Shauna Olney ¹
Senior Legal Officer
ILO Freedom of Association Branch

A paradox

Collective bargaining has pride of place in the Canadian labour relations system. A solid framework exists to promote collective bargaining, helping to make it one of the key means of determining the terms and conditions of employment.² Despite such a framework, 50 years after its adoption, Canada remains among the minority of countries that have not yet ratified the international labour Convention on collective bargaining.³ Added to this paradox is the fact that Canada is called to account regularly by the ILO Committee on Freedom of Association because of complaints concerning violations of collective bargaining rights.

A pivotal role

Canada holds a significant place in the history of the International Labour Organization, not only as one of its founding members, but also for having hosted the International Labour Office when Europe found itself at the eye of the storm during the Second World War. ⁴ Canada's role in the Organization has not diminished: the Government as well as workers' and employers' representatives sit on its Governing Body,⁵ and Canadian delegates often have a strong voice in many of the Organization's discussions and on many of its Committees. Canada played a pivotal role in securing the adoption of the most recent affirmation of fundamental rights (including the right to bargain collectively), namely the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up.⁶ 

Domestic to international commitment

Given its role on the international stage and the domestic commitment to collective bargaining, why has Canada been unable, or perhaps unwilling, to ratify the Convention on collective bargaining? And what are the prospects for the future? These questions will be looked at from two perspectives. First, an examination of the general framework of collective bargain mg that has been established: when held up to the model for promoting collective bargaining that the ILO supervisory bodies have pieced together over the years, Canada's general collective bargaining framework looks exemplary. However, there are also cracks in the system, leaving some workers without the same rights and protections enjoyed by others. There have also been intervals when the system has been suspended for certain employees (mainly those in the public sector) for economic reasons. The lapses in the system that have been brought to the attention of the ILO supervisory bodies is the second perspective from which Canada's record will be examined.

Obligations by virtue of membership

Although it has not ratified the principal Convention concerning collective bargaining, namely the Right to Organise and Collective Bargaining Convention, 1949 (No.98), Canada still has international obligations in this area. By virtue of membership in the International Labour Organization, all member States are bound by the basic principles of freedom of association, including the right of collective bargaining, since these are included in the Organization's Constitution. ⁸ As a result, the Freedom of Association Committee of the Governing Body of the ILO has authority to hear complaints of violations of freedom of association whether or not the country at issue has ratified the particular Conventions. Since Canada has not yet ratified Convention No.98, it is through this special complaints procedure that Canada's collective bargaining record has been scrutinized. Of the 70 complaints that have been filed against Canada with the Committee on Freedom of Association since 1951, 60 involve collective bargaining issues.

Divided jurisdiction

Before turning to the promotion of collective bargaining in Canada, when discussing ratification prospects, the complex constitutional structure of the country cannot be overlooked. Authority over labour matters falls under both federal and provincial jurisdiction. While Canada is the international entity authorized to ratify a Convention, jurisdiction for implementation is divided between the federal jurisdiction and the provinces. Consequently, the practice has been to ratify only if all 13 jurisdictions concur and undertake to implement the requirements of the Convention. ⁹ 

Canada's collective bargaining framework

The Right to Organise and Collective Bar gaining Convention (No.98) calls on States to take measures to encourage and promote voluntary collective bargaining. ¹⁰  It refers specifically to "the full development and utilization of machinery for voluntary negotiation". Importance is placed on the voluntary nature of collective bargaining, thus limiting the State's direct role in the process. However, this is balanced with the concept of "promotion": a State is not entitled to remain indifferent with respect to collective bargaining.

While the ILO supervisory bodies have not determined an "ideal" collective bargaining system, they have identified practices and procedures that promote collective bargaining. The recognition of representative trade unions for the purpose of collective bargaining, good faith bargaining, the prohibition of unfair labour practices, and mediation and conciliation procedures have been identified in this context, ¹¹ all of which are provided for in all Canadian jurisdictions.¹² 

Union recognition or formal certification

Once a group of employees decides to organize for the purpose of bargaining collectively, either an employer voluntarily recognizes the union or a formal certification procedure is set in motion. Certification has been described as "the linchpin of modern North American labour law". ¹³ Through this process, exclusive bargaining rights are granted to trade unions that have secured a certain level of employee support. Normally, a union must show that it has the support of a majority of the employees in a bargaining unit ¹⁴ in order to obtain certification.

