2012 Annual Survey of Violations of Trade Union Rights - Canada

Population: 34,010,000
Capital: Ottawa

ILO Core Conventions Ratified:

87 (Freedom of Association and Protection of the Right to Organise (1948))
100 (Equal Remuneration for Work of Equal Value (1951))
105 (Abolition of Forced Labour (1957))
111 (Discrimination in Employment and Occupation (1958))
182 (Worst Forms of Child Labour Convention (1999))

Reported Violations – 2012

Murders: none reported
Attempted Murders: none reported
Threats: none reported
Injuries: none reported
Arrests: none reported
Imprisonments: none reported
Dismissals: none reported

Documented violations – actual number of cases may be higher

Introduction

Government tampering with worker rights is becoming a norm with anti-union practices on the rise. Heading a new majority-led Parliament in Canada, the Conservative Harper Government has taken the lead in attacking freedom of association and Collective Bargaining rights in its own jurisdiction, sending strong signals to other levels of government that it's "open season" on workers and trade union rights – this, despite Supreme Court rulings that recognize these rights as cornerstones of industrial relations. Back-to-work legislation has become its hallmark with direct attacks to certain sectors. Not surprising is the rise of many laws under Federal, Provincial or Territorial jurisdictions that provide little statutory protection to organize, bargain collectively or strike for a growing number of workers.

Background

In May 2011, a national election gave the Conservative Party a majority in Parliament and with it a perceived mission to pursue an agenda of cutbacks to public services and jobs, further tax breaks to corporations and fiscal austerity. The government has also shown a renewed determination to attack trade union rights.

The economic recovery in Canada has ground to a halt. The national unemployment rate rose from 7.1% to 7.5% in the last three months of 2011 as the economy lost 63,000 full-time jobs. The "real" unemployment rate, which includes discouraged job seekers and involuntary part-time workers, was 10.6% in 2011, and a sky-high 19.7% for young workers, far above where it stood before the recession in 2008. Wages adjusted for inflation have been stagnating, and most forecasters expect no reduction in unemployment in 2012.

A 2011 Organisation for Economic Co-operation and Development (OECD) report on income inequality among 34 industrialized nations reported a rise in income inequality in Canada due to widening disparities in labour earnings since the 1980s, including a particularly steep increase in the income share of the top one percent.

The gap between the earnings of men and women is significant and has ceased to close. There are also large and growing pay gaps attributable to discrimination against racialized workers and Aboriginal workers. People with disabilities and Aboriginal peoples experience well above average rates of unemployment.

The continuing decline of union density in the private sector and the erosion of trade union rights and basic employment standards such as the minimum wage have been major factors behind rising inequality in Canada.

Calls for redress by union workers through collective bargaining have been met with attacks on trade union rights, with Canada now setting the current record for freedom of association complaints to the International Labour Organization (ILO), unsurpassed by any other industrialized member State. The CLC has also reported historical levels of violations, with respect to a number of ILO Conventions ratified by Canada, dealing with employment, equality and discrimination issues. Canada has pulled out of the Kyoto accord on climate change, signaling its agenda to protect the interests of multinational companies, a policy that it is now exporting abroad, through the trade agreements with other countries and through changes in aid policy.

Trade union rights in law

Trade union rights continue to be officially guaranteed in federal legislation, but provincial and territorial laws are still lacking. While the right to form and join unions is recognised in both public and private sectors, the groups of workers that are exempt from protections in certain jurisdictions continue to be long: agriculture, domestic services, public health, education, social services, health care, childcare and contract workers, as well as architects, dentists, land surveyors, lawyers, doctors and nurse practitioners. At the national level, the Canada Post Corporation Act continues to restrain certain temporary and contracted-out workers from joining a union.

Further, there are restrictions through union certification rules, i.e. 'automatic card-check', 'mandatory voting system' or some combination of both. Through legislation and regulation, governments are free to toy with calculated percentages of workers (often arbitrary) that are required to legally validate a labour relations process. In addition, they add administrative hurdles to industrial organization, even over issues such as the validating of collective agreements.

