government was attacking the negotiation process directly, restricting the terms for organizing workers, or changing the use of the term “essential services” to restrict workers or unions from striking. It was troubling to find so many examples where the right to strike had been restricted in the public sector, especially at the federal level. It was also worrisome that some countries, such as Canada, where Nigeria’s public service had drawn inspiration to improve the lives of its citizens and communities through promotional service delivery, were considerably demoting these gains, in spite of the economic difficulties faced by their citizens.

The Worker member of the United States declared that her union, United Steelworkers, represented workers in the United States and Canada. She was troubled to learn that some legislators in Canada wanted to abolish the “Rand formula”, or the dues check-off system. Legislative changes would seek to weaken unions by making it harder for them to sustain themselves financially. Politicians trying to eliminate the right to bargain a dues check-off provision claimed that doing so would create jobs and help the economy. However, she underlined that politicians in the United States were pushing similar laws prohibiting union security clauses in some states. Studies had concluded that these laws had no significant impact on job creation whatsoever. States with these laws, such as North Carolina, Mississippi, South Carolina and Nevada, had some of the highest unemployment rates in the country, as well as the lowest rates of unionization. However, states like Vermont and Hawaii, permitting workers to negotiate union security clauses, had some of the lowest unemployment rates in the United States. She also underlined that American workers in states without union security clauses made less money than those living in states that permit these clauses. She expressed the hope that the Government would comply fully with the Convention and preserve the dues check-off system.

The Worker member of the Netherlands underlined that violations of trade union rights were widespread in the country and affected a diverse group of workers, in both the private and public sector, including domestic workers, architects, lawyers, doctors, agricultural workers and educational workers. Despite the specific federal governance structure of the country, it appeared that federal and provincial authorities were blaming each other, while justifying and continuing serious violations of trade union rights. The provincial governments had been slow to implement the Convention, and the federal Government had not been proactive in ensuring that these provincial governments fully guaranteed the rights of workers to organize freely and to benefit from the necessary protection of their rights. Respect for fundamental labour standards, including the Convention, at all levels of government was particularly important in light of ongoing negotiations between the Government and the European Union (EU) on economic and trade cooperation. All parties to any agreement in this regard should commit to the full and effective implementation of the core labour standards of the ILO, including those related to freedom of association and the right to collective bargaining.

The Government member of the Islamic Republic of Iran recalled that freedom of association and the right to collective bargaining were human rights and were principles at the core of the ILO mandate. He stated that an increasing number of violations of freedom of association took place in Canada and had become the norm for the federal Government. He called on the Government to uphold its international obligations, including those related to freedom of association.

The Worker member of Colombia considered it unacceptable that the Government of a developed country was preventing the free exercise of freedom of association on the basis of arguments that appeared absurd to the world’s working class, and especially to the working class in the developing world. Freedom of association must be ensured by all countries, even those that took refuge in not having ratified the Convention. Attempting to justify failure to comply fully with the Convention on the grounds of the type of activities that workers carried out was unacceptable. The ILO itself recognized, in a number of instruments, that workers in rural areas were an integral part of the working class, and this applied equally to health, education and other workers. He emphasized that it did not make sense for the Government to invoke a voluntary agreement of 1956 to maintain that workers had renounced the exercise of the right to strike, as that would invalidate 57 years of concessions. As the economy had become globalized, so had rights, and he therefore demanded equal rights for all.

The Government representative indicated that the report and the conclusions of the Conference Committee would be brought to the attention of the federal, provincial and territorial governments. The Government remained committed to full cooperation with the ILO and the supervisory system, and would continue to welcome technical assistance and advice from the International Labour Standards Department on the application of Convention No. 87 and other Conventions. Acknowledging that the Committee of Experts had identified a number of areas that were not, in its view, in strict conformity with the Convention, the speaker highlighted that these anomalies existed in a broad labour relations and human rights system that supported the right to organize, and supported independent workers’ and employers’ organizations. Turning to the legislation in Manitoba, which permitted the imposition of binding arbitration by the Labour Board at the request of one party after 60 days of work stoppage, the speaker underlined that the only requests made in this regard had been from trade unions. In addition, no government in Canada had adopted any legislation which sought to revoke the “Rand formula”. When a proposition in this respect had been made by an opposition party in one province, it had been rejected by the provincial government. The Government would provide further information in response to the Committee of Experts’ observation in its report due in September 2013.

The Employer members acknowledged that, due to the unique federal system in the country, it would be difficult for the federal Government to make demands on the provincial governments regarding compliance with the Convention. It appeared that the Government was doing what was necessary with regard to the application of the Convention. The conclusions of the Conference Committee should focus only on issues raised by the Committee of Experts relating to Canada’s application of the Convention, and not to issues raised by the Committee on Freedom of Association or relating to other Conventions. The Employer members welcomed the Government’s indication that it was interested in ILO technical assistance.

The Worker members indicated that the situation of trade union rights in Canada had further deteriorated. They called on the Government to do everything it could to persuade the provincial authorities to bring their legislation into line with the Convention. They also requested that a list be made of the laws and regulations that needed to be reviewed in light of the Convention.

Conclusions

The Committee noted the information provided by the Government representative and the discussion that followed.

It noted that the comments concerned a number of discrepancies between the law and practice in various provinces, on the one hand, and the Convention, on the other. The 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 Committee took note of the information provided by the Government representative that, while it was true that not all workers in Canadian jurisdictions were covered by industrial relations legislation, they were entitled to join associations of their own choosing. In addition, the Government once again stressed that some inconsistencies raised by the Committee of Experts had not given rise to concerns at the national level. The Government representative referred to initiatives and mechanisms designed to bring the provincial and territorial governments and the social partners together to address ILO and international labour issues and promote implementation of its international obligations. The Committee further noted the Government’s indication that resources for its Preventive Mediation Program were increased in 2011. As for the provinces, the Committee noted with interest: the rejection of the Ontario Bill 115, which imposed contract settlements; the Government of New Brunswick’s indication that it is discussing potential amendments to remove or modify the exclusion of domestic workers from the coverage of the Industrial Relations Act; and the clarification in Saskatchewan labour legislation of the definition of “employee” and the addition of “supervisory employee”.

The Committee did not address the right to strike in this case as the employers do not agree that there is a right to strike recognized in Convention No. 87.

The Committee recalled that certain legislative texts needed to be amended in some provinces with a view to guaranteeing the full application of the Convention. In particular, it stressed the importance of ensuring to all workers, without distinction whatsoever, the right to form and join the organization of their own choosing. It asked the Government to pursue its efforts to bring these matters to the attention of the provincial authorities and expressed the firm expectation that appropriate solutions in conformity with the Convention would be found in the near future in full consultation with the social partners concerned. The Committee requested the Government to provide detailed information in its next report to the Committee of Experts on the measures adopted in this connection.

Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

A Government representative first outlined the main elements of the Canadian labour and human rights system to demonstrate how the principle of freedom of association was recognized and protected in her country. Under Canada’s Constitution, the federal Government, and each of the ten provincial and three territorial governments, had exclusive authority to legislate with respect to labour matters within their respective jurisdictions which meant that the federal jurisdiction only covered about 10 per cent of the workforce. Freedom of association was guaranteed under the Charter of Rights and Freedoms which was part of the Constitution. It was also enshrined in the Canadian Bill of Rights and in Quebec’s Charter of Human Rights and Freedoms, which applied to the Government of Quebec and to the private sector in that Province. Canadian industrial relations legislation guaranteed the workers’ right to join unions and to participate in their lawful activities. The Labour Code and equivalent laws in each jurisdiction ensured not only that the right to organize existed, but also that it was protected. Each jurisdiction had an independent labour board with equal worker and employer representation to administer its labour relations legislation. Bargaining agents and employers concerned had a duty to meet and bargain in good faith. Where good faith bargaining was felt to be absent, a complaint could be made to the appropriate labour board by either party in order to obtain a remedial order. The importance of conciliation and mediation as a means of helping the parties to reach an agreement voluntarily was recognized across the country.

Not all workers in Canadian jurisdictions were covered by industrial relations legislation. It was true, as the ILO supervisory bodies had recalled on various occasions, that groups such as members of the medical, dental, architectural, legal and engineering professions, agricultural workers and privately employed domestics were excluded from coverage under the legislation in some Canadian jurisdictions. However, even where workers were excluded from legislative regimes, they were entitled to join associations of their choosing and negotiate with their employers on a voluntary basis.

She recalled that the autonomy of the various jurisdictions inevitably gave rise to a diversity of provisions that provided opportunities for the Committee of Experts’ to make comments, more so possibly than in a country with a unified labour market. She drew attention to the fact that ensuring full implementation of international labour obligations in a context where the federal Government had the authority to ratify ILO Conventions, but was bound to rely on the provinces and territories to implement their provisions in areas of their exclusive authority, was a challenging task. It was in this context that the federal Government engaged the provinces and territories on a continuous basis with a view to promoting implementation of Canada’s international labour obligations and ensuring that full and transparent information was made available to the ILO supervisory bodies.

The speaker highlighted developments since the Government’s last report was submitted to the Committee of Experts in 2009. She mentioned first that there were questions currently before the Canadian courts related to access to statutory collective bargaining regimes and the scope of freedom of association protection. Of particular interest was the decision of the Supreme Court of Canada which was expected later this year on the constitutionality of the Ontario Agricultural Employees Protection Act, 2002, and collective bargaining rights for agricultural workers. This decision would no doubt have an impact on Canada’s future conformity with Convention No. 87. The Governments of Alberta and Ontario had advised that once the Supreme Court decision was delivered, reviews of its implications would be undertaken and further information would be provided to the Committee of Experts.

The New Brunswick Government had already undertaken discussions on the potential for amendments to the Industrial Relations Act to remove or modify the exclusion for domestic workers as well as the limits to collective bargaining for agricultural workers. In April 2010, a Bill was passed in the New Brunswick Legislature extending collective bargaining rights to casual government employees. With respect to the right of community workers to establish and join organizations of their own choosing, a review was undertaken by the Ontario Government taking into account the Committee of Experts’ observations and recent court decisions on related matters. The review of the 1998 amendments to the Ontario Works Act had been completed and the next steps were being considered by the Government of Ontario. Concerning part-time employees of Ontario colleges, the Government of Ontario was in the process of adopting new legislation which reviewed collective bargaining rights at colleges and recommended extending collective bargaining rights to part-time college workers.

With regard to Quebec, the speaker recalled that the right to freedom of association was enshrined in the Quebec Charter of Human Rights and Freedoms and the Quebec Labour Code. The unionization rate of 40 per cent represented a very high proportion for North America. A total of 8,788 collective agreements were in force, covering almost 1 million employees, mainly in the tertiary sector. In fact, specific provisions had sometimes been adopted to take account of the particular situation of certain groups of workers. Such had been the case in 2009 for female nursery education workers and family-type resources, in respect of which legislative measures had been adopted, providing in particular for recognition of associations representing such persons and the rules of collective bargaining.

The speaker also referred to some inconsistencies identified by the Committee of Experts which nonetheless worked well in the Canadian context and had not raised concerns at the national level. For instance, concerning the Manitoba Public Schools Act, the current system of binding arbitration for collective bargaining disputes had been in place for more than 50 years and none of the interested parties had raised concerns about these provisions. Another example was the provision of Manitoba’s Labour Relations Act on compulsory arbitration to end lengthy work stoppages. This mechanism could only be used where a strike or lockout had lasted for at least 60 days, if the party making the application had bargained sufficiently and seriously, conciliation or mediation had been attempted without success, and the Board had determined that the parties were in a situation of clear deadlock and not likely to conclude a collective agreement within 30 days. In the Government’s view, this was a sensible and balanced approach to resolving lengthy work stoppages and applications under this provision were very rare.

In conclusion, her Government recognized that a number of inconsistencies persisted with respect to Convention No. 87, but considered that significant progress had been made in addressing the Committee of Experts’ comments and that Canada remained committed to observing the Convention.

The Employer members highlighted at the outset that Canada had ratified Convention No. 87 but not the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), nor the Labour Relations (Public Service) Convention, 1978 (No. 151). Consequently, they urged that the present examination would focus only on the ratified Convention. They noted that the federal Government had assumed its obligations under the ILO, whereas criticisms regarding its application of the Convention had historically been directed at legislation enacted by the various provincial governments.

In the interest of time efficiency, the Employer members limited their remarks to the following general observations: (1) while workers in agriculture and horticulture in some provinces, i.e., Alberta and Ontario, were excluded from provincial labour relations legislation, agriculture and horticulture workers in Ontario were expressly included in the Agricultural Employees Protection Act (AEPA); however, the scope of freedom of association protection under this Act was currently before the Supreme Court of Canada and thus, until a decision from the Court, the Conference Committee could not make a conclusion; (2) the exclusion of domestic workers, architects, dentists, land surveyors, lawyers and doctors from statutory protection of freedom of association under the 1995 Labour Relations Act appeared to violate Convention No. 87, as these workers should enjoy the same rights, prerogatives, and means of recourse as others; (3) the Committee on Freedom of Association was not a body mandated to assess compliance with ILO Conventions and thus the Conference Committee should exercise caution when considering their observations on the application of Conventions; (4) the right to organize of university staff in Alberta provided that the appointment of academic staff was conditioned on the prohibition of joining a professional organization, in violation of the Convention; and (5) the trade union monopoly established by law in Prince Edward Island, Nova Scotia and Ontario in the education sector constituted a clear violation of the Convention because it effectively excluded other unions from the possibility of engaging in collective bargaining.

In addition, the Employer members reaffirmed that Convention No. 87 guaranteed neither the right to strike nor certain strike action. Recalling the firm view expressed on this question in this year’s general discussion, they requested that the following observations be clearly set out in the conclusions in this case: Article 11 of the Convention required members to undertake “all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise”; the Conference decided in 1948 that the right to strike was not included in the Convention; the Committee of Experts could not regulate in detail a general right to strike as it was seeking to do in this case; and a “one-size-fits-all” approach to Canada failed to recognize the difference in economic and industrial development throughout its provinces. They made reference to the 1953 General Survey on Conventions Nos 87 and 98, which stated that the object of Convention No. 87 was to define as concisely as possible the principles governing freedom of association, whilst refraining from prescribing any code or model regulations. They further stated that members had the right to define “essential services” and concluded that the Conference Committee was tasked with considering Canada’s application of the Convention and not more.

The Worker members observed that the case of Canada could be summed up as a catalogue of exclusions, exceptions, limitations and derogations from the right to organize, the right to collective bargaining, the right to strike and the exercise of freedom of association in a whole series of provinces. In several provinces, whole categories of workers did not benefit from the exercise of freedom of association, while in others the legal monopoly of a single trade union was set out in law. The right to strike was limited in some provinces to certain sectors or by the imposition of compulsory arbitration after 60 days of work stoppage. In the same way as the Committee of Experts, the Worker members recalled that they considered that the right to strike formed part of the protections afforded by Convention No. 87 and that any restriction on this right should be confined to essential services in the strict sense of the term, and that neither teaching nor the whole of the health sector, and certainly not the whole of the public sector, could be considered as an essential service.

To bring an end to all these restrictions, the federal Government needed to ensure that the provincial governments brought their legislation into conformity with Conventions Nos 87 and 98, but it did not seem to have the power to impose such changes. The federal Government was not guilty, but it had to answer for this failing, while the provincial governments were guilty, but were sheltered from any condemnation. In these circumstances, the 2007 decision by the Supreme Court of Canada could augur a favourable outcome, as it held that freedom of association and collective bargaining were protected by the Canadian Charter of Rights and Freedoms and referred explicitly to Convention No. 87. Certain texts had accordingly been amended, although the changes remained insufficient in view of the substantial number of legislative texts that were contrary to ILO instruments. The whole of the national legal arsenal needed to be re-examined in the light of this decision. This would make it possible to prevent the federal composition of the country in Canada, as elsewhere, becoming a means of circumventing the international treaties that the country had ratified.

The Employer member of Canada thanked the Government for the measures it had taken and processes put in place, like the Advisory Committee on International Labour Affairs, to engage in social dialogue with the social partners regarding labour law, policies, and implementation of international labour objectives. She stated that the Canadian Employers Council did not believe that cases arising under the Committee on Freedom of Association were directly relevant to the consideration of the application of Convention No. 87. She also reminded the Committee that it was only examining Canada’s application of Convention No. 87, and not Convention No. 98, which Canada had not ratified. Moreover, she noted that, contrary to the findings of the Committee of Experts regarding the freedom of association of agricultural workers in certain provinces, these workers in Ontario were granted the statutory right under the Agricultural Employees Protection Act (AEPA) to form and join employees’ associations and the right to protection against interference, coercion and discrimination in the exercise of freedom of association, that this issue was being examined by the Supreme Court of Canada, and that meaningful statutory protections concerning freedom of association could be contained in legislation other than the Labour Relations Act. Finally, she stressed that the Canadian Employers Council shared the view of the Employer spokesperson in this year’s general discussion that the Convention did not contain the right to strike. Thus, a government could regulate strikes and lockouts in accordance with its national requirements and remain in compliance with the Convention. It appeared inappropriate that the Committee of Experts made efforts to regulate in detail the ability to strike under this Convention.

The Worker member of Canada pointed out that, as evidenced by the Committee of Experts’ report, there was little progress with respect to Canada’s compliance with the Convention since provinces continued to violate both the letter and spirit of Convention No. 87. She called upon the Office to undertake a direct contacts mission with a view to discussing the issues raised in the Committee of Experts’ report not only with the federal Government but also with provincial and territorial governments. An ILO mission would be able to observe the constant undermining of the right of freedom of association in Canada and would confirm concerns regarding the many barriers or exclusions affecting numerous categories of workers in direct violation of Articles 2 and 3 of the Convention.

In February 2009, the federal Government released a report with the explicit aim of identifying mechanisms to limit the frequency and duration of work stoppages. Similarly, in November 2009, the federal Government introduced Bill C-61 requiring striking railway workers to return to work, much like another piece of legislation introduced in 2007. A number of provinces had repeatedly manipulated the use of the term “essential services” to prohibit or restrict workers from taking strike action, even in situations without so-called “serious national impact”.

Referring to the landmark decision by the Supreme Court of Canada in 2007 confirming that freedom of association and collective bargaining were protected by the Canadian Charter of Rights and Freedoms, the speaker indicated that what was needed was the undertaking of a comprehensive legal inventory and analysis of Canadian law relative to provincial, territorial and national legislation to identify possible inconsistencies with ILO Conventions. This comprehensive review needed to be a tripartite process involving the social partners, the federal Government and the provinces and territories for defining a legislative agenda for the implementation of new legislation and regulations.

Across Canada, restrictions had been placed on the rights of workers to organize in both public and private sectors. Collective agreements had been sidelined, freely negotiated wages and benefits had been revoked and employer-dictated processes had been legislatively imposed on workers. For example, as noted in the Committee of Experts’ report, in Quebec, collective bargaining was eliminated for public sector workers, the right to strike directly removed, and severe sanctions were imposed on unions and individual workers for contravening the legislation. Saskatchewan public sector workers had effectively had their right to strike removed by expansion of the definition of “essential services” and workers had new restrictions placed on their right to organize. These restrictions on workers traditionally represented by unions were further exacerbated by the restrictions and exclusions placed on other workers such as agricultural and domestic workers and live-in caregivers. Governments had continued to exclude these workers from protections, and where they had made attempts to include them, such as in Quebec for domestic workers, the legislation had restrictions that continued to exclude large numbers and thereby undermined the protections of those who had finally gained some recognition.

The speaker stressed that, in this era of globalization, it was important to establish the credibility of labour standards as a cornerstone of international trade and development. The Government had signed the North American Free Trade Agreement (NAFTA) with Mexico and the United States in 1994. A key feature of NAFTA was the inclusion of the North American Labour Cooperation Agreement, as a side deal, which was promoted as a means of ensuring that there would be no downward pressure on labour standards in North America, but contained very weak provisions for enforcing labour standards, and no provisions for improving labour standards. Yet, clearly, weak enforcement of ILO Conventions within trade agreements was synonymous with adopting a policy of “a race to the bottom” on social standards.

She believed that the way forward to achieve a positive industrial relations climate was for the federal Government to set an example for the provinces and territories through policies and actions that sought to respect ILO Conventions. The ILO should be requested to facilitate such a process by undertaking a direct contacts mission that would help define the terms of reference for a study and a follow-up in a spirit of genuine dialogue and tripartite consensus.

The Worker member of Colombia stated that there could be no doubt of Canada’s failure to comply with its obligations under the Convention and recalled the repeated comments of the Committee of Experts concerning restrictions on certain workers’ exercise of freedom of association, collective bargaining and the right to strike. He indicated that, despite serious violations of the Convention, Canada signed trade agreements in which it undertook to guarantee compliance with the fundamental ILO Conventions, including with countries that, according to him, also failed to meet their obligations under those Conventions, as was the case with his country. He deplored the fact that Canada hid behind provincial autonomy to systematically violate the provisions of the Convention, and called on the Conference Committee to find ways of ensuring that such evasion by certain countries did not continue with impunity. He urged the Government to implement the provisions of the Convention and to guarantee trade union freedoms for all workers, without exception. Lastly, he requested the Committee to call in its conclusions for a mission to be sent to examine the situation and recommend ways to resolve it, and for the Committee to be informed of any activities at the next session of the Conference.

The Government member of Belarus stated that the Committee of Experts had noted the decision of the Supreme Court of Canada that Convention No. 87 was an international legal instrument that was binding on Canada. Unfortunately, the right to freedom of association did not apply to the agricultural workers in Alberta and Ontario. The speaker asked the Government to put pressure on those provincial governments to ensure that the rights of specific groups of workers in those provinces were recognized. The governments in those provinces were not implementing fully the provisions of Convention No. 87, as was noted by the Committee of Experts with regret. It was necessary to ensure that the Convention’s provisions were implemented fully and that the Conference Committee and the ILO assisted the Government in their implementation. He stated that the Committee’s conclusions should address only the federal Government, and not ask the federal Government to bring its influence on local governments.

The Worker member of Sweden observed that specific elements of this case were worrying and that it was clear from the Committee of Experts’ report that the federal structure in Canada was being used as a shield to avoid international obligations arising from its ILO membership. He expressed concern on behalf of the Nordic Trade Union Confederations about such practice and recalled that similar developments were observed within the European Union. All federal entities were founded upon a division of competence and jurisdiction between federal and state levels. It was important, however, that no entity within a federal structure escaped its responsibility to adhere to the core ILO Conventions. The federal Government of Canada could not therefore escape its obligations simply on account of the country’s federal structure. The speaker stated that it was ironic that the federal Government demanded adherence to the ILO’s core Conventions in trade agreements with third countries while provincial governments continued to apply legislation that at times breached ILO core labour standards. He regretted such policy of double standards and stressed the need for appropriate solutions. Perhaps it was time the ILO invited provincial governments directly to participate at the ILO Conference. Thought could also be given to the possibility of a direct contacts mission. At the very least, the federal Government should seek technical assistance from the ILO with a view to familiarizing provincial governments with the obligations arising from ratified international labour Conventions.

Speaking on two points of order, the Employer members objected to any comparisons to, or analogy drawn with, any country which was not in the Committee’s list of cases for discussion and they requested that any such reference be struck from the record. In response to these objections, the Worker member of France and the Worker member of the United States expressed their surprise at the attempted censorship and cautioned against the risk of setting dangerous precedent.

The Worker member of Brazil wished to refer to the situation of domestic workers excluded from the protection afforded by the legislation in relation to freedom of association at a time when the Conference was discussing the adoption of an instrument on this category of workers. The situation was all the more worrying as the provinces concerned indicated that they had no intention of changing the situation, even though those workers were covered by the Convention. In view of the links that existed between the principles of freedom of association, the role played by unions and collective bargaining, the legal restrictions placed on the exercise of collective bargaining by agricultural workers and part-time workers in public colleges in the Province of Ontario were also a cause for concern. As an illustration of the limitations imposed by law on the right of trade unions to defend the interests of their members, he referred to the case of a Brazilian enterprise installed in the Provinces of Newfoundland, Ontario and Manitoba. The workers in the enterprise who had taken part in a strike, following the failure of negotiations for a collective agreement, had been the victims of intimidation and harassment. Legal action had been taken against the union, the enterprise had made use of other workers to replace the striking workers, mediation had not been successful and the enterprise had rejected the union’s request for compulsory arbitration. This was only one example of the numerous enterprises that were in violation of Convention No. 87 in Canada by failing to engage in bargaining in good faith, attempting to go to court against trade union action and restricting access to the machinery that was intended to give effect to the right to strike.

The Government representative thanked the Committee members who participated in the discussion and reiterated her Government’s commitment to the Organization and to full cooperation with the supervisory bodies. She recalled that Canada’s Constitution represented certain challenges for the federal Government due to the fact that it gave authority to provincial governments on labour issues. However, the federal Government was engaged in constant dialogue with the provincial governments through annual meetings and regular tripartite round tables, often with the participation of ILO officials who were invited to explain the scope and content of international labour standards. She concluded by stating that the results of these discussions would be communicated to the Office, and the Committee of Experts would be kept fully informed of all future developments concerning the application of Convention No. 87.

The Worker members emphasized that the Canadian authorities should stop using their country’s institutional structure as a pretext for not implementing the Convention, at the same time ignoring the provisions of the Canadian Charter of Rights and Freedoms and Supreme Court decisions on freedom of association and collective bargaining. The present discussion should form the starting point for a process of positive social dialogue, to include, in the near future, a direct contacts mission to the country to explain to the various courts the exact scope of the principles and provisions set out in Conventions Nos 87 and 98. Subsequently, the entire body of Canadian legislation should be examined in order to identify provisions that were not in conformity with the Convention, with technical assistance from the Office if necessary.

The Employer members cautioned to take careful note of what was said with reference to Convention No. 87 and the adoption of federal, provincial, and territorial legislation on freedom of association and the right to organize. They reiterated that the conclusions should focus on Convention No. 87 only and not issues arising under Convention No. 98, Committee on Freedom of Association cases or trade agreement disputes. They urged the federal Government to ensure that provincial governments fully complied with strict freedom of association and right to organize requirements for the benefit of all workers. They did not, however, consider that an ILO direct contacts mission was a reasonable or proportionate response to the Committee of Experts’ report and categorically objected to such a proposal. They further stated that the Conference Committee’s conclusions should only focus on Canada and not draw comparisons to cases that were not before the Committee, as set out in article 7 of the Standing Orders. Moreover, conclusions should reflect that Convention No. 87 did not embody the right to strike.

The Worker members stressed that they did not intend to open a discussion on the right to strike. However, as the Employer members had raised the issue, the Worker members reaffirmed their interpretation of the right to strike in the context of Convention No. 87. Furthermore, with regard to the Committee’s working methods, it ought to be possible to compare various situations during the examination of certain cases.

Conclusions

The Committee noted the information provided by the Government representative and the discussion that followed.

It noted that the comments of the Committee of Experts related to a number of discrepancies between the laws and practices in various provinces, on the one hand, and the Convention on the other. The 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 Committee took note of the information provided by the Government representative that, while it was true that not all workers in Canadian jurisdictions were covered by industrial relations legislation, they were entitled to join associations of their own choosing. In addition, the Government maintained that some inconsistencies raised by the Committee of Experts actually made sense within the Canadian context and had not raised concerns at the national level. The Government representative further referred to a variety of efforts made by the Federal Government to bring the provincial authorities and the social partners together to review the matters raised, on several occasions with the collaboration of the ILO.

The Committee recalled that certain legislative texts needed to be amended in some provinces with a view to guaranteeing the full application of the Convention. In particular, it stressed the importance of ensuring to all workers, without distinction whatsoever, the right to form and join the organization of their own choosing. The Committee accordingly expressed the firm hope that all the necessary measures would be adopted in the near future to provide full guarantees of the rights set forth in the Convention for all workers. It noted with interest in this regard the general invitation extended by the Government for continuing ILO advice and assistance. The Committee requested the Government to provide detailed information in its next report to the Committee of Experts on the measures adopted in this connection, including as regards developments on appeals before the Supreme Court of Canada.

Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

A Government representative began her presentation by briefly outlining the main elements of the Canadian labour relations system, to demonstrate that, in Canada, freedom of association and the right to organize were both recognized and protected. The Government of Canada wished to emphasize that the principle of freedom of association was enshrined in the Canadian Charter of Rights and Freedoms, which applied to the federal, provincial and territorial governments. The Charter was part of Canada's Constitution, and could only be changed by constitutional amendment. The Canadian Bill of Rights, a statute applicable to the federal Government, also enshrined the principle of freedom of association. Under the Constitution, each of Canada's 14 governments, that is the federal Government, the ten provincial governments and the three territorial governments, had exclusive authority to legislate with respect to labour matters within its own jurisdiction. Most Canadian workers were subject to the labour laws of the provinces, with the federal jurisdiction covering about 10 per cent of the workforce.

Generally, Canadian industrial relations legislation - whether federal, provincial or territorial - guaranteed workers in both the public and private sectors the right to join unions and to participate in their lawful activities. The Canada Labour Code, and equivalent laws in each jurisdiction, ensured not only that the right to organize existed, but also that it was protected. There were provisions to protect workers' and employers' organizations from interference by the other party, and to prohibit unfair labour practices. Mechanisms were in place for the enforcement of these protective measures. Each jurisdiction had labour legislation regulating collective bargaining, and an independent labour relations board with equal worker and employer representation, to administer the legislation. The legislation generally promoted free collective bargaining and recognized the right to strike or lock out. Legislation set out conditions for the exercise of strike and lockout rights and, at the same time, encouraged the parties to engage in meaningful bargaining to achieve an effective collective agreement which would meet their respective socio-economic needs. Bargaining agents and employers concerned had a duty to meet and bargain in good faith. This was understood to mean that they would meet for collective bargaining and make every reasonable effort to conclude a collective agreement. A complaint could be made by either party to the appropriate labour board, where good faith bargaining was felt to be absent, in order to obtain a remedial order. The parties' right to negotiate collective agreements was thus guaranteed in all jurisdictions. The importance of conciliation and mediation as a means of helping the parties to come to an agreement voluntarily was recognized across Canada.

Her Government acknowledged that not all workers in Canadian jurisdictions were covered by collective bargaining legislation. The statutory definitions of employee and bargaining unit and the relevant case law developed on these issues determined who could participate in collective bargaining. Also, as the ILO supervisory bodies had recalled on various occasions, groups such as members of the medical, dental, architectural, legal and engineering professions, when employed in their professional capacity, agricultural workers and privately employed domestics were excluded from coverage under the legislation in a few Canadian jurisdictions. However, even where workers were excluded from legislative regimes, they were entitled to negotiate with their employers on a voluntary basis.

The Government pointed out that, although there was a large consensus among the jurisdictions on the rights of employers and workers within their regime of labour relations, the autonomy of the various jurisdictions gave rise to a diversity of provisions. In the Government's view, this diversity, characterized by each jurisdiction's labour market circumstances, could provide opportunities for Experts' comments, more so possibly than in a country with a unified labour market. Nevertheless, she stressed that governments had both a mandate and a duty in democratic societies, to reconcile legitimate, but divergent interests and conflicting demands for the greater public good. Hence, ensuring full implementation of international labour obligations in a context where the federal Government had the authority to ratify ILO Conventions, but had to rely on the provinces and territories to implement their provisions in areas of their exclusive authority, presented certain challenges. It was in this context that the Government wished to inform this Committee of some of the initiatives undertaken at the federal level to engage the provincial and territorial governments, as well as the social partners, with respect to Canada's international labour obligations.

Canada had always met its reporting obligations in a thorough and timely manner. To achieve this, the International Labour Affairs Unit of Human Resources and Skills Development Canada engaged on a continuous basis with representatives in the provinces and territories, to ensure that full and transparent information was made available to the ILO with respect to ratified Conventions, and that other reporting obligations were met. To further facilitate access to accurate information on Canadian labour laws, the Labour Law Analysis Unit of the Department annually compiled and made available on the Internet a report on all legislative and regulatory changes related to labour issues in all Canadian jurisdictions.