Safeguards built in

For recognizing unions as exclusive bar gaining agents, the ILO supervisory bodies have insisted on certain safeguards: the certification should be made by an independent body; the representative organization should be chosen by a majority vote of the employees in the unit concerned; a trade union that previously failed to secure a sufficient number of votes in an election should be able to request a new election after a stipulated period; and any new organization should have the right to demand a new election after a reasonable period.  ¹⁵ These safeguards have been built into the Canadian system. Independent labour boards across the country determine whether a union is entitled to certification. The federal and provincial legislation provides for a certification vote, but the level of support needed to trigger a vote and the means of proving sufficient support may vary.

Representation vote 

In some of the jurisdictions, certification can be obtained without a vote. For example, in British Columbia, if the board is satisfied that the trade union has 55 per cent of the employees of the union as members "in good standing  ¹⁶ , it must grant certification. ¹⁷ But where a union shows it has less than 55 per cent of members in good standing, but not less than 45 per cent, a representation vote is held." All the employees of the bargaining unit vote in a representation vote, and if a majority of those casting ballots (as opposed to those entitled to vote) vote in favor of representation by the union, certification will be granted.  ¹⁹ What is particularly interesting about the Canadian situation is that, generally, a union need not show it has a majority of employees as members, but rather that a majority of employees support the union as their bargaining agent.

In some cases, the labour board can certify a union as the exclusive bargaining agent with out a vote if the employer has been guilty of an unfair labour practice which has prejudiced the union in its efforts to gain majority support. ²⁰ 

Duty of fair representation

The mere filing of an application for certification creates certain obligations on the part of the employer: terms and conditions of employment are not to be changed. ²¹ Once certified, a trade union becomes the bargaining agent for all the employees in the bargaining unit, even those who are not members of the union. As a corollary to this right of exclusive representation, the union has a duty to represent all the employees in the bargaining unit fairly. ²² 

Good faith bargaining

Once certification is granted, either party can give notice to begin collective bargaining. When notice to bargain is given, the employer again must refrain from unilaterally changing terms and conditions of employment, ²³ and both the union and the employer are obliged not only to bargain, but to bargain in good faith. Good faith bargaining is important in the view of the ILO supervisory bodies "for the maintenance of the harmonious development of labour relations"  ²⁴ 

Although good faith bargaining does not require the parties to reach an agreement, it does require them to make every reasonable effort to enter into a collective agreement. In this context, the Committee on Freedom of Association has noted the importance of genuine and constructive negotiations and the avoidance of unjustified delays. ²⁵ The Committee has also stated that agreements once reached should be binding on the parties, ²⁶ which is the case of collective agreements under Canadian law. A collective agreement in Canada may also contain what ever subjects the parties agree to include.

Conciliation/mediation services

Since competing interests are at stake, the parties to collective bargaining are not always able to reach an agreement without the assistance of a neutral third party. The importance of conciliation and mediation as a means of helping the parties to come to an agreement voluntarily is recognized across Canada. Conciliation or mediation services are provided to help the parties re-establish dialogue and consider different possibilities, but in the end it is still the parties who decide what terms they will agree upon, if any. The importance of maintaining the autonomy of the parties with respect to dispute settlement machinery has been stressed by the supervisory bodies. ²⁷ 

Voluntary arbitration

Some Canadian jurisdictions also provide for voluntary arbitration. In Ontario, for example, once notice to bargain has been given, the parties can agree in writing to submit all matters remaining in dispute to final and binding arbitration. ²⁸  Although arbitration results in a collective agreement being imposed, the autonomy of the bargaining parties is maintained, since the decision to submit to arbitration is the choice of each party.

