Report in which the committee requests to be kept informed of development - Report No 321, June 2000

1. 103. The Committee examined this case and adopted interim conclusions at its May-June 1999 meeting (see 316th Report, paras. 229-274, approved by the Governing Body at its 275th Session (June 1999)).
2. 104. The Government provided further observations in communications of 12 October 1999 and 7 January 2000.
3. 105. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). However, it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 106. At its May-June 1999 meeting, the Committee examined allegations of freedom of association arising out of the adoption of the Prevention of Unionization (Ontario Works) Act, 1998 (Bill 22) and the Economic Development and Workplace Democracy Act, 1998 (Bill 31). In particular, the complainants raised concerns regarding the provisions of Bill 22 prohibiting welfare recipients taking part in a community participation activity ("workfare") from joining a trade union, bargaining collectively or striking. In this respect, the Committee found "that the employment provided does not constitute ordinary work but, rather, activities which, according to the Government, aim to encourage self-reliance through employment. These activities are of limited duration (six months at most) and cannot replace work done by regular employees ... Furthermore, there is no doubt in the Committee's view that people involved in community participation activities are not true employees of the organization which benefits from their labour and can therefore legitimately be excluded from the scope of collective agreements in force, at least in respect of wages. On the other hand, it is an undeniable fact that persons involved in community participation activities are performing work and providing a service of benefit to the organizations concerned. For this reason, they must enjoy a certain protection in respect of their working and employment conditions." (see 316th Report, paras. 268-270). As there is a clear indication in Bill 22 that its aim is to prevent unionisation, the Committee emphasized the universality of the principle of the freedom of association and requested the Government to take the necessary measures to ensure that persons involved in community participation activities may enjoy the right to organize.
2. 107. The complainant also referred to Bill 31 which modified the Labour Relations Act, 1995 as regards specific construction projects. In the light of the Committee's interim conclusions, the Governing Body approved the following recommendations in June 1999:
   • (a) Emphasizing the universality of the principle of freedom of association and recalling that all workers, without distinction whatsoever, must have the right to organize, the Committee requests the Government to take the necessary measures to amend its legislation relating to community participation activities and to extend to persons involved in such activities the right to organize, in accordance with the principles of freedom of association in general and the provisions of Convention No. 87 in particular. The Committee requests the Government to keep it informed in this regard.
   • (b) The Committee requests the complainant to provide additional information in respect of Bill 31; the Committee also requests the Government to provide further clarification with regard to the impact of Bill 31 on previously concluded agreements and on the prohibition on the right to strike and lock out.
   • (c) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations (316th Report, para. 274).

B. The Government's further reply

1. 108. In its communication of 12 October 1999, the Government relies on its previous response concerning the Prevention of Unionization (Ontario Works) Act, 1998 (Bill 22). In its communication of 7 January 2000, the Government specifies that in its view, Bill 22 does not violate the principles of freedom of association, and no legislative change is being contemplated.
2. 109. With respect to the Economic Development and Workplace Democracy Act, 1998 (Bill 31), the Government in its communication of 12 October 1999 provides some information on the impact of the Act. The Government addresses firstly the changes in the certification procedures under Bill 31. It removes the power of the Ontario Labour Relations Board (OLRB) to grant automatic certification or to automatically dismiss an application for certification and replaces it with power of the OLRB to order another representation vote. The OLRB may also make orders it considers necessary to ensure the vote reflects the employees' wishes. Votes by secret ballot in each instance will determine whether or not employees will be represented by a bargaining agent. The Government asserts that these changes do not affect existing collective agreements.
3. 110. On the issue of construction project agreements, the Government confirms that Bill 31 creates a new framework for such agreements. These agreements may contain terms and conditions of employment that are different from those set out in the province-wide industrial, commercial and institutional (ICI) agreements. The framework applies to projects in the industrial portion of the ICI sector. Non-industrial projects may be designated through regulations. Under the new framework, a proponent of a project (e.g. an owner) negotiates directly with local unions that would be supplying members to the project. The Government states that if 60 per cent or more of local unions approve the agreement, then the agreement would be binding with respect to all work on the project within the jurisdiction of the local unions who were given notice of the negotiations. Any ratified agreement would include a no-strike and no-lockout provision for the duration of the agreement.
4. 111. Bill 31 also removes employers who are not engaged in construction work or who are engaged in such work only incidentally to their primary business from the construction industry provisions of the Labour Relations Act. Employees of these employers are entitled to certify and bargain collectively under the general provisions of the Labour Relations Act. Non-construction employers currently in bargaining relationships with construction unions continue to be covered by the construction provisions of the Labour Relations Act. However, they are entitled to an order from the OLRB extinguishing these bargaining rights, provided the employer does not employ any members of the affected union when it applies to the OLRB.

