CMNT_TITLE

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

Other comments on C098

Direct Request

2023
2020
2019

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The Committee notes the observations of the Federally Regulated Employers – Transportation and Communications (FETCO), transmitted by the Government, which are of a general nature.

Social and economic measures taken to address the COVID-19 pandemic. In its previous comments, the Committee had noted that the Canadian Labour Congress (CLC) denounced that, in response to the pandemic, some provincial governments enacted pieces of legislation suspending collective bargaining rights and referred in particular to the enactment of the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, which led to the suspension of provisions in collective agreements. The Committee had encouraged the Government to engage in dialogue with the most representative employers’ and workers’ organizations of the sectors concerned with a view to limiting the impact and the duration of these measures. The Committee notes that the Government states that the Reopening Ontario (A Flexible Response to COVID-19) Act was enacted in response to truly exceptional circumstances with a view to ensuring the safety and health of the population. The Committee welcomes the Government’s indication that all regulations under the Act relating to collective bargaining rights have now been repealed or have expired. The Committee requests the Government to indicate whether measures suspending collective bargaining rights adopted in the context of the COVID-19 pandemic are still in force in any of the provinces.

Scope of the Convention. Categories of workers not covered by provincial labour laws. Liberal professions. Architects, dentists, land surveyors, lawyers, engineers, doctors. In its previous comments, the Committee had noted that the labour legislation in Alberta, Ontario, Nova Scotia, Prince Edward Island and Saskatchewan excluded the above categories of workers from its scope, and requested the Government to specify the manner in which these categories could effectively exercise the rights enshrined in the Convention. The Committee notes the Government’s indication that: (i) in Alberta, collective bargaining outside of the statutory framework is possible, including in the liberal professions, and, for instance, the government of Alberta has negotiated agreements relating to compensation with the Alberta Medical Association and the Alberta Crown Attorneys’ Association; (ii) in Prince Edward Island, although the aforementioned categories are excluded from the scope of the Labour Act, nothing in the legislation prohibits these professionals from exercising some form of collective bargaining in practice; for instance, a master agreement was concluded between the government of Prince Edward Island and the Medical Society of Prince Edward Island, and certain professionals are also covered by a collective agreement as members of the civil service; and (iii) in Saskatchewan, section 6-4 of the Employment Act provides that employees have the right to organize, form, join or assist in the establishment of a union of their choice to represent them in collective bargaining with their employer, and no provisions exclude the above-mentioned categories from the scope of that provision; for example, there is an association which negotiates on behalf of doctors and resident doctors. While the Committee takes due note of the above, it notes that the Government does not provide the information requested with respect to Ontario and Nova Scotia. The Committee once again requests the Government to indicate how workers in liberal professions, such as architects, dentists, land surveyors, lawyers, engineers and doctors, may effectively exercise their rights under the Convention in Ontario and Nova Scotia.

Domestic workers. The Committee had previously noted that domestic workers employed in private homes were excluded from the labour legislation in Alberta, Ontario, New Brunswick and Saskatchewan, and requested the Government to specify the manner in which these workers could effectively exercise the rights enshrined in the Convention. The Committee notes with regret that the Government has provided no information in this respect. Highlighting the importance for domestic workers, a particularly vulnerable category of workers, to be able to organize and to bargain collectively, the Committee reiterates its previous request.

The Committee had also noted that in Saskatchewan, domestic workers faced practical limitations on the effective exercise of their rights, due to the definition of “employer” in the Saskatchewan Employment Act, which required the employment of “three or more employees”. The Committee notes from publicly available information that, after section 2–1(g) of the Act was amended in 2020, the definition of “employer” now includes “any person who employs one or more employees”. The Committee welcomes this development.

Agricultural workers. In its previous comments, the Committee had noted that in Alberta, the farm and ranch sector was exempted from the scope of the Labour Relations Code, and that in Ontario, agricultural workers were only covered by the Agricultural Employees’ Protection Act (AEPA), which, according to a report from the Changing Workplaces Review (CHR) commissioned by the Ministry of Labour, did not provide the right to collective bargaining and offered insufficient protection against anti-union discrimination and acts of interference. The Committee requested the Government to specify the manner in which agricultural workers from these provinces could effectively exercise the rights enshrined in the Convention. The Committee notes with regret that the Government does not provide any information in this regard. Highlighting here again the importance for agricultural workers to be able to organize and to bargain collectively, the Committee reiterates its previous request.