Furthermore, deputy ministers from federal, provincial and territorial departments and agencies responsible for labour met twice a year, in a forum known as the Canadian Association of Administrators of Labour Legislation, or CAALL. ILO issues had always been prominent on the meeting agenda but, in recent years, international labour obligations had become a much greater focus of discussions. In recent years, federal-provincial-territorial ministers responsible for labour had also met annually and, again, Canada's international labour obligations had been discussed. In 2002, the federal Minister of Labour established an Advisory Committee on International Labour Affairs, composed of senior representatives of Canadian workers' and employers' organizations. Since then, the Advisory Committee had examined a wide range of international labour issues, primarily related to the social dimension of globalization and Canada's labour cooperation agreements with its trading partners. At its last meeting, in February 2004, the Advisory Committee's opinion was sought on how the federal Government could more effectively promote the principles of the ILO Declaration in Canada, better engage the provinces and territories with respect to Canada's international labour obligations, and how the social partners could support such initiatives. These were some of the more recent measures which the Government of Canada had undertaken to better engage the provinces and territories with respect to Canada's obligations as a Member of the ILO and, in particular, with respect to implementation of ratified ILO Conventions.

Turning to some of the observations of the Committee of Experts in its report, the speaker first of all indicated that, when Canada submitted its last report on Convention No. 87, an election was under way in the Province of Ontario. As a result, the report did not include developments with respect to the Committee of Experts' observations on a number of issues in that province. The Government therefore wished to inform the Committee of the most recent information provided by the Government of Ontario. The Government of Ontario was currently engaged in a review of its labour and employment law statutes, including the Labour Relations Act. At the most general level, the Government was committed to restoring balance to Ontario's labour relations regime and to working with stakeholders to ensure that the province's labour laws were fair to employees, unions and employers alike. While it was not possible to comment on specifics at this point in time, the Government of Ontario had already made a public commitment to repeal certain provisions that had been serious irritants to organized labour. Developments would be fully reported on in Canada's next report to the Committee of Experts.

With respect to the right to strike of workers in the health sector in the Province of Alberta, the Government of Alberta was responsible for implementing and ensuring compliance with health-care policy. Patients' access to health services and patients' safety could therefore not be compromised. It was the view of the Government that, like police officers and firefighters, health-care employees of regional health authorities provided essential services. In response to the Experts' specific question, the Government of Alberta confirmed that the Labour Relations (Regional Health Authorities Restructuring) Amendment Act did extend the prohibition on strikes and lockouts to all employees and employers within the regional health authorities. This reflected the growing interdependence and integration of health-care delivery within the regional health authorities, where the withholding of services could have potentially life-threatening consequences for Alberta citizens whose legitimate health-care needs needed to be met. The Government of Alberta believed that public health-care employees should have a common, fair, objective and transparent means to resolve labour disputes without jeopardizing public safety, and that the Act provided for this.

With respect to discussions undertaken by the Government of British Columbia with employers and unions in the education sector, in particular regarding dispute settlement regulations or machinery, the Government of British Columbia advised that section 5 of Bill No. 27 (the Education Services Collective Agreement Act) provided for the appointment of a commission to review the structure and procedure of collective bargaining in the education sector. In September 2003, the Minister of Skills, Development and Labour appointed an individual to consult with interested parties and to recommend terms of reference of the review commission. Based on the report, the Minister appointed a one-person commission in December 2003. The commissioner was consulting with groups in the education sector and reviewing procedures used in other jurisdictions to recommend procedures for a new collective bargaining arrangement. It was anticipated that the commission would complete its work by the fall of 2004. Finally, she invited the Deputy Minister of Labour for Newfoundland and Labrador to provide updated information with respect to changes to the Fishing Industry Collective Bargaining Act.

Another Government representative, referring to the Fishing Industry Collective Bargaining Act (Bill No. 31) of Newfoundland and Labrador, informed the Committee of the background to the present case. He said that in 1997, following a 15-week strike in the fishing sector, the Government of Newfoundland and Labrador had indicated to the social partners that the province could not afford to lose such a vital part of its economy in the future and set up a task force to find a peaceful solution in consultation with the social partners. The solution agreed to was the so-called "final offer selection process" (FOS), which the social partners had agreed following a two-year Pilot Project that the process should be set out in legislation, with the provision for either party to opt out of the process every two years. The final offer selection process had been in force since 1998, but last year one of the social partners had opted out, bringing the mechanism to an end. As a consequence, the Fishing Industry Collective Bargaining Act had reverted to its traditional format, which included the right to strike and to lock out. Very recently, the question had arisen once again in relation to a dispute concerning crab fishing. It had been very important to find an amicable collective solution so that the critical period for crab fishing was not missed. It had therefore been incumbent upon all those concerned to find a rapid solution. In conclusion, he reaffirmed the importance attached to ILO-related matters at the annual meeting of Deputy Ministers of Labour as well as the provincial level in Canada and indicated that in Newfoundland and Labrador there was an official concerned solely with ILO matters.

The Worker members stated that, despite the explanations provided by the Government on the application of the Convention, the observation of the Committee of Experts contained a long list of cases concerning violations of the right to organize, the right to strike and the right to collective bargaining. They noted that measures had been taken to resolve these problems, particularly with respect to Newfoundland and Labrador. In the provinces of Alberta, New Brunswick and Ontario, legislation on labour relations did not apply to agricultural or horticultural workers, with the result that workers in this sector did not benefit from protection of the right to organize and to collective bargaining. With respect to the Province of Ontario, domestic workers, architects, dentists, land surveyors, lawyers and doctors were also excluded from the application of this law. However, the governments of these provinces were not considering modifying their legislation, nor was the Government of Ontario, despite a ruling of the Supreme Court of Canada in December 2001, which found that Ontario's impugned provincial legislation was unconstitutional. In certain provinces, workers did not have the right to organize freely. In this respect, in the provinces of Prince Edward Island, Nova Scotia and Alberta, certain laws designated by name the union recognized as the bargaining agent. Finally, in some provinces, workers did not have the right to strike or to collective bargaining. This was the case in Alberta, where certain categories of workers in the hospital sector did not have the right to strike. The adoption of a law in 2003 had not changed the situation. This restriction on exercising the right to strike also applied to personnel who did not provide essential services, such as cooks, porters and gardeners in hospitals. In British Columbia, the right to strike was limited or removed in the health sector. Workers did not benefit from an impartial procedure for resolving disputes, as the final offer of the employer was imposed. In Manitoba, arbitration could be imposed at the request of one of the parties following the expiry of a 60-day period. In Ontario, teachers did not have the right to strike. In Newfoundland and Labrador, Bill No. 31 on collective bargaining in the fishing industry had been amended to allow workers the right to strike in that sector. This enumeration demonstrated the violation of the rights set forth in the Convention, especially in the public education and hospital sectors. These violations should be condemned.

The Employer members observed that the comments of the Committee of Experts addressed various cases of the violation of the principle of freedom of association in several provinces and referred to comments received from the ICFTU. However, they would confine their comments to the general subjects raised, rather than going into details concerning each province. The Employer members noted that workers in agriculture and horticulture were excluded from the coverage of the labour relations legislation and therefore deprived of protection relating to the right to organize and collective bargaining, which was a clear violation of the Convention. The Supreme Court had ruled that the exclusion of agricultural workers was unconstitutional and had instructed the provincial government concerned to amend the legislation in question. Although a bill had been introduced conferring to agricultural workers the right to form or join an association of employees, the Committee of Experts suspected that it did not give them the right to establish and join trade unions and to bargain collectively. The Employer members wondered how the Committee of Experts had come to this conclusion, which did not appear to be based on the indications available. Turning to the trade union monopoly established by law in certain provinces for the education sector, the Employer members said that this constituted a clear violation of the Convention. The designation by name of the union recognized as the bargaining agent had the effect of excluding other unions from the possibility of engaging in collective bargaining. With regard to the right to organize of university staff, the Employer members indicated that the appointment of academic staff under the condition that they could not join a professional association was a violation of the Convention. They noted the statement by the Government representative that elections had taken place in the province concerned and that a further report would be provided by the province on this issue. It would therefore be opportune to await the submission of the new report.

The Employer members observed that all the other issues referred to by the Committee of Experts involved the right to strike and recalled that they did not agree with the conclusions of the Committee of Experts on this matter, as the Convention neither provided for a right to strike, nor guaranteed certain forms of strike action. With regard to the restriction of the right to strike in certain provinces in the case of workers in the health sector, they indicated that, even though the right to strike was not provided for in the Convention, this restriction was not in any case a violation of the Convention, as the effects of a strike in the sector could constitute a serious danger to the health of the population. Moreover, the definition of essential services used by the Committee of Experts was somewhat outdated, as it only took into account specific production sectors. They added that strikes in the education sector concerned not only the parties involved, but society as a whole, in view of the danger that children would be denied education. With regard to the issue of arbitration imposed at the request of one party after 20 days if no solution to industrial action appeared to be possible, the Employer members referred to the 1994 General Survey in which the Committee of Experts did not completely exclude the right of the State to intervene in the collective bargaining process. However, the Government representative had indicated that the Government was prepared to amend the legislation and should therefore be requested to supply the relevant information in a report. Finally, with regard to the issue of the relations between federal and provincial governments, the Employer members recalled that it was the federal Government which had assumed an obligation with regard to the ILO to ensure the application of the Convention. They therefore welcomed the indications provided of the efforts that were being made by the federal Government in this respect. The Government would have to decide whether it was willing to pursue its efforts to apply the Convention, or be the subject of continued criticism by the Committee of Experts. The Government should be requested to provide a report addressing all the issues discussed by the Conference Committee.

The Worker member of Canada indicated that the main interest of the statement made by the Government representative resided in its general aspect. The long list of violations of the Convention contained in the observation made by the Committee of Experts concerned a number of provinces individually or collectively. Canada had only ratified four out of eight fundamental Conventions. Since 1982, Canada had only ratified Convention No. 182, as well as two out of 30 Conventions adopted since that date. A total of 67 complaints, that is three a year, had been submitted to the Committee on Freedom of Association against the federal and provincial governments, and 54 out of 67 complaints had been declared receivable. Of that number, the Committee on Freedom of Association had found that there were violations of the principles set out in the Convention in 40 cases. Three-quarters of the complaints submitted to the Committee on Freedom of Association concerned some 70 laws which had been adopted in Canada since 1982 and which had been or continued to be in violation of the obligations arising from the ratification of the Convention. The cases mentioned in the observation of the Committee of Experts concerned eight provinces out of ten. An additional province would also be cited shortly.

He added that, in addition to the earlier measures taken by the Government of British Columbia to outlaw the right to strike in the health and education sectors, it had continued to use its near legislative monopoly to erode rights, repeal standards and undermine social and economic equity in the province. Its legislative agenda targeted areas including employment standards, training, forest tenure, safety standards, the regulation of private universities and trainers and the governance of the teachers' organizations. For example, the Health Sector Partnerships Agreement Act (Bill No. 94) stipulated that collective agreements could not limit contracting out, thereby fundamentally limiting the ability of trade unions to represent the interests of their members. The Coastal Forest Industry Dispute Settlement Act (Bill No. 99) made collective agreements in force prior to 2003 binding on the trade union and the employer concerned. The University of British Columbia Services Continuation Act (Bill No. 21) authorized the Minister, despite the provisions of the Labour Relations Code, to impose a cooling-off period during which strikes and lockouts were illegal. In Ontario, following a Supreme Court ruling, the response of the Government had been to adopt legislation allowing agricultural workers to make representations to an employer through an employees' association, but did not expressly afford them the rights guaranteed to unions under the Labour Relations Act. Also in Ontario, a proposed change would compel employers to post prominently at the workplace the procedures to be followed for the decertification of trade unions. In conclusion, the speaker noted that, despite the inclusion of the right to freedom of association in the Canadian Charter of Rights, it had to be concluded that provinces such as those mentioned, as well as others, cared nothing about the internationally recognized fundamental rights set out in the Convention and would do everything possible to undermine them. He therefore called for the Government of Canada, with the assistance of the ILO, to ensure that the Convention was implemented and respected in practice.

The Government representative thanked all the speakers and assured them that points made in the discussion would be conveyed to the jurisdictions concerned and that her Government would report any further developments to the Committee of Experts. The Government of Canada also looked forward to further support from the ILO with regard to the application of the Convention.

The Worker members indicated that they had noted the information supplied by the Government, by virtue of which, the federal Government was not competent in labour law, insofar as the provinces exercised competence to legislate on labour issues. However, a member State could not invoke its Constitution and shared competences as an excuse for failing to fulfil its responsibilities. Moreover, the provinces could not simply say that they would not amend their legislation. It was necessary to recall the principles set out in the Convention. First, all workers had the right to establish and join organizations of their own choosing without previous authorization, with the sole possible exception of members of the armed forces and the police. Second, the right to strike was a corollary of the right to organize and any restrictions on the exercise of that right should only concern public servants exercising authority in the name of the State or essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the population. Despite the fact that the Government was making certain efforts to resolve the situation, the Worker members called for a technical mission to Canada to explain to the federal and provincial authorities, especially in the provinces of British Columbia and Ontario, the principles enshrined in the Convention, with the involvement of social partners.

The Employer members observed that the Government representative had referred to all the various matters raised by the Committee of Experts. With regard to the right to strike, they expressed the opinion that no legislative changes were required. Although the Committee of Experts had developed the view over the years that the right to strike derived from the Convention, they recalled that the Conference, as the legislator, had clearly decided in 1948 that the right to strike was not dealt with by the Convention, as indicated in all the preparatory documents. Indeed, during the preparatory work, the majority of member States had indicated that the right to strike should not be addressed within the framework of the Convention.

The Committee noted the information provided by the Government representative and the discussion that followed. The Committee noted that the comments of the Committee of Experts related to a number of discrepancies between the law and practice in various provinces, on the one hand, and the Convention on the other. The Committee noted that the issues that were pending related in particular to the exclusion of agricultural and horticultural workers from the coverage of the labour relations legislation, as a result of which they were denied full protection in relation to freedom of association. Other issues raised by the Committee of Experts related to the explicit designation by the law of a particular trade union as a collective bargaining agent and the rights of teaching staff and workers in the education sector in a number of provinces. The Committee noted the action taken by the federal Government, in cooperation with the ILO, to draw the attention of the provincial governments to the comments of the Committee of Experts. The Committee noted the information provided by the Government on the various measures that were being taken in a number of provinces, particularly in Newfoundland and Labrador, in order to promote the full application of the Convention. It also noted that the provinces were largely sovereign in relation to labour legislation. The Committee nevertheless recalled the need to amend certain legislative texts in different provinces with a view to guaranteeing the full application of the Convention, particularly in relation to the right of association in general and the right to engage in trade union activities in such an important sector as agriculture, which had suffered from restrictions for many years. The Committee accordingly expressed the firm hope that all the necessary measures would be adopted in the near future to provide full guarantees of the rights set forth in the Convention for all workers. The Committee requested the Government to provide detailed information in its next report to the Committee of Experts on the measures adopted in this connection. It requested the Government to continue examining the matters raised with regard to the application of the Convention. It also reminded the Government of the possibility to request technical assistance from the Office in order to facilitate the implementation of the Convention.

Individual Case (CAS) - Discussion: 1999, Publication: 87th ILC session (1999)

A Government representative referring to an International Confederation of Free Trade Union's (ICFTU) document, noted at the outset that the ICFTU recognized in this publication that Canadian workers in both the public and private sectors had freedom of association to enable them to form and join trade unions. In addition, it was noted that Canadian legislation prohibited anti-union discrimination and required employers to reinstate workers fired for union activities, including strikes. He observed that other quotes from the document specified that workers in both the public (except for some police) and the private sectors had the right to organize and bargain collectively in law, although not always in practice and that most workers had the right to strike.

The speaker recalled that Canada recognized the key importance of observing ILO principles on the right to organize and collective bargaining and protecting workers' rights. However, he stressed that governments, including the federal, provincial and territorial governments of Canada, were elected to make decisions and exercise their responsibilities for the welfare of their populations as a whole. Governments had both a mandate and a duty in democratic societies to reconcile legitimate, but divergent, interests and conflicting demands for the greater public good. Referring to the specifics of the Committee of Experts' observation, he recalled that the Canadian Constitution recognized that the provinces had full control over labour relations within their jurisdiction. The information, therefore, provided to the Committee and concerning provincial laws and practices, had been submitted by the provincial governments concerned.

Regarding the experts' observation on the procedure for the designation of "essential employees" under Newfoundland's Public Service Collective Bargaining Act, the speaker indicated that the public consultation process to which the Committee of Experts had referred had been completed. The joint labour and management Working Group of the Economic Advisory Council had submitted a detailed report with recommendations to the government concerned. A copy of the report would be provided to the Committee. The Working Group's recommendations on the issue of designation of essential employees were generally supportive of the provisions in the Public Service Collective Bargaining Act pertaining to essential employees. In addition, an interdepartmental working group of the Newfoundland Government had completed its analysis of the recommendations and is now awaiting final directions. The speaker also specified that in the early 1990's there was some activity at the provincial Labour Relations Board related to establishing the process to designate essential employees. In all instances, labour and management voluntarily came before the Labour Relations Board with a joint agreement on employees to be designated as essential. It appeared that this represented a full endorsement by both labour and management for the existing provisions in the Act. The Newfoundland Government, therefore, did not anticipate having to make further amendments to legislation governing essential employees at this time.

Turning to the right to strike for hospital workers under the Province of Alberta's Public Service Employee Relations Act, he informed the Committee that in Alberta, at approved hospitals as defined by the Minister of Health, employees did not have the right to strike, nor employers the right to lockout. Approved hospitals included acute care facilities, but did not include community health services, mental hospitals and some long-term care facilities. At these other facilities and services, employees did have the right to strike and the employer had the right to lockout. Under the relevant Alberta legislation, the right, or not, to strike/lockout depended more upon the nature of the organization providing the service rather than the type of work which employees performed within the organization. In fact the entire health care system in the province was regionalized about five years ago and although the government currently had no plan to amend its legislation, it continued to monitor how the labour relations framework was working, as service delivery evolved and became more integrated with a regionally coordinated system.

Regarding the Committee of Experts' observation on restrictions on the right to organize in agriculture and horticulture in the Provinces of Alberta, Ontario and New Brunswick the speaker indicated that, as regards Alberta, although primary agriculture farm workers were excluded from coverage under Alberta's labour relations legislation, there were no provisions in the labour legislation which would specifically prohibit any of these workers from voluntary negotiations with employers for whom they might perform services. In this regard, he gave the example of voluntary negotiations held outside the parameters of Alberta labour legislation between the province and the Alberta Medical Association. This group negotiated provincial fee schedules for its member physicians. Also, medical residents who were also excluded from the scope of the collective bargaining general scheme had negotiated terms of employment with the province's teaching hospitals.

As regards Ontario, the speaker stated that there were legitimate reasons for the exclusion of certain employees from statutory bargaining rights under Ontario's Labour Relations Act, but that the excluded workers continued to be free to form voluntary associations or unions outside the statutory collective bargaining regime. The unique characteristics of, and the nature of employment in, the agricultural sector raised serious questions as to the suitability and propriety of the regime of collective bargaining contemplated by the Labour Relations Act, in particular the dispute resolution mechanisms upon which collective bargaining depended, namely the right to strike and lockout, and compulsory arbitration.

As regards New Brunswick's labour relations legislation that a bargaining unit of agricultural workers comprised five or more employees, he stressed that this condition was necessary in order to free small agricultural, family farms from inappropriate legislative requirements.

The speaker expressed his Government's satisfaction at the positive comments made by the Committee of Experts in paragraph 3 of its observation, as regards the adoption of the federal legislation Bill C-19, an Act to amend the Canada Labour Code, and in particular, its prohibition of the use of replacement workers to undermine a union's representational capacity. Finally, he stressed his Government's acknowledgement and will to fully cooperate with the ILO supervisory system with respect to recently arisen cases currently before the Committee on Freedom of Association.

The Worker members expressed their gratitude to the Government for the information provided. They recalled that Canada had ratified the Convention in 1972 and that the Committee of Experts had reported several problems in the application of Articles 2 and 3 of the Convention in a number of provinces. In particular, the Committee had first and foremost requested additional information on the situation in the Province of Newfoundland. The Newfoundland Government had informed the Committee of Experts that it had introduced an effective procedure for the designation of "essential workers" and that the joint labour-employer working group had submitted a report proposing an amendment to the legislation on freedom of association. The Worker members had requested the Government to inform the Committee of Experts on the latest developments in this regard.

The Committee of Experts had also requested additional information from the Government of Alberta in respect of essential services in the health care sector. The Worker members expressed their support for the position clearly established by the Committee of Experts regarding the right to strike and regarding the few situations where this right could be restricted. The Worker members did not intend to discuss the modalities of the right to strike in the context of this case. Furthermore, they pointed out that trade union problems such as those experienced in the field would shortly be raised by the Worker member of Canada. Nevertheless, the Worker members had requested the Government's response to the issues raised by the Committee of Experts and the Government's assurances that the application of its legislation would be in conformity with Article 3 of the Convention, which provides that trade union organizations have the right to formulate their programmes of action. Moreover, the Worker members emphasized that point 3 of the Committee of Experts' report referred to fairly serious violations of Articles 2 and 3 of the Convention in the Provinces of Alberta, New Brunswick and Ontario. In particular, the Worker members criticized the recent laws passed in the Province of Ontario, which blatantly violated the Convention.

The Committee on Freedom of Association had recently received several complaints and it had formulated conclusions in Case No. 1900 regarding the denial of trade union rights to workers in the agricultural and horticultural sectors, kitchen workers, architects, lawyers, doctors and other categories of workers in the Province of Ontario. According to information received, several of these categories of workers had in fact established organizations and had concluded collective agreements. In Case No. 1900, the Committee on Freedom of Association had also noted that the new Act had also had negative repercussions on the right to organize in enterprises which had been bought out or taken over by the construction industry. Moreover, the Committee on Freedom of Association was currently examining Cases Nos. 1951 and 1975 concerning the prohibition on freedom of association for certain categories of workers, such as heads and deputy heads of schools and workers participating in social welfare programmes in the Province of Ontario. In this regard, the Worker members requested the members of the Committee on Freedom of Association to scrutinize the text of Case No. 1900, relative to the denial of trade unions rights to workers in the agricultural and horticultural sectors, to kitchen workers and other categories of workers. The 1995 Act had amended labour relations legislation in Ontario and now excluded categories of workers from essential legislation guaranteeing the effective exercise of the right to organize. The Worker members considered that this constituted an explicit and deliberate denial of a fundamental right and principle. They quoted in this regard the statement made by the Government of Ontario in paragraph 181 of Case No. 1900, referred to by the Committee of Experts: "The Committee notes that the Government considers that a statutory labour relations regime and collective bargaining dispute resolutions mechanisms are inappropriate for agricultural and non-industrial workplaces because of the low profit margins and unstructured, highly personal working relations". The Worker members considered that if this line of reasoning were to be followed, the majority of workers in the world especially in developing countries would be deprived of trade union rights. Moreover, the Government of Ontario had pursued a deliberate policy. Act No. 22, which took effect on 18 December 1998, pursued a specific and explicit objective mentioned as such in the text, namely, the Act denied workers participating in social assistance programmes the right to join trade union organizations. Another Act, dated 1 December 1997, excluded heads and deputy heads of schools from the scope of labour relations legislation and also significantly modified their collective rights. The Government of Ontario and the federal Government had also argued that these categories of workers could enjoy freedom of association under the common law system. However, under the Canadian legal system, freedom of association was ineffective beyond the framework of fundamental labour relations legislation.

In conclusion, the Worker members requested that the conclusions take account of the fact that the fundamental rights and principles were being jeopardized in the Provinces of Alberta, New Brunswick and Ontario. Moreover, they insisted on the importance of Articles 2 and 3 of Convention No. 87, namely, that all workers, without distinction whatsoever, should have the right to establish and join trade union organizations and that these organizations should have the right to formulate their programmes of activity. Finally, the Worker members emphasized that the pertinent legislation should be amended without delay to enable Canada to respect its international obligations with regard to the rights and fundamental principles recognized in Articles 2 and 3 of the core Convention.

The Employer members noted the information provided by the Government representative which supplemented the facts illustrated in the observation by the Committee of Experts. He further noted that a part of the Committee of Experts' comments had highlighted recent legislative developments in the country. The observation, however, contained some aspects with which the Employer members could not agree. He said that the right for workers and employers to establish organizations of their own choosing without previous authorization, including the right to formulate their programmes, as enshrined in Articles 2 and 3 of the Convention, constituted a good point of departure for the comments that had been made by the Committee of Experts. With reference to the situation in Newfoundland, he noted the statement by the Government representative to the effect that the social partners had agreed on the necessary legislative reform process, which had shown that tripartite consultations on the subject had taken place. In this respect, he supported the Committee of Experts' wish to be kept informed of developments in this regard. As regards the Province of Alberta, the situation was different, and the restrictions concerning the right to strike for hospital workers had been imposed by law. However, the strike ban was not applicable to all hospitals but only to some. The speaker referred to the Committee of Experts' point of view on the right to strike, which was considered to be a right substantially deriving from the right to organize and that, therefore, any restriction thereof should be limited to public servants exercising authority in the name of the State or to essential services in the strict sense of the term as defined by the Committee of Experts. In contrast, the Employer members were of the opinion that the State had the right to define the term "essential services". They emphasized that the concept "essential services" could not be understood by a mere reference to the text of Convention No. 87. Although the Committee of Experts might wish to discuss the question whether or not work by kitchen staff, porters and gardeners constituted essential services in hospitals, such a discussion could not be part of a discussion regarding the application of the Convention. With respect to the rather positive observations regarding the adoption of Bill C-19, an Act to amend the Canada Labour Code (Part 1), which according to the experts had brought the legislation into greater conformity with the principle of freedom of association, he thought that in this respect the provisions concerning the right to strike and the right to lock-out had no relevance regarding the implementation of the principle of freedom of association. As regards the right to organize in agriculture and horticulture, they recognized certain lacunae in the law in this respect. However, the question whether or not the right to strike was restricted in this sector was neither a subject related to the Convention nor an issue raised by the Committee in their observation. In conclusion, the speaker recalled that the Employer members had always had a different view than the Worker members regarding the right to strike and that the Employer members agreed to disagree on this point. For this reason, he refrained from once again reiterating the well-known Employer members' argument on the subject. However, the arguments underlying the Employer members' view on the subject would be found in paragraphs 115 to 134 of the 1994 Conference Committee's report as well as explanations regarding the mandate of the Committee of Experts which has existed since 1926.

The Worker member of Canada stated that violations of the Convention in Canada were a persistent reality. To support this statement, he recalled the large number of cases concerning Canada which were brought before the Committee on Freedom of Association (CFA) and in which the CFA adopted conclusions calling on the Government to take measures to comply with the Convention. He regretted that very rarely, if ever, were the conclusions complied with. He recalled that, in 1985, a study and information mission was sent to Canada in view of the numerous cases of violations of basic principles of freedom of association. Ten years later, in 1995, the Government rejected the recommendation of the CFA that it make use of the assistance of the Office, in particular through an advisory mission. Shortly after, Bill No. 7 was introduced in which the Government of Ontario excluded agricultural and domestic workers and certain specified professionals from access to collective bargaining and the right to strike; terminated the existing organizing rights of these workers; nullified their current collective agreements; removed the statutory measures for protection against anti-union discrimination and interference on the part of the employer; removed successor rights and related employers' rights from Crown employees; and eliminated successor employer protection from workers in the building services sector. Bill No. 7 gave rise to an additional case before the CFA (Case No. 1900). In its recommendation on this case, the CFA strongly recommended that necessary measures be taken to ensure that these workers enjoyed the protection necessary to establish and join organizations of their own choosing; to ensure that the right to strike was not denied; to guarantee access for these workers to machinery and procedures which facilitated collective bargaining; to ensure that these workers enjoyed effective protection from anti-union discrimination and employer interference; to ensure that these organizations were re-certified; to revalidate the collective agreements pertaining to agricultural workers and professional employees; to ensure that the right to organize and collective bargaining rights were adequately protected in building services; and to draw the attention of the Committee of Experts to the legislative aspects of this case. The speaker stated that these recommendations had not yet been complied with. On the contrary, in the 309th Report of the CFA (March 1998) the Government indicated that it did not intend to amend the legislation to remove the exclusion of agricultural workers from any such statutory labour relations scheme. The speaker considered that this position was particularly questionable considering that agricultural workers and domestic workers were among the most vulnerable workers and that this type of work was often done by immigrant workers who worked in an environment where decent working conditions did not exist. Underlining the Government's statement that Bill No. 7 had established the appropriate balance of power between unions and employers and had facilitated productive collective bargaining, which the Government views as an important component of its strategy to strengthen the economy and create jobs, the speaker considered that to take away such fundamental rights such as the right to join a union, the right to strike and the right to negotiate from groups of workers was a strange way to establish an appropriate balance of power. The same was true for the Alberta case, where the right to strike was also denied to a group of workers who were not in any essential services in hospitals, such as gardeners.

The speaker noted the oral information provided by the Government as regards the case of Newfoundland and looked forward to examining the report to which the Government referred.

The speaker went on and recalled that, since Case No. 1990, six new complaints had been filed before the CFA. The first concerned Manitoban teachers to whom the right to strike was denied and for whom certain matters were excluded from collective bargaining or from the jurisdiction of interest arbitrators (Case No. 1928 (Manitoba), 310th Report).

The second case dealt with the Government interference in arbitration and labour tribunals (Case No. 1943 (Ontario), 310th and 311th Reports).

The third case in which ILO assistance was recommended concerned the taking away of the principals' and vice-principals' right to organize, to strike and to negotiate; the interference in the collective bargaining process and the elimination of other protections (Case No. 1951 (Ontario)).

The fourth case dealt with a legislation entitled An Act to prevent unionization. This law ensured that people who were on social assistance and forced to work for the State so as to receive their social assistance would not have the right to join a union to be able to negotiate working conditions that used to exist for this type of work. For the speaker, in Canada, "workfare" was a new name introduced so as not to use "forced labour" (Case No. 1975 (Ontario)).

The fifth case concerned a back-to-work legislation introduced to end a strike in the postal service. The law was introduced right at the beginning of the strike to ensure that the right to strike provided by law was not going to be available to the workers. In this case the right to strike was taken away so that workers would have no collective strength to negotiate, the main reason to join a union, and so that the Government could impose to the arbitrator appointed under this legislation, some of the provisions that supported the employers' position. The speaker questioned whether, in this case, the federal Government shared the view of the Ontario Government that taking away the rights of workers recognized by law was an appropriate way to establish a balance of power between unions and employers (Case No. 1985 (federal)).

Lastly, the sixth case also dealt with a back-to-work legislation introduced against the power workers (Case No. 1999 (Saskatchewan)). In addition to these cases, the speaker informed the Committee that, recently, laws taking away the right to strike of workers in Saskatchewan, Newfoundland and at the federal level had been introduced.

The speaker concluded that he supported the position taken by the Worker members. He insisted that the right to strike is part of the collective strength workers are looking for when joining a union. Otherwise, he wondered what would be the incentive to form unions.

The Worker member of the United States expressed his support for comments made by the Worker members and the Worker member of Canada. He indicated that he was compelled to comment on the Canadian case, citing the close trade and investment relationship between the United States and Canada. He pointed out that many of the structures of the labour law regimes of the two countries were very similar, including the system of union certification based on majority worker authorization in defined bargaining units and the system of collective bargaining in the private sector. Additionally, many of the North American trade union structures were based on trade, craft and industry and were known as internationals, with affiliates from both Canada and the United States. Despite these similarities, however, the United States labour movement had also noted critical differences between the two systems. For example, the Canadian provinces had included more expedited bargaining unit representative certification processes, as well as legislation limiting or prohibiting permanent striker replacement. In his view, such differences partly explained the higher degree of worker organization in Canada as opposed to the United States. Therefore, he expressed deep concern with developments in Canadian labour law and practice limiting freedom of association rights for Canadian workers and increasing the possibility of employer interference in the exercise of the rights of workers to organize, strike and collectively bargain. Referring to the Committee of Experts' report as well as to the ICFTU's Annual survey of labour rights, he noted that certain job classifications were being excluded from protection under the labour laws in various Canadian provinces. In Ontario, the labour legislation excluded agricultural workers, domestic workers, architects, dentists, land surveyors, lawyers and doctors from legal guarantees securing workers' rights to organize and bargain collectively. Other categories of workers excluded were contract service workers, such as cleaning crews, food service workers and security guards, in the event of the sale of a business or a change of contractor. Additionally, amendments to the Ontario legislation prohibited workers participating in workfare programmes from forming unions, collectively bargaining or striking, as a condition for receiving welfare benefits. He indicated that this issue was of particular concern to workers in the United States, in light of the welfare reforms in his country. Recent amendments in Ontario labour laws also removed critical anti-scabbing provisions, which allowed employers to permanently replace striking workers. Concerning Alberta's labour legislation, he considered that the report of the Committee of Experts was self-explanatory in addressing Alberta's unreasonable definition of essential services. He referred to recent Canadian jurisprudence which, in finding that Canadian rural letter carriers were independent contractors and not employees, denied those letter carriers the legal guarantees of organizing and collective bargaining. In conclusion, he fully supported the Committee of Experts' comments and urged the Government to take the necessary measures to amend its legislation to bring it into full conformity with the Convention. He underscored that such measures would affect the welfare of all workers in North America.

