2011 Annual Survey of violations of trade union rights - Canada

Population: 33,600,000
Capital: Ottawa
ILO Core Conventions Ratified: 87 – 100 – 105 – 111 – 182

As the Canadian and provincial governments grapple with Supreme Court rulings supporting freedom of association, laws in both jurisdictions still fail to provide statutory protection for certain groups of workers to organise, engage in collective bargaining, or exercise the right to strike.

TRADE UNION RIGHTS IN LAW

Trade union rights are officially guaranteed in federal legislation, but there are concerns regarding the provincial laws. While the right to form and join unions is recognised for both public and private sector workers, a number of categories of workers enjoy limited or no freedom of association in several provinces. At the national level, the Canada Post Corporation Act continues to restrain certain temporary and contracted-out workers from joining a union. The law also protects collective bargaining, but there are again provincial restrictions. However, in a 2007 landmark case, the Supreme Court ruled that a "limited right" to collective bargaining should be included within the country's Charter of Rights and Freedoms.

The right to strike is also circumscribed at the provincial level. For example, in Manitoba, arbitration may be imposed at the request of one party after 60 days of a work stoppage. Teachers in this province are also prohibited from striking. In all of Canada strikes are not permitted whilst a collective agreement is in force and workers who disregard the provisions are liable to severe and disproportionate sanctions. 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. Finally, replacement labour may be used in industries governed by the Canada Labour Code.

TRADE UNION RIGHTS IN PRACTICE AND VIOLATIONS IN 2010

Background: Despite a Supreme Court ruling in 2007 that collective bargaining was included within the meaning of the Charter of Rights and Freedoms, federal and provincial governments have not moved with any haste to identify and amend non-compliant legislation or regulatory practice, acting instead on a case-by-case basis. As a result, Canadian unions have undertaken proceedings on their own to appeal to international law, including by filing a record number of 'freedom of association' complaints to the ILO. There are expectations that the Supreme Court will soon rule on whether also the right to strike is enshrined in the Charter.

Salary roll-backs and a reversal on pay equity at the national level: The Canadian government is currently implementing 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 will experience a reduction in negotiated wage rates.

In addition, the Canadian government is implementing legislative measures 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 a trade union from representing its members in the filing of pay equity complaints. In December 2010, the Public Service Alliance of Canada (PSAC) was granted leave by the Ontario Superior Court of Justice to present arguments against the constitutionality of the Expenditure Restraint Act and the Public Sector Equitable Compensation Act. PSAC's appeal is also backed by the Royal Canadian Mounted Police and the union representing professional employees in the public sector.

The Canadian government also allowed the Maritime Employers' Association, which operates under federal jurisdiction, to lock out longshoremen in the Port of Montreal without notice or justification in order to reinforce its intention to reverse a longstanding trade union right to income security.

Broad exclusions and additional obstacles to organising: There is mounting evidence that the Saskatchewan government intends to stand by the legislation adopted in 2008 which has the effect of reducing the rights to collective bargaining and organising for thousands of public sector employees. The ILO has directed the government to take steps to amend its Bill 5, the Public Services Essential Services Act, and Bill 6, the Trade Union Amendment Act, but it continues to stand firm.

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

Uninhibited use of strikebreakers in legal strikes: Employers continue to employ strikebreakers at will, pointing to a lack of provisions against the use of strikebreakers in many Canadian jurisdictions. In 2010, for example, strikes involving Steelworkers at Brantford, Sudbury and Port Colborne in Ontario were aggravated and extended by the introduction of strikebreakers.

Collective bargaining and organising rights of farm workers violated in three provinces: Farm workers are excluded from protection afforded by labour relations legislation and thus deprived of the right to organise in the provinces of Alberta, Ontario and New Brunswick. In November 2008, the Ontario Appeal Court gave the government a period of one year to ensure that farm workers in that province were covered by sufficient protective legal provisions to allow them to bargain collectively. However, the Ontario government has appealed this ruling to the Supreme Court of Canada, and a decision is pending. As well, the ILO has recommended that the governments amend their laws.

Withdrawing rights of construction trade unions: The Saskatchewan government has introduced legislation that will eliminate sectoral bargaining in the construction industry, allow the establishment of employer-dominated company unions, and greatly reduce the power of unions in the construction industry by reducing their long-standing right concerning the supply of labour.

Canada Post refuses mail couriers basic union rights: In a conflict stemming from the 1980s, rural route mail couriers of Canada Post have struggled for their rights to form a union and to engage in collective bargaining. Section 13(5) of the Canada Post Act excludes mail contractors from the scope of the Canada Labour Code, and the employer has adamantly stated that rural route mail couriers and other associated staff shall be considered contractors. In 2003, as a result of intense lobbying, the Canadian Union of Postal Workers (CUPW) was certified to represent the workers and negotiated a collective agreement that granted the mail couriers employee status. However, the employer has continued its judicial persecution of the union and its organising efforts.

Back-to-work legislation imposed on university staff: The Liberal government of Ontario passed back-to-work legislation in 2009 to end a legal strike at York University by contract staff, teaching assistants and graduate assistants. Despite international condemnation and probing by the ILO, Ontario remains steadfast in its resolve to defend its actions. The ILO has now been asked by the Canadian Union of Public Employees (CUPE) 3903 to reopen the case in light of government inaction.

Anti-union strategies in Quebec: In April 2005, Wal-Mart, one of Canada's largest retail chains, closed down its store in Jonquière, Quebec seven months after the United Food and Commercial Workers had been certified to represent the workers. The company claimed the store was not profitable, and two Quebec Court of Appeal decisions confirmed Wal-Mart's right to close its store. On 27 November 2010, the Supreme Court of Canada ruled that the company was allowed to permanently close down its store and that its former employees could not benefit from the protection and remedy provided by the Quebec Labour Code. However, the Court also recognised that the employees have the right to claim and prove that the closure resulted from the unionisation drive. If the union is successful in presenting evidence to this effect, the Labour Relations Commission could then fashion an appropriate remedy, including damages.