Imposition of first collective agreement

A general exception to the voluntary nature of collective bargaining in some Canadian jurisdictions is the imposition of a first collective agreement. The ILO Committee of Experts on the Application of Conventions and Recommendations has accepted that, while arbitration imposed at the request of one party is generally contrary to the principle of voluntary collective bargaining, an exception might be made in order to conclude a first collective agreement: "As experience shows that first collective agreements are often one of the most difficult steps in establishing a sound bargaining relationship, these types of provisions may be said to be in the spirit of machinery and procedures which facilitate collective bargaining." ²⁹ The difficulties in securing a first collective agreement are recognized in a number of Canadian jurisdictions. In Ontario, for example, when the parties are unable to reach a first collective agreement, either party may apply to the labour board for a direction that the agreement be settled by arbitration. In determining whether to order arbitration, the board looks at whether the employer has refused to recognize the bargaining authority of the union, the uncompromising nature of the bargaining position, if applicable, and any failure to make reasonable or expeditious efforts to conclude a collective agreement. ³⁰ 

Business transfers

Another noteworthy aspect of the Canadian collective bargaining system is the protection of bargaining rights and collective agreements where there is a sale or transfer of a business. At common law, if the parties to the collective agreement change, both the collective agreement and the union's bargaining rights come to an end. ³¹  Legislation across Canada attenuates this situation by providing in certain cases that successor employers are bound by the terms of the pre-existing collective agreement and must recognize the bargaining rights of the union.³² 

Falling through the cracks

The standard Canadian collective bargaining framework described above is clearly aimed at encouraging and promoting collective bargaining. However, not all workers are entitled to take advantage of-the system. There are two types of workers who fall through the cracks: those who are completely excluded by the general legislation and those whose rights are suspended from time to time by special legislation. The rights provided under Convention No.98, however, are to apply to all workers, except a narrow category of public servants. ³³ 

Certain workers not covered

A Governmental Task Force on the revision of the Canada Labour Code acknowledged that "while there is -substantial compliance in Canada with ILO Convention No.98 on the Right to Organise and Collective Bargaining, it has not been ratified because in some jurisdictions either farm workers or members of certain ~professions are excluded from collective bar gaining." ³⁴ This has been a point raised by the Committee of Experts for a number of years in the context of Canada's reporting obligation under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87), which has been ratified. Most recently, the Committee noted that certain agricultural and horticultural workers in the Provinces of Alberta, Ontario and New Brunswick are excluded from the coverage of labour relations legislation; therefore they do not enjoy the protection provided with respect to the right to organize and to negotiate collectively. ³⁵ 

Ontario nullifies rights and agreements for certain categories

The ILO Committee on Freedom of Association has recently examined some of the legislative changes in Ontario, one of which was to limit further the categories of workers entitled to take advantage of the statutory collective bargaining framework. Excluded from these rights and protections are domestic workers, agricultural and horticultural workers, architects, land surveyors, lawyers and doctors. ³⁶ The Ontario Labour Relations Act also terminates the bargaining rights of existing bargaining agents and nullifies existing collective agreements for these groups. The Committee on Freedom of Association adopted decisive recommendations: the Government was requested to take the necessary measures to guarantee the excluded groups access to machinery and procedures that facilitate collective bargaining, to recertify the organizations representing those workers, and to revalidate any collective agreements that they had entered into. ³⁷  While the supervisory bodies are obliged to comment where groups of workers are denied access to collective bargaining machinery, they are likely to be more critical in cases where workers, having once been within the system, suddenly find themselves stripped of their pre-existing rights and protections. Interference with existing freely concluded collective agreements seems to have been a particularly aggravating factor in the Ontario case.

Legislative imposition of wage levels

The Committee on Freedom of Association has also had a number of opportunities to consider cases of the second category of workers falling through the cracks - those who normally are within the system, but who find their rights suspended from time to time through the adoption of special legislation. From 1991 to 1994,-20 complaints were lodged against Canada concerning wage cuts or freezes or the postponement of wage increases in the public sector. ³⁸ In these cases, collective bargaining had been suspended through the statutory extension of the duration of collective agreements or the legislative imposition of wage levels regardless of the terms of existing collective agreements. These cases have given rise to what is unofficially considered "the Canadian jurisprudence". They concern not only the Federal Government but also British Columbia, Manitoba, New Brunswick, Nova Scotia, Newfoundland, Ontario, Prince Edward Island, Quebec and the Yukon. While there was a flurry of cases of this nature in-the early 1990s, similar cases also came before the Committee in the 1980s. ³⁹ 