Independent contractors. The Committee had also noted that the labour legislation in Alberta, Ontario, British Columbia and Newfoundland and Labrador, implicitly or explicitly excluded independent contractors from its scope, and that, according to the CLC, workers in the gig economy should be recognized as employees rather than independent contractors. The Committee had requested the Government to specify the manner in which independent contractors from the above-mentioned provinces could effectively exercise the rights enshrined in the Convention. The Committee notes the Government’s indication that in Ontario, digital platform workers have been recognized as dependent contractors, and are therefore explicitly covered under the Labour Relations Act. Taking due note of the above, the Committee requests the Government to specify how independent contractors in general can fully enjoy the rights and guarantees set out in the Convention in the above-mentioned provinces. The Committee further requests the Government to provide information on the status of platform workers in Alberta, British Columbia, and Newfoundland and Labrador.

With respect to all categories mentioned above, the Committee had previously noted the Government’s statement that, despite being excluded from the scope of provincial labour laws, they could exercise some of their collective rights, and requested the Government to provide information, for each category, on the number of collective agreements concluded and the number of workers covered. Noting that the Government does not provide such information, the Committee again requests it to submit statistical data on the number of collective agreements concluded by each of these categories and the number of workers covered.

The Committee had also encouraged the Government to take, in full consultation with the social partners concerned, tailored measures, including measures of a legislative nature when necessary, to ensure that these categories had effective access to the rights enshrined in the Convention, and requested it to provide information on the steps taken in this respect. The Committee notes the Government’s indication that in British Columbia, the Ministry of Labour has been undertaking public engagement with gig economy stakeholders, focusing on workers and companies offering app-based ride hail and food delivery services, which will help to inform future decisions to ensure that the province’s labour laws are keeping up with modern workplaces. Taking note of the engagement between the government of British Columbia and gig economy stakeholders, the Committee requests the Government to provide information on any concreate measures adopted as a result of these consultations. The Committee further requests the Government to indicate whether similar steps have been taken in other provinces or with respect to others of the above-mentioned categories of workers with a view to achieving full compliance with the Convention.

Articles 1 and 2 of the Convention. Adequate protection against acts of anti-union discrimination and acts of interference. In its previous comments, the Committee had requested the Government to provide information on the rules applicable for public sector workers not engaged in the administration of the State at the federal and provincial level, concerning protection against acts of anti-union discrimination and interference, and the competent board or tribunal for enforcing them. The Committee notes that the Government indicates that: (i) in Alberta, the applicable legislation for many public workers is the Public Service Employee Relations Act (section 45), while some workers are also covered by the Labour Relations Code (sections 148 and 149), and the Labour Relations Board is the authority in charge of ensuring compliance with these laws; (ii) in Nova Scotia, the protection is provided by section 53 of the Trade Union Act, which applies to public sector workers, and complaints can be presented to the Labour Board in case of violation; (iii) in Ontario, the protection is afforded under the Labour Relations Act (sections 70 to 72), which generally applies to public sector workers, and complaints alleging contravention may be filled with the Labour Relations Board under section 96 of the Act; (iv) in Prince Edward Island, public sector workers are protected by the Canadian Charter of Rights and Freedoms, which lists freedom of association as a fundamental right (article 2) and whose application falls under the jurisdiction of the Supreme Court of Prince Edward Island; and (v) in Quebec, protection is provided for in the Labour Code (sections 12 to 14), and the Administrative Labour Tribunal has broad powers of intervention to guarantee the protections afforded to public sector workers. While taking due note of the information submitted, the Committee notes that no information was provided with respect to the federal jurisdiction and the other five Canadian provinces. Taking due note of these elements, the Committee requests the Government to inform on the applicable rules for public sector workers not engaged in the administration of the State at the federal level, as well as in the provinces of British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, and Saskatchewan, specifying in particular the laws and provisions which provide protection against acts of anti-union discrimination and interference, as well as the labour board or administrative tribunal charged with administrating and enforcing them.