When combined with powers allowing employers a wide range of actions to interfere with attempts to create a union (either tacitly or legally sanctioned), the union certification process becomes mired in confusing steps that restrict and prohibit the scope of application of ILO Convention 87 Freedom of Association rights. Resistance to them is often met with employer and government propaganda that casts aspersions about unions subverting democratic processes.

The law also protects collective bargaining, but again provincial or territorial restrictions dominate the scene and the right to strike continues to be circumscribed at these levels. Provinces routinely prohibit specific sectors from striking, such as teachers in Manitoba, police in Ontario and transit workers in Toronto. The exercise of the right in the public services is often limited by the obligation for many strikers to provide essential services as well as by regulatory procedures that make it very difficult for unions to counter employer designations. In some situations, the number of workers declared essential has surprisingly surpassed the number actually employed under normal operations. Finally, replacement labour may be used in industries governed by the Canada Labour Code and in all provinces, except Quebec and British Colombia.

Link to additional detailed information regarding the legislation on the ITUC website here

In practice

Supreme Court ruling not implemented:

In 2007, the Supreme Court ruled that collective bargaining was included within the meaning of the term "Association" in Canada's Charter of Rights and Freedoms, yet neither federal nor most provincial or territorial governments are taking much heed. Instead of amending legislation and practice to conform to the Supreme Court ruling, Governments are taking on 'case-by-case' battles at labour boards, arbitration tribunals and the courts. Meanwhile the Federal government has introduced back-to-work legislation to impose settlements in 2011 with postal workers and two separate Air Canada strikes. The overall effect is to erode collective bargaining, generally, whilst undermining union capacity by forcing them to spend a disproportionate amount of finances on judicial or quasi-judicial representation.

In late 2011, a Private Members Bill was introduced into the House of Commons to change the criteria for union reporting to the Canada Revenue Agency, thus further increasing financial burdens on them. It also aims at giving employers detailed information about union operations, at taxpayers expense. The introduction of a similar private members bill in British Columbia, with Saskatchewan intimating it might do the same, raises the specter of a coordinated attack in a number of jurisdictions.

Back-to-work legislation – a worrisome track record on "essential services":

The ILO notion of 'essential services' is being distorted by governments to broadly argue against so-called economic impacts of strikes on the economy and social well-being.

On June 26, the federal government adopted Bill C-6 to impose a settlement to end a lockout of nearly 50,000 postal workers, thereby continuing its track record since 1950 to introduce back-to-work legislation by tampering with the definition of 'essential service'. The imposition of such legislation has become commonplace, the mere threat of it often tipping the balance against a particular strike an employer opposes. This purpose was served on June 16, when the government announced its intent to introduce back-to-work legislation to end a legal strike of Air Canada's 3,800 sales and service agents, forcing the union and employer to resolve differences within a few days, or face a legislative resolution. In the case of a second strike with Air Canada flight attendants on October 13, the federal government referred the labour dispute to the Canada Industrial Relations Board, another move to prevent the employees from going on strike.

The Government of Manitoba is also standing by current legislation that allows employers to unilaterally designate workers as 'essential'. Similarly, legislation widening the application of 'essential services' continues to deny full exercise of trade union rights in such other provinces as New Brunswick, British Columbia, Saskatchewan and Prince Edward Island.

The Saskatchewan government continues to stand by legislation adopted in 2008, which has the effect of reducing the rights to organise and engage in collective bargaining for thousands of public sector employees. It introduced legislation to eliminate sectoral bargaining in the construction industry, allowing the establishment of employer-dominated company unions, and greatly reducing the power of unions in the construction industry by reducing their longstanding right to control the supply of labour.