ILO Committee expressed concern over large number of cases

The cases in question involved economic stabilization measures imposed by law which had the effect of suspending collective bar gaining, at least with respect to wages. While showing some deference to the Government in its attempts to overcome difficult economic problems, and acknowledging that the special character of the public service requires some flexibility with respect to the application of collective bargaining principles, the Committee on Freedom of Association was obliged to express its concern about the large number of cases that had been -filed and the manner in which some of the measures had been imposed. In the view of the Committee, "this reflects serious and pro found difficulties in reaching agreement on the determination of employment conditions in the public service in Canada both at the federal level and in the various provinces." ⁴⁰ The Committee suggested that the Government make use of ILO assistance to find a solution to these problems; in particular, an advisory mission was recommended. ⁴¹ 

Exceptional measure or violation

Taking into consideration the serious financial and budgetary difficulties facing governments, certain conditions must still be met before collective bargaining rights can be limited. First, the Government must assert that there are "urgent", ⁴² or "compelling" ⁴³ reasons of national economic interest. Secondly, any restrictions must be imposed as "exceptional" measures, which by definition are temporary. Where the duration of the restriction is particularly long or is extended, the Committee is more likely to find that there has been a violation. The Federal Government was severely criticized in a case concerning the second extension of the Public Sector Compensation Act, resulting in a total of six years of wage restrictions in the public sector. ⁴⁴ Having already examined the original Act and the first extension, and having recommended that there be a return to normal free collective bar gaining, ⁴⁵ the Committee "deplored" that the Government had not implemented its earlier recommendations and expressed profound regret that again collective bargaining had not been given preference. ⁴⁶ It went on to express its concern at the danger of institutionalizing recourse to legislation -to address wage concerns in the public sector. ⁴⁷ 

Committee sympathy for protection for lower-paid workers

The third condition before limiting collective bargaining is that there should be adequate safeguards to protect workers' living standards. In cases where an attempt was made to protect lower-paid workers or to maintain pay equity measures, the Committee has been more sympathetic to the Government. ⁴⁸ On the other hand, legislation resulting in canceling the retroactivity of pay equity agreements was seen as an exacerbating factor. ⁴⁹ 

Role for collective bargaining

A relevant question is whether or not a role, even limited, still remains for collective bar gaining. For example, if all working conditions and benefits other than salary are still subject to negotiations, this will be a mitigating factor. ⁵⁰ Another mitigating factor is where wage increases are merely postponed by the legislation rather than -denied altogether. ⁵¹ Interference with the terms of existing collective agreements rather than waiting until the expiry of those agreements, however, is viewed with disapproval. ⁵² 

Adequate consultation

Finally, an important factor influencing how public sector wage restraint measures are perceived is whether adequate consultation with all the parties concerned took place before -the changes were imposed: "where a government seeks to alter a bargaining structure in which it acts actually or indirectly as employer, it is particularly important to follow an adequate consultation process, whereby all objectives perceived as being in the overall national interest can be discussed by all parties concerned." The consultations should be undertaken in good faith, with both parties having sufficient information to make an informed decision. ⁵³ By consulting -with the parties beforehand, the Government not only benefits from solutions that those with a different perspective may be able to propose, but may be able to convince the par ties of the importance of certain measures: their implementation may be facilitated, and a harmonious industrial relations climate maintained. While consultation cannot be considered collective bargaining, it is a step in the direction of respecting the autonomy of the par ties and the interests of those who will be significantly affected.

The central role of collective bargaining in Canadian labour relations cannot be denied. Nor can the role of the State in helping to nurture a system that has now developed strong roots. Will Canada be willing to give an inter national affirmation of its commitment to the right to bargain collectively by ratifying Convention No.98? Given that the economic stabilization programmes have met their objectives, the painful process of streamlining the public service has been completed in most jurisdictions, and as the Federal Government has proudly announced a balanced budget, it can be hoped that the 20 public sector cases will be of historical interest only. As a result, the remaining obstacles to ratification seem relatively minor, though some adjustments would still be needed. If ratification of Convention No.98 were a priority on Canada's political agenda, would it not be possible to take measures to convince the provinces to make the necessary adjustments? From a political point of view, it may be useful to wait to ⁵⁰ ratify until it can coincide with a significant event - a 50th anniversary perhaps?

