2007 Annual Survey of violations of trade union rights - Canada
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - Canada, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca3b2d.html [accessed 25 December 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 87 – 100 – 105 – 111 – 182
In several provinces, the law still contains restrictions on the right to form a union, to bargain collectively and to strike, particularly in the public sector. The government of Quebec imposed a collective agreement on its public sector workers, thereby denying their bargaining rights and taking away their right to strike. Diamond workers were threatened with disciplinary action for taking part in a legal strike.
Trade union rights in law
Under federal legislation, workers in both the public and private sectors have the right to associate freely. Trade union rights are officially guaranteed in federal legislation, although each province also has its own legislation, setting limitations on these rights. All workers have the right to strike, except for those in the public sector who provide essential services (with a few exceptions such fire fighters in Nova Scotia who have the right to strike). Replacement labour may be used in industries governed by the Canada Labour Code. Public and private sector workers have the right to organise and bargain collectively. The law protects collective bargaining, but again there are limitations which vary from province to province. The law prohibits anti-union discrimination.
Alberta: exclusion and denial of the right to strike: Categories of workers, including agricultural, horticultural and domestic workers are excluded from provincial labour relations' legislation and therefore the protection this provides.
The law on labour relations in the provincial civil service bans strikes by all employees of the province. Hospital workers, whether deemed to be providing essential services or not, are also collectively prohibited from striking. Workers involved in illegal strikes are liable for heavy fines and even prison sentences.
Construction trades workers are forced to bargain at the same table in arbitrary groups of unions regardless of the wishes of the workers of their unions. Workers are subsequently prohibited from striking unless 60 per cent of the unions within a group, and 60 per cent of all union members affected, vote to do so.
In 2005, the provincial government invoked, for the first time ever, "Division 8" of the Labour Relations code to force construction workers to be represented by an organisation and contract they had not voted to support. Alberta labour laws continue prohibitions in contradiction of a Supreme Court of Canada ruling allowing secondary picketing.
Alberta legislation also authorises extensive intervention by the authorities in collective bargaining and allows the employer to bypass a trade union as the bargaining agent and to use replacement workers in a strike.
British Columbia: collective bargaining undermined in the education and health sectors: In 2001, nurses and paramedical professionals in the province lost their right to strike, with the introduction of the Health Care Services Continuation Act, and had a collective "agreement" imposed on them by the Health Care Services Collective Agreement Act. Education was designated an "essential service" under the Skills Development and Labour Statutes Amendment Act, giving the authorities the power to deny teachers the right to strike.
Further limitations were introduced in 2002, with the adoption of the following three bills: the Education Service Collective Agreement Act (Bill 27); the Public Education Flexibility and Choice Act (Bill 28), and the Health and Social Services Delivery Improvement Act (Bill 29). The Acts completely eliminated or rewrote provisions in existing collective agreements that had been freely negotiated and afforded substantial protection for workers in the province. Furthermore, the removal of restrictive language gave health care and other employers the right to avoid the terms of binding collective agreements by "contracting out" to related employers who are not covered by such agreements. The legislation also permits the government to initiate action that could result in the cancellation of bargaining rights. The case was submitted to the ILO Committee on Freedom of Association, which urged the government to amend some provisions and review the collective bargaining issues raised. The health care unions challenged the legality of Bill 29. The court ruled in July 2004 that although the bill did affect the unions' bargaining strength, it was not unconstitutional.
Also in 2004, the Health Sector (Facilities Subsector) Collective Agreement Act (Bill 37) imposed terms and conditions favourable to the employer, ordered an effective 15 per cent decrease in compensation for the union members covered by the agreement, and ordered the end of their strike.
Again in 2004, the provincial government passed the Education Services Collective Agreement Amendment Bill (Bill 19) which modified or eliminated numerous provisions from freely negotiated collective agreements in the education sector, undermining the right of teachers' unions to act as bargaining agents for their members. The amendment overturned a successful court challenge by the British Columbia Teachers' Federation against an earlier arbitration award removing provisions from collective agreements and pre-empted any further challenges by stating the amendment applied "despite any decisions of a court to the contrary".
This was followed in 2005 by the Teachers' Collective Agreement Act (Bill 12), imposed while the teachers were involved in the first stages of industrial action (a work-to-rule) following a lengthy attempt to negotiate a new agreement. While the Act appeared to set out an extension of a current agreement, it was the latest piece of legislation taking away contract terms and imposing collective agreements on public school teachers.
The government also introduced the Crown Counsel Agreement Continuation Act (Bill 21) in 2005, rejecting an arbitration award granted under the terms of other legislation governing Crown Counsel and imposing its own salary terms on lawyers working for the Crown. The Act also prohibited the withdrawal of services.
British Colombia denies nurse practitioners right to organise: The Health Statutes Amendment Act excludes nurse practitioners in British Columbia from joining a union.
Ontario: many restrictions: Ontario's labour legislation continues to exclude agricultural and horticultural workers, as well as domestic workers, architects, dentists, land surveyors, lawyers and doctors. People taking part in community activities are also prevented by law from joining a trade union. A ruling by the Supreme Court of Canada in December 2001 declared that the Ontario law prohibiting the unionisation of agricultural workers was unconstitutional. In October 2002, the government of Ontario passed the Agricultural Employees Protection Act which, according to the Ontario Federation of Labour, " basically gave agricultural workers the right to join a social club, but they still can't join a union or bargain collectively."
The Ontario Labour Relations Board lost the authority to order automatic union certification right after the election of the anti-labour Harris government in 1995. In early 2005 the new Liberal government tabled a bill that would provide a card check certification process only to workers in the building trades, but not the rest of the workforce. The automatic certification, based on evidence of a signed union membership card, was a key cornerstone of the Ontario Labour Relations Act that applied to all workers prior to the Harris government. Its reinstatement – only for the building trades – was considered as a partial victory. The Act passed in the Fall of 2005 remains, to many, as a systemic barrier to workers in other sectors joining a union.