The Committee further notes the statistical information provided by the Government on the number of complaints of anti-union discrimination and interference made to the competent authorities in the public and private sectors. The Committee notes that: (i) in the federal jurisdiction, 231 complaints were presented between 1 January 2020 and 4 July 2023, 168 of which were disposed of with an average processing time of 255 days (1 granted, 18 rejected, and 149 settled or withdrawn) and 63 remain pending; (ii) in Alberta, 200 complaints were presented since 1 January 2020; of these, 5 have been upheld and 15 were dismissed, 116 were settled or withdrawn, and 63 remain pending; and (iii) in Prince Edward Island, 3 complaints were submitted since 2019; among those, 2 were withdrawn and 1 remains pending. The Committee notes in particular that the majority of complaints presented in the above-mentioned jurisdiction and provinces in recent years were either settled or withdrawn before being treated by the relevant labour boards. The Committee requests the Government to continue to provide detailed statistics on the number of complaints of anti-union discrimination and interference received by the relevant authorities, the average duration of the proceedings and their outcome, as well as the sanctions imposed or remedies awarded.

In its previous comments, the Committee had also requested the Government to provide its observations regarding concerns by the CLC that changes introduced in union certification in Alberta (Bill C-2: An Act to Make Alberta Open for Business), Ontario (Bill C-47: Making Ontario Open for Business Act) and Manitoba (Bill C-7: Labour Relations Amendment), which were addressed by the Committee in its observations concerning the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), could have the effect of enabling greater employer interference. The Committee notes that the Government merely indicates that the removal of automatic certification by the Act to Make Alberta Open for Business had no effect on the provisions relating to anti-union discrimination contained in the Labour Relations Code and the Public Service Employee Relations Act. In this regard, the Committee recalls that acts of interference are deemed to include acts which are designed to promote the establishment of workers’ organizations under the domination of an employer or an employers’ organization, or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or employers’ organizations (see 2012 General Survey on the fundamental Conventions, paragraph 194). The Committee encourages the Government to take the necessary steps, in consultation with the most representative workers’ and employers’ organizations, to ensure that the practical application of the modifications to union certification introduced by the Act to Make Alberta Open for Business does not negatively affect the enjoyment of the rights recognized by the Convention. The Committee requests the Government to provide information of any progress made in this regard, and to provide its observations with respect to the legislative changes adopted in the provinces of Ontario and Manitoba.

Article 4. Promotion of collective bargaining. Legislative matters. In its previous comments, the Committee had noted that, according to the CLC, while the current bargaining model was still relevant for workers employed in large, single-site workplaces with traditional hours of work and should remain in these industries and sectors, it was not adapted to workplaces with a small number of employees and non-standard relationships (high rates of part-time, temporary, seasonal, self-employment and contract jobs). It had further noted that, according to the CWR report, the current single employer and single enterprise model of certification did not provide for effective access to collective bargaining for a large number of employees. The Committee had therefore invited the Government, in consultation with all relevant stakeholders, to find appropriate and agreed solutions so as to guarantee, in law and in practice, the right to collective bargaining to all workers covered by the Convention, paying a special attention to the most vulnerable categories of workers. The Committee reiterates its previous comments and requests the Government to provide information on any developments in this regard.

Articles 4 to 6. Right to collective bargaining of public servants not engaged in the administration of the State. Limitations on the content of collective agreements applicable to public servants not engaged in the administration of the State. The Committee had previously requested the Government to provide its comments on allegations by the CLC that: (i) legislation aimed at unilaterally restricting or modifying the content of collective agreements regarding salaries and wages was adopted by the governments of Alberta (Public Sector Arbitration Deferral Act), Manitoba (Public Services Sustainability Act) and Nova Scotia (Teachers’ Professional Agreement and Classroom Improvement Act; Public Service Sustainability Act); and (ii) in June 2018, the Quebec Superior Court found that section 113(b) of the Federal Public Sector Relations Act, which restricted collective bargaining covering pensions and staffing and reserved unilateral discretion for the Government, was in violation of the freedom of association guaranteed in the Charter, but the Attorney General appealed that decision. The Committee notes the Government’s indication that: (i) in Manitoba, the Public Services Sustainability Act was repealed; and (ii) in Nova Scotia, trade unions have initiated a challenge to the Public Service Sustainability Act, alleging that it constitutes an unconstitutional interference in collective bargaining, and this challenge is its preliminary stages. The Committee requests the Government to provide information on the outcome of the legal challenge to the Public Service Sustainability Act, as well as its comments on the adoption of the Teachers’ Professional Agreement and Classroom Improvement Act in Nova Scotia and the Public Sector Arbitration Deferral Act in Alberta.