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

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

Other comments on C087

Observation

Direct Request

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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.