The Worker member of South Africa initially emphasized the importance of the Convention as a full implementation of this Convention was a key measure of democracy and social justice. Expressing his support for the statements made by the Worker members, he noted with deep concern the fact that agricultural and domestic workers, who were some of the most vulnerable groups of workers, were excluded from the right to exercise their freedom of association. He added that Canadian agricultural workers included a large number of immigrants, who were in particular need of protection. He further noted that the denial of the right to strike of certain employees within public hospitals in Alberta stood in complete contrast with the long-standing practice of the Committee on Freedom of Association. He finally noted with concern the fact that teachers in Manitoba were also denied the right to strike. He strongly urged the federal Government of Canada to ensure that the pertinent domestic legislation be amended to conform with Convention No. 87.

The Worker member of Germany supported the statements made by the Worker members, stating that this case was of fundamental importance with respect to the principles enshrined in the Convention. He recalled that the Committee on Freedom of Association had examined a number of cases in this regard and that it had always expressed great concern regarding restrictions placed on the guarantees secured by the Convention. Commenting on the restrictions imposed on the right to strike by legislation in the Province of Alberta, he pointed out that the comments of the Committee of Experts made clear that no restrictions should be placed on the right to strike. In his view, the Government and the employers should therefore be asked to explain why categories of workers such as kitchen staff and gardeners in the health sector had been deprived of this right. He urged the Government to accept the comments of the Committee of Experts and take immediate steps to bring its legislation into conformity with the provisions of the Convention. Recalling the Employer members' comments on the right to strike in the general discussion and the references thereto today, he noted that many of these arguments were of a historical nature and indicated that the Committee of Experts had adopted an objective and systematic interpretation. Today, the Worker members were celebrating the 50th anniversary of Convention No. 98, just as 1998 had marked the 50th anniversary of Convention No. 87. The case before the Committee, which involved issues concerning freedom of association, collective bargaining and the right to strike, clearly demonstrated that these issues were relevant topics even for industrialized countries. He expressed his hope that Canada would set a positive example for other countries and immediately implement the principles enshrined in the Convention, otherwise the impression could arise that only developing countries were under special pressure to implement ILO Conventions.

The Government member of Australia noted that while certain legislation to which the Committee of Experts had referred appeared not to apply to some categories of workers, the Canadian Government had made the important point that those categories of workers remained free to form voluntary associations and to bargain collectively outside the formal statutory regime. In the Australian Government's view the Committee of Experts' report on the application of Convention No. 87 in Canada did not contain sufficient information that would enable all members of the Conference Committee to give consideration to the issues raised. A much more comprehensive exposition of the issues involved would be required for this Committee to properly consider the matter. He noted that the Committee of Experts' report necessarily contained no considered discussion of any information submitted to it by the Canadian Government and that the Committee of Experts had asked the Canadian Government to provide further information on some issues. In this context, rather than this Committee further examining this matter at this stage, he considered that it would be helpful if the Canadian Government be given the opportunity to present additional information to the Committee of Experts.

The Worker member of Finland, speaking on behalf of the Worker members of the Nordic countries, supported the statements made by the Worker members and the Worker member of Canada. He thanked the Government representative for the information provided. Noting that Canada had ratified the Convention No. 87 but not the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), he expressed interest in the Government representative's statement during the general discussion to the effect that the Government firmly intended to continue the dialogue with the ILO concerning the possible ratification of Convention No. 98. He regretted, however, that such a developed and industrialized country had not been able to comply with the provisions of the Convention, particularly concerning the right to strike and the right to organize and negotiate collectively. He asserted that the violations of the Convention had become a persistent reality in Canada. Noting that some minor legislative amendments had been made in order to bring the Canada Labour Code into closer conformity with the principles of freedom of association, he expressed the hope that the Government would be able to report further positive developments in the near future. The Employer members' persistent questioning of the interpretation of the ILO supervisory bodies concerning the right to strike was raised with concern, as well as the fact that the Government also did not seem to accept such interpretation. He emphasized that the right to strike is a universal right tacitly inferred from the ILO Constitution and from the interpretation of Conventions Nos. 87 and 98 by the Committee of Experts and the Committee on Freedom of Association. The right to strike was recognized not only as a legitimate, but indeed as an essential means available to workers to defend their occupational interests. He was of the view that the interpretations of the ILO supervisory bodies were validly founded upon Articles 3, 8 and 10 of the Convention. He pointed out that, pursuant to Article 8 of the Convention, in exercising the rights under the Convention, the law of the land was to be respected; however, such laws should not impair the guarantees provided for in the Convention. With particular reference to the right to strike of the public sector in the Province of Alberta, he recalled that while a general ban on strikes was in contradiction with the Convention, certain restrictions were permitted including the case of essential services in the strict sense of the term, and public servants exercising authority in the name of the State. In conclusion, he asserted that in this context the law and practice in the Canadian Province of Alberta had not met the requirements set out in the Convention, as interpreted by the supervisory bodies, and called on the Government to take responsibility for what was taking place in the various provinces.

The Worker member of Zimbabwe recalled that the principle of the right to strike was derived from Article 10 of the Convention, which provides that worker organizations may act with a view to furthering and defending the interests of their members. This definition was of fundamental importance as it defined the purpose of such organizations. Furthermore, contrary to what the Employer members seem to believe, essential service workers were defined in the strict sense of the word in the Digest of decisions and principles of the Committee on Freedom of Association. Therefore, there could be no doubt that the kitchen workers, porters and gardeners, referred to in the Alberta Labour Code amendment, did not fall into this category of workers, although they worked in hospitals. Furthermore, the amendment of the New Brunswick Labour Code, which excluded certain categories of workers from protection, constituted a direct violation of the Convention. He, therefore, strongly urged the Government of Canada to take the necessary measures to amend this legislation in order to bring it into full conformity with the principle of freedom of association as observed by the Committee of Experts.

The Worker member of Greece declared that he was stunned by the length of the discussion which had gone on for two hours and which concerned the application of a fundamental Convention by an outstanding country such as Canada. With reference to the observations made by the Employer members, he noted that although States were free to choose the measures taken to implement the Convention, they were still under obligation to ensure compliance with the Convention. Furthermore, as regards the opposition between the right to strike and lockout he noted that in his country lockout had been prohibited since 1982 without any complaints from the employers. According to the speaker, equality between workers and employers could not be measured by the level of recognition of the right to strike or to lockout. One could only talk of equality once workers had acquired the same level of power as employers. Finally, he stressed that Canada should take every measure to ensure that its legislation be brought into conformity with the Convention in order, at the very least, to avoid the embarrassment of the present situation as well as the bad publicity arising from it.

The Government member of South Africa stated that his Government noted with concern the comments by the Committee of Experts in the case of Canada in relation to the Convention. Some five years ago his Government had tackled and resolved the very challenges that the Canadian Government had committed to tackle almost 27 years ago. The South African Government had also recognized that domestic and agricultural workers represented the most vulnerable groups of workers in its society and certainly this would also be true in the case of Canada. His Government urged the Canadian Government to bring its legislation and practice into line with this Convention as soon as possible.

The Government representative thanked all the participants in the debate for their contributions. He assured that each opinion expressed as well as the conclusions of the Committee would be transmitted to the relevant authorities in his country.

The Employer members stated that although they had not shared all the views expressed in discussion regarding freedom of association and collective bargaining, there was a general consensus on the subject and diverging opinions had been expressed only with respect to certain specific questions. Although a fundamental discussion on the right to strike should not be reopened, they noted that the Digest of decisions and principles of the Committee on Freedom of Association (CFA), which had been cited on various occasions, was merely a compilation of comments and observations made by the CFA. In this respect, they considered that the quotation of the Digest had become a self-generating element in discussions on the subject. With reference to the statement by a Worker member of Germany, according to which restrictions on the right to strike had constituted a restriction of a basic right, they were of the opinion that the term "basic right" needed to be defined first. In principle, the Employer members were not against the recognition of the right to take industrial action which included the right to strike and the right to lock-out. However, this right did not derive from the Convention. Recognizing the right to undertake industrial action, the question concerned the legal basis for the right to strike. For further details, reflecting the Employers' general position on the subject, they referred to the 1994 report of the Conference Committee (paragraphs 115 to 134). In conclusion, they emphasized that the Convention was not the legal basis for the right to strike. However, with a view to the divergencies between the Employer and Worker members' opinions on the subject, the Employer members emphasized that existing agreements on the Employer and Worker members' positions regarding most elements of freedom of association should also be pointed out, since the ILO and its member States attached great importance to freedom of association. Moreover, the Government should provide additional information with regard to measures taken in order to bring the legislation into conformity with the provisions of the Convention.

With reference to the observations by the Employer members, the Worker members recalled that all were aware of the differences of opinion between the two groups as regards the right to strike and, in particular, whether it should be included in the scope of freedom of association. Although the Worker members regretted that there had been no progress in this respect this year, they expressed the hope that the Employer members would continue to analyse the situation prevailing in different countries and, in particular, the interpretation of freedom of association given by these countries and what it represented and that the dialogue and exchange of views in this respect should continue within the Committee.

The Committee noted the statement made by the Government representative and the discussion which took place thereafter. The Committee noted with interest the information relating to the establishment of effective procedures for defining "essential workers" undertaken by the Newfoundland Government through tripartite consultations. While noting with interest recent legislative developments relating to the adoption of Bill C-19 amending the Canada Labour Code, the Committee observed that for a number of years the Committee of Experts and the Committee on Freedom of Association had been making comments on a number of issues relating to the application of the Convention. These issues included the excessive restrictions on the right of workers' organizations to formulate their programmes without undue interference from the public authorities resulting from federal and/or provincial legislation. The Committee further noted that labour relations legislation in some Provinces (Alberta, New Brunswick, Ontario) excluded a number of workers from their coverage, including workers in agriculture and horticulture or domestic workers, thereby denying them the protection provided with regard to the right to organize and to negotiate collectively. The present Committee, like the Committee of Experts, stressed that the guarantees provided under the Convention applied to all workers without distinction whatsoever, and that all workers should enjoy the right to establish and join organizations of their own choosing to further and defend their occupational interests. The Committee further stressed that workers' organizations should enjoy the right to formulate their programmes without interference from the public authorities. The Committee expressed the firm hope that the Government would supply a detailed report to the Committee of Experts on the concrete measures taken to bring its legislation and practice into full conformity with the Convention.

Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

A Government representative recalled that the matter raised by the Committee of Experts referred to the implementation of the Convention in the Provinces of Newfoundland and Alberta, and that under the Constitution of Canada the Provinces had exclusive powers in the area of labour affairs within their own jurisdiction. With regard to the situation in Newfoundland the Committee of Experts had referred to Bill 59 which was said to "exclude many workers from the definition of employees". The Committee of Experts had requested that this be amended so as "to allow workers without distinction whatsoever the right to belong to a union of their own choosing". Freedom of association was one of the rights guaranteed by the Constitution of Canada. Consequently, the question raised by the Committee of Experts had to do not with freedom of association but with the granting of certification rights for the purpose of collective bargaining. In this regard, the Committee on Freedom of Association had concluded that the exclusion of public service employees' involved in the development of administration of policies or programmes was not contrary to the principles of freedom of association. Therefore, what the Committee of Experts was referring to had to do firstly with the designation of "essential employees" in the event of a strike and secondly, with the procedures for access to arbitration in the case of disputes involving employees designated as "essential". Both these issues had been under review, as would be seen later. Before this, it must be stated that the observations of the Committee of Experts on the comments made in this respect by the Canadian Labour Congress (CLC) gave the erroneous impression that the Newfoundland public employees' strike had been renewed in September 1986 "because" the work of the Legislative Review Committee had been delayed. As had been outlined in the Government's report this was not the case. In the months following the back-to-work agreement signed in April 1986 the Government had held a number of discussions with the union concerning the establishment of a Legislative Review Committee, and in the course of these discussions it had been agreed by both parties that the Review Committee would not be in a position to start the review process before the autumn of 1986. In August 1986, at the request of the union, negotiations had resumed on the outstanding issue of wage parity between two different collective bargaining units. It was because agreement could not be reached on this issue that the union had resumed the strike. As the Committee of Experts had pointed out, all arrests and charges made in connection with that strike had been made in accordance with due process of law.

The establishment of the Legislative Review Committee to which reference had been made earlier had been approved by the Newfoundland Cabinet the previous autumn, and comprised representatives from various government departments as well as representatives from a number of interested labour organisations. Its mandate was to review the public sector labour relations legislation, including the question of the right to bargain collectively, the right to strike, the exclusions from the definitions of "employee", the procedure for the designation of "essential employee", and the matter of access to an objective arbitration process. Consideration of these matters would address the observation of the ILO supervisory bodies. In the public hearings of the Review Committee interested groups had had the opportunity to make written or oral presentations. The final report and recommendations of the Legislative Review Committee were expected to be ready early in the autumn of 1987.

With regard to the observations of the Committee of Experts concerning the Province of Alberta, the tripartite legislative review initiated by the Government of Alberta was currently in progress. The review was to be conducted in two phases. The first, dealing with the labour relations legislation pertaining to the private sector, was expected to be completed by the spring of 1988. The second phase, dealing with the legislation applying to the public sector, was expected to be concluded approximately one-and-a-half years later. The matters raised by the Committee of Experts would be addressed in this review. Following completion of this review, the tripartite review committee would submit recommendations to the Alberta Minister of Labour for consideration. The speaker indicated that, in accordance with the Government's constant practice, full details on developments relating to the matters raised by the Committee of Experts would be included in the next report on the implementation of this Convention.

The Workers' members noted that the Government representative had given pertinent information on the discussions that had taken place, the preparatory works, the conclusions to be formulated and the projects under way. This information would be brought to the attention of the Committee of Experts. It could be seen that the provincial governments concerned had proceeded with a new consideration of the matters brought up by the Committee of Experts, with particular reference to the trade union affiliation of public servants and employees and their right to strike. The problems at issue had been raised with the Government by a trade union organisation through its comments to the ILO, which showed that the ILO could also contribute to overcoming difficulties in such concrete cases in countries like Canada. The information provided and other information to be submitted should show the way in which the present difficulties could be overcome.

The Employers' members also thanked the Government representative for the full and specific information provided. They recalled that the matters dealt with by the Committee of Experts referred to events that had taken place in two Canadian Provinces, in particular in the context of a dispute concerning the right to freedom of association in the public service. A strike had been called, and at a certain time had been declared illegal, and certain measures had been taken against those leading the strike. This was not a matter of beginning a discussion on the right to strike. The Committee of Experts had not done this either, but pointed out that trade unionists as much as other citizens had to respect the legal order of the country. From the observation of the Committee of Experts and the statement of the Government representative, it appeared that a solution to the questions under consideration could be hoped for in the near future.

The Worker member of Canada thanked the Government representative for her detailed indications. With regard to the observations on Newfoundland, he confirmed that the Joint Legislative Review Committee had indeed been established and that the Newfoundland Association of Public Employees, among other trade union organisations, was represented on it. Satisfaction could be expressed at the somewhat improved climate of consultation in Newfoundland and at the fact that the Government of Newfoundland had now recognised and heeded ILO recommendations. The results of the work of the Legislative Review Committee were awaited, and he shared the hope expressed by the Committee of Experts that the law would be amended "to ensure full conformity with the Convention on the points raised previously by the Committee".

In the case of Alberta, the situation was unfortunately quite the opposite. The situation had remained unchanged since the ILO study and information mission had occurred in September 1985. The Minister of Labour of the Province of Alberta had established a Labour Legislation Review Committee which had visited a number of countries with a view to obtaining information on the practical application of labour legislation. This Committee also heard the opinions of representatives of workers', employers' and other groups in the province. However, its report with recommendations issued in February 1987 had dealt only with the Alberta Labour Relations Act and made scarce mention of the Public Service Employee Relations Act. Only 10 per cent of the members of the Alberta Union of Provincial Employees were employed by agencies funded by the Government of Alberta and thus governed by the Labour Relations Act. This meant that only these members would be affected by the recommendations of the above-mentioned review committee. Some of the specific recommendations were as follows: allowing the use of replacement workers during a strike; denying supporters of a strike who where not members of the bargaining unit on strike the right to demonstrate in support of strikers on the picket line; allowing for decertification of a bargaining unit in which only 40 per cent of the members supported decertification. Clearly, none of these recommendations would enhance the state of labour relations in the Province. The Government of Alberta had not yet proposed any changes to the Public Service Employee Relations Act, nor given any undertaking or indication that it would make the changes necessary to bring the public sector labour legislation into conformity with the recommendations made by the Committee on Freedom of Association in November 1985. In his opinion, the Government of Alberta intended to ignore these recommendations just as it had ignored similar recommendations made in May 1979 and November 1980. The speaker requested the present Committee to remind the Government of Alberta through the Federal Government of Canada of its obligation to comply with the provisions of Convention No. 87, and to request it to submit to the ILO a written report explaining why it had consistently chosen to ignore the recommendations of the Committee on Freedom of Association and the Committee of Experts.

The Government representative of Canada thanked the Worker member of Canada for his comments and said they would be transmitted to the Government of Alberta.

The Committee took note of the discussion that had taken place and in particular of the detailed information supplied by the Government representative. The Committee expressed the hope that the on-going discussion and consultations in the provinces concerned would lead to the removal of the difficulties that had been noted by the present Committee and other bodies regarding the application of the Convention. The Committee also expressed the hope that the Government would report on further developments in this connection, and transmit to the Government of Alberta the observations made during the discussion on the matters relating to that Province.

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

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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.

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

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The Committee notes the observations of the Federally Regulated Employers – Transportation and Communications (FETCO), communicated with the Government’s report, which are of a general nature.

Article 2 of the Convention. Right to organize of certain categories of workers. Province of Alberta. In its previous comments, the Committee noted the exclusion of agricultural workers, as well as budget officers, systems analysts and auditors working in the public sector, from either the Labour Relations Code (LRC) or the Public Service Employee Relations Act (PSERA), and requested the Government to indicate the manner in which these workers could enjoy their right to organize and all guarantees under the Convention. The Committee also noted the Government’s indication that nothing prevented domestic workers from associating and organizing, and requested it to specify under which legislative provisions they could enjoy their right to organize and all guarantees under the Convention. The Committee notes with regret that the Government does not provide any new information in this regard. The Committee once again requests the Government to indicate how agricultural workers, as well as budget officers, systems analysts and auditors working in the public sector, can enjoy their right to organize and all guarantees under the Convention. The Committee also once again requests that the Government specify under which legislative provisions domestic workers may enjoy their right to organize and the guarantees provided by the Convention.

The Committee also noted the exclusion of certain categories of professional employees such as architects, dentists, land surveyors, lawyers, doctors and engineers from the LRC and the PSERA, and requested the Government to confirm that all these categories of workers, from both the public and private sector, could exercise all freedom of association rights under the Convention. The Committee notes the Government’s indication that under the LRC, land surveyors are considered employees, and while the other professional categories are excluded from its scope, these employees still benefit from the right to freedom of association. With respect to workplaces covered by the PSERA, the Government indicates that the above-mentioned categories of workers can apply to the Labour Relations Board to be included in a bargaining unit. Taking due note of the information provided regarding land surveyors and workplaces covered by the PSERA, the Committee requests the Government to indicate the manner in which workers from the other excluded professional categories, such as architects, dentists, lawyers, doctors and engineers, can enjoy the freedom of association rights provided by the Convention in workplaces covered by the LRC.

Province of Ontario. In its previous comments, the Committee noted that agricultural workers were excluded from the Labour Relations Act (LRA), and that the Agricultural Employees’ Protection Act (AEPA) did not clearly state that such employees had the right to join a trade union and did not grant them the right to strike. The Committee requested the Government to gather and provide information on the number of workers represented by an employee association or trade union under the AEPA, and to take any additional measures to guarantee that agricultural workers enjoy the rights recognized in the Convention. The Committee notes the Government’s indication that it considers that the AEPA protects the right of agricultural workers to form associations and does not prohibit them from exercising their freedom to collectively withdraw their services. The Committee notes with regret that the Government on the one hand, does not point to the specific provisions conferring trade union rights to agricultural workers and on the other, states that it does not plan to amend its legislation and does not have the requested data. Recalling that the guarantees under the Convention should apply, in law and in practice, to all workers, including agricultural workers, the Committee once again requests that the Government take the necessary measures to guarantee that this category of workers can benefit from the trade union rights enshrined in the Convention, both in law and practice. The Committee also reiterates its request that the Government collect and compile statistical data on the number of workers represented by an employee association or trade union under the AEPA.

Furthermore, the Committee noted the exclusion of other categories of workers (architects, dentists, land surveyors, lawyers, doctors, engineers, principals and vice-principals in educational establishments, community workers and domestic workers) from the LRA, and invited the Government to ensure that these categories have the rights recognized under the Convention. The Committee notes the Government’s indication that “professional engineer” is defined in section 1 of the LRA and not listed in any excluded category. The Government also states that no changes to the employee exclusions from the LRA were made during 2020-2023, and that labour laws originally enacted for industrial settings are not always suited to non-industrial workplaces, such as private homes and professional offices, which is the case with the above-mentioned categories of workers. The Committee recalls that Article 2 of the Convention applies to all workers, without distinction whatsoever (see the 2012 General Survey on the fundamental Conventions, paragraph 53). While noting the information provided with respect to engineers, the Committee once again invites the Government to take the necessary steps, in consultation with the social partners, to ensure that all other above-mentioned categories of workers benefit from the trade union rights provided by the Convention, both in law and practice.

Province of New Brunswick. The Committee previously expressed the hope that consultations held in 2016 regarding possible amendments to the Employment Standards Act, from which domestic workers were excluded, and an ongoing technical review of the Domestic Workers Convention, 2011 (No. 189), would be finalized in the near future, and that the Government would ensure that domestic workers enjoy the right to organize and other guarantees under the Convention. The Committee notes that the Government indicates that no legislative changes have been made to date, and that Canada’s recent ratification of the Violence and Harassment Convention, 2019 (No. 190), as well as its technical review of the Occupational Safety and Health Convention, 1981 (No. 155), have taken precedence over its technical review of Convention No. 189. The Committee requests the Government to take the necessary measures, including through the possible amendment of the Employment Standards Act, to ensure that domestic workers enjoy all rights under the Convention, and to keep it informed of any progress made in this regard.

Other provinces. Nova Scotia, Prince Edward Island and Saskatchewan. In its previous comments, the Committee noted the exclusion of architects, dentists, land surveyors, doctors and engineers in Nova Scotia, Prince Edward Island and Saskatchewan, as well as the Government’s indication that nothing impedes these categories from associating and organizing. The Committee requested the Government to specify under which legislative provisions these categories of workers enjoy the rights recognized in the Convention. The Committee notes the Government’s indication that: (i) according to section 6-4 of the Saskatchewan Employment Act, employees have the right to organize, form, join or assist in the establishment of a union of their choice, and no provisions exclude the above-mentioned categories of workers from the application of the Act; and (ii) Doctors Nova Scotia is an association that can bargain with the Government of Nova Scotia on behalf of doctors and residents, and a similar association exists in Saskatchewan. While taking due note of the above, the Committee notes that the Government does not provide any information regarding Prince Edward Island. The Committee once again requests the Government to indicate whether there are legislative provisions that expressly allow architects, dentists, land surveyors, doctors and engineers in these provinces to enjoy the rights recognized in the Convention.

The Committee also noted that domestic workers in Saskatchewan faced a practical limitation on organizing as a result of the definition of “employer” in the Saskatchewan Employment Act (defined as “an employer who customarily or actually employs three or more employees”), and invited the Government to ensure that they enjoy the rights provided under the Convention. The Committee notes that the Government does not provide any information in this respect, but also notes from publicly available information that, following an amendment to section 2-1 (g) of the Act in 2020, the definition of “employer” now encompasses “any person who employs one or more employees”. The Committee takes note of this positive development and requests the Government to indicate how domestic workers will now enjoy, in law and in practice, the right to organize under the Convention.

Article 3. Right of employers’ and workers’ organizations to organize their activities and to formulate their programmes. Province of Saskatchewan. Employment Act. The Committee previously pointed out that the definition of “employee” in the Employment Act excluded anyone exercising authority and performing managerial or confidential functions, and that the term “union”, “labour organization” and “strike” were defined with reference to the term “employee”. The Committee 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 the right 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 a substantial proportion of their present or potential membership. It hoped that the Government would bring the Act into full conformity with these considerations, while also requesting it to provide information on the number of employees declared “confidential”. The Committee notes the Government’s indication that the provisions which provided for the exclusion of supervisors from the same bargaining unit as employees were repealed from the Employment Act in January 2022. The Government also states that information on the number of employees declared “confidential” is not collected by the provincial government. Noting with interest the recent amendment to the Employment Act, the Committee requests the Government to indicate whether workers performing confidential functions may now also be allowed in the same bargaining unit as employees.

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

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

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.

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

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.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Article 2 of the Convention. Scope of the Convention. Other categories of workers. The Committee notes 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. It further notes that some provincial governments have 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. The Committee requests the Government to provide its comments thereon 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 requests the Government to provide its comments in this regard.

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 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.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the Canadian Labour Congress (CLC) received on 31 August 2019, concerning issues examined in the present observation.

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. The Committee notes that the Enhanced Protection for Farm and Ranch Workers Act came into effect in January 2018, and that with this act, waged, non-family farm and ranch employees have the same statutory rights as most of the employees in Alberta, regarding the opportunity to be represented by a bargaining agent. 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, both academic and non-academic staff at post-secondary learning institutions have a statutory right to organize and enjoy the freedom of association rights. Regarding the other categories of workers mentioned above, the Government indicates that nothing prevents them from associating and organizing. While noting that nothing impedes architects, dentists, land surveyors, lawyers, doctors, engineers, domestic workers, nursing personnel from associating and organizing, the Committee requests the Government to specify under which legislative provisions the above-mentioned categories enjoy their right to organize as well as other rights recognized 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.

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing. The Committee previously noted the specific reference to the trade union recognized as the bargaining agent in the laws of Prince Edward Island (the Civil Service Act, 1983), Nova Scotia (the Teaching Professions Act) and Ontario (the Education and Teaching Professions Act). In this respect, it noted the indications of the Government that the social partners at the national level had not raised concerns about these long-standing provisions. Noting the Government’s statement that there have been no developments in this respect, the Committee 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. The Committee requests 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. Essential services. Economic Action Plan (Bill C.4). The Committee notes the observations of the Canadian Labour Congress (CLC) that the adoption of the Economic Action Plan Act in 2013 permitted the federal government the exclusive power to determine which services are essential and subsequently restrict strike action. In this respect, it notes the information from the Government that this legislation, with respect to the federal public service: (i) provides the employer the exclusive right to determine which services are essential for the safety or security of the public, and to designate the positions it considers necessary to perform those essential services; and (ii) imposes arbitration as the dispute resolution mechanism in cases where 80 per cent or more of the positions in a bargaining unit are deemed essential. The Committee welcomes the Government’s statement that it announced, in May 2016, its intention to repeal these legislative provisions. The Committee requests the Government to pursue its efforts to ensure that workers in the federal public service not providing essential services in the strict sense of the term or exercising authority in the name of the State are guaranteed the right to strike, and trusts that, pursuant to the Government’s indications, the abovementioned legislative provisions will be repealed. It requests the Government to provide information on the measures taken in this respect.

Back-to-work legislation. The Committee notes the observations of the CLC relating to the use of back-to-work legislation with respect to certain federally regulated industries, particularly the postal service, an airline and a railway service, as well as certain provincially regulated sectors: home support services (in the province of Nova Scotia); the education sector (in the province of Ontario); and the construction section (in the province of Quebec). With respect to the postal service, the Committee notes with interest the information provided by the Government that the Ontario Superior Court of Justice found, in 2016, that back-to-work legislation adopted in 2011 concerning postal workers was unconstitutional for interfering with a meaningful process of collective bargaining. The Committee 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 requests the Government to ensure that recourse is not had to back-to-work legislation in non-essential services or for services not exercising authority in the name of the State, and to limit its interventions to ensuring the observance of any agreed minimum service protocol.

Province of Alberta. Employees in the health sector. The Committee previously requested that measures be taken to ensure the review of the Labour Relations (Regional Health Authorities Restructuring) Amendment Act, which prohibited strikes for all employees within the regional health authorities, including various categories of labourers and gardeners. In this respect, it notes with interest the Act to Implement a Supreme Court Ruling on Essential Services, adopted in 2016, that extended the right to strike to all employees in the health-care sector, provincial government employees, and provincial agencies, boards and commissions, subject to the provision of essential services. It notes in this respect that the Act amends the Labour Relations Code to require that workers performing essential services negotiate an essential services agreement which identifies the services to be maintained in the event of a strike or lockout, the number and classification of employees required to perform those services, and procedures to be followed for responding to emergencies (pursuant to section 8 of the Act).

Province of Manitoba. Education sector. In its previous comments, the Committee referred to the need to amend section 110(1) of the Public School Act, which prohibits teachers from engaging in strike action. It notes in this respect the Government’s indication that no changes are anticipated with respect to the prohibition of strikes by teachers and that neither teachers nor school boards have formally petitioned the Government of Manitoba to restore the right to strike. The Committee recalls that the public education system does not in itself constitute an essential service in the strict sense of the term.  In this respect, the Committee trusts that this matter will be discussed with the social partners concerned and requests the Government to provide information on any new developments in this area.

In its previous comments, the Committee referred to the need to amend section 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. In this respect, the Committee notes that the Labour Relations Act requires the Labour Management Review Committee, an advisory body to the provincial government on labour matters with equal representation from workers and employers, to review, among others, the operation of section 87.1 and report on its findings every two years. The Government indicates that the body completed its review in November 2015, and did not make any recommendations relevant to the application of the Convention. The Committee requests the Government to continue to provide information on the outcome of the biannual reviews undertaken by the Labour Management Review Committee with respect to section 87.1 of the Labour Relations Act.

Province of Nova Scotia. Essential services. The Committee notes the observations of the CLC that the Essential Health and Community Services Act in Nova Scotia takes away the right to industrial action for workers in the health and communities services sector. The Committee notes that pursuant to section 3(1)(a), the Act applies to any employer who employs employees in a bargaining unit to provide health or community services. Pursuant to section 2(f) of the Act, the definition of an essential health or community service includes a service, duty or function that is necessary to enable an employer to prevent or limit: (i) loss of life; (ii) serious harm or damage to or deterioration of the mental or physical health of one or more persons; or (iii) serious harm or damage to or deterioration of property required for the performance of an essential health or community service in relation to subclause (i) or (ii). With respect to section 3(1)(a) of the Act, the Committee recalls that, within essential services, certain categories of employees, such as hospital labourers and gardeners, should not be deprived of the right to strike. With respect to section 2(f), the Committee recalls that the right to strike may be restricted or prohibited only when it is related to essential services in the strict sense of the term, that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee requests the Government to take all appropriate measures to ensure the review of the Essential Health and Community Services Act, in consultation with the social partners, with a view to bringing it into full conformity with the Convention.

Province of Quebec. Public sector. The Committee notes the information provided by the Government, in reply to its previous request concerning the extension of the application of collective agreements in the public sector, that Act No. 43 of 2005 is no longer in force, and that no special acts have been adopted during negotiations with the public sector since 2005.

Province of Saskatchewan. Employment Act. The Committee notes the Government’s indication that the Saskatchewan Employment Act came into force in 2014, establishing that employees are to be in separate bargaining units to those they supervise, unless the employer and union agree to maintain a single bargaining unit. It notes the observations of the CLC that the legislation increased the number of employees who are not eligible for trade union membership by declaring their job duties confidential, and imposed a separate bargaining unit for supervisors. The Committee notes in this respect that, pursuant to section 6-1(1) of the Employment Act, an employee is defined to exclude: (i) a person whose primary responsibility is to exercise authority and perform functions that are of a managerial character; and (ii) a person whose primary duties include activities that are of a confidential nature (in relation to labour relations, business strategic planning, policy advice and budget implementation or planning). The terms “union”, “labour organization” and “strike” in the Act are defined with reference to the term “employee”.