Collective bargaining rights are heavily restricted in education under the terms of a 1997 law. This excludes school principals and assistant principals from taking part in the teachers' negotiating unit, which can only negotiate working conditions on an informal basis. The Ontario Education Act also establishes a de facto trade union monopoly, by designating the trade union recognised as the bargaining agent by name. If a dispute leads to strike action, arbitration can be imposed after three weeks. The global trade union federation, Education International, lodged a complaint with the ILO in October 2003 about legislation adopted by the outgoing government of Ontario that further narrowed the bargaining rights of teachers. It altered the definition of strikes and expanded the statutorily prescribed duties of teachers. In response to the critical conclusions of the ILO, the new government of Ontario said that it was committed to creating fair labour relations in Ontario's schools.
With the election of the new government in Ontario in 2005, the requirement to post workplace documents on the process to terminate bargaining rights has been repealed. The Ontario Labour Relations Act has also been amended to empower the Ontario Labour Relations Board to certify, without a vote, when the employer has grossly violated the law and intimidated the employees. The labour movement also gained the right to interim reinstatement for those fired during organising campaigns.
New Brunswick: certain categories of workers excluded: Agricultural and horticultural workers are excluded from the protection provided by the province's labour relations legislation. Casual workers in the public sector cannot affiliate to organisations of their choice and therefore cannot enjoy the corresponding rights such as collective bargaining.
Quebec: organising rights denied to many, collective bargaining undermined: In 2003, the provincial government introduced amendments to the Act on heath and social services and the Act on early childhood centres and care services, which withdraws the definition of salaried employee from anyone performing a job "outside of the workplace". Under the Quebec labour code only "employees" enjoy the right to form unions. Hence, by redefining them as independent workers, the amendments deprived them of their previously recognised right to organise. Ironically, the Acts concerned were designed to promote a policy of non-institutional and home based care, yet it was the very people providing this care that were deprived of their basic rights by the amendments. Those unions that had been set up had their union status revoked, and their right to collective bargaining. The great majority of the workers concerned were women. In 2006 the ILO Committee on Freedom of Association condemned the government of Quebec for depriving thousands of workers of their right to be considered a salaried employee under the Labour Code and urged it to amend the Act.
In 2004, the Prosecutors Act (as amended by the act amending the Act respecting Attorney-General's Prosecutors) denied prosecutors the right to join a trade union and deprived them of protection against hindrances, reprisals or sanctions related to the exercise of trade union rights. The ILO has asked the government to ensure that prosecutors do have the right to join unions of their choice and enjoy protection against ant-union discrimination.
In December 2005 the provincial government passed a law, Act 43, imposing conditions of employment on employees in the Quebec public sector thereby violating their fundamental right to bargain collectively. The law renewed all collective agreements in the sector, modified unilaterally, with effect from 1 January 2006, until 31 March 2010. It also took away their right to strike, as Quebec labour law prohibits strikes during the term of a collective agreement (see below), without granting them an alternative procedure for the settlement of disputes such as mediation, conciliation or arbitration. The ILO's Committee on Freedom of Association emphasised that a legal provision which allows the employer to modify unilaterally the content of a signed collective agreement was contrary to the principles of collective bargaining, and urged the government to amend Act 43 and review the excessive sanctions imposed on workers for violating the prohibition on strike action.
The right to strike is limited by two acts that give a very broad definition of essential services, and the provision that strikes may not take place during the term of a collective agreement.
Manitoba: The Public Schools Act bans teachers from going on strike and contains heavy fines for breaches of this law. It also provides for compulsory arbitration at the request of one of the parties if a dispute lasts more than 90 days. The police face similar restrictions.
Prince Edward Island: As with Ontario, the law effectively imposes a trade union monopoly by naming a bargaining agent in the Civil Service Act.
Nova Scotia: The same applies to Nova Scotia, where the bargaining agent is named in the Civic Service Collective Bargaining Act and in the Teachers' Collective Bargaining Act.
Newfoundland: The Public Service Act confers broad powers on the employer with regard to the procedure for the designation of "essential employees".
Trade union rights in practice
While the law is generally respected in practice, the many limitations it provides are taken advantage of by both private sector employers and public authorities.
Provincial governments have used the law to order strikers back to work, while private employers have brought in temporary workers to replace strikers.
Ontario: Trade unions in Ontario reported that the changes to the labour law brought in by the conservative Harris government had made it extremely difficult for Ontario workers to exercise their union rights. Tensions over trade union activity had escalated into threats and physical violence over recent years, to the extent that workers were afraid to unionise.
Violations in 2006
Strikers threatened with disciplinary action: Striking members of the Union of Northern Workers, a component of the Public Service Alliance of Canada, received letters on 31 May and 1 June from their employer, the Ekati diamond mine owned by BHP Billiton, threatening them with disciplinary action for taking part in a legal strike. The strike by nearly 400 Ekati workers began on 7 April, over the failure to conclude negotiations on a first collective agreement. Despite international profits of 7.5 billion dollars BHP Billiton offered workers a mere 1 per cent pay increase, no increase in holiday entitlements, no seniority rights and no job security. At the end of May BHP Billiton tabled a "final" offer which the PSAC said would leave union members in a far worse position than when the strike began. The union was particularly angry because it had tabled a counterproposal accepting many but not all of the employer's proposals, but BHP Billiton refused to compromise. Agreement was finally reached at the end of June, although several matters were the subject of arbitration at the time of writing.