C. The Committee's conclusions

1. 112. The Committee recalls that the allegations in this case concern primarily legislative provisions that have been adopted as part of a reform of the Ontario welfare system. In particular, the complainants allege that the Prevention of Unionization (Ontario Works) Act, 1998 (Bill 22), which prohibits those taking part in a community participation activity ("workfare") from joining a trade union, bargaining collectively or striking, violates principles of freedom of association. The complainant also refers to the Economic Development and Workplace Democracy Act, 1998 (Bill 31) which modified the Labour Relations Act, 1995 as regards specific construction projects.
2. 113. With respect to Bill 22, the Committee notes that it had requested the Government to take measures to amend the legislation so as to ensure that those involved in community participation activities have the right to organize. The Committee very much regrets that the Government has rejected this recommendation, continuing to rely on its assertion that Bill 22 does not violate the principles of freedom of association. The Committee again draws to the Government's attention the fact that those involved in the community participation activities are not true employees of the organization concerned, and therefore can legitimately be excluded from the scope of collective agreements in force, at least with respect to wages. However, the Committee stresses that it cannot be denied that these persons are included in the structure of the organization concerned and thus, in accordance with hierarchical instructions received, are performing work and providing a service of benefit and must therefore enjoy a certain protection in respect of their working and employment conditions. Emphasizing once again the universality of the principle of freedom of association, the Committee recalls its earlier conclusions that persons working under community participation programmes are "workers" within the meaning of Convention No. 87, and must have the right to organize [see 316th Report, para. 270]. The Committee, therefore, once again urges the Government to take the necessary measures to amend the legislation concerning community participation activities, and to extend to persons involved in such activities the right to organize in accordance with the principles of freedom of association in general and the provisions of Convention No. 87 in particular. The Committee requests the Government to keep it informed in this regard.
3. 114. Concerning Bill 31 (see annex), the Committee notes that the complainant has not responded to the Committee's request for additional information in order to clarify the allegations. Without further precision from the complainants, the Committee is not in a position to comment on the allegations that Bill 31 makes it more difficult to enforce effectively the right to organize, or that it allows certain entities outside the construction industry to give preference to non-union labour for particular projects. However, given the terms of Bill 31 and the further information provided by the Government, the Committee is able to address some of the issues related to the "project agreements" which may be concluded for specific construction projects.
4. 115. The Committee notes that prior to Bill 31, the Labour Relations Act, 1995 provided for a system of province-wide, multi-employer collective agreements for the construction industry. While the system of province-wide agreements remains under Bill 31, project-level agreements are now also provided for, which appear to supersede a provincial agreement to the extent of any inconsistency, and apply until the project is completed or abandoned. Bill 31 adds section 163.1 to the Labour Relations Act, and subsection 14 states as follows with respect to the effect of the agreement:
5. 1. The project agreement applies to all construction work on the project that is within the jurisdiction of a bargaining agent on the list.
6. 2. Each applicable provincial agreement, as modified by the project agreement, applies to the construction work on the project, even with respect to employers who would not otherwise be bound by the provincial agreement ...
7. 116. The Committee notes that separate and unique collective bargaining structures already applied to the construction industry in Ontario pursuant to legislation prior to the adoption of Bill 31. The complainants do not appear to object to the construction industry being treated differently than other sectors under the Labour Relations Act, but rather to the addition of another level of agreements which essentially override the provincial agreements. The Committee notes, however, as the Government points out, that a project agreement must be approved by at least 60 per cent of the local unions before it will be binding on the workers (section 163.1(8)). If the project agreement is not approved, the workers remain covered by the province-wide agreement. Therefore, whether or not to accept a project agreement rests in the hands of the workers' representatives, and the workers are not left without the coverage of a collective agreement should a project agreement be rejected.
8. 117. The Committee wishes to express its concern regarding some of the specific provisions of Bill 31. In particular, the legislation provides for the adoption or rejection of an agreement which has been unilaterally proposed by the proponent of a construction project. The role of the workers' and of the employers' bargaining agents appears to be limited to the approval or disapproval of the proposed agreement, thus seriously restricting the room for negotiation. In this respect, the Committee recalls that the voluntary negotiation of collective agreements, and therefore the autonomy of the bargaining partners, is a fundamental aspect of the principles of freedom of association (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 844). In addition, according to the principle of free and voluntary collective bargaining, the determination of the bargaining level is essentially a matter to be left to the discretion of the parties (see Digest, op. cit., paras. 851-852); however, in the context of the Ontario construction industry, it seems that only the proponent of a construction project can initiate project-level agreements and that such agreements are only available for projects that are planned but not yet set up. The Committee, therefore, requests the Government to take the necessary measures to amend the legislation to ensure that full collective bargaining below the provincial level in the construction industry in Ontario is adequately provided for and that it may be initiated by either the workers' or the employers' representatives at any stage of the project. The Committee requests the Government to keep it informed in this regard. The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