Notes

¹ The views set out in this article are those of the author and do not necessarily reflect those of the Office. The author would like to thank Bernard Gernigon for comments on the draft.

² For example, approximately 50 per cent of all workers in the federal jurisdiction are covered by collective agreements: Canada Labour Code Part I Review: Seeking a balance (Canada, 1996), p.17.

³ As of February 1999, the Right to Organise and Collective Bargaining Convention, 1949 (No.98), had been ratified by 140 countries (approximately 80 per cent of ILO member States). There are two other Conventions supplementing Convention No.98 in the area of collective bargaining: the Labour Relations (Public Service) Convention, 1978 (No.151), and the Collective Bargaining Convention, 1981 (No.154). Neither has been ratified by Canada.

⁴  The International Labour Office was based in Montreal from 1940 to 1946.

⁵ At present, the Government of Canada is a titular member of the ILO's Governing Body; the workers' representative is also a titular member, and the Employers' representative is a deputy member.

⁶ Ambassador Mark Moher, Government member of Canada, chaired the Conference Committee during the 86th Session of the International Labour Conference in June 1998. At the adoption of the Declaration by the Plenary of the Conference, Ambassador Moher's role was unanimously heralded.

⁷ Namely; the Committee of Experts on the Application of Conventions and Recommendations - a Committee of independent experts that is concerned primarily with examining the periodic reports on ratified Conventions; and the Committee on Freedom of Association of the Governing Body of the ILO - a tripartite Committee examining com plaints concerning violations of principles of freedom of association. An important distinction between the two Committees is that the Committee of Experts' jurisdiction generally arises from a country having ratified a Convention; how ever, ratification is not needed in order to bring a complaint before the Committee on Freedom of Association.

⁸ See the Preamble to the Constitution of the International Labour Organization. and the Declaration of Philadelphia annexed to the Constitution. This obligation has recently been reaffirmed through the adoption in June 1998 of the Declaration on Fundamental Principles and Rights at Work, Article 2 declares that "all Members, even if they have not ratified the Conventions ... have an obligation, arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith ... freedom of association and the effective recognition of the right to collective bargaining ..."

⁹ See Freedom of association and collective bargaining. General Survey of the Committee of Experts on the Application of Conventions and Recommendations (Geneva, ILO, 1994 para. 315; and Canada Labour Code Part I Review: Seeking a balance, op. cit., p.29.

¹⁰ Article 4.

¹¹ See Freedom of association and collective bargaining. General Survey, op. cit., Chapter 10; and Freedom of Association: Digest of Decisions of the Freedom of Association Committee of the Governing Body of the ILO 4th (revised) edition (Geneva, ILO, 1996), Chapter 14.

¹² The only exception is with respect to good faith bargaining which is not specifically referred to in the legislation in Saskatchewan; however, section 11 of the Saskatchewa Trade Union Act declares it an unfair labour practice for a employer to fail or refuse to bargain collectively with a representative union.

¹³ W.B. Rayner: The law of collective bargaining (Ontario, Carswell, 1995), p.12-1

¹⁴ It is for the labour board to determine what is a "appropriate" bargaining unit. The board will look at a number of factors, most importantly whether the employees the unit share a community of interest with respect to the nature of the work, working conditions, etc.

¹⁵ See Freedom of Association, General Survey, op. cit., par. 240. See also Case No.1743 (Quebec), 295th Report, para.80.

¹⁶ Proof of membership varies from jurisdiction to jurisdiction. For example, in British Columbia, this is determine on the basis of signed membership cards; in Alberta and. the federal level, the payment of an initiation fee is also required see BC Labour Relations Regulations, section 3; Alberta Labour Relations Code, section 31; Canada Labour Relations Board Regulations, section 24).

¹⁷ BC Labour Relations Code, section 23.

¹⁸ Ibid., section 24. At the Federal level and in Quebec, the union must show that 35 to 50 per cent of the employees in the unit are members of the union: Canada Labour Code section 29; Quebec Labour Code, section 28.