Trends in undermining collective bargaining:

The Canadian government continues to implement legislation introduced in conjunction with the 2009 Federal Budget, which fixes the level of wage increases for all federal public service employees. The provisions continue to negatively impact federal public sector employees in general, and particularly those working for the Canada Revenue Agency, the National Gallery of Canada, the Canada Council for the Arts, the Canadian Museum of Nature and the National Arts Centre, who have experienced a reduction in negotiated wage rates. An egregious example of this is the current implementation to "modernise" wage parity in the federal public sector, by making pay equity an object of collective bargaining instead of a legislated right. At the same time, it has prohibited the trade union from representing its members in the filing of pay equity complaints, a clear tampering with the rights of freedom of association.

The removal or imposition of certain issues that might be subject to collective bargaining is also practiced at the provincial or territorial level. For example in 2007, the Superior Court of Québec invalidated the 2003 Bill-30 on collective bargaining in the public sector, which unilaterally defined collective bargaining units and imposed what they would negotiate, without recourse to strikes. The matter was appealed in 2009 but is still being deliberated. Similarly in Quebec, Bill-43 imposes conditions of work in the public sector without collective bargaining. A provincial committee on trade union rights has recommended that the government amend the legislation, but without follow-up to date.

Farm workers denied collective bargaining and organizing rights in three provinces: Farm workers are excluded from protection afforded by labour relations legislation and thus deprived of the right to organize and bargain collectively in the provinces of Alberta, Ontario and New Brunswick (at operations for five or fewer workers). In Ontario, the government has led the assault by appealing a lower court decision that had granted Ontario farm workers collective bargaining rights. In 2011 it obtained a Federal Supreme Court ruling to restrict those same rights – in contradiction to an earlier ILO ruling on the same matter. Corrective legislation is not on the government's horizon.

British Columbia Teachers denied collective bargaining: The British Columbia Supreme Court has ruled against government legislation to unilaterally set aside collective bargaining rights of local school teachers to negotiate class size, composition, student ratios, workloads and hours of work. Despite the ruling, collective bargaining rights of teachers continue to be curtailed.

Uninhibited use of strikebreakers in legal strikes: Employers continue to employ strikebreakers at will, pointing to a lack of provisions against the use of strike-breakers in many Canadian jurisdictions. Even in Quebec where legislation is in place, both the 'Journal de Québec' and 'Journal de Montréal' produced their papers as usual, despite strikes that lasted 16 and 24 months respectively. The government has yet to follow up on recommendations from a review by the 'Assemblée Nationale' to amend legislation.

Violations

Migrant workers undermined for sympathizing with unions: The United Food and Commercial Workers (UFCW) Canada has filed a complaint with the British Columbia Labour Relations Board, alleging that the Mexican consulate in Vancouver has conspired with Mexican government agencies and two agriculture operators to blacklist migrant workers who were employed at Floriala Farms and Sidhu Nurseries near Surrey, British Columbia, because they were union sympathizers. Both companies employ workers from Mexico under Canada's Seasonal Agricultural Worker Program (SAWP). The Consulate also stands accused of warning other workers to stop visiting union-run support centres in the Lower Mainland of British Columbia.

"Couche-Tard" stores closed down and workers dismissed for unionization: At the Canadian convenience store chain 'Couche-Tard' in Quebec, the employer closed down and laid off workers from two of four stores where unionisation by the Confédération des syndicats nationaux (CSN) was attempted, again on the pretext of financial solvency. Attempts by the CSN under the Québec Labour Code for workers to be reinstated have failed.

Court decisions in the Wal-Mart saga: In 2010, the Supreme Court of Canada agreed with a 2005 closure of a Wal-Mart store in Jonquière, Quebec, ruling the company was justified in doing so for financial reasons, and not due to the possibility of a successful organizing drive by United Food and Commercial Workers (UFCW) Canada. However, in the same year, the Superior Court of Quebec separately supported an arbitrator's decision to grant the employees with the right to claim for damages due to the closure, a ruling that Wal-Mart since then has taken to the Quebec Court of Appeal and from which a decision is awaited.

Working conditions of Temporary Foreign Workers resembles forced labour: In 2011, the CLC has asked for the ILO to rule on the working conditions of Temporary Foreign Workers that appear to resemble forced labour situations under the ILO Convention 29.