Z. ANNEX

• Economic Development and Workplace Democracy Act (Bill 31)
  21. 21 The (Labour Relations) Act is amended by adding the following section:
  163. 1631 (1) A proponent of a construction project who believes that the project
• is economically significant and who wishes to have a project agreement shall
• do the following:
  1. 1 Create a list of potential parties to the agreement, consisting of
• bargaining agents, subject to subsection (2).
  2. 2 Give each bargaining agent on the list a notice that the proponent wishes
• to have a project agreement. The notice must include a copy of the list, a
• general description of the project and the estimated cost of the project.
  3. 3 Give a copy of the notice to each employee bargaining agency to which any
• of the bargaining agents on the list belong.
  4. 4 Give a copy of the notice to each employer bargaining agency that is a
• party to a provincial agreement by which a bargaining agent on the list is
• bound.
  5. 5 Give the Board a copy of the notice and evidence, in such form as the Board
• requires, that the notice has been given to each bargaining agent on the list.
  2. (2) The following apply with respect to the list of potential parties created
• by the proponent:
  1. 1 A bargaining agent may be included on the list only if it is bound by a
• provincial agreement.
  2. 2 A bargaining agent may be included on the list only if the proponent
• anticipates the project may include work within the bargaining agent's
• geographic jurisdiction for which the bargaining agent would select, refer,
• assign, designate, or schedule persons for employment.
  3. (3) A bargaining agent on the list may apply to the Board for an order that
• the project may not be the subject of a project agreement and the following
• apply with respect to such an application:
  1. 1 The application must be made within 14 days after receiving the notice that
• the proponent wishes to have a project agreement.
  2. 2 The parties to the application are the applicant, the proponent and such
• other persons as may be prescribed under the regulations or as may be
• specified by the Board in accordance with the regulations.
  3. 3 The Board shall dismiss the application if the project is an industrial
• project in the industrial, commercial and institutional sector of the
• construction industry.
  4. 4 The Board shall dismiss the application if the project is designated in the
• regulations as a project that may be the subject of a project agreement.
  5. 5 If neither paragraph 3 nor 4 apply, the Board shall grant the application
• and make an order that the project may not be the subject of a project
• agreement.
  6. 6 An order under paragraph 5 does not affect the preparation of another list
• and the giving of other notices under subsection (1) even if they relate to
• the same project.
  4. (4) A project agreement must contain:
     • (a) a general description of the project; and
     • (b) a term providing that the agreement is in effect until the project is
  5. completed or abandoned.
  5. (5) The proponent may give notice of a proposed project agreement if at least
  40. 40 per cent of the bargaining agents on the list agree, in writing, to the
• giving of the notice.
  6. (6) If the proponent gives notice under subsection (5), the proponent must
• give notice to each bargaining agent on the list, and the proponent shall also
• give a copy of the notice to the Board.
  7. (7) A notice under subsection (5) must include:
     • (a) a copy of the proposed project agreement; and
     • (b) the names of the bargaining agents on the list that have agreed to the
  8. giving of the notice.
  8. (8) The following apply with respect to the approval of a project agreement:
  1. 1 A bargaining agent on the list that wishes to approve or disapprove of the
• proposed agreement shall do so by giving notice of that approval or
• disapproval to the proponent within 30 days after receiving notice of the
• proposed agreement.
  2. 2 A bargaining agent that gives notice of approval or disapproval shall also
• give a copy of the notice to the Board.
  3. 3 The proposed agreement is approved if the agreement is approved by at least
  60. 60 per cent of the bargaining agents that gave notice, either of approval or
• disapproval, within the time period for doing so.
  4. 4 After the time period for every bargaining agent on the list to approve or
• disapprove has expired, the proponent shall forthwith determine whether the
• proposed agreement has been approved.
  5. 5 If the proponent determines that the proposed agreement has been approved,
• the proponent shall forthwith give notice that the proposed agreement has been
• approved to every bargaining agent on the list and shall give the Board a copy
• of the notice and evidence, in such form as the Board requires, that the
• notice has been given to each bargaining agent on the list.
  6. 6 If the proponent determines that the proposed agreement has not been
• approved, the proponent shall forthwith give notice that the proposed
• agreement has not been approved to every bargaining agent on the list and
• shall give the Board a copy of the notice.
  9. (9) A bargaining agent on the list that did not give notice of approval of the
• proposed project agreement may challenge the proposed project agreement by
• giving notice to the Board within 10 days after the Board receives the
• evidence described in paragraph 5 of subsection (8) and the following apply