With respect to workers performing functions that are of a managerial character and workers whose duties include functions of a confidential nature, the Committee recalls that it is not necessarily incompatible with the requirements of Article 2 to deny such workers the right to belong to the same trade unions as other workers, but that the categories of such staff 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 a substantial proportion of their present or potential membership. The Committee requests the Government to take all appropriate measures to ensure the review of the Employment Act, in consultation with the social partners, with a view to bringing it into full conformity with the abovementioned principles.

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the observations of the Canadian Labour Congress (CLC) received on 1 September 2016, concerning issues examined in the present observation. The Committee also notes the observations received on 1 September 2014 and 1 September 2016 from the International Organisation of Employers (IOE), which are of a general nature.

Article 2 of the Convention. Right to organize of certain categories of workers. Province of Alberta. Recalling that it previously expressed its concern at the denial of the right to organize of agricultural workers in Alberta, the Committee notes with interest the adoption of the Enhanced Protection for Farm and Ranch Workers Act in 2015. The Act amends the Labour Relations Code to remove the exclusion of agricultural workers from employee status. The Government indicates that the labour relations component of the Act will be proclaimed once further technical discussions occur with unions, workers and employers, in order to identify any specific provisions in the Code that should apply to the agricultural sector and that such discussions are ongoing. Recalling that it previously expressed its concern at the denial of the right to organize of architects, dentists, land surveyors, lawyers, doctors, engineers, domestic workers, nursing personnel and higher educational staff in Alberta, the Committee notes the Government’s statement that the Provincial Government intends to review the Labour Relations Code in 2016–17, including a review of these exclusions. It also indicates that it is in the process of reviewing the Post-secondary Learning Act, with the intention of extending full associational and collective bargaining rights to academic staff at Alberta’s post-secondary institutions. The Committee requests the Government to continue to provide information on the outcome of the technical discussions with respect to the application of the Labour Relations Code to agricultural workers, as well as on the outcome of the review of the Labour Relations Code and the Post-secondary Learning Act with respect to the other categories of workers identified above.

Province of Ontario. (i) Agricultural workers. The Committee once again notes that the Provincial Government does not envisage amending the Agricultural Employees Protection Act, which, as the Committee previously noted, gives agricultural employees the right to form or join an employees’ association, but maintains the exclusion of those workers from the Labour Relations Act and does not provide a right to a statutory collective bargaining regime. It notes the Government’s statement that it does not have any statistics on the number of workers represented by an employee association or trade union, if any, under the Act.

(ii) Architects, dentists, land surveyors, lawyers, doctors, engineers, domestic workers, principals and vice-principals in educational establishments and community workers. The Committee notes the Government’s statement that the exclusions of coverage of the Labour Relations Act will be considered by the ongoing review of Ontario’s labour and employment legislation, which began in 2015.

Other provinces. In addition, the Committee recalls that for many years it has been expressing its concern at the denial of the right to organize to broad categories of workers in the following provinces: New Brunswick (domestic workers); Nova Scotia (architects, dentists, land surveyors, lawyers, doctors, engineers); Prince Edward Island (architects, dentists, land surveyors, lawyers, doctors, engineers); and Saskatchewan (architects, dentists, land surveyors, lawyers, doctors, engineers, domestic workers). In this respect, it notes an absence of information in the Government’s report, in reply to its previous request, on measures taken or envisaged.

The Committee requests the Government to take measures to ensure that all the provincial governments concerned take the necessary measures to guarantee that all the categories of workers mentioned above enjoy the right to establish and join organizations of their own choosing, as well as other rights recognized in the Convention. The Committee requests the Government to provide information on the measures taken in this respect.

Article 3. Right of organizations to freely organize their activities and to formulate their programmes. The Committee previously noted the conclusions and recommendations of the Committee on Freedom of Association with respect to Case No. 2654 (356th Report, paragraphs 361–384) which called upon the provincial authorities to review and amend the Public Service Essential Services Act and the Act to amend the Trade Union Act of the province of Saskatchewan, and it requested information on developments in this respect.

The Committee notes with satisfaction the information provided by the Government that in 2015 the Supreme Court of Canada established, in a trilogy of cases, that the scope of constitutional protection of workers’ rights under section 2(d) of the Constitution (concerning freedom of association) protects the right of employees to join a trade union of their choosing that is independent of management; engage in a meaningful process of collective bargaining, which requires good faith labour–management dialogue; and engage in strike action, within certain limits.

Province of Saskatchewan. The Committee notes that the Court found, in this respect, the Public Service Essential Services Act to be unconstitutional. It notes with satisfaction that the Provincial Government of Saskatchewan subsequently adopted, in 2016, amendments to the Act, and that these amendments were in accordance with the Committee’s previous request.

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

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 2 of the Convention. The Committee recalls that its previous comments concerned the specific reference to the trade union recognized as the bargaining agent in the law of Prince Edward Island (the Civil Service Act, 1983), of Nova Scotia (the Teaching Professions Act) and of Ontario (the Education and Teaching Professions Act). In this respect, the Committee notes that a Government representative stated at the Conference Committee on the Application of Standards that the social partners at the national level had not raised concerns about these long-standing provisions. Furthermore, the Committee notes that, according to the International Organisation of Employers (IOE) and the Canadian Employers’ Council (CEC), the Supreme Court of Canada has acknowledged that the protection of freedom of association does not require the provincial governments to adopt a specific model of industrial relations or particular regulations on the matter. On the contrary, these governments are entrusted with a broad measure of discretion with respect to industrial relations regimes, provided that these guarantee employees the right to make representations to the employers and that these representations are considered by the employers to be in good faith. In this respect, the question of the link between freedom of association and trade union monopoly was examined very recently by the Court of Appeal for Ontario, which concluded (Mounted Police Association of Ontario v. Attorney General of Canada case, 2012) that such a monopoly did not infringe the freedom of association of workers, as long as the model of industrial relations in question was in conformity with the constitutional requirements established by the Supreme Court.

In these circumstances, while noting all the information provided, the Committee is still of the opinion 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 a provision and replace it with, for example, a reference to the most representative organization. The Committee asks the Government to ensure that the respective provincial governments engage in discussions on this matter with the social partners, and to report on the outcome of these discussions.

Article 3. Right of employers’ and workers’ organizations to organize their activities and to formulate their programmes. Province of Alberta. Employees in the health sector. The Committee recalls that workers in the health-care sector who do not provide essential services in the strict sense of the term (such as gardeners and daily workers, etc.) should enjoy the right to strike. The Committee asks the Government to ensure that the Government of Alberta takes the necessary steps to review the Labour Relations (Regional Health Authorities Restructuring) Amendment Act in this respect in consultation with the social partners.

Province of Manitoba. Education sector. The Committee recalls that its previous comments referred to the need to amend section 110(1) of the Public School Act, which prohibits teachers from engaging in strike action. The Committee notes the Government’s indication that no teachers’ trade union or school board has raised any question on these provisions. The Committee, while observing that some services provided in the education sector might be considered essential (for example, providing food for school-age children and cleaning of school buildings), is of the opinion that the public education system does not in itself constitute an essential service in the strict sense of the term. In this respect, the Committee trusts that this matter will be discussed with the social partners concerned and requests the Government to provide information on any new developments in this area.

The Committee also recalls that its previous comments concerned the need to amend section 87.1(1) of the Labour Relations Act of Manitoba. The Committee notes the Government’s statement at the Conference Committee on the Application of Standards to the effect that section 87.4 of the Act requires the Labour Management Review Committee to review the application of this section every two years and to provide a report on its findings. The Committee requests the Government to provide information on any conclusions reached by the review committee in question.

Province of Quebec. Public sector. The Committee recalls that its previous comments referred to Act No. 43 of 15 December 2005 concerning working conditions in the public sector, which put an end, in a unilateral manner, to negotiations in the public sector by imposing the extension of the application of collective agreements up to 2010, thereby 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). The Committee notes that, according to the Government, the Superior Court of the Province ruled on 10 January 2013 regarding Act No. 43 that there had been no infringement of freedom of association, adding that even if there had been an infringement with respect to the obligation to negotiate in good faith or to banning a strike, this would have been justified. According to the Government, the trade union complainants did not appeal against this ruling. Taking into account that by Act No. 43 the collective agreement had been extended until 2010, the Committee trusts that the social partners in the public sector enjoy henceforth all rights enshrined in the Convention. The Committee requests the Government to confirm this presumption and the fact that Act No. 43 is no longer in force.

Province of Saskatchewan. Public Service Essential Services Act and the Act amending the Trade Union Act. The Committee recalls that its previous comments referred to the Public Service Essential Services Act (Bill No. 5) and the Act to amend the Trade Union Act (Bill No. 6), which had been adopted by the Government of Saskatchewan in May 2008. The Committee notes the Government’s indication that the Court of Appeal of the Province ruled that both Bills were constitutional. However, the Government of Saskatchewan is in the process of reviewing its legislation on essential services to meet the concerns of the trade unions and employers in the public sector. The Committee asks the Government to provide information on any further developments concerning the process embarked upon by the Government of Saskatchewan, while recalling in this respect the conclusions and recommendations of the Committee on Freedom of Association concerning the amendments to be made.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes the comments received in 2013 from the International Trade Union Confederation (ITUC), the International Organisation of Employers (IOE) and the Canadian Employers’ Council (CEC) on all the legislative issues already under review.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 102nd Session, June 2013)

The Committee notes the discussion on the application of the Convention by Canada at the Committee on the Application of Standards at the International Labour Conference (June 2013). It particularly takes note of the conclusions adopted, in which the Government was asked to pursue its efforts to bring to the attention of some provincial authorities the need to amend certain legislative texts to find solutions in conformity with the Convention in full consultation with the social partners, and to provide this Committee with detailed information on the measures adopted in this connection.

Article 2 of the Convention. Right to organize of certain categories of workers. The Committee recalls that for many years it has been expressing its concern at the denial of the right to organize to broad categories of workers in the following provinces.

Province of Alberta. (i) Agricultural workers. The Committee notes that the Government of the Province of Alberta is still measuring the impact of the 2011 ruling of the Supreme Court of Canada in the case Ontario (Attorney-General) v. Fraser on the jurisprudence of courts dealing with similar cases before deciding on any possible measures to take. (ii) Architects, dentists, land surveyors, lawyers, doctors, engineers, domestic workers, nursing personnel, higher educational staff. The Committee notes with regret that the provincial Government is not planning any measures to recognize the right of these categories of workers to establish and join organizations of their own choosing.

Province of Prince Edward Island. Architects, dentists, land surveyors, lawyers, doctors, engineers. The Committee notes that the provincial Government does not envisage reviewing its legislation.

Province of New Brunswick. Domestic workers. The Committee notes that the provincial Government is continuing consultations with stakeholders regarding potential amendments to the Industrial Relations Act to remove the exclusion of domestic workers.

Province of Nova Scotia. Architects, dentists, land surveyors, lawyers, doctors, engineers. The Committee notes the lack of any information on measures taken or envisaged.

Province of Ontario. (i) Agricultural workers. The Committee notes that the provincial Government does not envisage amending the Agricultural Employees Protection Act, that it does not have any statistics on the number of workers represented by the trade unions in the agricultural sector in Ontario, and that no complaint from trade unions calling for their rights under the Convention have been registered. The Committee wishes to recall that the issue was the subject of a complaint lodged with the Committee on Freedom of Association (Case No. 2704). (ii) Architects, dentists, land surveyors, lawyers, doctors, engineers, domestic workers, principals and vice-principals in educational establishments and community workers. The Committee notes that the Government does not envisage amending its legislation.

Province of Saskatchewan. Architects, dentists, land surveyors, lawyers, doctors, engineers, domestic workers. The Committee notes the provincial Government’s observations of a general nature concerning the consolidation of the Saskatchewan Employment Act in May 2013 and its impact on the determination of the term “employee”.

The Committee notes the general comments from the IOE and CEC to the effect that, given the diversity of the forms of employment in Canada, it is necessary and appropriate to accept the exclusion of certain categories of workers from the coverage of overall labour relations legislation in favour of specific schemes that take more account of the nature of the jobs concerned.

The Committee, taking account of all the information provided, trusts that the Government will ensure that all the provincial governments concerned take all necessary measures to guarantee that all the categories of workers mentioned above enjoy the right to establish and join organizations of their own choosing, as well as other rights recognized in the Convention.

Article 3. Right of employers’ and workers’ organizations to organize their activities and to formulate their programmes. The Committee has referred in the past to matters linked to the right to strike in certain provinces, which have also been examined by the Committee on Freedom of Association. Taking into account the information submitted by the Government, the Committee will examine these matters in more detail in its direct request.

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

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the comments made by the International Organisation of Employers (IOE) on the right to strike, in a communication dated 29 August 2012, which are dealt with in the General Report of the Committee.

The Committee also notes the comments of the International Trade Union Confederation (ITUC), dated 31 July 2012, the Canadian Labour Congress (CLC), dated 27 August 2012, and the Confederation of National Trade Unions (CNTU), dated 31 August 2012, which relate to all the issues under examination. The Committee also notes the allegations of the ITUC and the CLC that there are increasing numbers of violations of trade union rights in Canada, and in particular that there is much evidence that violations of freedom of association have become the norm for the Federal Government. They also denounce the slowness of provincial authorities in giving effect to the recommendations of the Committee in relation to freedom of association, even though the Canadian Constitution entrusts them with primary responsibility in relation to labour legislation. The Committee requests the Government to provide its observations in reply to the allegations of the ITUC, the CLC and the CNTU.

Article 2 of the Convention. Right to organize of certain categories of workers. The Committee recalls that for many years it has been expressing concern at the exclusion of broad categories of workers from the statutory protection of freedom of association.

Workers in agriculture and horticulture (Alberta and Ontario). The Committee noted in 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 are thereby deprived of the same statutory protection of the right to organize afforded to other workers. The Government referred to the ruling of the Supreme Court of Canada of 29 April 2011 in the case 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 the rights of farm workers under subsection 2(d) of the Canadian Charter of Rights and Freedoms. The ruling found that the AEPA provides a meaningful process for agricultural workers in Ontario to bargain collectively, and therefore upheld the AEPA as constitutional.

The Committee recalls that in its previous comments it emphasized that, although the AEPA recognizes the right of agricultural employees to form or join an employees’ association, it however maintains the exclusion of this category of workers from the scope of the Labour Relations Act. The Committee notes the indication in the Government’s report that the Ontario Government still considers that the AEPA provides adequate protection to this category of workers, particularly to form associations, represent their interests and exercise their constitutionally protected rights. The Ontario Government indicates: (1) that if properly interpreted, the Act requires agricultural employers to consider workers’ representations, issues and concerns in good faith; and (2) that it does not intend to amend the legislation.

The Committee also recalls that it noted previously that the Government of Alberta did not envisage reviewing its legislation following the decision of the Supreme Court concerning Ontario’s AEPA. Noting the absence of information in this regard in the Government’s report, the Committee understands that the position of the Government of Alberta has not changed on this point. Noting the comments of the ITUC and the CLC, which denounce the status quo on this matter, 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, the Committee considers that 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. The Committee consequently once again requests the Government to ensure that the Governments of Alberta and Ontario 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. The Committee also once again requests the Government to provide detailed information and statistics on the number of workers represented by trade unions in the agricultural sector in Ontario and, where appropriate, on the number of complaints lodged to assert the exercise of their rights under the Convention and on any related follow-up action taken.

Domestic workers, architects, dentists, land surveyors, lawyers and doctors (Ontario, Alberta, New Brunswick, Nova Scotia, Prince Edward Island and Saskatchewan). The Committee recalls that its previous comments related to the need to ensure that a number of categories of workers excluded from any statutory protection of freedom of association under the labour relations legislation (domestic workers, architects, dentists, land surveyors, lawyers, engineers and doctors) enjoy the protection necessary, either through a revision of the labour relations legislation or by means of specific regulations, to establish and join organizations of their own choosing.

With regard to the situation of domestic workers, the Committee notes the indication by the Government of New Brunswick that it is continuing consultations with stakeholders regarding potential amendments to the Industrial Relations Act to remove the exclusion of domestic workers. The Committee also notes that the Government of Prince Edward Island indicates that domestic workers are covered under the Labour Act. The Committee notes that the Government’s report does not contain any information with regard to the Governments of Ontario or Alberta on whether any amendment to the legislation is envisaged to remove the exclusion of domestic workers from the scope of industrial relations legislation.

With regard to the other categories, including architects, dentists, land surveyors, lawyers, doctors and engineers, the Committee notes the indication by the Government of New Brunswick that the Industrial Relations Act does not contain exclusions for architects, dentists, land surveyors, lawyers, doctors or engineers. The Committee notes the indication by the Government of Prince Edward Island that architects, engineers, lawyers and doctors who are entitled to practice and who are employed in a professional capacity are excluded from the Labour Act, but that their interests are represented by their associations. With regard to Saskatchewan, the Committee notes the indication by the Government of the Province that in May 2012 it began a comprehensive review of its labour legislation, including the labour relations legislation. The objective of the review is to modernize and simplify the legislation, including a possible revision of the definition of the terms “employer” and “employee”, which will help to identify more accurately the relations between employees and employers within the meaning of the definitions.

Taking duly into account the information provided, the Committee requests the Government to ensure that the Governments of Alberta, Nova Scotia, Ontario and Prince Edward Island take the necessary measures to guarantee that architects, dentists, land surveyors, lawyers, doctors and engineers enjoy the right to establish and join organizations of their own choosing, in accordance with the principles of the Convention. The Committee also requests the Government to indicate in its next report the outcome of the examination undertaken by the Government of the Province Saskatchewan on its labour legislation and its impact in terms of determining the categories of workers which can establish organizations of their own choosing under the terms of the Trade Union Act.

The Committee also trusts that the Government’s next report will include information on the tangible measures adopted or envisaged by the Governments of Ontario and Alberta to amend their legislation in relation to the exclusion of domestic workers from the scope of their labour relations legislation. The Committee hopes that the Government will also report progress in the revision of the Industrial Relations Act of the Province of New Brunswick with a view to removing the exclusion of domestic workers.

Nurse practitioners (Alberta). In its previous comments, the Committee noted that, under the terms of the Labour Relations (Regional Health Authorities Restructuring) Amendment Act of the Province of Alberta, nurse practitioners do not have the right to establish and join organizations of their choosing. Noting that the Government’s report does not contain any information on this subject, the Committee urges the Government to ensure that the Government of Alberta takes the necessary measures to amend the above Act so that nurse practitioners have the right to establish and join organizations of their own choosing, in accordance with the principles of Article 2 of the Convention.

Principals and vice-principals in educational establishments and community workers (Ontario). The Committee recalls its previous comments concerning 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 of the Committee on Freedom of Association in Cases Nos 1951 and 1975. The Committee notes that the Government’s report does not contain any information on this point. The Committee trusts that the Government’s next report will contain information on the progress achieved in law and practice by the Government of Ontario in ensuring that principals and vice-principals in educational establishments, and community workers, enjoy the fundamental right to establish and join organizations of their own choosing for the defence of their professional interests.

Part-time employees of public colleges (Ontario). In its previous comments, the Committee noted the entry into force of the amended Colleges Collective Bargaining Act (CCBA), which gives part-time academic staff and support staff in the colleges of Ontario the full right to organize and to bargain collectively. The Committee also noted that the same Act establishes a procedure to change, establish or eliminate bargaining units, including the possibility for colleges to challenge the number of union members holding cards, which the colleges allegedly use widely to delay the certification process. In this respect, the Ontario Public Service Employees’ Union had filed certification applications to represent both part-time academic staff and part-time support staff units. In both cases, representation votes had been held and the ballot boxes had been sealed pending a decision by the Ontario Labour Relations Board (OLRB) concerning the issues that remained at dispute between the parties.

The Committee notes the Government’s indication that, on 27 March 2012, the OLRB noted that the parties had reached agreement on the outstanding challenges in respect of one college (Centennial College), and that the parties had asked the OLRB to confirm the agreement and to determine a timeline as to how to move forward to deal with the challenges in relation to other colleges. The process and timeline for moving forward are reported to have been agreed. The Government of Ontario emphasizes the importance of the adjudicative role played by the OLRB in the process of certification established by law and considers that it would be inappropriate to interfere with or influence the procedure. It adds that this position is shared by the National Union of Public and General Employees. Noting the positive developments in the treatment of this matter, the Committee requests the Government to indicate any further developments in this regard.

Education workers (Alberta). The Committee recalls that its previous comments concerned the need to amend the provisions of the Post-Secondary Learning Act which empower the board of a public post-secondary institution to designate categories of employees who are allowed, by law, as academic staff members, to establish and join a professional association for the defence of their interests. Noting that the Government’s report does not contain any information on this point, the Committee once again requests it to ensure that the Government of Alberta takes all the necessary measures to ensure that all higher education staff without exception have the right to organize.

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 (the Teaching Professions Act), Ontario (the Education and Teaching Professions Act) and Prince Edward Island (the Civil Service Act, 1983). Noting that the Government’s report does not contain any information on this matter, the Committee once again requests 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 on which the Convention is based by removing any specific designation of individual trade unions as bargaining agents and replacing it with a neutral reference to the most representative organization.

Article 3. Right of employers’ and workers’ organizations to organize their activities and to formulate their programmes. Education sector. The Committee’s previous comments concerned the recurrent problems in the exercise of the right to strike by workers in the education sector in several provinces (British Columbia and Manitoba). The Committee also notes the allegations of the CLC dated 31 August 2012 that the Government of Ontario announced that it would introduce a bill against education workers and school boards that would block any possible strike for up to two years and end all negotiations, particularly on teachers’ wages. The Committee requests the Government to provide its observations in reply to these allegations.

British Columbia. The Committee previously requested information on any decision by the Labour Relations Board of British Columbia with regard to essential service levels in the education sector. The Committee notes the interim order issued on 28 February 2012 by the Labour Relations Board on an application by the British Columbia Teachers Federation (BCTF), which found as follows: (1) the British Columbia Public School Employers’ Association (BCPSA) and the BCTF will work with the Board to designate essential service levels for the BCTF bargaining unit; (2) the interim order will be reviewed on a weekly basis commencing at the beginning of the week of 12 March 2012, and may be varied, modified or amended as the circumstances require and the Board finds to be appropriate; and (3) any issue relating to the application or interpretation of the interim order will be raised as soon as possible and will be dealt with by the Board as expeditiously as possible.

With regard to the discussions between the Government of the Province and the BCTF concerning the Public Education, Flexibility and Choice Act, the Committee notes the Government’s indication that these discussions were held between May and November 2011, and that the Government subsequently introduced the Education Improvement Act (Bill No. 22) in February 2012, which was adopted in March 2012. The Committee notes all of this information.

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 notes once again that the Government does not envisage amending the Public School Act. The Government adds that teachers in the Province voluntarily gave up the right to strike in 1956 in exchange for binding arbitration, and that neither teachers nor school boards have formally petitioned the Manitoba Government to restore the right to strike to teachers. The Act currently provides for a process of arbitration in resolving collective bargaining disputes. Recalling that the right to strike should not be restricted for teachers, the Committee requests the Government to ensure that the Government of Manitoba takes the necessary measures to amend the Public School Act accordingly.

Certain categories of employees in the health sector (Alberta). The Committee’s previous comments concerned the prohibition of strikes for all employees within the regional health authorities, including various categories of labourers and even gardeners governed by the Labour Relations (Regional Health Authorities Restructuring) Amendment Act. The Committee notes that the Government’s report does not contain any information on this subject and requests it to ensure that the Government of Alberta takes the necessary measures to ensure that all workers in the health sector who are not providing essential services in the strict sense of the term are guaranteed the right to strike.

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 the application of collective agreements for a determined period, thereby 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). The Committee also requested the Government to amend the following provisions: (1) section 30, which establishes severe and disproportionate sanctions in the event of infringements 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); (2) section 32, which provides for a reduction of employees’ salaries by an amount equal to the salary that they would have received for any period during which they are in infringement of the Act, in addition to not being paid during that period; and (3) section 38, which prohibits the facilitation of class actions against an association of employees by reducing the conditions required by the Code of Civil Procedure for such an action; and (4) sections 39 and 40, which establish severe penal sanctions.

The Committee notes the Government’s indication that the Act is still subject of litigation before the courts of the Province and that the Government of Quebec therefore reserves its comments until the courts have issued their decisions. The Committee requests the Government to provide full particulars on the decisions of the provincial courts, and the action taken as a result, and hopes that the amendments will be made as requested.

Arbitration imposed at the request of one party after 60 days of work stoppage (section 87.1(1) of the Labour Relations Act) (Manitoba). The Committee recalls that its previous comments concerned the need to amend section 87.1(1) of 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 when a work stoppage has exceeded 60 days. The Committee notes the Government’s indication that no changes are anticipated in the Labour Relations Act. The Committee once again requests the Government to ensure that the Government of the Province of Manitoba takes the necessary measures to amend the above Act so 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.

Compliance of the Public Service Essential Services Act and of the Act to amend the Trade Union Act of the Province of Saskatchewan. The Committee recalls that its previous comments concerned the Public Service Essential Services Act (Bill No. 5) and the Act to amend the Trade Union Act (Bill No. 6), which were adopted by the Government of Saskatchewan in May 2008. The Committee also observed that these texts were the subject of a complaint before the Committee on Freedom of Association (CFA) (Case No. 2654), and it referred to the March 2010 conclusions and recommendations of the CFA, which drew the attention of the Committee to the legislative aspects of the case. The Committee recalls that, in accordance with the recommendations of the CFA, the provincial authorities are called upon, in consultation with the social partners; (1) to amend the Public Service Essential Services Act (Bill No. 5) so as to ensure that the Labour Relations Board may examine all aspects relating to the determination of an essential service and act rapidly in the event of a challenge arising in the midst of a broader labour dispute; (2) to amend the Public Service Essential Services Act, which sets out a list of prescribed essential services; (3) to make compensatory guarantees available to workers whose right to strike may be restricted or prohibited under the Public Service Essential Services Act; and (4) to amend the Trade Union Act (Bill No. 6), so as to lower the requirement, set at 45 per cent, for the minimum number of employees required to express support for a trade union in order to begin the process of a certification election.

The Committee noted previously that a number of national and provincial trade unions had filed a complaint with 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 the international Conventions ratified by Canada. The Committee notes the Government’s indication that the Court of Queen’s Bench for Saskatchewan rendered a decision on 6 February 2012 on the bills. With regard to Bill No. 6, the court found that the amendments were constitutional and, consequently, the Government of Saskatchewan has no intention of changing the amendments made to the Act in 2008. With regard to Bill No. 5, the court found that the amendments were unconstitutional and that the legislation as written infringes upon freedom of association by limiting the right to strike. The Committee notes the indication that the Government of Saskatchewan is appealing the decision of the court and therefore notes that the matter is once again before the courts. The Committee refers to the conclusions of the CFA regarding the need to amend the Trade Union Act, as amended by Bill No. 6, and requests the Government to provide information on any decision taken by the competent jurisdiction concerning the appeal made by the Government of Saskatchewan against the finding that the Public Service Essential Services Act (Bill No. 5) is unconstitutional, and any action taken as a result, taking into account the recommendations of the CFA concerning the amendments to be made to that Act.

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

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.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee takes note of the comments from the International Trade Unions Confederation (ITUC) dated 30 September 2008 and 26 August 2009, as well as of the Government’s reply thereto.

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, 354th Report, paragraphs 35–46; Case No. 2254, 355th Report, paragraphs 29–33; and Case No. 2430, 353rd Report, paragraphs 66–68).

With regard to the implementation of the Convention in a broad perspective, the Committee recalls that in its previous observation it noted with interest the decision of 8 July 2007 of the Supreme Court of Canada (Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia, 2007 SCC 27), which held that freedom of association encompasses a measure of protection for collective bargaining under section 2(d) of the Canadian Charter of Rights and Freedoms, and by doing so the Court referred to Convention No. 87 as well as the International Covenants on Civil and Political Rights, and on Economic, Social and Cultural Rights, noting that the “interpretation of these Conventions, in Canada and internationally, not only supports the proposition that there is a right to collective bargaining in international law, but also suggests that such a right should be recognized in the Canadian context under section 2(d). The Committee notes from the Government’s report that a number of tripartite round-table discussions were held pursuant to the decision of the Supreme Court, at federal and provincial levels, on its potential implications on future labour relations and the country’s international obligations. The Government also indicates that it expects a number of ongoing cases before courts to further clarify the scope of the Supreme Court decision and its implication for the application of the Convention. The Committee invites the Government to continue to provide information on any development in relation to this decision which may have an impact on the application of the Convention.

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, Ontario and New Brunswick). The Committee recalls from its previous comments that workers in agriculture and horticulture in the Provinces of Alberta, Ontario and New Brunswick are excluded from the coverage of labour relations legislation and thereby deprived of statutory protection of the right to organize.

The Committee notes with regret from the Government’s report that there are no plans for a legislative review in Alberta, although the province is closely monitoring the constitutional challenge to the Agricultural Employees Protection Act, 2002, before the Ontario Court of Appeal and subsequently before the Supreme Court of Canada.

As for Ontario, the Committee recalls that in its previous comments it noted the decision dated December 2001 by the Supreme Court of Canada which found the exclusion of agricultural workers from the Labour Relations Act, 1995, to be unconstitutional in the absence of any other statutory protection of their freedom of association (Dunmore v. Ontario/Attorney-General, 2001, 207 DLR (4th) 193 (SCC)). The Committee also noted that, although the Agricultural Employees Protection Act, 2002 (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 notes from the Government’s report that the appeal lodged by the United Food and Commercial Workers (UFCW) challenging the constitutionality of the AEPA before the Ontario Court of Appeal resulted in a decision acknowledging the right for Ontario farm workers to legislation that protects their ability to bargain collectively. The Ontario Government appealed the decision to the Supreme Court of Canada and the hearing on the case is expected at the end of 2009.

The Committee notes that, as regards the Province of New Brunswick, the Government reiterates that agricultural workers are not excluded from the protection of the Industrial Relations Act, 1971; however their bargaining rights are limited to units comprising at least five or more employees.

The Committee recalls 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 application of the Convention in relation to the freedom of association of agricultural workers should be amended. Consequently, the Committee 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. The Committee requests the Government to forward the text of the decision of the Supreme Court of Canada concerning the constitutionality of the AEPA when it is delivered and to indicate any review on its implication with regard to the exclusion of agricultural employees from statutory protection of the right to organize in the Provinces of Alberta and Ontario.

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 with regret the statements from the Governments of Ontario, Alberta, Nova Scotia and Prince Edward Island that no legislative amendments are planned in respect of the exclusion of domestic workers. The Committee also takes note of the statement by the Government of New Brunswick according to which it will consult stakeholders on the potential for amendment of the Industrial Relations Act to remove the exclusion of domestic workers. With regard to the other professionals, such as architects, dentists, land surveyors, lawyers doctors and engineers (for Nova Scotia and Prince Edward Island), the Committee also notes the statement from the respective governments 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.

The Committee is bound to recall once again its view that the exclusion of these categories of workers from the Labour Relations Act 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 Act, 1995, and this can function as an impediment to their activities and discourage membership. Consequently, the Committee urges the Government to ensure that the Governments of Ontario, Alberta, Nova Scotia, Prince Edward Island and Saskatchewan take all necessary measures to remedy the exclusion of the abovementioned categories of workers from the statutory protection of freedom of association and to amend its legislation to adopt specific regulations so as to ensure that domestic workers, architects, dentists, land surveyors, lawyers, doctors and engineers are allowed to form 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 ensure that the Government of the Province of New Brunswick indicates 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.

Nurse practitioners (Alberta). In its previous comments, the Committee referred to the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2277 to the effect that nurse practitioners have been 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 therefore 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, with regard to Ontario, 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 takes note of the Government’s statement that it has no plan to amend the legislation concerning principals and vice-principals in educational establishments. However, the Government adds that, with regard to community workers, a detailed review of the 1998 amendments to the Ontario Works Act by the Act to Prevent Unionization with respect to community participation under the Ontario Works Act, 1997, has identified options that would be considered. While the Committee considers 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; 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 into account the abovementioned principles, the Committee reiterates its request to ensure that the Government of the Province of Ontario takes all necessary measures to amend the legislation so as to guarantee to principals and vice-principals in educational establishments, as well as community workers, the fundamental right to establish and join organizations of their own choosing.