¹⁹ BC Labour Relations Code, section 25.

²⁰ For example, see BC Labour Relations Code, secti( 14; the Manitoba Labour Relations Act, section 40.

²¹ See for example Canada Labour Code, section 24.

²² For example, section 37 of the Canada Labour CO( states that the union "shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation any of the employees in the unit with respect to their rights under the collective agreement ..."

²³ For example, see Canada Labour Code, section 50.

²⁴ See Freedom of association, Digest of decisions, op. ci. para. 814. See also Freedoni of association, General Survey, 0 cit., para. 243.

²⁵ Ibid., paras. 815-818.

²⁶ Ibid., para. 818.

²⁷ Ibid., para. 859; and Freedom of association, General Survey, op. cit., paras. 246-247.

²⁸ Ontario Labour Relations Act, section 40.

²⁹ Freedom of association, General Survey, op. cit., para. 257.

³⁰ Ontario Labour Relations Act, section 43. See also Quebec Labour Code, section 93.1, and Manitoba Labour Relations Act, section 87.

³¹ See Rayner, op. cit., p.14-1.

³² See for example Canada Labour Code, section 44; Alberta Labour Relations Code, section 44.

³³ Article 6 provides that "This Convention does not deal with the position of public servants engaged in the administration of the State ...". Pursuant to Article 5, the police and armed forces can also be excluded.

³⁴ Canada Labour Code Part I Review: Seeking a balance, op. cit., p.30. See also I. Mainwaring: Canada as an ILO member: performance and potential (Ontario, 1968), p.19.

³⁵ Observation of the Committee of Experts on the Application of Conventions and Recommendations, December 1998.

³⁶ Ontario Labour Relations Act, sections 1(3)(a) and 3.

³⁷ Case No.1900 (Ontario), 308th Report, para.194.

³⁸ Cases Nos. 1603 (BC), 1604 (Manitoba), 1605 (New Brunswick), 1606 (Nova Scotia), 1607 (Newfoundland), 1616 (Federal), 1624 (Nova Scotia), 1715 (Manitoba), 1722 (Ontario), 1733 (Quebec), 1747 to 1750 (Quebec), 1758 (Federal), 1779 (PEI), 1800 (Federal), 1801 (PEI), 1802 (Nova Scotia), 1806 (Yukon).

³⁹ See Cases Nos. 1147 (Federal), 1171 (Quebec), 1172 (Ontario), 1329 (BC).

⁴⁰ See Cases Nos. 1733, 1747, 1748, 1749, 1750 (Quebec), 299th Report, para.237.

⁴¹ An ILO mission to Canada had in fact taken place earlier (in 1985): see report of the Information mission to Canada annexed to Cases Nos. 1172,1234,1247 and 1260,241st Report.

⁴² Case No.1733, etc., op. cit.,

⁴³ Case No.1616 (Federal), 284th Report, para. 635.

⁴⁴ Case No.1800 (Federal), 299th Report.

⁴⁵ Case No.1616, 284th Report, para. 641; Case No.1758, 297th Report, para. 230.

⁴⁶ Case No. 1800, op. cit.,  paras. 178 and 183.

⁴⁷ Ibid., para. 182.

⁴⁸ See Case No. 1604 (Manitoba), 284th Report; Case No.1605 (New Brunswick), 284th Report; Case No.1606 (Nova Scotia), 284th Report; Case No.1722 (Ontario), 292nd Report.

⁴⁹ Case No.1607 (Newfoundland), 284th Report.

⁵⁰ See Case No.1604 (Manitoba), 284th Report, para. 322.

⁵¹ See Case No.1605 (New Brunswick), 284th Report, para. 501; Case No.1606 (Nova Scotia), para. 543.

⁵² See Cases Nos. 1779 and 1801 (Prince Edward Island),297th Report, para. 266.

⁵³ See Case No.1802 (Nova Scotia), 299th Report, para. 281; Case No.1806 (Yukon), 300th Report, para. 126. In a slightly different context, see Case No.1928 (Manitoba), 310th Report, para. 183; Case No.1943 (Ontario), 310th Report, para. 230.