• with respect to such a challenge:
  1. 1 The Board shall make an order either declaring that the proposed project
• agreement is in force or declaring that the proposed project agreement shall
• not come into force.
  2. 2 Paragraphs 3 and 4 apply if:
• i. the bargaining agent challenging the proposed project agreement gave notice
• of disapproval of the project agreement, and
• ii. the proposed project agreement would result in a reduction in the total
• wages and benefits, expressed as a rate, of an employee represented by the
• bargaining agent challenging the project agreement that is larger,
• proportionally, than the largest reduction that would apply to an employee
• represented by a bargaining agent that gave notice of approval of the project
• agreement.
  3. 3 In the circumstances described in paragraph 2, the Board shall make an
• order doing the following, unless the Board considers it inappropriate to do
• so:
• i. amending the proposed project agreement so that no reduction in the total
• wages and benefits, expressed as a rate, of an employee represented by the
• bargaining agent challenging the project agreement is greater, proportionally,
• than the largest reduction that would apply to an employee represented by a
• bargaining agent that gave notice of approval of the project agreement, and
• ii. declaring that the proposed project agreement, as amended, is in force.
  4. 4 In the circumstances described in paragraph 2, if the Board considers it
• inappropriate to make an order under paragraph 3, the Board may make an order
• declaring that the proposed project agreement shall not come into force.
  5. 5 The Board may make an order declaring that the proposed project agreement
• shall not come into force if the requirements of subsections (1) to (8) have
• not been satisfied and the failure to satisfy the requirements affected the
• bargaining agent challenging the project agreement.
  6. 6 In the circumstances prescribed in the regulations, the Board may make an
• order declaring that the proposed project agreement shall not come into force.
  10. (10) A project agreement comes into force upon the Board making an order
• declaring that the proposed project agreement is in force or, if the project
• agreement is not challenged under subsection (9), upon the expiry of the time
• period for making such a challenge.
  11. (11) If the project agreement comes into force, the proponent shall forthwith
• give notice that the project agreement is in force to the agents and agencies
• described in subsection (13).
  12. (12) If the Board makes an order declaring that the proposed project agreement
• shall not come into force, the proponent shall forthwith give notice of that
• order to the agents and agencies described in subsection (13).
  13. (13) The agents and agencies referred to in subsections (11) and (12) are the
• bargaining agents, employee bargaining agencies and employer bargaining
• agencies to which notice was given under subsection (1).
  14. (14) The following apply with respect to projects to which a project agreement
• applies:
  1. 1 The project agreement applies to all construction work on the project that
• is within the jurisdiction of a bargaining agent on the list.
  2. 2 Each applicable provincial agreement, as modified by the project agreement,
• applies to the construction work on the project, even with respect to
• employers who would not otherwise be bound by the provincial agreement.
  3. 3 Subject to the project agreement, if a provincial agreement ceases to apply
• while the project agreement is in effect, the provincial agreement that
• applied when the project agreement was approved applies to the construction
• work on the project until a new provincial agreement is made. However, this
• paragraph does not apply with respect to provincial agreements that apply to
• work that the project agreement does not apply to.
  4. 4 No employees performing work to which the project agreement applies shall
• strike and no employer shall lock out such employees while the project
• agreement is in effect even if a strike is called or authorized under
• subsection 164(1) or a lockout is called or authorized under subsection
  164. 164(2).
  5. 5 For greater certainty, paragraph 4 does not affect the right to strike of
• an employee who performs work to which the project agreement does not apply
• nor does paragraph 4 affect the right of the employer to lock out such an
• employee.
  15. (15) If a trade union does not have bargaining rights with respect to
• employees of an employer but the employer employs members of the trade union
• to perform work on the project, such employment shall not be considered in any
• application for certification by the trade union with respect to the employer.
  16. (16) Becoming a party to the project agreement or operating under the project
• agreement shall not constitute an agreement voluntarily recognizing a trade
• union as an exclusive bargaining agent.
  17. (17) The proponent and, if the proponent is an agent, the person who owns or
• has an interest in the land for which the project is planned, are not, only by
• reason of being a party to the project agreement or operating under the
• project agreement, parties to a provincial agreement.
  18. (18) In this section:
• "proponent" means a person who owns or has an interest in the land for which
• the project is planned and includes an agent of such a person.