Public colleges’ part-time employees (Ontario). The Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2430 (see 353rd Report, paragraphs 66–68) and notes with interest that the Government of Ontario introduced the Act to Enact the Colleges Collective Bargaining Act which allows part-time academic and support staff workers at Ontario’s 24 colleges to join unions for collective bargaining purposes. Along with the Committee on Freedom of Association, the Committee requests the Government to indicate in its next report any progress made in the adoption of this Bill which would allow part-time academic and support staff in colleges of applied arts and technology in Ontario to fully enjoy the right to organize, as enjoyed by other workers, as provided in the Convention.

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 repeal the provisions of the University Act which empower the board of governors to designate the academic staff members who are allowed, by law, to establish and join a professional association for the defence of their interests. The Committee 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 there are no plans to amend this legislation. The Committee is bound to request once again the Government to ensure that the Government of the Province of Alberta takes all necessary measures with a view to ensuring that all university staff are guaranteed the right to organize without any exceptions.

Workers in social, health and childcare services (Quebec). The Committee recalls that its previous comments concerned two Acts (Act modifying the Act on health and social services (LQ, 2003, c.12) and Act modifying the Act on early childhood centres and other nursery services (LQ, 2003, c.13)), by which the Government redefined workers in social and health services and childcare services as “independent workers”, thus divesting them of the status of “employee” and denying them the right to unionize, leading to the cancellation of their trade union registrations. While emphasizing that the Convention does not exclude any of the above categories of workers who should have the right to establish and join organizations of their choosing, the Committee expressed the hope that the domestic courts would render decisions that would take into account the provisions of the Convention.

The Committee takes note with interest of the Government’s indication that a decision whereby the Superior Court of Quebec held the Act modifying the Act on health and social services and the Act modifying the Act on early childhood centres and other nursery services unconstitutional as they were contrary to section 2(d) of the Canadian Charter of Rights and Freedoms and to section 3 of the Charte québécoise des droits et libertés de la personne. Following that court decision, the Government of the Province of Quebec adopted an Act on the representation of family-type resources and intermediate resources and on the respective collective bargaining regime (LQ 2009, c.24) as well as an Act on the representation of certain persons responsible for childcare in family environment on the respective collective bargaining regime (LQ 2009, c.36) on 12 and 19 June 2009. These new texts established a system of representation for family-type resources and intermediate resources as well as for persons responsible for childcare in family environments. A system of collective agreement “similar to the one encompassed in the Labour Code of the Province of Quebec” is established. The Committee notes with interest the indication that the newly adopted texts provide for rules for recognition by the Committee on labour relations of associations representing such persons, the rules of collective bargaining between these associations and the Government and the matters covered by the negotiation. They also provide for measures for better access to government programmes, such as parental insurance, the pension plan and the programme for safe motherhood.

Prosecutors (Quebec). In its previous comments, the Committee referred to the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2467 with regard to the Prosecutors Act (as amended by the Act amending the Act respecting Prosecutors and the Labour Code, LQ 2004, c.22), which denied to prosecutors the right to join a trade union and deprives them of protection against hindrances, reprisals or sanctions related to the exercise of trade union rights. The Committee takes note with interest of the Act on the collective bargaining regime of prosecutors for criminal and penal affairs (LRQ, c. R-8.1.2), which grants them the right to organize as well as protection in the exercise of trade union rights, including the right to strike and to bargain collectively.

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 Prince Edward Island (Civil Service Act, 1983), Nova Scotia (Teaching Professions Act) and Ontario (Education and Teaching Professions Act).

The Committee notes with regret from the Government’s report that there are still no plans to amend the legislation in Prince Edward Island, Nova Scotia and Ontario. 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 expresses the firm hope that the Government will indicate measures taken or contemplated by the Governments of Prince Edward Island, Nova Scotia and Ontario 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 notes 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. However, the Committee observes that progress is yet to be made on the issues raised.

The Committee notes that, when it last examined Case No. 2173 (see 354th Report, paragraphs 35–46), the Committee on Freedom of Association expressed the hope that the settlement reached in the health-care sector, following the Supreme Court decision noted above, would serve as an inspiration for the settlement of grievances prevailing in the education sector between the Government of the Province of British Columbia and the unions concerned with regard to the Skills Development and Labour Statutes Amendment Act and the Education Services Collective Agreement Act. The Committee invites the Government to indicate any progress made in this respect. Furthermore, while noting that decisions on essential services are made by the Labour Relations Board (LRB) in consultation with the parties concerned, the Committee requests the Government to indicate any decision taken by the LRB with regard to the essential service level (minimum service) in the education sector and the factors taken into consideration in doing so. Finally, while recalling that an outright ban on strikes should only be limited to essential services in the strict sense of the term and that the education sector does not qualify as such, the Committee asks the Government to specify if the Skills Development and Labour Statutes Amendment Act takes away the right of teachers to engage in strike action.

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 requests the Government to indicate in its next report any measures taken or contemplated by the Manitoba Government to amend its legislation 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, and 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 that the Government 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, expresses the firm hope that the Government will indicate in its next report measures taken by the Government of the Province of Alberta 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 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 (labour law in Quebec prohibits strikes during the term of a collective agreement). Furthermore, this Act provided 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 Civil Procedures Code for such an action (section 38); and

–           severe penal sanctions (sections 39–40).

The Committee notes the Government’s statement that this Act is currently under appeal before the domestic courts. 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, where the right to strike may be restricted or even prohibited, 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; 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 Civil Procedures Code. Furthermore, the Government is requested to indicate the outcome of the appeal pending on Act No. 43 before the domestic 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 there has been no change to the legislation. The Committee recalls 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.

Comments from the ITUC on Bills adopted by the Government of the Province of Saskatchewan. The Committee takes note of communications dated 30 September 2008 and 26 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), adopted in May 2008 by the Government of the Province of Saskatchewan. While questioning beforehand the need for such legislative texts to be adopted, the ITUC indicates that Bill No. 5 weakens the right of workers to organize, permits 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. Furthermore, the ITUC alleges that Bill No. 6 weakens the rights of workers and unions to organize into associations and it potentially permits employers to use coercive means to prevent the creation of union associations, and punish workers for engaging in union activities.

The Committee takes note 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, amongst other fundamental texts, the Canadian Charter of Rights and Freedoms and international Conventions ratified by Canada. The Committee requests the Government to indicate any outcome of the appeal lodged before the provincial court.

The Committee also observes 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.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the Government’s report. The Committee also notes the comments made by the International Confederation of Free Trade Unions (ICFTU), now the International Trade Unions Confederation (ITUC), in a communication dated 10 August 2006 as well as the Government’s reply thereto.

The Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in numerous cases concerning allegations of interference into the right to organize and carry out trade union activities, including collective bargaining, in various provinces of Canada. (Cases Nos 2314 and 2333, 340th Report, paragraphs 373–432; Case No. 2324, 336th Report, paragraphs 233–284; Cases Nos 2403, 2401 and 2343, 338th Report, paragraphs 536–603; Case No. 2349, 337th Report, paragraphs 361–407; Case No. 2405, 340th Report, paragraphs 433–457, and 343rd Report, paragraphs 318–338; Case No. 2430, 343rd Report, paragraphs 339–363; and Case No. 2467, 344th Report, paragraphs 461–587).

At the same time, the Committee notes with interest from the Government’s report that on 8 June 2007 the Supreme Court of Canada overruled 20 years of previous Supreme Court decisions in order to hold unanimously that freedom of association encompasses a measure of protection for collective bargaining under section 2(d) of the Canadian Charter of Rights and Freedoms (Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia, 2007 SCC 27). The Committee notes that in reaching its decision the majority of the Court referred to Convention No. 87 as well as the International Covenants on Civil and Political Rights, and on Economic, Social and Cultural Rights, noting that the “interpretation of these Conventions, in Canada and internationally, not only supports the proposition that there is a right to collective bargaining in international law, but also suggests that such a right should be recognized in the Canadian context under section 2(d)” (at paragraph 72). The Committee requests the Government to indicate in its next report the implications of the Supreme Court decision for the application of the Convention.

The Committee recalls that its previous comments concerned the exclusion of wide categories of workers from statutory protection of freedom of association and restrictions on the right to strike in several provinces.

A. Article 2 of the Convention. Right to organize of certain categories of workers. 1. Workers in agriculture and horticulture (Alberta, Ontario and New Brunswick). The Committee recalls from its previous comments that workers in agriculture and horticulture in the Provinces of Alberta, Ontario and New Brunswick are excluded from the coverage of labour relations legislation and thereby deprived of statutory protection of the right to organize.

The Committee notes with regret from the Government’s report that there are no plans for a legislative review in Alberta and New Brunswick (the Alberta government indicates that this issue may be addressed in the next review of the Labour Relations Code and the New Brunswick government maintains that limiting the scope of the law to workplaces with five or more agricultural employees is fair and equitable). As for Ontario, the Committee notes from the Government’s report that in December 2001, the Supreme Court of Canada declared the exclusion of agricultural workers from the Labour Relations Act, 1995, to be unconstitutional in the absence of any other statutory protection of their freedom of association (Dunmore v. Ontario/Attorney-General, 2001, 207 DLR (4th) 193 (SCC)). The Agricultural Employees Protection Act, 2002 (AEPA), which was promulgated in June 2003 pursuant to the Supreme Court finding, gives agricultural employees the right to form or join an employees’ association but does not provide a right to a statutory collective bargaining regime and maintains the exclusion of agricultural employees from the Labour Relations Act. In April 2004, the United Food and Commercial Workers (UFCW) filed an appeal challenging the constitutionality of this Act. The application was dismissed by the Superior Court on 10 January 2006. The UFCW advised that it intends to appeal the decision to the Ontario Court of Appeal; this appeal has not been heard yet. The Government adds that it is currently reviewing the impact that the subsequent decision by the Supreme Court of 8 June 2007 (see above) may have on Ontario’s labour laws.

The Committee recalls once again that all workers without distinction whatsoever (with the sole possible exception of the armed forces and the police) have the right to organize under the Convention. It further notes the conclusions reached by the Conference Committee in June 2004, recalling the need to amend the legislative texts in different provinces with a view to guaranteeing the full application of the Convention in relation to the effective right of association in agriculture which has suffered from restrictions for many years. The Committee once again requests the Government to indicate in its next report any measures taken or contemplated by the governments of Ontario, Alberta and New Brunswick, with a view to amending their legislation so as to guarantee the right of agricultural workers to organize. It requests the Government in particular to assess the implications of the Supreme Court decisions of December 2001 (Dunmore) and June 2007 (Health Services and Support – Facilities Subsector Bargaining Association) with regard to the exclusion of agricultural employees from statutory protection of the right to organize in Ontario, Alberta and New Brunswick.

2. (a). Domestic workers, architects, dentists, land surveyors, lawyers and doctors (Ontario). The Committee recalls that, taking note of the conclusions and recommendations reached in Case No. 1900 by the Committee on Freedom of Association, it has been raising for a number of years the need to ensure that wide categories of workers in Ontario, who have been excluded from statutory protection of freedom of association under section 3(a) of the amended 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 occupationally specific regulations, to establish and join organizations of their own choosing (see Case No. 1900, 308th Report, paragraphs 139–194).

The Committee notes with regret that, according to the Ontario government, no legislative amendments are planned in this respect. With regard to domestic workers in particular, the Ontario government indicates that they have been defined narrowly by the Ontario Labour Relations Board (OLRB) so that their exclusion from statutory protection of freedom of association concerns individuals who reside with a family and provide childcare, cleaning and other domestic services, but does not include, as found by the OLRB, attendants employed to care for individuals with disabilities in their own apartments, or maintenance, dietary, infirmary and housekeeping staff employed in the residence of a religious order. With regard to professionals, such as architects, dentists, land surveyors, lawyers and doctors, the government of Ontario reiterates previously provided information and indicates that they have professional organizations that represent their interests and in some cases negotiate collectively (e.g. the Ontario Medical Association bargains on behalf of its members with the Province of Ontario on the issue of fee schedules).

The Committee recalls, from the conclusions of the Committee on Freedom of Association in Case No. 1900, that the exclusion of these categories of workers from the Labour Relations Act, 1995, 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 Act, 1995, and this can function as an impediment to their activities and discourage membership. The Committee therefore once again requests the Government to indicate any measures taken or contemplated by the government of Ontario to amend section 3(a) of the amended Labour Relations Act, 1995, so as to ensure that several categories of workers (domestic workers, including those who provide childcare, cleaning and other domestic services, architects, dentists, land surveyors, lawyers and doctors) are able to benefit either from the general collective labour rights system or specific legislation which allows them to form organizations that enjoy the same rights, prerogatives and means of recourse as other workers’ organizations. The Committee also requests the Government to assess the implications of the Supreme Court decisions of December 2001 (Dunmore) and June 2007 (Health Services and Support – Facilities Subsector Bargaining Association) with regard to the exclusion of the above categories of employees from statutory protection of the right to organize.

(b). Alberta, New Brunswick, Nova Scotia, Prince Edward Island and Saskatchewan. The Committee further notes that, according to information provided by the Government, domestic workers are excluded from legislation in the following provinces in addition to Ontario: Alberta (section 4(2)(f) of the Labour Relations Code); New Brunswick (section 1(1) of the Industrial Relations Act); Newfoundland and Labrador, unless the employer has two or more employees (section 2(1)(x) of the Labour Relations Act); Nova Scotia, unless the employer has two or more employees (section 2(1)(x) of the Trade Union Act); and Saskatchewan, unless the employer has three or more employees (not covered if at least one of the three employees is a member of a trade union that includes as members employees of more than one employer (section 2(g) of the Trade Union Act).

The Committee also notes from information provided by the Government that the exclusion of architects, dentists, land surveyors, lawyers and doctors is not limited to Ontario; other provinces contain similar exclusions in their labour laws, which extend moreover to include engineers: Alberta (section 1(1) of the Labour Relations Code); Nova Scotia (section 2(2) of the Trade Union Act); and Prince Edward Island (section 7(2) of the Labour Act). Moreover, these workers might be excluded also in Newfoundland and Labrador and Saskatchewan if the employer has less than two or three employees respectively. The Committee finally notes that the government of Alberta indicates that it has no intention to amend these exclusions and that the professionals in question can establish associations which function in ways similar to a labour union in representing the interests of their members, including through bargaining.

The Committee refers to the comments made above with regard to Ontario and requests the Government to indicate any measures taken or contemplated by the governments of Alberta, New Brunswick, Nova Scotia, Prince Edward Island and Saskatchewan to remedy the exclusion of the above categories of workers from the statutory protection of freedom of association, and to assess the implications of the Supreme Court decisions of December 2001 (Dunmore) and June 2007 (Health Services and Support – Facilities Subsector Bargaining Association) in this regard.

3. Nurse practitioners (Alberta). The Committee’s previous comments concerned the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2277 (see 333rd Report,
paragraphs 240–277, and 337th Report, paragraphs 347–360) to the effect that nurse practitioners have been deprived of the right to establish and join organizations of their own choosing by the Labour Relations (Regional Health Authorities Restructuring) Amendment Act in Alberta, as well as comments by the ICFTU on this issue. The Committee notes from the Government’s report that there are no planned reviews of the status of nurse practitioners who constitute an emerging and important health-care occupation and play an important role, especially in rural areas, between that of a physician and a registered nurse. The Committee once again recalls that the words “without distinction whatsoever” used in Article 2 of the Convention mean that freedom of association should be guaranteed without discrimination of any kind. The Committee, therefore, once again requests the Government to indicate in its next report any measures taken or contemplated by the government of Alberta to amend the Labour Relations (Regional Health Authorities Restructuring) Amendment Act so that nurse practitioners recover the right to establish and join organizations of their own choosing.

4. Principals, vice-principals in educational establishments and community workers (Ontario). The Committee further recalls, with regard to Ontario, 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 (see 325th Report, paragraphs 197–215) and Case No. 1975 (see 316th Report, paragraphs 229–274, and 321st Report, paragraphs 103–118).

The Committee notes with regret that the Ontario government reiterates previously provided information and indicates that it has no plans to amend the existing legislation. The Committee once again requests the Government to indicate in its next report any measures taken or contemplated by the Ontario government to amend the legislation so as to guarantee to principals and vice-principals in educational establishments as well as community workers the right to establish and join organizations of their own choosing.

5. Public colleges part-time employees (Ontario). The Committee further takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2430 (see 343rd Report,
paragraphs 339–363) with regard to the provisions of the Colleges Collective Bargaining Act, RSO 1990, Chapter 15 that denies all public colleges part-time employees the right to join a union for collective bargaining purposes. The Committee, following the conclusions and recommendations of the Committee on Freedom of Association, recalls that all workers, without distinction whatsoever, whether they are employed on a permanent basis, for a fixed-term or as contract employees, should have the right to establish and join organizations of their own choosing. It requests the Government to indicate in its next report any measures taken or contemplated by the Ontario government to ensure that academic and support part-time staff in colleges of applied arts and technology fully enjoy the right to organize, as any other workers.

6. Education workers (Alberta). With regard to the right to organize of education workers in Alberta, the Committee recalls that its previous comments concerned the need to repeal the provisions of the University Act which empower the board of governors to designate the academic staff members who are allowed, by law, to establish and join a professional association for the defence of their interests. In the Committee’s view, these provisions 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, according to the government of Alberta, there are no plans to amend this legislation; the government adds that post-secondary employees who are not represented by a faculty association are in fact represented by a support staff union at the same institution. The Committee once again requests the Government to indicate in its next report any measures taken or contemplated by the Alberta government with a view to ensuring that all university staff are guaranteed the right to organize without any exceptions.

7. Workers in social, health and childcare services (Quebec). The Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Cases Nos 2333 and 2314 concerning two Acts (Act modifying the Act on health and social services (LQ, 2003, c.12) and Act modifying the Act on early childhood centres and other nursery services (LQ, 2003, c.13)) by which the Government redefined workers in social and health services and childcare services as “independent workers”, thus divesting them of the status of “employee” and denying them the right to unionize, leading to the cancellation of their trade union registrations. The Committee notes that the Government indicates that the issue is pending before the domestic courts and therefore it reserves its comments until a judgement has been rendered. The Committee notes that the Convention does not exclude any of the above categories of workers who should have the right to establish and join organizations of their choosing and hopes that, in rendering their judgement, the courts will take into account the provisions of the Convention. The Committee, following the recommendations made by the Committee on Freedom of Association in Cases Nos 2333 and 2314, requests the Government to indicate in its next report the outcome of the judicial proceedings under way as well as any measures taken or contemplated by the Quebec government so as to amend the provisions of the Act modifying the Act on health and social services (LQ, 2003, c.12) and the Act modifying the Act on early childhood centres and other nursery services (LQ, 2003, c.13), in order for the workers concerned to be able to benefit either from the general collective labour rights system or specific legislation which allows them to form organizations that enjoy the same rights, prerogatives and means of recourse as other workers’ organizations.

8. Prosecutors (Quebec). The Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2467 (see 344th Report, paragraphs 461–587) with regard to the Prosecutors Act (as amended by the Act amending the Act respecting Attorney-General’s Prosecutors and the Labour Code, LQ 2004, c.22) which denies prosecutors the right to join a trade union and deprives them of protection against hindrances, reprisals or sanctions related to the exercise of trade union rights. The Committee notes that the Government does not provide specific information on this issue. The Committee, following the recommendations of the Committee on Freedom of Association, requests the Government to indicate in its next report measures taken or contemplated by the government of Quebec so as to ensure that prosecutors have the right to join the organization of their choice.

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

The Committee notes with regret from the Government’s report that there are no plans to amend the legislation in Prince Edward Island, Nova Scotia and Ontario. The Ontario government indicates that teachers’ bargaining agents were identified in legislation for the first time in 1975, thus capturing existing practices at the time with the agreement of school boards and unions. The Committee once again emphasizes that, although a system in which a single bargaining agent can be accredited to represent workers in a given bargaining unit and bargain on their behalf is compatible with the Convention, a trade union monopoly established or maintained by the explicit designation by name of a trade union organization in the law is in violation of the Convention and other trade unions which have in the meantime become majority organizations should be able to request accreditation to represent workers. The Committee requests once again the Government to indicate any measures taken or contemplated by the governments of Prince Edward Island, Nova Scotia and Ontario to repeal from their respective legislation the designation by name of individual trade unions as bargaining agents and suggests giving consideration to a neutral reference to the most representative organization.

C. 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, Manitoba and Ontario).

1. British Columbia. With respect to British Columbia, the Committee recalls that its previous comments concerned the need to repeal the provisions of Bill No. 18 (the Skill Development and Labour Statutes Amendment Act) which declared education to be an essential service, and 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 (see 330th Report,
paragraphs 239–305). The Committee notes with regret from the Government’s report that there have been no measures to amend or repeal the provisions in question and that the British Columbia government continues to hold the position that teachers represent an essential service that permits children to have full access to their education throughout the school year. The Committee once again requests the Government to indicate in its next report any measures taken or contemplated by the British Columbia government with a view to amending the legislation so as to ensure that essential services, in which strikes may be restricted or even prohibited, are limited to those services the interruption of which could endanger the life, personal safety or health of the population and ensuring that workers in the education sector, which does not qualify as an essential service in the strict sense of the term, may enjoy and exercise the right to strike without undue restrictions. The Committee suggests that the British Columbia government give consideration to establishing an effective and voluntary dispute settlement mechanism in this regard, on the basis of consultations with all organizations concerned.

The Committee further recalls that in its previous comments concerning British Columbia it had requested information on the new collective bargaining regime for support staff in certain provincial school commissions after the repeal of an Act, which had served to end a collective dispute in these commissions, in July 2000. The Committee notes from the Government’s report that the parties have subsequently successfully negotiated collective agreements.

2. Manitoba. With regard to Manitoba, the Committee recalls that its previous comments concerned the need to amend section 110(1) of the Public School Act which prohibits strikes by teachers. The Committee notes with regret from the Government’s report that there are no plans to make amendments to the Public Schools Act at this time. The current system has existed since 1956 and had the agreement of the social partners. The Committee once again notes 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. It requests the Government to indicate in its next report any measures taken or contemplated by the Manitoba government to amend its legislation 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, and 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.

3. Ontario. The Committee further recalls from its previous comments concerning Ontario that it had emphasized, pursuant to the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2025 (see 320th Report, paragraphs 374–414) and Case No. 2305 (see 335th Report, paragraphs 471–512), the need to consider establishing a voluntary and effective dispute prevention and resolution mechanism rather than having recourse to back-to-work legislation. It further requested the Government to ensure that recourse to arbitration for the settlement of disputes be voluntary and that such arbitration be truly independent (see 335th Report, paragraphs 505 and 512).

The Committee notes with interest from the Government’s report that in addition to the fact that all bargaining agents in the education sector have the right to establish a voluntary and effective dispute prevention and resolution mechanism based on the voluntary recourse to independent arbitration machinery, the new government in Ontario has been successful in replacing a confrontational environment between the government and teachers with a collaborative one. Thus, for the first time in the history of Ontario, teacher unions and school boards settled four-year collective agreements in all 72 publicly funded school boards (for the period September 2004 to August 2008) without any strikes. In addition, the government has established an “Educational Partnership Table” in which representatives from unions and employers in the education sector as well as students, parents and school principals undertake to work toward consensus. The first meeting was held on 6 March 2004 and meetings are held on a quarterly basis. The Government has also established the Provincial Stability Commission (PSC) to assist the parties should disputes arise regarding the implementation of provisions contained in collective agreements. The Commission will maintain an environment of good will and proactively address any issues that may arise from the implementation of the four-year collective agreements; promote problem solving over formal or adversarial dispute resolution; and solve problems and develop best practices concerning teacher supervision of students to ensure student safety. As a first step, the PSC will be providing effective dispute resolution mechanisms for the parties to the 31 teacher collective agreements in the public elementary sector. Three out of six teacher bargaining agents have agreed to refer to the PSC issues around teacher supervision of students that cannot be resolved at the local level. The Committee requests the Government to provide in its next report information on the functioning of the Educational Partnership Table and the Provincial Stability Commission as well as any other voluntary mechanisms for effective dispute prevention and resolution in the education sector.

D. 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 to all employees within the regional health authorities, including various categories of labourers and gardeners under the Labour Relations (Regional Health Authorities Restructuring) Amendment Act. In previous comments, the Committee took note of the relevant conclusions and recommendations of the Committee on Freedom of Association in Case No. 2277 (see 333rd Report, paragraphs 240–277) as well as the comments of the ICFTU according to which this Act put an end to the right to strike for the remaining 10 per cent of health-care workers in Alberta who still had that right.

The Committee notes from the Government’s report that the Act in question did not take away the right to strike for the vast majority of gardeners and labourers in the health-care sector, but rather prohibited these employees from striking as staff members of facilities on the designated hospitals list. The Committee recalls its view that gardeners and labourers do not provide essential services in the strict sense of the term. It requests the Government to indicate in its next report all measures taken or contemplated by the Alberta government in order to ensure that those workers in the health and hospital sectors who are not providing essential services, in the strict sense of the term, are not deprived of the right to strike.

E. Article 3. Right to strike in the public sector (Quebec). The Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2467 (see 344th Report,
paragraphs 461–587) with regard to Act 43 putting a unilateral end to negotiations in the public sector by imposing collective agreements for a determined period, and thereby depriving the employees concerned, including teachers, of the right to strike (labour law in Quebec prohibits strikes during the term of a collective agreement); imposing severe and disproportionate sanctions in the event of an infringement of the provisions prohibiting recourse to strike action (suspension of 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, Act 43); 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, Act 43); facilitation of class actions against an association of employees by reducing the conditions required by the Civil Procedures Code for such an action (section 38, Act 43); severe penal sanctions (sections 39–40, Act 43)). The Committee notes that according to the Government, Act 43 is currently under appeal before the domestic courts. The Committee, following the recommendations of the Committee on Freedom of Association, requests the Government to indicate in its next report the outcome of the appeal pending on Act 43 before the domestic courts as well as any measure taken or contemplated by the government of Quebec with a view to: (i) ensuring that, where the right to strike may be restricted or even prohibited, 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 Act 43 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; (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 Civil Procedures Code.

F. 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 Manitoba government reiterates its previous position according to which the alternative dispute settlement mechanism set out in the Labour Relations Act is reasonable and justifiable; having an impartial third party settle the dispute will likely result in a fair and reasonable settlement and will bring an end to the hardships that a work stoppage creates.

Notwithstanding the effects of lengthy work stoppages, the Committee recalls 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 once again requests the Government to indicate in its next report any measures taken or contemplated by the Manitoba government to amend the Labour Relations Act so that an arbitration award may only be imposed in cases of essential services in the strict sense of the term, public servants exercising authority in the name of the State or where both parties agree.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee takes note of the comments by the International Confederation of Free Trade Unions (ICFTU) of 10 August 2006 concerning issues already raised, as well as new allegations of violations of the Convention and of the Government’s recent reply to these comments. The Committee will analyse the ICFTU’s comments and the Government’s reply thereon at its next session (November-December 2007) due for the regular reporting cycle in 2007.

The Committee asks the Government, in the context of the regular reporting cycle, to send for examination at its next session, its comments on all the matters raised in the observation of 2005 (see 2005 observation, 76th Session).

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Article 2 of the Convention. Right to organize. 1. The Committee notes the oral information provided by the Government representative to the Conference Committee in June 2004 and the discussion that took place thereafter. It notes, in particular from the statement made by the Government representative, that the exclusion of members of the medical, dental, architectural, legal and engineering professions, as well privately employed domestics, from the scope of labour relations law extends to "a few Canadian jurisdictions". The Committee requests the Government to specify in its next report whether the exclusion of these categories of workers from the right to organize is limited to Ontario (see comments on this issue in the Committee’s observation, 2005) or on the contrary, extends to other provinces, and to identify the relevant jurisdictions and legislative provisions.

2. The Committee notes from the comments made by the International Confederation of Free Trade Unions (ICFTU) in 2004, as well as the latest Government report, that recently enacted legislation in Quebec [Act Modifying the Act on Health and Social Services (L.Q., 2003, c. 12) and Act modifying the Act on early childhood centres and other nursery services (L.Q., 2003, c. 13)] provides that persons acting as "intermediary resources" of "family-type resources" are excluded from the definition of salaried employees in the Labour Code and identifies the criteria which allow these persons to be represented by associations. The Committee requests the Government to indicate in its next report the specific categories of employees concerned by these provisions and the criteria which allow them to establish and join organizations of their own choosing.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the Government’s report. The Committee also notes the comments made by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 19 July 2004 with regard to certain issues which have been the subject of previous observations by the Committee, as well as the Government’s response thereto. The Committee further takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in recent cases concerning Canada (Case No. 2277 (see 333rd Report, paragraphs 240-277 and 337th Report, paragraphs 347-360) and Case No. 2305 (see 335th Report, paragraphs 471-512)).

A. Article 2 of the Convention.  Right to organize of certain categories of workers. 1. Workers in agriculture and horticulture (Alberta, Ontario and New Brunswick). In its latest observation, the Committee took note of the information provided by the Government representative to the Conference Committee on the Application of Standards in 2004 as well as the discussion that followed, with regard to, inter alia, the exclusion from the scope of the labour relations legislation of workers in agriculture and horticulture, who are thereby deprived of full and complete protection of their right to organize. The Committee recalls from its previous comments that workers in agriculture and horticulture in the Provinces of Alberta, Ontario and New Brunswick are excluded from the coverage of labour relations legislation and thereby deprived of protection concerning the right to organize and collective bargaining.

The Committee notes with regret from the Government’s report that there are no plans for a legislative review in Alberta and New Brunswick (the Alberta government indicates that this issue may be addressed in the next review of the Labour Relations Code and the New Brunswick government maintains that limiting the scope of the law to workplaces with five or more agricultural employees is fair and equitable). As for Ontario, the Committee notes from the Government’s report that the Agricultural Employees Protection Act, 2002 (AEPA), which entered into force in June 2003, gives agricultural employees the right to form or join an employees’ association but does not provide a right to a statutory collective bargaining regime and maintains the exclusion of agricultural employees from the generally applicable legislation (Labour Relations Act (LRA)); in April 2004, the United Food and Commercial Workers filed an application in the courts challenging the constitutionality of the exclusion of agricultural workers from the LRA and the restriction on collective bargaining rights in the AEPA. The application has not been heard yet.

The Committee recalls once again that all workers without distinction whatsoever (with the sole possible exception of the armed forces and the police) have the right to organize under the Convention. It further notes the conclusions reached by the Conference Committee in June 2004, recalling the need to amend the legislative texts in different provinces with a view to guaranteeing the full application of the Convention in relation to the effective right of association in agriculture which has suffered from restrictions for many years. The Committee once again requests the Government to indicate in its next report any measures taken or contemplated by the governments of Ontario, Alberta and New Brunswick with a view to amending their legislation so as to guarantee the right of agricultural workers to organize.

2. Domestic workers, architects, dentists, land surveyors, lawyers and doctors (Ontario). The Committee further recalls from previous comments concerning Ontario that other categories of workers (domestic workers, architects, dentists, land surveyors, lawyers and doctors) are excluded from the scope of the labour relations law under section 13(a) of the Amended Labour Relations Act, 1995. The Committee notes with regret that according to the Ontario government, no legislative amendments are planned and therefore these categories of workers do not have access to a statutory collective bargaining regime; labour laws originally enacted with industrial settings in mind are not always suitable for non-industrial workplaces, such as private homes or professional offices, where employment obligations may not be compatible with the highly formalized terms and conditions of employment. The Committee, emphasizing that all workers without distinction whatsoever have the right to organize under the Convention, requests once again the Government to indicate any measures taken or contemplated by the government of Ontario to amend section 13(a) of the Amended Labour Relations Act, 1995, so as to guarantee the right to organize to several categories of workers (domestic workers, architects, dentists, land surveyors, lawyers and doctors) who are excluded from the scope of the labour relations law.

3. Nurse practitioners (Alberta). Furthermore, the Committee takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2277 (see 333rd Report, paragraphs 240-277 and 337th Report paragraphs 347-360) to the effect that nurse practitioners have been deprived of the right to establish and join organizations of their own choosing by the Labour Relations (Regional Health Authorities Restructuring) Amendment Act in Alberta, as well as the comments of the ICFTU on this issue. The Committee once again recalls that the words "without distinction whatsoever" used in Article 2 of the Convention mean that freedom of association should be guaranteed without discrimination of any kind. The Committee therefore, taking note of the recommendation made by the Committee on Freedom of Association in this respect, requests the Government to indicate in its next report any measures taken or contemplated by the Government of Alberta to amend the Labour Relations (Regional Health Authorities Restructuring) Amendment Act so that nurse practitioners recover the right to establish and join organizations of their own choosing.

4. Principals, vice-principals in educational establishments and community workers (Ontario). The Committee further recalls, with regard to Ontario, 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 (325th Report, paragraphs 197-215) and Case No. 1975 (316th Report, paragraphs 229-274 and 321st Report, paragraphs 103-118). The Committee recalls in this respect the conclusions reached by the Conference Committee according to which problems remain, with regard to the right of workers in the education sector to organize, in several provinces, including Ontario.

The Committee notes with regret that the Ontario government indicates that it has nothing new to add on these issues. The Committee once again emphasizes that all workers without distinction whatsoever, have the right to establish and join organizations of their own choosing for the protection and promotion of their occupational rights and interests. The Committee once again requests the Government to indicate in its next report any measures taken or contemplated by the Ontario government to amend the legislation so as to guarantee, to principals and vice-principals in educational establishments as well as community workers, the right to establish and join organizations of their own choosing.

5. Education workers (Alberta). With regard to the right to organize of education workers in Alberta, the Committee recalls that its previous comments concerned the need to repeal the provisions of the University Act which empower the Board of Governors to designate the academic staff members who are allowed, by law, to establish and join a professional association for the defence of their interests. In the Committee’s view, these provisions 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 according to the government of Alberta, there are no plans to amend this legislation but the issue could be re-examined the next time Alberta’s labour laws are reviewed. The Government once again draws attention to a previous decision of the Alberta Court of Queen’s Bench which found the designation sections of the Colleges Act, the Technical Institutes Act and the Universities Act, which have now been consolidated into the Post-secondary Learning Act, to be in conformity with freedom of association provisions in the Canadian Charter of Rights and Freedoms.

The Committee notes once again that the provisions on designation, which have been recently consolidated in the Post-secondary Learning Act, do not afford adequate guarantees against possible restrictions on the right of university staff to organize. It therefore requests once again the Government to indicate in its next report any measures taken or contemplated by the Alberta government with a view to ensuring that university staff are guaranteed the right to organize without any exceptions.

B. Article 2. Trade union monopoly established by law (Prince Edward Island, Nova Scotia and Ontario). The Committee notes from the information provided by the Government representative and the discussion which took place at the Conference Committee in June 2004, that serious problems remain in Prince Edward Island, Nova Scotia and Ontario with regard to the specific reference to the trade union recognized as the bargaining agent in the law of these provinces (Prince Edward Island Civil Service Act, 1983; Nova Scotia Teaching Professions Act; Ontario Education and Teaching Professions Act).

The Committee notes with regret from the Government’s report that there are no plans to amend the legislation in Prince Edward Island, Nova Scotia and Ontario. The Committee once again emphasizes that although a system in which a single bargaining agent can be accredited to represent workers in a given bargaining unit and bargain on their behalf is compatible with the Convention, a trade union monopoly established or maintained by the explicit designation by name of a trade union organization in the law is in violation of the Convention. The Committee requests once again the Government to indicate any measures taken or contemplated by the governments of Prince Edward Island, Nova Scotia and Ontario to repeal from their respective legislation the designation by name of individual trade unions as bargaining agents.

C. 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, Manitoba and Ontario).

1. British Columbia. With respect to British Columbia, the Committee recalls that its previous comments concerned the need to repeal the provisions of Bill No. 18 (the Skill Development and Labour Statutes Amendment Act) which declared education to be an essential service, and 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 (see 330th Report, paragraphs 239-305).

The Committee notes with regret from the Government’s report that there are no developments to report in this respect. The Committee once again requests the Government to indicate in its next report any measures taken or contemplated by the British Columbia government with a view to amending the legislation so as to ensure that essential services, in which strikes may be restricted or even prohibited, are limited to those services the interruption of which could endanger the life, personal safety or health of the population and ensuring that workers in the education sector, which does not qualify as an essential service in the strict sense of the term, may enjoy and exercise the right to strike without undue restrictions.

The Committee further recalls that in its previous comments concerning British Columbia it had requested information on the new collective bargaining regime for support staff in certain provincial school commissions after the repeal of an act, which had served to end a collective dispute in these commissions, in July 2000. A report was expected and the Government had indicated that it had initiated a broad dialogue on this issue which might expand to include areas such as the health and public sectors. The Committee notes from the Government’s latest report that the review of the collective bargaining regime for school support staff was not completed and the report was never made. The Committee requests the Government to keep it informed of any development in the future concerning the collective bargaining regime and, in particular, dispute settlement regulations or machinery to apply in the case of school support staff as well as health or public employees in British Columbia.

2. Manitoba. With regard to Manitoba, the Committee recalls that its previous comments concerned the need to amend section 110(1) of the Public School Act which prohibits strikes by teachers. The Committee notes with regret from the Government’s report that there are no plans to make amendments to the Public Schools Act at this time. The Committee once again notes 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. It requests the Government to indicate in its next report any measures taken or contemplated by the Manitoba government to amend its legislation so that school teachers, 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.

3. Ontario. The Committee further recalls from its previous comments concerning Ontario that it had emphasized, pursuant to the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2025 (320th Report, paragraphs 374-414) the need to amend the legislation, in particular, Bill No. 22 and the Back to School Act, 1998, which brought an end to a legal strike by teachers, so as to ensure that teachers may exercise the right to strike. The Committee further takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2305 (335th Report, paragraphs 471-512) according to which the Government adopted the Back to School Act, 2003 (Bill No. 28) which came into force at the beginning of June 2003 and terminated a legal work-to-rule campaign of an elementary teachers’ bargaining unit, prohibited any further strike, imposed a mediation-arbitration process and extended the definition of strikes, thereby placing new restrictions on the right to strike for all Ontario teachers. Deploring that the Government should have decided, for the third time in a few years (September 1998, November 2000 and June 2003) to adopt ad hoc legislation which takes away from educational institutions and education workers a legal right, which they have in theory, the Committee on Freedom of Association urged the Government to consider establishing a voluntary and effective dispute prevention and resolution mechanism rather than having recourse to back-to-work legislation. It further requested the Government to ensure that recourse to arbitration for the settlement of disputes be voluntary and that such arbitration be truly independent (335th Report, paragraphs 505 and 512).

The Committee notes from the Government’s report that teachers and school boards have a general right to strike. The Back to School Act, 1998, was introduced by the previous government in order to end strikes at eight school boards. The new government in Ontario, elected in 2003, has expressed its commitment to creating a climate where unions and school boards can negotiate collective agreements that are mutually beneficial. For the first time in the sector’s history, 100 per cent of the 122 negotiations between publicly funded school boards and their teachers have been settled with four-year agreements, and there have been no strikes in this government’s administration. The Ministry of Education indicates that it has successfully been able to replace a confrontational environment between the government and teachers with a collaborative one. Taking note of this information with interest, the Committee requests the Government to provide information in its next report as to measures taken or contemplated by the Ontario government with a view to establishing a voluntary and effective dispute prevention and resolution mechanism based on the voluntary recourse to independent arbitration machinery.

D. Article 3. Right to strike of certain categories of employees in the health sector (Alberta). The Committee recalls with regard to Alberta, that in its previous comments it had requested information on whether kitchen staff, porters and gardeners working in the hospital sector and who, according to the Committee, do not constitute workers in an essential service, are covered by the prohibition of strikes in the Labour Relations (Regional Health Authorities Restructuring) Amendment Act. The Committee notes moreover the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2277, according to which, the Labour Relations (Regional Health Authorities Restructuring) Amendment Act extends the prohibition on strikes to all employees within the regional health authorities, including various categories of labourers and gardeners (333rd Report, paragraphs 240-277). The Committee finally notes the comments of the ICFTU according to which this Act put an end to the right to strike for the remaining 10 per cent of health-care workers in Alberta who still had that right.

The Committee notes from the Government’s report that the government of Alberta reaffirms its responsibility to provide publicly funded and administered health services with patient access and safety as key priorities. According to the Government, the prohibition on strikes to all employees within the regional health authorities and other approved hospitals reflects the growing interdependence and integration of health-care delivery in the province; withholding services could have potentially life-threatening consequences for Alberta citizens whose legitimate health-care needs must be met. The Government adds that some employees who provide health-care services outside the regional health authorities or approved hospitals, may still have access to strikes, e.g., municipal emergency medical services, some nursing homes and group homes and some medical laboratories.

The Committee notes that although the health and hospital sectors can be seen as essential services in the strict sense of the term, in which the right to strike can be restricted or even prohibited, certain categories of employees within these essential services, e.g. labourers and gardeners, should not be deprived of their right to strike. The Committee therefore requests the Government to indicate in its next report all measures taken or contemplated by the Alberta government in order to ensure that those workers in the health and hospital sectors who are not providing essential services, in the strict sense of the term, are not deprived of the right to strike.

E. 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 in October 2004, the Labour Management Review Committee (LMRC) was asked by the Minister of Labour and Immigration to conduct its second biennial review of the operation of the provisions of sections 87.1 to 87.3 of the LRA. The Labour Caucus and Management Caucus of the LMRC consulted with their respective constituencies and reported to the Minister that amendments were not required with respect to these sections of the LRA at this time. At this stage, the Government continued to hold the conviction that lengthy work stoppages were detrimental to employees, employers, unions and the public interest and that the alternative dispute settlement mechanism set out in the LRA was reasonable and justifiable. Since the enactment of this provision, the average number of person-days lost per month due to work stoppages in Manitoba was reduced by half.

Notwithstanding the effects of lengthy work stoppages, the Committee considers that strikes are an essential means available to workers and their organizations to promote their economic and social interests; 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 and is not compatible with Article 3 of the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 148 and 153). The Committee once again requests the Government to indicate in its next report any measures taken or contemplated by the Manitoba government to amend the Labour Relations Act so that an arbitration award may only be imposed in cases of essential services in the strict sense of the term, public servants exercising authority in the name of the State or where both parties agree.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the comments on the application of the Convention submitted by the International Confederation of Free Trade Unions (ICFTU), dated 19 July 2004, raising many points which were covered in its previous comments. The Committee requests the Government to provide its observations on these comments in its next report. The Committee further notes the oral information provided by the Government representative to the Conference Committee in 2004, as well as the discussion which took place therein.

The Committee recalls that, following the discussion at the last International Labour Conference, it was noted that several matters remained pending concerning, in particular, the exclusion from the scope of the labour relations legislation of workers in agriculture and horticulture, who are thereby deprived of full and complete protection in relation to the right to organize. The other matters relate to the specific reference in the law to the trade union recognized as the bargaining agent, as well as the trade union rights of teachers and education sector workers in certain provinces. The Committee therefore requests the Government to provide detailed information in its next report in reply to its previous comments (see 2003 observation, 74th Session). Taking due note of the measures adopted by the federal Government, in collaboration with the ILO, to draw the attention of the governments of the various provinces to the Committee’s comments, it also reminds the Government of the possibility of having recourse to ILO technical assistance to facilitate the implementation of the Convention.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report, the comments received from the International Confederation of Free Trade Unions (ICFTU) and the conclusions and recommendations of the Committee on Freedom of Association in the various cases concerning Canada.

I.  Issues common to several jurisdictions

A. Alberta, Ontario, New Brunswick. Right to organize of certain categories of workers. In its previous comments, the Committee had noted that workers in agriculture and horticulture in the Provinces of Alberta, Ontario and New Brunswick were excluded from the coverage of labour relations legislation and thereby deprived of protection concerning the right to organize and collective bargaining. The Committee had also noted with regret that other categories of workers (domestic workers, architects, dentists, land surveyors, lawyers and doctors) were excluded in Ontario, under section 13(a) of the Amended Labour Relations Act, 1995.

Furthermore, the Committee had noted that the Supreme Court of Canada held in December 2001 (in the Dunmore case, originating from Ontario) that the exclusion of agricultural workers was unconstitutional and gave the Government of Ontario 18 months to amend the impugned legislation. The Committee had noted that the Government of Ontario had introduced Bill No. 187 in October 2002 (Agricultural Employees Protection Act), which gives agricultural employees the right to form or join an employees’ association. It appears, however, that this legislation does not give agricultural workers the right to establish and join trade unions and to bargain collectively.

In its latest report, the Government of Ontario has confined itself to indicating that a provincial election was being held in Ontario on 2 October 2003 and that information would be provided to the Committee as soon as available. The Committee requests once again the Government to ensure that any new legislation introduced will guarantee full respect of the rights under the Convention for all the categories of workers mentioned above and to keep it informed in its next report.

As concerns the Province of Alberta, the Committee notes with regret that the Government of Alberta has indicated that further review of the organization of agricultural workers will not be done at this time, considering the current challenges in the agricultural sectors. As concerns the Province of New Brunswick, the Committee notes with regret that no legislative changes are being considered to the Industrial Relations Act at this time. The Committee recalls once again that all workers, with the sole possible exception of the armed forces and the police, have the right to organize under the Convention. It requests the Governments of Alberta and New Brunswick to amend their legislation accordingly and to inform it of developments in this respect in their next reports.

B. Trade union monopoly established by law. In its previous report, the Committee had noted that certain provincial laws designate by name the union recognized as the bargaining agent (Prince Edward Island, Civil Service Act, 1983; Nova Scotia, Teaching Professions Act; Ontario, Education and Teaching Professions Act). It had recalled that although a system in which a single bargaining agent can be accredited to represent workers in a given bargaining unit and bargain on their behalf is compatible with the Convention, it nevertheless considers that a trade union monopoly established or maintained by the explicit designation by name of a trade union organization in the law is in violation of the Convention.

The Committee notes with regret that no developments on this point have been reported since 2002 by the Governments of Prince Edward Island, Nova Scotia and Ontario. The Committee requests once again the governments of these provinces to repeal from their respective legislation the designation by name of individual trade unions and to keep it informed of developments in their future reports.

II.  Matters relating to specific jurisdictions

A. Alberta. The Committee recalls that its previous comments concerned the right to strike of certain categories of employees in the hospital sector and the right to organize of university staff.

1. Right to strike. The Committee notes with regret that the Government, pursuant to the conclusions of the government MLA Committee Considering a Review of the Labour Relations Code (which concluded that the Labour Relations Code is continuing to balance the needs of employees and employers and is working well), decided that further review of labour relations in the health sector is not necessary at this time.

The Government further mentions in its latest report that the Labour Relations (Regional Health Authorities Restructuring) Amendment Act (Bill No. 27) came into effect on 1 April 2003 and has dealt with the majority of labour issues that were facing this sector. The Committee notes with regret the information supplied by the Government in its report, according to which the Amendment Act has not changed the situation of health workers with regard to the right to strike. The Committee recalls once again that the right to strike is a corollary of the right to organize and any restrictions should be limited to public servants exercising authority in the name of the State or to essential services in the strict sense of the term. It requests the Government to indicate whether kitchen staff, porters, and gardeners (who the Committee considers do not constitute workers in an essential service) are still covered by this strike prohibition and, in the affirmative, emphasizes that these categories of workers should not be denied this fundamental right.

2. The right to organize of university staff. As concerns the right to organize of university staff, the Government once again makes reference to a previous decision from the Alberta Court of Queen’s Bench that found that the designation sections of the Colleges Act, the Technical Institutes Act and the Universities Act do not violate the freedom of association provision within the Canadian Charter of Rights and Freedoms. Furthermore, it states in its report that both faculty and support staff in Alberta’s post-secondary institutions currently have the right to organize and be represented by a union or faculty or staff association. The Committee recalls that for several years it has been commenting on the need to repeal the provisions of the University Act which empower the Board of Governors to designate the academic staff members who are allowed, by law, to establish and join a professional association for the defence of interests, because future designations could be made 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 recalls that all workers, without distinction whatsoever, with the sole possible exception of the armed forces and the police, have the right to establish and join organization of their own choosing without previous authorization. It requests the Government to amend its legislation to ensure that university staff are guaranteed the right to organize, without any possible exceptions based on the powers of the Board of Governors, and to keep it informed in its report of measures taken in this respect.

B. British Columbia. In its previous comments, the Committee noted that the Act to bring an end to a collective dispute in certain provincial school commissions was repealed in July 2000 and requested the Government to keep it informed in respect of a new report expected on the collective bargaining regime for support staff.

In its latest report, the Government mentioned it has initiated a broader dialogue on support staff collective bargaining, and has begun discussions with employers and unions in the education sector with a view to considering appropriate models of collective bargaining. The Government stated it was open to expand the discussions to include other unions/employers in areas such as health and the public sector, but that in light of the broader review, the status of the report for support staff had at this time not been determined. The Committee requests the Government to keep it informed of developments in this respect, in particular as concerns dispute settlement regulations or machinery.

The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2173 (330th Report, paragraphs 239-305) concerning the Skill Development and Labour Statutes Amendment Act (Bill. No. 18) and the Education Services Collective Agreement Act (Bill No. 27).

The Committee notes that Bill No. 18 made education an essential service in the strict sense of the term and Bill No. 27, under which a collective agreement was deemed to exist, had the effect of rendering any strike that might have been ongoing illegal. The Committee recalls that the right to strike is one of the essential means through which workers and their organizations may promote and defend their interests and that restrictions on the right to strike should be limited to essential services in the strict sense of the term (the interruption of which would endanger the life, personal safety or health of the population), to situations of acute national crisis or for public servants exercising authority in the name of the Sate. The Committee requests the Government to repeal the provisions of Bill No. 18 which make education an essential service and to adopt legislative provisions ensuring that workers in this sector may enjoy and exercise the right to strike.

The Committee further notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2166 (330th Report, paragraphs 239-305) concerning the Health Care Services Continuation Act (Bill No. 2) and the Health Care Service Collective Agreement Act (Bill No. 15).

The Committee notes that where the right to strike is legitimately restricted or prohibited (Bill No. 2 concerns the health sector which is considered an essential service in the strict sense of the term), adequate protection should be given to the workers to compensate them for the limitation thereby placed on their freedom of action with regard to disputes affecting such services. The Committee notes that the workers did not benefit from impartial and adequate compensatory procedures and that sections 2 and 3 of Bill No. 15 essentially imposed the employer’s last offer. The Committee requests the Government to amend its legislation to ensure that workers in this sector enjoy adequate, impartial and speedy procedures to compensate for the restrictions in respect of the right to strike.

C. Manitoba. 1. Arbitration imposed at the request of one party after 60 days (article 87.1(1) of the Labour Relations Act). The Committee notes the Government’s statement that the Labour Management Review Committee (LRMC) reviewed the application of sections 87.1 to 87.3 of the Labour Relations Act, but that it did not address the issue of unilateral application to the Labour Board to initiate the dispute settlement process. In its report, the LMRC notes that there was limited experience of the operation of the new provisions upon which to base the review. There were only two applications made with respect to the relevant provisions during the two-year review period, neither of which resulted in the imposition of a collective agreement by the Manitoba Labour Board or by an arbitrator.

While taking due note that the application of this provision has not given rise to the imposition of a collective agreement, the Committee requests the Government to take the necessary measures to ensure that an arbitration award may only be imposed in cases of 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 conflict agree.

2. Prohibition of strikes by teachers, section 110(1) of the Public School Act. The Government reiterates its previous indication that the strike prohibition came about following a joint recommendation between the Manitoba Teachers’ Society and the Association of Schools. While this agreement dates back to 1956, the Committee observes that it was codified in the Manitoban legislation by the Public School Amendment of 1996, which explicitly prohibits the right to strike under section 110(1). The Committee recalls 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. In this respect, the Committee considers that any voluntary renunciation of the right to strike should not be codified in legislation, which by its nature has no set time limitation. Furthermore, any desire to reclaim such a right in the present circumstances is placed out of the hands of those concerned. On the other hand, the same or similar restrictions, could, in conformity with the Convention, be set forth in legally binding agreements, which may be reviewed by the parties concerned in accordance with such agreements. It, therefore, requests the Government to amend its legislation accordingly and to keep it informed of developments in its next reports.

D. Ontario. In its previous comments, the Committee had noted the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1975 (316th Report, paragraphs 229-274; 321st Report, paragraphs 103-118; persons taking part in community participation activities prohibited from joining a trade union), Bill No. 22 and Case No. 2025 (320th Report, paragraphs 374-414, concerning the Back to School Act, 1998, which brought an end to a legal strike by teachers). The Committee further noted from the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1951 (325th Report, paragraphs 197-215) that principals and vice-principals are still denied the right to organize.

In its latest report, the Government mentioned that a provincial election was being held on 2 October 2003 and that any information provided by the Government of Ontario would be forwarded to the Committee as soon as available. The Committee recalls once again that the only possible exceptions being the armed forces and police, the right to organize should be guaranteed to all workers without distinction whatsoever and that teachers should be allowed to have recourse to strike action. It requests the Government to amend its legislation and to keep it informed of the measures taken in this respect in its next report.

E. Newfoundland and Labrador. The Committee recalls that its previous comments concerned the need to amend the Fishing Industry Collective Bargaining Act (Bill No. 31) so that workers in the fishing industry were not denied the right to strike. The Committee notes that it is the view of the Government that amending the Fishing Industry Collective Bargaining Act to remove the final offer selection process would be contrary to the wishes of fish harvesters as represented by the Fish, Food and Allied Workers’ Union/Canadian Auto Workers Union. It further notes that, according to the Government, the parties that operate under the final offer selection (FOS) agree to forgo the right to strike for a specific period of time.

On the other hand, the Committee notes with interest that, following the adoption of an Act to amend the Fishing Industry Collective Bargaining Act, which came into force on 19 December 2002, the opting out provision has been reconfirmed (section 35.12): either party to collective bargaining may serve notice that it wishes to withdraw from the FOS model. When the opting out provision is invoked, the legislation provides for a return to a more traditional collective bargaining regime, with conventional strike and lockout provisions. The Committee notes with interest that in this regard the prohibition on strikes is not currently a permanent feature of the legislation and can be seen as a legally binding agreement, which allows parties to reclaim such a right.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report, and the conclusions and recommendations of the Committee on Freedom of Association in the various cases concerning Canada.

I.  Issues common to several jurisdictions

A. Alberta, Ontario, New Brunswick. Right to organize of certain categories of workers. In its previous comments, the Committee had noted that workers in agriculture and horticulture in the provinces of Alberta, Ontario and New Brunswick were excluded from the coverage of labour relations legislation and thereby deprived of protection concerning the right to organize and collective bargaining. The Committee had also noted with regret that other categories of workers (domestic workers, architects, dentists, land surveyors, lawyers and doctors) were excluded in Ontario, under section 1(3)(a) of the amended Labour Relations Act, 1995.

The Committee notes that the Supreme Court of Canada held in December 2001 (in the Dunmore case, originating from Ontario) that the exclusion of agricultural workers was unconstitutional and gave the government of Ontario 18 months to amend the impugned legislation. The Committee notes that the government of Ontario introduced Bill 187 in October 2002 (Agricultural Employees Protection Act, 2002) which gives agricultural employees the right to form or join an employees’ association; it appears, however, that this legislation does not give agricultural workers the right to establish and join trade unions and to bargain collectively. The Committee recalls once again that all workers, with the sole possible exception of armed forces and police, have the right to organize under the Convention. It requests the Government to ensure that any new legislation introduced will guarantee full respect for this right for all the categories of workers mentioned above, and to keep it informed in its next report.

Noting that the governments of Alberta and New Brunswick are currently reviewing the implications of the decision, the Committee brings their attention to the abovementioned considerations; it requests them to amend their legislation accordingly and to inform it of developments in this respect in their next report.

B. Prince Edward Island, Nova Scotia, Ontario. Trade union monopoly established by law. In its previous comments, the Committee had noted that certain provincial laws designate by name the union recognized as the bargaining agent (Prince Edward Island, Civil Service Act, 1983; Nova Scotia, Teaching Professions Act; Ontario, Education Act and Teaching Professions Act). It had recalled that, although a system in which a single bargaining agent can be accredited to represent workers in a given bargaining unit and bargain on their behalf is compatible with the Convention, it nevertheless considers that a trade union monopoly established or maintained by the explicit designation by name of a trade union organization in the law is in violation of the Convention.

The Committee notes with regret that the government of Ontario has no plans to amend the Education Act. It notes that the government of Nova Scotia states that there have been no further developments in this matter. It notes the explanations of the government of Prince Edward Island to the effect that the Civil Service Act does not prohibit another union from making an application to represent civil servants, and is therefore broad enough to meet the requirements of the Convention. While noting the explanations of the government of Prince Edward Island, the Committee points out that the difficulty arises here in view of the reference by name to a given organization, which may have the effect of maintaining a de facto monopoly. The Committee requests, once again, the governments of these three provinces to repeal from their respective legislation the designation by name of individual trade unions and to keep it informed of developments in this respect in their future reports.

II.  Matters relating to specific jurisdictions

A. Alberta. The Committee recalls that its previous comments concerned the right to strike of certain categories of employees in the hospital sector and the right to organize of university staff. The Government states that a review committee of the Legislative Assembly has been set up to undertake a broader review of Alberta’s labour laws, and that no amendments are planned while this committee continues its work.

The Committee recalls once again, as regards the categories of hospital staff mentioned above, that the right to strike is an intrinsic corollary of the right to organize and any restriction should be limited to public servants exercising authority in the name of the State or to essential services in the strict sense of the term. The Committee also recalls that all workers, without distinction whatsoever, with the sole possible exception of armed forces and police, have the right to establish and join organizations of their own choosing without previous authorization. It requests the Government to amend its legislation to ensure that kitchen staff, porters and gardeners are not denied this right, and that all university staff are given the right to organize, and to keep it informed in its next report of measures taken in this respect.

B. British Columbia. The Committee notes that the Act to bring an end to a collective dispute in certain provincial school commissions was repealed in July 2000, and that a report is expected in the near future on the collective bargaining regime for support staff. Hoping that the Government will refrain in future from adopting back-to-work legislation, the Committee requests it to keep it informed of developments in this respect.

C. Manitoba. 1. Arbitration imposed at the request of one party after 60 days (article 87.1(1) of the Labour Relations Act). The Committee notes the Government’s statement that strikes or lockouts that exceed 60 days are detrimental to employers, employees and the public interest, and that some safeguards are built into the dispute resolution system to ensure that fair collective bargaining has taken place prior to the process being used. The Committee further notes that the Labour Management Review Committee (LMRC), where labour and management organizations are equally represented, must review the operation of these provisions every two years and report to the Legislative Assembly.

The Committee recalls that arbitration imposed by the authorities at the request of one party is contrary to the principle of voluntary bargaining and the autonomy of the parties (General Survey of 1994 on freedom of association and collective bargaining, paragraph 257) and requests the Government to take the necessary measures to ensure that recourse to arbitration for the settlement of conflicts is voluntary. It requests the Government to communicate in its next report the conclusions of the LMRC.

2. Prohibition of strikes by teachers, section 110(1) of the Public Schools Act. The Committee notes the Government’s statement that both the prohibition of strikes and the system of compulsory binding arbitration that have existed since 1956 were enacted following joint recommendations by the Manitoba Teachers’ Society (representing teachers) and the Manitoba Association of School Trustees (representing employers). In essence, the amendments brought by Bill 42 made the collective bargaining under the general legislation applicable to public schools, but compulsory binding arbitration was retained in a somewhat different format. Bill 42 also introduced the recommendations of the Freedom of Association Committee concerning the jurisdiction of interest arbitrators. The Committee further notes that, commenting on the relevant amendments before the legislative committee, a representative of the Manitoba Teachers Society indicated that Bill 42 would give teachers fair treatment and would improve their relations with the school boards.

The Committee recalls 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, and that arbitration imposed by the authorities at the request of one party is contrary to the principle of the voluntary negotiation of collective agreements and the autonomy of the partners. While taking due note of the Government’s indication that the strike prohibition came about following a joint recommendation between the Manitoba Teachers’ Society and the Association of School Trustees as far back as 1956, the Committee observes that this agreement was codified in the Manitoban legislation by the Public School Amendment Act of 1996, which explicitly prohibits the right to strike under section 110(1). In this respect, the Committee considers that any voluntary renunciation of the right to strike should not be codified in legislation, which by its nature has no set time limitation. Furthermore, any desire to reclaim such a right is placed out of the hands of those concerned, but rather may be set forth in legally binding agreements, which may be reviewed by the parties concerned in accordance with such agreements. It therefore requests once again the Government to amend its legislation accordingly and to keep it informed of developments in its next report.

D. Ontario. In its previous comments, the Committee had noted the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1975 (316th Report, paragraphs 229-274; 321st Report, paragraphs 103-118; persons taking part in community participation activities prohibited from joining a trade union), Bill 22 and Case No. 2025 (320th Report, paragraphs 374-414) concerning the Back to School Act, 1998, which brought an end to a legal strike by teachers. The Committee had requested the Government to take the necessary measures so that community workers are guaranteed the right to organize and that teachers may exercise the right to strike, and requested it to avoid having recourse to back-to-work legislation in future.

The Committee notes with regret that the Government merely maintains its position concerning Bill 22 and that no legislative amendments are "planned or envisaged", and that "there are no updates regarding Ontario’s position" in respect of the Back to School Act, 1998. The Committee further notes from the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1951 (325th Report, paragraphs 197-215) that principals and vice-principals are still denied the right to organize. The Committee requests the Government to amend its legislation so that these categories of workers are guaranteed the right to establish and join organizations of their own choosing, in conformity with the Convention.

The Committee recalls, once again, that the only exceptions as regards the right to organize are armed forces and police, and that teachers should be allowed to strike. It requests the Government to amend its legislation and to keep it informed in its next report.

E. Newfoundland and Labrador. 1. The Committee notes that during a recent public sector labour dispute, the designation of employees entrusted with ensuring the essential services proceeded with the cooperation of all parties, to ensure the health and safety of the public.

2. The Committee notes that the collective bargaining legislative model in the fishing industry was developed and endorsed by the main bargaining agent in the sector. The parties chose a final offer selection process as the agreed dispute resolution mechanism. In 2002, out of 12 rounds of negotiations, nine settlements were achieved through negotiations and three through arbitration. The Committee recalls 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. It further recalls its above comment for Manitoba concerning the renunciation of the right to strike. It therefore requests the Government to amend its legislation accordingly and to keep it informed of developments in its next report.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

Federal Government

The Committee notes the amendments to the Canada Labour Code, which came into force on 1 January 1999, to improve the administrative provisions and the collective bargaining process for federally regulated industries.

It notes with interest that, henceforth, the use by an employer of replacement workers for the purpose of undermining a union’s representational capacity is an unfair labour practice.

With regard to its previous comments concerning the requirement to continue providing services relating to the mooring, casting off and loading of grain vessels at terminal facilities and transfer elevators, and the movement of grain vessels in and out of port, in the event of a strike or a lockout, the Committee notes that section 87.7 has been adopted on the recommendation of a task force of independent labour relations experts with, it appears, broad support from those concerned (west coast ports long-shoring unions and workers in the grain sector, and representatives of grain farmers and grain industry employers).

The Committee notes this information and requests the Government to keep it informed in future reports of the application of this legislation in practice.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report, the conclusions and recommendations of the Committee on Freedom of Association in the various cases concerning Canada, and the discussions in the Conference Committee on the Application of Standards in June 1999.

I.  Issues common to several jurisdictions

  A.  Alberta, Ontario, New Brunswick

  Right to organize of certain categories of workers

The Committee once again notes that workers in agriculture and horticulture in the provinces of Alberta (section 2(2)(e) of the Labour Code), Ontario (section 3(b) and (c) of the amended Labour Relations Act of 1995) and New Brunswick (section 1(5)(a) of the Labour Code) are excluded from the coverage of labour relations legislation and thereby deprived of the protection envisaged therein with regard to the right to organize and collective bargaining. Furthermore, with regard to Ontario, the Committee recalls the conclusions of the Committee on Freedom of Association in case No. 1900 (308th Report, paragraphs 139-194, and 316th Report, paragraphs 28-30) and observes with regret that several other categories of workers are excluded from the industrial relations legislation (domestic workers, architects, dentists, land surveyors, lawyers and doctors) under the terms of section 1(3)(a) of the amended Labour Relations Act, 1995. The Committee notes the information provided by the governments of Ontario and Alberta to the effect that workers in agriculture and horticulture are entitled to form associations and participate in voluntary negotiations with their employers. It also notes the comments of the government of New Brunswick that the requirement that a bargaining unit comprise at least five agricultural workers to engage in collective bargaining is necessary to free small family agricultural holdings from inappropriate legislative constraints.

The Committee is nevertheless bound to emphasize the fact that all workers, without distinction whatsoever, with the sole possible exception of the armed forces and the police, must be able to organize freely and benefit from the necessary protection to ensure observance of the Convention.

The Committee urges the governments of the provinces concerned to take the necessary measures to amend the legislation in question in order to bring it into full conformity with the Convention and to keep the Committee informed in this respect. The Committee notes that the Supreme Court of Canada has granted leave to hear an appeal against the dismissal by the Ontario Court of Appeal of a challenge to the exclusion of agricultural workers and it requests the Government to forward the text of the judgement when it is delivered.

  B.  Prince Edward Island, Nova Scotia, Ontario

  Trade union monopoly established by law

The Committee notes that certain provincial laws designate by name the union recognized as the bargaining agent (Prince Edward Island: Civil Service Act, 1983; Nova Scotia: Teaching Professions Act; Ontario: Education Act and Teaching Professions Act). The Committee recalls that, although it considers 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, it nevertheless considers that a trade union monopoly established or maintained by the explicit designation by name of a trade union organization in the law is in violation of the Convention.

The Committee requests the governments of these provinces to repeal from their respective legislation the designation by name of individual trade unions and to keep it informed in this regard.

II.  Matters relating to specific jurisdictions

  A.  Alberta

1.  Right to strike.  With reference to its previous comments concerning section 117.1 of the Public Service Employee Relations Act, as amended in 1983 by Act No. 44, which bans strikes by all hospital workers, including kitchen staff, porters and gardeners, and therefore goes beyond the admissible restrictions to the right to strike, the Committee notes that, according to the Government, the right to strike and to lockout depends on the nature of the organization providing the service, rather than on the type of work performed by employees. The Committee nevertheless recalls that the right to strike is an intrinsic corollary of the right to organize and any restriction should be limited to public servants exercising authority in the name of the State or to essential services in the strict sense of the term (see the 1994 General Survey on freedom of association and collective bargaining, paragraph 179).

The Committee requests the Government to amend its legislation to ensure that kitchen staff, porters and gardeners are not denied this fundamental right.

2.  Right to organize of university staff.  The Committee recalls that for several years it has been commenting on the need: (a) to repeal the provisions of the University Act which empower the Board of Governors to designate the academic staff members who are allowed, by law, to establish and join a professional association for the defence of their interests; and (b) to introduce an independent system of designation where the parties fail to reach agreement upon such designation. The Committee notes the ruling by the Alberta Court of Appeal in the Lakeland College case, which was however confined to the issue of whether the power of designation had in that instance been used in a fair and responsible manner. The Committee recalls that all workers, without distinction whatsoever, have the right to establish and join organizations of their own choosing without previous authorization.

The Committee requests the Government to repeal the provisions in question and to keep it informed in its next report of the measures taken in this respect.

  B.  British Colombia

The Committee notes the adoption in April 2000 of a special Act to bring an end to a collective dispute in certain provincial school commissions (Bill 7 on public education support staff collective bargaining assistance), which raises a number of difficulties in relation to the Convention (section 2: prohibition of the right to strike; sections 4, 5 and 6: the appointment by the Minister of Labour of an industrial inquiry commission entrusted, if necessary, with determining by itself the terms of a collective agreement; section 11: the broad powers of the Minister concerning the structure, role, establishment, responsibilities and rules of employers’ and workers’ organizations).

The Committee requests the Government to indicate whether this Act was repealed on 31 July 2000 in whole or in part, as provided for in section 13, and to keep it informed of any development relating to its application.

  C.  Manitoba

1.  The Committee notes the amendments made to the Labour Relations Act by Bill 44. Section 87.1(1) of the Labour Relations Act provides that, when 60 days have elapsed since the commencement of a strike or lockout and conciliation has been used, one of the parties may apply to the Labour Board of Manitoba to settle the provisions of a new collective agreement. The Committee recalls that arbitration imposed by the authorities at the request of one party is contrary to the principle of voluntary bargaining and the autonomy of the parties (see General Survey, op. cit., paragraph 257).

The Committee requests the Government to take the necessary measures to ensure that recourse to arbitration for the settlement of conflicts is voluntary.

2.  The Committee notes the amendments made to the Public Schools Act by Bill 42, including:

-  section 110(1), which prohibits strikes by teachers;

-  sections 112(3) to 112(5), which envisage penalties of up to CAN$2,000 a day for any bargaining agent or trade union officer who declares or authorizes a strike by teachers;

-  sections 100, 103 and 108, which provide that when at least 90 days have elapsed since the commencement of collective bargaining and no collective agreement has been concluded, one of the parties may initiate arbitration proceedings to decide the matters in dispute between them with a view to the preparation of a collective agreement embodying all matters settled in the award.

The Committee recalls 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. It also recalls that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association, which is not the case in this instance. Finally, the Committee emphasizes that arbitration imposed by the authorities at the request of one party is contrary to the principle of the voluntary negotiation of collective agreements and the autonomy of the partners.

The Committee requests the Government to take measures to amend its legislation so that teachers are not denied the right to strike, the exercise of this right does not result in them being penalized and recourse to arbitration for the settlement of disputes is voluntary.

  D.  Ontario

1.  The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1975 (316th Report, paragraphs 229-274; 321st Report, paragraphs 103-118) concerning the Prevention of Unionization (Ontario Works) Act (Bill 22) and the Economic Development and Workplace Democracy Act (Bill 31).

The Committee notes that Bill 22 provides that persons taking part in community participation activities are prohibited from joining a trade union within the general framework established by the 1995 Industrial Relations Act and it recalls that the right to organize must be guaranteed to all workers, without distinction whatsoever, including, as in the present case, persons performing community work.

The Committee requests the Government to amend this legislation with a view to guaranteeing the right to organize to the persons concerned, in conformity with the Convention.

2.  The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2025 (320th Report, paragraphs 374-414) concerning the Back to School Act, 1998, which brought an end to a legal strike by teachers, without prior consultation with them, and authorized either party to initiate a mediation‑arbitration procedure and to request the Minister of Labour at any time to appoint a mediator‑arbitrator with the exclusive jurisdiction to determine all matters that he or she considers necessary to conclude a new collective agreement. The Committee recalls that the right to strike is one of the legitimate and essential means through which workers and their organizations, including teachers, can defend their economic and social interests, and that recourse to compulsory arbitration in cases where the parties do not reach agreement through collective bargaining is not in conformity with the principle of voluntary negotiation and is permissible only in the context of essential services in the strict sense of the term.

The Committee urges the Government to take the necessary measures so that teachers in Ontario are authorized to exercise the right to strike, and to avoid in future recourse to the adoption of return to work legislation.

  E.  Newfoundland

1.  The Committee recalls that its previous comments concerned the need to amend section 10.1 of the Public Service (Collective Bargaining) Act (No. 59), which confers broad powers on the employer with regard to the procedure for the designation of "essential employees". The Committee notes that the joint labour and management working group, whose mandate included a review of legislation affecting freedom of association with a view to proposing necessary reforms, has submitted a detailed report which is generally supportive of the provisions of the Act in this respect. The Committee also notes that, in all the cases dealt with by the Labour Relations Board in the early 1990s, workers and employers voluntarily submitted an agreement to the Board on employees to be designated as essential which, according to the Government, demonstrates their endorsement of the provisions in question.

The Committee notes this information with interest and requests the Government to keep it informed in future reports of the application of this legislation in practice.

2.  The Committee notes the adoption of a new collective bargaining legislative model in the fishing industry which prohibits strikes or lockouts. The Committee recalls that the right to strike is an intrinsic corollary of the right to organize and may only be limited in the case of public servants exercising authority in the name of the State or in essential services in the strict sense of the term.

The Committee requests the Government to amend the legislation so that these workers are not denied the right to strike.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

Articles 2 and 3 of the Convention. The right of workers and employers to establish and join organizations of their own choosing without previous authorization; their right to formulate their programmes.

Prince Edward Island, Nova Scotia, Ontario: Union monopoly

For many years, the Committee has drawn the Government's attention to the necessity to amend certain provincial laws that designate by name the union recognized as the bargaining agent. The Committee notes with regret that, despite its repeated requests, the Government has provided no information on any measures that may have been taken by the Governments of Prince Edward Island and Ontario. The Committee also notes that the Government of Ontario recently had recourse to this practice, since section 277.3 of the Act to amend the Education Act (Bill 160 having received Royal Assent on 8 December 1997) designates by name the bargaining agents responsible for acting on behalf of one or other of the bargaining units composed of teachers, to the exclusion of supervisors, head teachers, deputy head teachers and lecturers in teacher-training institutions. On the other hand, the Government of Nova Scotia indicates that no changes to legislation in this area are planned, and emphasizes that the Nova Scotia Teachers' Union is not just a union, but a professional body promoting professional development and the education of school students. Under these circumstances, the Committee emphasizes that it has always considered that labour relations systems in which a single bargaining agent can be accredited to represent workers of a given bargaining unit, giving it the exclusive right to negotiate collective agreements and monitor their application and interpretation, is compatible with the Convention. However, the Committee considers that a union monopoly established or maintained by designation of the union in question by name in the relevant legislation contravenes the express terms of the Convention. The Committee is therefore obliged to urge the Governments of these Provinces once again to repeal from their respective legislation (Prince Edward Island: Civil Service Act, 1983; Nova Scotia: Teaching Professions Act; Ontario: Education Act and Teaching Professions Act) the names of individual trade unions, and to keep it informed of any steps taken in this regard.

Federal Government: Restriction to the right to strike and collective bargaining

The Committee recalls that its previous comments concerned the adoption of the Maintenance of Railway Operations Act (C-77) and the West Coast Ports Operations Act (C-74), which ended work stoppages in their respective sectors. The Committee notes with interest the Government's statement to the effect that collective bargaining has been restored in both these sectors, a collective agreement that will remain in force until 31 December 1998 having been concluded in the case of the West Coast ports, while in the case of the railways, the relevant agreements have not all been finalized, although negotiations are in progress. Nevertheless the Committee notes with concern that the new section 87.7 of the Canada Labour Code, which was introduced by the adoption in May 1998 of Bill C-19 (which received Royal Assent on 18 June 1998), stipulates that, in the case of a strike or a lock-out in the long-shoring industry or other federal enterprises, the employees and their bargaining agents are required to continue to provide their services relating to the mooring, casting off and loading of grain vessels at terminal facilities and transfer elevators, and to the movement of grain vessels in and out of port. Recalling that a negotiated minimum service may be appropriate in situations in which, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users' basic needs are met or that facilities operate safely or without interruption (see paragraph 162 of the General Survey on freedom of association and collective bargaining, 1994), the Committee urges the Government to ensure that this provision is not used for purposes incompatible with the principles of freedom of association.

Alberta

The Committee recalls that for a number of years it has been commenting on the need: (a) to repeal the provisions of the University Act which empower the Board of Governors to designate the academic staff members who are allowed, by law, to establish and join a professional association for the defence of their interests; and (b) to introduce an independent system of designation where the parties fail to reach agreement for the purpose of joining academic staff associations.

Noting the Government's information according to which it is the rules of a professional association which determine whether persons who are not members of the academic staff may join the association, the Committee considers nevertheless that the law, by granting the power of designation to the Board of Governors, may restrict the right of certain workers to establish and join organizations of their own choosing. Noting that a case concerning a similar provision in the Colleges Act was examined by the Court of Appeal in October 1997, and that no ruling has yet been handed down, the Committee requests the Government to keep it informed of the outcome of these proceedings.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

1. The Committee takes note of the Government's report and of the conclusions of the Committee on Freedom of Association with regard to various cases concerning Canada.

2. Articles 2 and 3 of the Convention. The right of workers and employers to establish organizations of their own choosing without previous authorization; the right to formulate their programmes.

Newfoundland

Recalling that its earlier comments concerned the need to amend section 10.1 of the Public Service (Collective Bargaining) Act (No. 59) which relates to the procedure for the designation of "essential employees" and confers broad powers on the employer in this respect, the Committee notes with interest the information in the Government's last report according to which an effective procedure has been established for defining "essential workers". In addition, the joint labour-employer working group, whose mandate includes a review of legislation affecting freedom of association with a view to proposing necessary reforms, has submitted its report, the conclusions of which are now under consideration. The Committee asks the Government to keep it informed of developments in this respect.

Alberta

The Committee recalls that its comments have concerned in particular section 117.1 of the Public Service Employee Relations Act as amended in 1983 by Act No. 44 which bans strikes by all hospital workers including kitchen staff, porters and gardeners, and therefore goes beyond the acceptable restrictions to the right to strike implicitly recognized in Article 3 of the Convention. The Committee notes with regret the information supplied by the Government in its report, according to which the amendments made to the Alberta Labour Code, to the Public Service Employee Relations Act and the Regional Health Authorities Act have not changed the situation of health workers with regard to the right to strike. The Committee recalls that, in its view, the right to strike is an intrinsic corollary of the right to organize and any restriction should be limited to public servants exercising authority in the name of the State or to essential services in the strict sense of the term. The Committee asks the Government to indicate whether kitchen workers, porters and gardeners in hospitals have the right to strike; if they do not, the Committee emphasizes that these categories of workers should not be denied this fundamental right.

3. In general, as regards the right to strike, the Committee notes with interest the adoption of Bill C-19, an Act to amend the Canada Labour Code (part I), section 87.4 of which defines the activities which must be maintained in the event of a strike or lockout, and section 94(2.1) of which expressly prohibits employers from using replacement workers in order to undermine a union's representational capacity, which thereby bring the legislation into greater conformity with the principles of freedom of association.

With regard to the right to organize in agriculture and horticulture, the Committee takes due note of the Government's information to the effect that workers in these sectors are covered by the provisions of the Labour Codes applicable in the Provinces of British Columbia, Saskatchewan, Manitoba, Quebec, Nova Scotia, Prince Edward Island, Newfoundland and the North West Territories and the Yukon, the federal Labour Code being applicable in the North West Territories and the Yukon. Nevertheless, the Committee notes that certain workers in the Provinces of Alberta (section 2 (2)(e) of the Labour Code), Ontario (section 3 (b) and (c) of the amended Labour Relations Act of 1995) and New Brunswick (section 1 (5)(a) of the Labour Code) are excluded from the coverage of labour relations legislation and thus do not enjoy the protection provided with regard to the right to organize and to negotiate collectively. In addition, with regard to Ontario, the Committee notes the conclusions of the Committee on Freedom of Association in case No. 1900 (308th Report, paragraphs 139-194), and observes with regret that domestic workers are also excluded from the coverage of the labour relations legislation (section 3(a) of the amended Labour Relations Act of 1995). Under the circumstances, the Committee must recall that the guarantees provided by the Convention apply to all workers without distinction whatsoever and that all workers must enjoy the right to establish and join organizations of their own choosing, with the sole possible exception of the armed forces and the police. The Committee therefore urges the Government to take the necessary measures to amend the aforementioned legislation in order to bring it into full conformity with the principles of freedom of association, and to keep it informed in this regard.

In addition, a request regarding certain points is being addressed directly to the Government.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

Articles 2 and 3 of the Convention: The right of workers and employers to establish and join organizations of their own choosing, without previous authorization; the right to formulate their programmes.

Prince Edward Island, Nova Scotia, Ontario: Union monopoly

For many years, the Committee has drawn the Government's attention to the necessity to amend certain provincial laws that designate by name the union recognized as bargaining agent, giving rise to a possible situation of trade union monopoly. The Committee urges the governments of these provinces to repeal from their respective legislation (Prince Edward Island, Civil Service Act, 1983; Ontario and Nova Scotia, Teaching Professions Act) the names of individual trade unions and to keep it informed of any steps taken in this regard.

Ontario: Freedom of association without any distinction

Furthermore, with regard to Ontario, the Committee notes the entry into force of the Act to restore stability to labour relations and to promote economic prosperity (Act No. 7). The Act amends the provisions of a number of laws, particularly the 1995 Labour Relations Act and the 1993 Crown Employees Collective Bargaining Act. It also repeals the provisions of the 1994 Agricultural Labour Relations Act, which the Committee addressed in its comments. The Committee notes with concern that one of the consequences of Act No. 7 is the exclusion of household employees and persons employed in agriculture and horticulture from the scope of the legislation on collective bargaining. It also notes that, according to the Government's report, before the adoption of the 1994 Agricultural Labour Relations Act, agricultural and horticultural workers were banned from forming or joining organizations. Recalling that the guarantees laid down in the Convention cover all workers, without distinction, the Committee asks the Government to indicate whether these workers (household employees, agricultural and horticultural workers) may form and join organizations and whether they have the right to strike. If not, the Committee urges the Government to take the necessary steps to revise Ontario's legislation governing these workers in order to bring it into full conformity with the principles of freedom of association.

Federal Government: Limitations to the right to strike and collective negotiation

The Committee notes the adoption of the Maintenance of Railway Operations Act (Bill C-77) on 26 March 1995, and the West Coast Ports Operations Act (Bill C-74) on 15 March 1995, both of which ended work stoppages in their respective sectors. Under these acts, the applicable collective agreements, which had in fact expired some years previously, are extended until 31 December 1996 at least (C-74), or until new agreements are concluded (C-77). The acts provide for the appointment of a mediator-arbitrator to whom all matters remaining in dispute between the parties must be referred. Lastly, strikes and lockouts are prohibited during the term of the collective agreements, as extended.

Recalling that restrictions on the right to strike must be limited to essential services in the strict sense of the term or to cases of acute national crisis, the Committee notes that the grounds for the adoption of these Acts are incompatible with the principles of freedom of association. The Committee asks the Government to indicate whether the rights of the workers concerned to bargain collectively and to strike have been restored. It urges the Government to refrain, in future, from resorting to legislation to intervene in labour disputes which have no effect on essential services in the strict sense of the term.

Lastly, with regard to agriculture and horticulture, the Committee again asks the Government to provide information on the general situation of workers in these sectors in all the provinces and territories of Canada, and to indicate whether their right to establish organizations of their own choosing or their right to strike are limited in law or in practice.

Alberta

The Committee recalls that for a number of years its comments have concerned the need: (a) to repeal the provisions of the University Act which empowers the Board of Governors to designate the academic staff members who are allowed, by law, to establish and join a professional association for the defence of their interests; and (b) to introduce an independent system of designation where the parties fail to reach agreement for the purpose of joining academic staff associations.

The Committee notes the information supplied by the Government to the effect that, in reviewing a similar provision of the Colleges Act, the Ontario Appeals Court ruled that it was not in breach of the Canadian Charter of Rights and Freedoms. The Court found that the impugned provision in no way prevented the complainants in question from joining organizations of their choice. The Committee notes that an appeal has been filed against this decision and requests the Government to inform it of the outcome thereof.

Quebec

The Government indicates that two laws were adopted during the period covered by its report: Bill No. 46, which has become Chapter 8 of the 1995 laws and amends the Act on Labour Relations, Vocational Training and Labour Management in the Construction Industry (Labour Relations Act) and Bill No. 27, which has become Chapter 30 of the 1996 laws and amends the Labour Code.

The Government recalls that the sectoral negotiations in the construction industry, which were to begin in October 1994, actually began only in February 1995. For the duration of the negotiations, the Construction Industry Act remains in force, since it bans all strikes or lockouts until all negotiating procedures have been exhausted. The Committee notes with interest that negotiations are still under way in the residential and "civil engineering and highway maintenance" sectors and that memoranda of understanding have been concluded in the commercial and institutional sectors and in the industrial sector. The Committee asks the Government to keep it informed of any developments in this respect.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

1. The Committee notes the Government's report and the conclusions of the Committee on Freedom of Association in the various cases concerning Canada.

2. Articles 2 and 3 of the Convention: the right of workers and employers to establish and join organizations of their own choosing and to formulate their programmes without previous authorization.

Alberta

The Committee recalls that for many years its comments have concerned the provisions of the Public Service Employee Relations Act and the Labour Relations Act which ban strikes by a broad range of provincial public servants and therefore go beyond the acceptable limits on the right to strike recognized implicitly in Article 3 of the Convention (particularly section 117.1 of the Public Service Employee Relations Act as amended in 1983 by Act No. 44 which bans strikes by all hospital workers including kitchen staff, porters, gardeners). The Committee recalls that prohibition of the right to strike should be confined to public servants exercising authority in the name of the State or to essential services in the strict sense of the term. The Committee emphasizes once again that limitations on strike action in the public service or essential services should be compensated by adequate, impartial and speedy conciliation and arbitration procedures. Accordingly, it again emphasizes the need for the above laws to be revised to bring them into full conformity with the provisions of the Convention and urges the Government to provide information on any measures taken in this connection, particularly on the outcome of the review of this legislation announced in the previous report, and on the updating of its provisions.

Newfoundland

The Committee recalls that its previous comments concerned the need to amend the Public Service (Collective Bargaining Act) (No. 59), which, by its definition of "employee" deprives many workers of the possibility of joining the union of their choice and restricts the right to strike in the public service, since section 10.1 of the Act, which relates to the procedure for the designation of "essential employees" confers broad powers on the employer on this respect. The Committee notes from the Government's report that, following a public consultative process by a joint labour-employer working group, draft labour legislation is being prepared. The mandate of the group includes a review of legislation affecting freedom of association and the right to organize in order to propose appropriate reforms. The Committee asks the Government to keep it informed of developments in this respect. Furthermore, the Committee notes with interest that, with respect to the designation of "essential employees" under section 10.1 of Act No. 59, significant agreement has been reached by the parties concerned in the health sector on the numbers and positions to be declared essential. Moreover, one case has been brought before the Labour Relations Board which, after two years of hearings, has ruled that "essential" refers to the health, safety and security of the public in accordance with the principles of freedom of association. The Committee asks the Government to keep it informed of any developments with regard to the designation of essential services under Act No. 59.

3. As regards the prohibition of strikes in general, the Committee notes from the Government's detailed report that there has been some progress in non-essential sectors (construction, Quebec), but must again express concern about the agricultural and horticultural sectors (Ontario) and the railway and port sectors (federal Government). The Committee requests the Government to ensure that restrictions on the right to strike are limited to essential services in the strict sense of the term, to public servants exercising authority in the name of the State or to cases of acute national crisis, in accordance with the principles of freedom of association.

In addition, a request regarding certain points is being addressed directly to the Government.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

Articles 2 and 3 of the Convention: The right of workers and employers to establish and join organizations of their own choosing without previous authorization: The right to formulate their programmes.

Prince Edward Island, Nova Scotia, Ontario

For many years, the Committee has drawn the Government's attention to the necessity to amend certain provincial laws that designate by name the union recognized as bargaining agent, giving rise to a possible situation of trade union monopoly. The Committee takes note with interest of the information provided by the Government in its last reports concerning the enactment in the province of Ontario, on 14 February 1994, of Bill No. 117 that substantially amends the Ontario Crown Employees Collective Bargaining Act so that no union is specified as having the exclusive right to represent crown employees.

The Committee requests once more the governments of these provinces to repeal from their respective legislation (Prince Edward Island, Civil Service Act, 1983; Ontario and Nova Scotia, Teaching Profession Acts) the names of individual trade unions.

In addition, as regards the Province of Ontario, the Committee notes with concern the enactment, on 23 June 1994, of Bill No. 91 - the Agricultural Relations Act which extends, according to the Government's report, to workers in agriculture and horticulture the right to organize but set out a number of special provisions, justified by the unique nature of these industries, namely a ban on strikes and a procedure of compulsory arbitration by final offer selection. The Committee is bound to recall the paramount importance it attaches to the right to strike, an intrinsic corollary of the right of association protected by the Convention, that can only be limited in exceptional circumstances. The Committee requests the Government to take all the necessary measures to amend the Ontario legislation concerning workers in agriculture and horticulture so that it is in compliance with the provisions of the principles of freedom of association and to lift the ban on the right to strike of these workers. It also requests the Government to provide information on the general situation of workers in agriculture and horticulture in the other provinces and territories of Canada, and namely if their right to establish organizations of their own choosing or their right to strike are limited in law or in practice.

Federal Government

The Committee takes note of the Government's provisions of the West Coast Ports Operation Act which terminated the work stoppage and restored longshoring operations at West Coast Ports upon its coming into force in February 1994. The Act also aimed at settling the remaining issues in dispute between the British Columbia Maritime Employers Association (BCMEA) and the International Longshoremen's and Warehousemen's Union (ILWU)-Canadian Area representing some 3,600 longshoremen, through the process of final offer selection. According to the Government, this method of settlement of disputes required both sides to rationalize their respective positions prior to presenting them to the arbitrator for final resolution.

The Committee recalls that restrictions imposed on the right to strike have to be limited to essential services in the strict sense of the term or in cases of acute national crisis. Noting that the enactment of the West Coast Ports Operation Act was introduced some ten days after the workers had commenced a legal strike, the Committee would request the Government in future to avoid resorting to legislative intervention in industrial disputes that are not related to essential services in the strict sense of the term.

The Committee takes note of the Government's information to the effect that the provisions in Part I of the Budget Implementation Act, adopted in April 1993, have amended the Public Sector Compensation Act, adopted in 1991, and several other Acts to provide, amongst other things, for the extension of the wage freeze in force in the public sector for a further period of two years. Since a complaint has been filed before the Committee on Freedom of Association concerning this legislation, the Committee will postpone its comments until the complaint has been examined.

British Columbia

Referring to its previous comments concerning Act No. 31 - the Educational Programmes Continuation Act - which allowed the Minister of Labour to refer disputes between parties in provincial school districts to binding settlement if they were unable to reach a negotiated agreement, the Committee notes that Bill No. 31 expired in March 1994 and that Act No. 52 - the Public Education Labour Relations Act - was passed in June 1994. The Committee requests the Government to indicate in its next report if the system of industrial relations now in place has the confidence of the persons concerned.

Manitoba

The Committee takes note of the conclusions reached by the Committee on Freedom of Association in Case No. 1715 (292nd Report, March 1994) concerning the Public Sector Reduced Work Week and Compensation Management Act. In particular, it notes that the Committee on Freedom of Association is of the opinion that by imposing a ten-day leave to most provincial public servants without pay, the Act raises issues as regards the principles of freedom of association.

The Committee would ask the Government to refrain from interference which would restrict the right of workers' organizations to organize their activities and to formulate their programmes of action.

Quebec

The Government indicates that three pieces of legislation have been put into force during the period covered by its report.

The Act modifying the Quebec Labour Code (Bill No. 116) was enacted on May 1994. Amongst other things, the Government indicates that the Act eliminates various constraints imposed on the collective bargaining process, resolves administrative difficulties encountered in the Labour Code and encourages a better efficiency of the bodies responsible for its application. The Act also repeals the upper three-year limit on the term of collective agreements and from which modifications to other provisions follow (period to change union allegiance).

The second legislation amended in November 1993 is the Law on industrial relations, professional training and management of labour in the construction industry (Bill No. 142). The Government emphasizes the fact that these amendments entail a total new framework of collective bargaining in the construction industry, namely that for the purpose of negotiation and conclusion of collective agreements, this industry is divided into four major sectors, i.e., civil engineering, industrial, institutional and commercial and residential.

Because the Quebec construction industry was affected by major labour disputes and illegal strikes, the Government indicates in its report that it had no choice, in order to ensure the resumption of construction work, but to enact, in December 1993, the third piece of legislation, i.e., the Act concerning the construction industry.

The Committee notes that the Act concerning the construction industry imposed on all workers in this industry, who had stopped working, the resumption of their works on 14 December 1993. It also provided for severe penalties in case of non-compliance with its provisions.

Recalling that, in 1987, the Committee on Freedom of Association had already examined a complaint which referred to the adoption by the Quebec Parliament of an exceptional law affecting the construction industry, the Committee emphasizes the importance it attaches to the principle that the right to strike is one of the essential means through which workers and their organizations may promote and defend their occupational interests. The Committee expresses its concerns that the new Bill No. 142 appears not to allow workers' organizations to represent their members' interests since, only a few days after its adoption, the Government felt compelled to enact the Act concerning the construction industry providing for compulsory resumption of construction work. The Committee requests the Government to keep it informed of the practical effect of Bill No. 142, namely the outcome of the sectorial collective bargaining in the construction industry.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

Articles 2 and 3 of the Convention: The right of workers and employers to establish and join organizations of their own choosing without previous authorization: the right to formulate their programmes.

1. Following the September 1985 study and information mission, the Committee, along with the Committee on Freedom of Association (see 241st Report, Cases Nos. 1234, 1247 and 1260), has continued to raise various issues of concern and has requested the governments of the Provinces of Newfoundland and Ontario to take the necessary measures to give full effect to the Convention.

Alberta

As regards the Province of Alberta, the Committee had requested the Government for a considerable number of years: (a) to repeal the provisions of the University Act which empowered the Board of Governors to designate the sole academic staff members who were allowed, by law, to establish and join a professional association for the defence of their interests, and (b) to introduce an independent system of designation where the parties could not reach agreement for the purpose of joining academic staff associations. The Committee notes the Government's comments that the action concerning the legality, under the Canadian Charter of Rights and Freedoms of a similar section of the College Act, has not yet been heard by the court and that the Government undertook a public policy development process concerning advanced education in the province that was completed in October 1994 and where input from the faculty associations on desirable amendments were welcomed. The Committee takes note of the Government's comment that the possibility of legislative amendments is being considered.

As regards the Public Service Employee Relations Act and the Labour Relations Act, the Committee recalls that the provisions of these Acts prohibiting the right to strike of a broad range of provincial public servants go beyond acceptable limits on the right to strike recognized as derived from Article 3 of the Convention. The Committee takes note of the Government's comment that the review of these laws is continuing and that several sections of the Public Service Employee Relations Act have been updated.

Newfoundland

With regard to the Province of Newfoundland, the Committee refers to its previous comments regarding the necessity to amend the Public Service (Collective Bargaining) Act (No. 59) which by its definition of "employees" excludes many employees from belonging to the union of their choice and also restricts the right to strike in the public service, since section 10.1 of the Act which relates to the procedure for the designation of "essential employees" confers large powers on the employer in this respect. The Committee notes from the Government's report that consultation on a broad range of labour relations legislation and policy issues is still in process.

The Committee would first like to recall that the University Act of Alberta as well as the Public Service (Collective Bargaining) Act (No. 59) of Newfoundland restrict the right of workers to establish and join organizations of their own choosing and stresses the need to amend these pieces of legislation in order to bring them into full conformity with Article 2 of the Convention. The Committee urges the Government to provide information on any measures taken in this respect.

As regards the limitation on the right to strike in the Public Service Employee Relations Act and the Labour Relations Act of Ontario as well as in the Public Service (Collective Bargaining) Act (No. 59) of Newfoundland, the Committee further recalls that it has always been of the opinion that prohibition on the right to strike should be confined to public servants exercising authority in the name of the State, or to essential services in the strict sense of the term. The Committee emphasizes once again that limitations on strike action in the public service or essential services should be compensated by adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards should, in all cases, be binding on both parties. In the specific case of the Public Service (Collective Bargaining) Act (No. 59) of Newfoundland, the Committee reiterates its request to the Government to ensure that the government of this province reviews the provisions of this legislation concerning the designation of essential employees in order to facilitate access to independent arbitration in the event of dispute or to establish a negotiated minimum service in other services which are of public utility.

2. The Committee notes with concern from the conclusions of the cases examined by the Committee on Freedom of Association as well as from the last reports of the Government that, both at federal and provincial levels, legislation prohibiting strikes in various sectors that are not essential, such as agriculture, horticulture, ports, construction and education has been adopted. The Committee would ask the Government to ensure that restrictions on the right to strike are limited to essential services in the strict sense of the term, to public servants exercising authority in the name of the State or in cases of acute national crisis so as to be in compliance with the freedom of association principles.

The Committee is also addressing a direct request to the Government.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee takes note of the responses of the federal and provincial governments to the Committee's previous direct request.

Article 2 of the Convention: The right of workers and employers to establish and join organizations of their own choosing without previous authorization.

Prince Edward Island, Nova Scotia, Ontario

While acknowledging the information supplied by the governments in reference to its previous comments, the Committee once again requests the governments of these provinces to delete from their legislation the names of individual unions.

Article 3: The right of workers' organizations to formulate their programmes without interference from the public authorities.

British Columbia

The Committee takes note of the Government's provision of Bill No. 31 - the Educational Programmes Continuation Act, which was brought into force on 30 May 1993 in response to a number of labour-management disputes in the educational services in the province. The Committee notes that Act No. 31 provides for special mediation support to parties in provincial school districts who have been unable to negotiate a renewal collective agreement and allows the Minister of Labour to refer the dispute to binding settlement if the parties are unable to reach a negotiated agreement. The Committee further notes that Act No. 31 is scheduled to expire on 31 March 1994 at the latest.

The Committee trusts that the right to strike and to bargain collectively in the educational services will be restored upon the expiration of this legislation. The Committee would request the Government in future to refrain from having recourse to legislative intervention in industrial disputes in non-essential services, particularly where the extent and duration of the strikes have not resulted in an acute national crisis.

Federal Government

In its previous direct request, the Committee noted that the British Columbia Grain Handling Operations Act and the Thunder Bay Grain Handling Operations Act terminated legal strikes by grain handlers, and that the Postal Services Continuation Act, 1991, terminated a legal strike by postal workers.

The Committee notes with interest from the Government's report that in the case of both grain handling relationships, free collective bargaining, including the legal right to strike, has been fully restored and the parties are presently in direct negotiations to renew their collective agreements. The Committee further notes with interest that in the case of the Canada Post Corporation and the Canadian Union of Postal Workers, there is a collective agreement currently in effect which is valid till 31 January 1995. Following the expiry of the agreement the parties will be free to enter into negotiations to renew their contract.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee takes notes of the information contained in the Federal Government's report including copies of new federal and provincial legislation and the replies of provincial governments to the Committee's previous observations.

Articles 2 and 3 of the Convention: The right of workers and employers to establish and join organizations of their own choosing without previous authorization; the right to formulate their programmes.

Alberta

In several previous comments as well as in the follow-up to the September 1985 study and information mission, the Committee had requested the Government: (a) to repeal the provisions of the Universities Act which empowered the Board of Governors to designate those academic staff members who were allowed, by law, to establish and join a professional association for the defence of their interests; and (b) to introduce an independent system of designation where the parties could not reach agreement for the purpose of joining academic staff associations. The Committee notes the Government's comments that the action concerning the legality, under the Canadian Charter of Rights and Freedoms of a similar section of the Colleges Act, has not yet been heard by the court, and that the Government will consider the results of this case before making any decision about changing the Universities Act.

Noting that the Universities Act restricts the right of academic staff to establish and join organizations of their own choosing, the Committee would recall once again, as did the Committee on Freedom of Association in relation to Case No. 1234 (241st Report, November 1985), the need for the Government to amend the Universities Act in order to bring it into full conformity with Article 2 of the Convention. The Committee urges the Government to provide information on any measures taken in this respect.

In its previous comments, the Committee also noted that the Government was pursuing its examination of the provisions of the Public Service Employee Relations Act and the Labour Relations Code of 1988 which banned strikes. The Committee takes note of the Government's comments that a review of the said provisions is continuing.

The Committee, like the Committee on Freedom of Association (Case No. 1247, 241st Report), emphasizes once again the need to limit restrictions or prohibitions on the right to strike to essential services in the strict sense of the term and to public servants exercising authority in the name of the State (1994 General Survey on Freedom of Association and Collective Bargaining, paras. 158 and 159). The Committee requests the Government to inform it of any measures taken to limit the restrictions on the right to strike, in conformity with the above-mentioned principles.

Newfoundland

In its previous observation, the Committee had requested the Government to indicate the specific steps that had been taken to enact certain amendments to the Public Service (Collective Bargaining) Act (No. 59) which, by its definition of "employees" excludes many public employees from belonging to the union of their choice and restricts the right to strike in the public service. The Committee recalls that in previous reports the Government indicated that a new law was drafted on the recommendation of the Legislation Review Committee which would bring all employees under the Labour Relations Act, as well as create a joint employer-employee consultation process for designating essential services. That Bill was to be introduced in the Newfoundland House of Assembly in February 1991.

The Committee regrets to note from the Government's reply that it has not passed any legislation which would bring all employees under the Labour Relations Act and that there is no draft legislation presently before the House of Assembly. The Government further states that public servants in Newfoundland and Labrador, with only limited exceptions, have the right to strike and that these exceptions relate primarily to firefighters and essential employees. Moreover, essential employees are defined in relation to duties necessary for the health, safety or security of the public and where all employees in a unit are deemed essential employees, then matters in dispute between the employer and the bargaining agent, including compensation issues, are referred to adjudication which provides a binding decision.

While noting the above information, the Committee would emphasize that its previous comments addressed the need to amend section 10.1 of the Public Service (Collective Bargaining) Act which relates to the procedure for the designation of "essential employees" for the very reason that by conferring broad powers on the employer in this respect, this provision could impair the right of employees who are not designated as "essential" to resort to a strike in the event of a dispute, and could also make it difficult for "essential employees" to have access to independent arbitration in the event of a dispute.

The Committee would once again remind the Government that workers without distinction whatsoever should have the right to belong to an organization of their own choosing (Article 2). The Committee further recalls that prohibitions on the right to strike should be confined to public servants exercising authority in the name of the State, or to essential services in the strict sense of the term, and that when the parties disagree on the extent of minimum services to be maintained, it would be preferable that an independent body could be convened to make this determination. Furthermore, any limitation on the right to strike in the public service or in essential services should be compensated by adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards should, in all cases, be binding on both parties (1994 General Survey, op. cit., paras. 158-164).

The Committee notes the Government's statement that it has encouraged the establishment of a Labour Management Consultative Committee to advise on appropriate policy and programme reforms and that this Committee, which includes representatives of public sector unions, may be asked to review the above-mentioned issues. The Committee trusts that the Labour Management Consultative Committee will review these issues and propose amendments to the legislation with a view to bringing it into full conformity with the Convention. It requests the Government to inform it in its next report of any progress made in this regard.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee takes note of the federal Government's report transmitting new laws as well as the responses of provincial governments to the Committee's previous direct request.

Article 2 of the Convention: The right of workers and employers to establish and join organizations of their own choosing without previous authorization

Prince Edward Island, Nova Scotia, Ontario

While acknowledging the information supplied by the governments in reference to its previous comments, the Committee asks the governments of these provinces to delete from their legislation the names of individual unions.

Article 3: The right of workers' organizations to formulate their programmes without interference from the public authorities

Federal Government

The Committee takes note of the Government's provision of the British Columbia Grain Handling Operations Act and the Thunder Bay Grain Handling Operations Act, which terminated legal strikes by grain handlers, and the Postal Services Continuation Act, 1991, which terminated a legal strike by postal workers.

The Committee notes that the legislation affecting the British Columbia workers was scheduled to expire on 31 December 1992; the legislation affecting the Thunder Bay workers expires between 31 January 1993 and 31 January 1994, depending on a decision by the mediator-arbitrator; and the legislation affecting the postal workers expires on 31 July 1993. The Committee trusts that the right to strike and to bargain collectively will be restored upon the expiration of this legislation. The Committee would request the Government in the future to avoid resorting to legislative intervention in industrial disputes in non-essential services, particularly where the extent and duration of the strikes have not resulted in an acute national crisis.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee takes note of the information contained in the Federal Government's report, including copies of new federal and provincial legislation and the replies of provincial governments to the Committee's previous observations.

Articles 2 and 3 of the Convention: The right of workers and employers to establish and join organizations of their own choosing without previous authorization; the right to formulate their programmes

British Columbia

In its previous observation, the Committee requested the repeal of Section 80 of the University Act, which limited the right of university teachers to establish organizations of their own choosing by preventing the Industrial Relations Act from applying to university faculty. The Committee notes with satisfaction that the Province of British Columbia has repealed Section 80 of the University Act by the University Amendment Act, 1992, which came into force on 23 July 1992.

In its previous comment, the Committee asked the Government to keep it informed about several provisions of the Industrial Relations Act including: (1) any changes in the arbitration procedures over "ability to pay" that grant the Commissioner of the Industrial Relations Council discretion to modify awards; (2) the definition of essential services and the role of representatives in determining the definition of minimum service; and (3) the nature of conciliation and arbitration procedures offered when the right to strike has been restricted in an essential service.

The Committee notes with interest the adoption of the Labour Relations Code (No. 84) ("the Code"), which became law on 18 January 1993, and which replaces the Industrial Labour Relations Act ("the Act"). The Code provides, inter alia, that: (1) Statutory criteria for arbitrators in interest arbitration is eliminated; (2), (3) the definition of essential services is amended to cover only those services "necessary or essential to prevent immediate and serious danger to the health, safety and welfare of the residents of British Columbia", and the concept of a "limited strike" is available in areas not deemed essential.

The Committee notes from the Government's report that the unions believe that they maintain sufficient bargaining power under these provisions to achieve acceptable collective agreements for their membership.

The Committee further notes that the new Code deletes section 137.9(7) of the Act, which provided for broad employer discretion in disciplinary sanctions for refusal to obey back-to-work orders, and deletes section 4.1, concerning a prohibition on secondary boycott clauses in contracts.

Given the recent legislative approval, the Committee will examine the Code in greater detail during the next session.

Alberta

In several previous comments as well as in the follow-up to the September 1985 study and information mission, the Committee had requested the Government to repeal provisions of the Universities Act, which, like the British Columbia law, limited the freedom of academic staff members to establish and join organizations of their own choosing. The Committee notes the Government's comments that it awaits a court decision regarding the legality under the Canadian Charter of Rights and Freedoms of a similar section of another law, the province's Colleges Act, and that the Government will be considering the results in that case before making any decision about changing the Universities Act. Noting that the Universities Act restricts academic staff members from establishing and joining organizations of their own choosing the Committee would recall the need for the Government to amend the Universities Act in order to bring it into conformity with Article 2 of the Convention. The Committee urges the Government to inform it of any measures taken in this respect.

In its previous comments, the Committee also noted that the Government was pursuing its examination of the Public Service Employee Relations Act and the Labour Relations Code of 1988 which contain restrictions on the right to strike through an overly-broad definition of essential services. The Committee takes note of the Government's comments that the changes in these provisions are still under review. The Committee, like the Committee on Freedom of Association (Case No. 1247, 241st Report), points out again that the definition of essential services should be limited to the strict sense of the term, namely those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee requests the Government to indicate any changes in these provisions to limit the restrictions on the right to strike.

Newfoundland

In its previous observation, the Committee requested an update on proposed amendments to the Public Service (Collective Bargaining) Act, (No. 59) which, by its definition of "employees" excludes many public employees from belonging to the union of their own choice and restricts the right to strike in the public service. The Committee recalls that in the Government's previous report it indicated that a new law was drafted on the recommendation of the Legislation Review Committee which would bring all employees under the Labour Relations Act, as well as create a joint employer-employee consultation process for designating essential services. That Bill was to be introduced in the Newfoundland House of Assembly in February 1991. The Committee notes the Government's report stating that this Bill has not yet been passed.

The Committee would again remind the Government that prohibitions on the right to strike should be confined to public servants acting in their capacity as agents of the public authority, or to essential services, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committeee considers that when the parties disagree on which services should be designated as essential, it would be preferable that an independent body could be convened to make this determination. Furthermore, any limitation on the right to strike in the public service or in essential services should be compensated by adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards should, in all cases, be binding on both parties. The Committee asks the Government to indicate in its next report the specific steps that have been taken to enact the legislation since its planned submission in February 1991 and to provide a copy of the text as soon as the Bill is adopted.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee takes note of the detailed report supplied by the Government in reply to its previous requests. It also takes note of the texts of the labour legislation adopted by the federal and provincial governments during the period covered by the report.

1. Article 2 of the Convention. Designation by name of one union in the legislation. For several years, the Committee has been drawing attention to several provincial laws which establish a trade union monopoly situation in favour of one trade union designated by name in the legislation, which is contrary to Article 2 of the Convention (Prince Edward Island, Civil Service Act, 1983; Ontario and Nova Scotia, Teaching Profession Acts).

The Committee notes the information provided by the governments of these three provinces: the Governments of Nova Scotia and Prince Edward Island, while noting the Committee's concerns, indicate that no changes to the legislation are currently contemplated, since this is not perceived to be an issue in the context of their provinces' labour environments; the Government of Ontario recalls that the large majority of employees in Ontario bargain collectively under the Labour Relations Act which guarantees employees freedom to join the trade union of their choice. Furthermore, special legislation on collective bargaining has been adopted to take account of the needs of particular groups of employees, and this legislation has merely codified previously existing relationships between employee associations and employers and respects the associations' role as employee representatives.

The Committee recognises that the system of labour relations in Canada is based, for collective bargaining purposes, on the recognition of a single trade union for a given bargaining unit (bargaining agent) determined according to objective and pre-established criteria. However, the fact that certain provincial laws designate by name the union recognised as bargaining agent creates a situation in which it appears impossible for another union to assert its right to represent members of a bargaining unit, and this could give rise to a situation of trade union monopoly.

The Committee therefore asks the Federal Government to obtain from the provincial governments concerned indications as to how the workers of a bargaining unit can opt, if they so wish, for a union other than the one designated by name in the legislation (in particular, the period of time and procedure involved).

2. Article 3. Exceptional strike-breaking legislation. The Committee notes that during the period covered by the report, the Government of Quebec adopted an Act to ensure continuity of the Hydro-Quebec electricity services, which ends the dispute between Hydro-Quebec and the employees' associations and provides for the renewal of expired collective agreements with modifications.

With regard to legislation to halt strikes in sectors where the interruption of services could endanger life, personal safety or health, the Committee recalls that workers who are thus deprived of an essential means of defending their interests should be able to have recourse to adequate, impartial and speedy conciliation and arbitration procedures.

The Committee therefore asks the Federal Government to request the Government of Quebec to indicate the extent to which the workers coming under the Act to ensure the continuity of the Hydro-Quebec electricity services participated in drawing up the collective agreements set out in an annex to the Act.

3. British Columbia, Case No. 1430. The Committee notes the information supplied by the Government of British Columbia concerning: (a) section 137.95 of the Industrial Relations Act as amended in 1987, concerning the "ability to pay" criterion; (b) section 137.9(7) of the Act concerning disciplinary sanctions for refusing to obey a back-to-work order; and (c) section 4(1) concerning the prohibition of secondary boycott clauses.

The Committee also notes with interest that sections 137.97, 137.98 and 137.99 of the Industrial Relations Act, which provide for recourse to compulsory arbitration in certain circumstances, have not yet come into force. The Committee asks the Federal Government to request the Government of British Columbia to keep the Committee informed of any changes in this regard.

With regard to section 137.81(b) of the Act, respecting the procedure for determining essential services, the Committee notes the information supplied by the Government of British Columbia to the effect that this provision is applied only to such services as are necessary to prevent immediate and serious danger to the life, health or personal safety of the population. Since amendments to the legislation were introduced in 1987, there has been no designation of essential services in respect of a threat to "the economy of the province" or to the "welfare of its residents" or to the "provision of educational services in the province". The Government quotes the example of a recent work stoppage by teachers, during which there was no designation of essential services. The Government adds that, even when a bargaining unit has to carry out essential functions, its trade union can exert considerable pressure because the established practice is for members of other trade unions to respect picket lines.

While noting this information, the Committee recalls that when a minimum service is set up to ensure essential services in the strict sense, all the parties concerned should be able to participate in defining such services. The Committee would be grateful if the Federal Government would supply information from this provincial government indicating whether the council responsible for such matters includes representatives of the parties concerned pursuant to sections 1(1) and 13 of the Industrial Relations Act.

In addition, the Government indicates that the trade union of a bargaining unit, certain members of which have been declared "essential", and the employer concerned may agree to submit their dispute to impartial, binding arbitration.

The Committee notes that this procedure is only possible where the dispute concerns the public sector and where the two parties opt for such a procedure (section 137.95).

The Committee recalls that when workers are unable to resort to a strike, they should be able to have recourse to adequate conciliation and arbitration procedures. It requests the Federal Government to seek information from the Government of British Columbia indicating the alternative recourse available to the trade union and the bargaining unit when the employees in a given bargaining unit (private or public sector) are unable to exercise their right to strike because some of them are under the obligation to carry out functions that have been declared essential.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee takes note of the information contained in the Federal Government's report which transmits the replies of provincial governments to its previous comments.

Articles 2 and 3 of the Convention. Newfoundland. In its previous comment, the Committee asked for the amendment of the provisions of the Public Service (Collective Bargaining) Act (No. 59) which relate to the designation of the employees of a bargaining unit who exercise essential functions. By conferring broad powers on the employer in this respect, this provision could impair the right of employees who are not designated as "essential" to resort to a strike in the event of a dispute and also make it difficult for the employees of the bargaining unit to have access to independent arbitration to settle their employment conditions.

It also asked the Government to review the provisions of Act No. 59 which exclude many workers from the definition of "employee", so as to allow these workers, without distinction whatsoever, to belong to a union of their own choosing.

The Committee notes with interest from the information provided by the Federal Government that, following the recommendations of the Legislation Review Committee set up by the Government of Newfoundland in 1986, a draft Bill was prepared which provides: (a) for the repeal of the Public Service (Collective Bargaining) Act and the application of the Labour Relations Act to employer-employee relations in the public services; (b) that the employees exercising essential functions will be designated jointly by the employer and the trade union concerned and that, in the event of the parties failing to agree, the final decision will be made by a joint body; and (c) where more than 33 per cent of the bargaining unit is agreed to be essential, the trade union of the unit concerned can opt for independent arbitration. There has also been a recommendation concerning the issue of the exclusion of certain workers from the definition of "employee". According to the information supplied by the Government, the Bill should be submitted to the Newfoundland House of Assembly in February 1991.

The Committee asks the Government to indicate in its next report whether the Bill has been adopted and to provide a copy of the final text.

Alberta. 1. In its previous comment, the Committee asked the Government (a) to repeal the provisions of the Universities Act, as amended in 1981, which empower the Board of Governors to designate those academic staff members who may, by law, establish and join a professional association for the defence of their interests; and (b) to introduce an independent system of designation where the parties cannot reach agreement for the purpose of joining academic staff associations.

According to the information contained in the report of the Federal Government, the Government of Alberta has indicated that no changes are contemplated to the Universities Act.

The Committee therefore recalls once again, as did the Committee on Freedom of Association in relation to Case No. 1234 (241st Report), that, in order to ensure full observance of the right of academic staff to establish and join trade union organisations, in conformity with Article 2 of the Convention, the Government of Alberta should envisage introducing the above-mentioned amendments. In this connection, the Committee draws the Government's attention to Article 8(2) of the Convention which provides that the law of the land shall not be such as to impair the guarantees provided for in this Convention.

In these circumstances, the Committee urges the Government to provide information on the measures that are envisaged to ensure full observance of the Convention in this respect.

2. In its previous observation, the Committee asked the Government to report on the progress made, in the framework of the current review of the legislation, in giving effect to the recommendations of the Committee on Freedom of Association (Case No. 1247, 241st Report) and on the Committee's comments concerning the need to limit restrictions or prohibitions on the right to strike to essential services in the strict sense of the term and to public servants acting in their capacity as agents of the public authority.

The Committee takes note of the information transmitted by the Federal Government to the effect that the Government of Alberta is pursuing its examination of the provisions of the Public Service Employee Relations Act and the Labour Relations Code of 1988 which ban strikes, and that the comments of the Committee will be taken into account.

Recalling that the right to strike is one of the essential means available to workers' organisations to defend their occupational interests, the Committee trusts that the Federal Government in its next report will be able to provide information on the measures that have been taken or are envisaged by the Government of Alberta to limit the restrictions on the right to strike, in conformity with the above-mentioned principles.

British Columbia. The Committee notes the conclusions reached by the Committee on Freedom of Association in Case No. 1547 (277th Report, February-March 1991). In particular, it notes that the exclusion of university teachers from the Industrial Relations Act (by virtue of section 80 of the University Act) results in their losing protection of their trade union rights which are accorded to other workers by the former Act.

Recalling that Article 2 of the Convention provides that workers without distinction whatsoever shall have the right to establish organisations of their own choosing, the Committee requests the Federal Government to invite the provincial government of British Columbia to consider repealing section 80 of the University Act, or to take any other appropriate measure so that university teachers, like any other workers, can enjoy the rights and guarantees set out in the Convention.

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes the Government's detailed report in reply to its previous requests, and in particular, that major labour legislation has been adopted in several jurisdictions: Federal - Parliamentary Employment and Staff Relations Act, which confers collective bargaining rights on Parliament's employees; Alberta - Labour Relations Code (S.A. 1988, c.L-1.2; Bill 22), which repeals and replaces the Labour Relations Act and the Construction Industry Bargaining Act; British Columbia - Industrial Relations Reform Act (S.B.C. 1987, c. 24, Bill 19) and Teaching Profession Act (Bill 20); Quebec - Act to ensure that essential services are maintained in the health and social services sector (Bills 160 and 46). The Committee also notes that the Toronto Economic Summit Construction Act (S.O. 1988, c. 21) removed temporarily to Ontario construction workers the right to strike during the economic summit held in June 1988, but that a clause of this legislation provided for its repeal on 30 June 1988, so that there are currently no special prohibitions on work stoppages in the Ontario construction industry.

Referring to its previous request, the Committee would make the following comments.

1. Article 2 of the Convention: designation by name of one union in the legislation. In its previous request the Committee commented on the legislations of three provinces (Prince Edward Island - Civil Service Act, 1983; Ontario and Nova Scotia - Teaching Profession Acts), which create a trade union monopoly situation. The Committee observes that these provinces have taken note of its comments, that they reiterate their previous replies and point out that, while the pieces of legislation in question do not appear to have had the negative effects mentioned by the Committee, they will keep the situation under review in light of its concerns. The Committee can only repeat once more, as it has done since 1975 in relation to various pieces of provincial legislation establishing a union monopoly situation in favour of one union named in the legislation, that this is contrary to Article 2. Even where the situation appears to be accepted by all the parties at the time, the fact remains that the reference to one union by name discourages the formation of new unions, inhibits a worker's free choice of the union to which he wishes to belong and restricts the activities of other unions which should at least be able, at some time in the future, to apply for the benefits of the legislation in question and, in particular, negotiation rights.

The Committee considers that amendments to the legislation in all three provinces should be enacted to remove the problem of designation of individual unions by name, and asks the Government to keep it informed of legislative developments in that respect.

2. Article 3: Exceptional strike-breaking legislation. In its previous comments, the Committee noted that several legislative texts had been enacted to end strikes in various sectors and jurisdictions: the British Columbia Metro Transit Collective Bargaining Assistance Act and the Railway Dispute Settlement Act; the Ontario Toronto Transit Commission, etc. Disputes Settlement Act, the Wheel-Trans Labour Dispute Settlement Act, the Colleges of Applied Arts and Technology Labour Dispute Settlement Act and the Wellington County Board of Education and Teachers' Dispute Settlement Act; the Quebec Act on the resumption of transport services in certain school commissions; the Saskatchewan S.G.E.U. Dispute Settlement Act.

The Committee notes that its previous comments have been brought to the attention of the provincial governments concerned but cannot fail to observe that the Federal Government itself, in the period under review, has adopted three acts to put an end to strikes in the federal jurisdiction: Maintenance of Railway Operations Act (S.C. 1987, c. 36); Postal Services Continuation Act (S.C. 1987, c. 40); Prince Rupert Grain Handling Operations Act (S.C. 1988, c. 1). The Committee notes the general explanations given by the Government in these three instances but recalls that, while its definition of essential services in which strikes may be restricted or even prohibited is designed to ensure respect for one of the fundamental means of action that should be available to workers, the Committee has always been sensitive to the particular circumstances surrounding the different strike situations brought to its attention. In particular, it has pointed out that where the extent and duration of a strike might result in an acute national crisis endangering the life or well-being of the population, restrictions on the strike would be acceptable, such as the establishment of a minimum service or the use of outside labour. The Committee has observed in such cases that an outright prohibition of the right to strike would not be consistent with the Convention and that where a strike takes place, intervention by the authorities should be limited strictly to circumstances in which there is a clear and imminent danger to the life, personal safety or health of the whole or part of the population as a result of the continuation of the strike action. The Committee accordingly expresses the hope that the Provincial and Federal Governments will take these considerations into account in the future, and requests to be informed of any steps taken to give full effect to the Convention on this question.

3. British Columbia, Case No. 1430. The Committee has taken note of the conclusions of the Committee on Freedom of Association in Case No. 1430 (see 256th Report, approved by the Governing Body at its 240th Session, May-June 1988). Having carefully considered the conclusions and recommendations in that case, and the comments of the Provincial Government, this Committee notes with interest that the provisions of the Industrial Relations Act establishing compulsory arbitration machinery have not been brought into force, and it makes the following specific observations:

(a) Sections 137.95 and 137.96 of the Industrial Relations Act: "Ability to pay" criterion

The Government indicates that the Committee on Freedom of Association, in suggesting that sections 137.95 and 137.96 impose a "requirement of prior approval before a collective agreement can come into force" (paragraph 183, Case No. 1430), has not distinguished between approval of freely negotiated collective agreements and review of arbitration awards by the Commissioner of the Industrial Relations Council. The Government points out that public sector employees have the right to strike (subject to essential services) in support of their bargaining demands, and that sections 137.97, 137.98 and 137.99, which would permit imposition of binding arbitration in certain circumstances, have not been brought into force.

The Committee takes note of the Government's submissions but must emphasise that the question specifically at issue here is not the right to strike but the "ability to pay" criterion which, under section 137.96(2) of Bill 19, constitutes the paramount factor that arbitration boards must consider when settling the terms and conditions of a collective agreement. Should the arbitration board issue an award inconsistent with the "ability to pay" criterion, the Commissioner may, at the request of one party (section 137.96(10)(a)), give the board specific directions as to the modifications which he deems necessary to achieve compliance with the above-mentioned criterion. There is no appeal from the Commissioner's decision.

The Act thus establishes a system whereby the Commissioner may substitute his own decision for the arbitration board's award if, in his opinion, that award must be modified to comply with the "ability to pay" criterion. In practice, this is equivalent to a prior approval procedure.

(b) Section 137.8(1)(b): Essential services

The Committee notes the comments of the Government to the effect that consultation always was and will continue to be its practice in administering essential services provisions. However, the Committee emphasises that, failing agreement of the parties, the Industrial Relations Council may ultimately designate essential services. The Committee recalls its general comments on this subject (General Survey, paragraphs 208-214): the right to strike may become meaningless if essential services are defined too broadly and restrictions thus imposed on employees in such services should be offset by adequate, impartial and speedy conciliation and arbitration procedures, in which the parties can take part at every stage and in which the awards should be binding on both parties.

(c) Sections 137.9(7) and 137.97(8): Disciplinary sanctions for refusing to obey a back-to-work order

The Committee notes the comments of the Government to the effect that in such cases employees have access to an independent arbitral review mechanism. It is true that in this limited sense, disciplinary sanctions are not left totally to the employer's discretion. However, the initial measure giving rise to these sanctions should not itself be incompatible with the principles laid down in the Convention; hence the comments in paragraph 190 of the decision of the Committee on Freedom of Association concerning the types of situations where back-to-work orders would be considered compatible with the Convention.

(d) Section 4(1): Legislative prohibition of secondary boycott clauses

The Committee is mindful that in the Canadian system as it now stands, the prohibition of strikes or lock-outs during the currency of collective agreements is an essential feature, and that secondary boycotts in this context are treated as illegal mid-contract strikes. The Committee has never dealt with the issue of secondary boycotts as such, but on a related question, namely sympathy strikes, it has noted that it would appear that more frequent recourse is being had to this form of action because of the structure or the concentration of industries or the distribution of work centres in different regions of the world. The Committee considers that a general prohibition of sympathy strikes could lead to abuses and that workers should be able to take such action provided the initial strike they are supporting is itself lawful (General Survey, paragraph 217).

In conclusion, the Committee requests the Government to indicate in its next report the measures taken or contemplated to ensure that any restriction on the right to strike is in conformity with the principles of freedom of association.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee takes note of the Government's report and the comments made by the National Union of Provincial Government Employees (NUPGE) on the labour legislation in.

Articles 2 and 3 of the Convention

1. Newfoundland. In its previous observation the Committee had requested the Government to reconsider Bill 59, the Public Service (Collective Bargaining) Act, dated 1 September 1983 (which excludes many workers from the definition of "employee"), so as to allow said workers without distinction whatsoever the right to belong to a union of their own choosing (Article 2) and had also requested the amendment of section 10.1, relating to the procedure for the designation of "essential employees", which leads to difficulty in access to independent arbitration in the event of a dispute (Article 3). The Committee had expressed hope that the pending public service labour legislation review, to be carried by a joint body, would lead to legislative amendments ensuring full conformity with the Convention.

In its last report, the federal Government indicated that the Government of Newfoundland has replied that the Legislative Review Committee was set up in late 1986. The membership of the Committee was later expanded to include representatives from other unions who represent employees working in the public service. Thus, the membership on the Legislative Review Committee was one representative from Treasury board; four representatives of public service unions; the chairperson, an executive secretary and legal counsel. The Committee began its work in early 1987. It examined other provincial and national legislation on public sector employees, held public hearings to give all interested parties an opportunity to make submissions and prepared an information paper for the Government as part of the ongoing consultative process. The Committee held a number of meetings on its own and finalised its report with a series of recommendations on proposed amendments to public sector legislation. This report was submitted to the Minister of Labour of Newfoundland on 21 July 1988.

The Committee further notes that, according to NUPGE, 28 of the 30 recommendations contained in the report were submitted unanimously; the remaining two (one of which deals with interest arbitration in essential services) were not supported by the Government's representatives on the Committee. Still according to NUPGE, the Government stated that it would study the report and recommendations in the spring of 1989, and intended to repeal the Public Service (Collective Bargaining) Act and replace it with different legislation.

The Committee reminds the Government that prohibitions on the right to strike should be confined to public servants acting in their capacity as agents of the public authority, or to essential services, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population (General Survey, 1983, paragraph 214). Furthermore, as pointed out by the Committee on Freedom of Association in the complaints presented against the Government of Canada, Newfoundland (Case No. 1260, paragraph 155(c)), any limitation on the right to strike in the public service or in essential services should be compensated by adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards should, in all cases, be binding on both parties.

Since both the Committee on Freedom of Association and the present Committee have been making these comments for some time, the Committee trusts that the Government of Newfoundland will take the necessary measures to give full effect to the Convention on these points in the near future, and asks the federal Government to indicate in its next report any progress in this regard.

2. Alberta. Referring to the conclusions of the Committee on Freedom of Association in relation to Cases Nos. 1234 and 1247, approved by the Governing Body in its 241st Report (November 1985), the Committee recalls that in order to ensure compliance with Article 2 of the Convention, the Government should have taken measures: (1) to repeal section 17(1)(d.1) of the University Act, as amended in November 1981, which empowers the Board of Governors to designate those employers who shall be "academic staff members" for the purpose of joining academic staff associations; and (2) to introduce an independent system of designation where the parties cannot reach agreement for the purpose of joining academic staff associations.

The Government should also have taken measures to amend the provisions of the Public Service Employee Relations Act and the Labour Relations Act, as amended in 1983, to restrict the prohibition of strikes to services which are essential in the strict sense of the term, and to adopt legislation along the lines already suggested by the Committee and the Committee on Freedom of Association, in the context of the report of the September 1985 study and information mission.

In its previous observation, the Committee noted that the Government of Alberta had initiated a general review of its labour legislation through a joint committee which intended to look at foreign experience and to hold public debates on the legislation. In its last report, the Government of Alberta indicates that it has carried out an extensive review of its private sector labour legislation and enacted the Labour Relations Code (effective date, 28 November 1988), which repeals and replaces the Labour Relations Act, and the Construction Industry Bargaining Act. The Government admits that time constraints and the extent of the consultations with interest groups in the private sector prevented it from reviewing its public sector labour legislation, but gives assurances that its future policy decisions related to public sector collective bargaining will give due consideration to the concerns raised in ILO observations.

The Committee strongly hopes that any reform of the public sector labour legislation in Alberta will be preceded by wide consultations with all interested groups, as was the case for the private sector, so as to allow for a thorough examination of all issues and concerns raised in previous observations and direct requests of the Committee of Experts, the reports of the Committee on Freedom of Association, and the report of the September 1985 study and information mission to Canada. The Committee requests the federal Government to keep it informed in its next report of developments in that respect.