May 2005: Canadian Workers' Rights Assaulted

Collective bargaining more an illusion than a right
May 1, 2005

Based on the premise that labour rights are human rights, Canadians have seen a serious erosion of a fundamental and universal human right in the past two decades—their right to organize into a union and engage in full and free collective bargaining.  Since 1982, almost every jurisdiction in Canada has experienced a major violation of the bargaining rights of its citizens.

The image of Canada as a country that respects human rights, especially in the area of workers’ rights, is an illusion.

The federal and provincial governments in Canada passed 170 pieces of legislation since 1982 that have restricted, suspended, or denied collective bargaining rights for Canadian workers.

Restrictions have been placed on the right of unions to organize. Collective agreements have been torn up. Freely negotiated wages and benefits have been taken away. Employers’ proposals have been legislatively imposed on workers and the right to strike removed. Both the private and the public sectors have been hit by this phenomenon. In the public sector, governments as employers have been quick to abuse their power as legislators to change the rules to undercut the rights of their own employees. Private sector workers have had roadblocks placed in the way of their right to be represented by unions, or have faced unfair back-to-work legislation.

There has been a major change in the frequency and severity of back-to-work legislation in Canada in recent years. Since the early 1980s, the number of instances of back-to-work legislation has been higher than in any other period in the history of labour relations in Canada. In the last 23 years, the federal government alone passed 13 pieces of back-to-work legislation, while provincial governments across the country have enacted 70 pieces of back-to-work legislation. Most of these laws (44 of 83) not only forced workers back to work after taking strike action, but also arbitrarily imposed settlements on the striking workers.

A common phenomenon in the public sector throughout the 1980s and 1990s has been the suspension of collective bargaining rights. With the exception of Saskatchewan, public sector workers across Canada gained the right to collective bargaining in the decade between 1967 and 1977. In the three decades that followed, most public sector workers have had this right suspended anywhere from three to 10 years. There have been 32 pieces of legislation passed in the federal Parliament and provincial legislatures that have suspended the collective bargaining rights of public sector workers.

Since 1982, there have also been 55 instances where federal and provincial labour laws have been amended to further restrict unions’ ability to organize. Six pieces of legislation have actually denied certain categories of workers the right to join a union, and seven pieces of legislation have restricted the certification process, thereby crippling the labour movement’s ability to organize the unorganized. There have been 42 instances where the federal and provincial governments passed legislation that restricted the rules and/or scope of bargaining, denied the right to strike, and limited the mechanisms available for settlement of disputes or allowed for greater government and/or employer interference in internal union matters.

The assault on labour rights over the past two decades has created a “human rights deficit” for Canada. Canada now has one of the worst records of any Western country in the actual exercise of labour rights by working people.

Freedom of association and the right to collective bargaining are well established as fundamental human rights. These rights are enshrined in a variety of guises in a number of international documents originating in the United Nations and the International Labour Organization (ILO), a specialized organization of the UN established in 1919, of which Canada was a founding member.

Canada has traditionally been a major participant in both of these organizations and has actively helped develop many of the international human rights standards that give meaning to freedom of association and the right to collective bargaining.  

In 1948, the government of Canada supported the adoption of both key labour rights’ Conventions: No. 87—Freedom of Association & Protection of the Right to Organize Convention (1948), and No. 98—Right to Organize and Collective Bargaining Convention, 1949. In March 1972, Canada ratified Convention No. 87 with the unanimous consent of all provinces and territories.

The government of Canada was an active participant in 1998 in drafting the ILO Declaration of Fundamental Principles and Rights at Work, and voted in favour of its adoption. The official position of the federal government is that “Canada attaches great importance to the Declaration … as a key instrument for the promotion of the fundamental principles of freedom of association and collective bargaining … Its implementation will contribute significantly to improving the lives of working people and their families.”

Parliament went so far as to include in the Preamble of the Canada Labour Code reference to the ILO Conventions and the broadly-defined principles of freedom of association.

The reality of Canada’s record, federally and provincially, is quite different, at great cost to Canadians. The promise of Canada’s international rhetoric has not been kept in this country. The rights endorsed so enthusiastically in international forums by Canada have never been fully realized.  

Let’s examine Canada’s record at the ILO:

  • At the annual June conferences of the ILO, the Canadian government representatives take an active role in developing the ILO’s Conventions and always vote in favour of adoption of each Convention. Canada’s record at ratifying those Conventions, however, is extremely poor. Of the ILO’s 185 Conventions, Canada has ratified only 30.
  • Canada has ratified only two of the 30 ILO Conventions developed since 1982.
  • Canada has ratified only five of the seven ILO core Conventions. We have yet to ratify No. 98—Right to Organize and Collective Bargaining Convention (1949) and No. 138—Minimum Wage Convention (1973).
  • Since 1982, Canada’s record with respect to the number of complaints submitted to the ILO’s Freedom of Association Committee is the worst of any of the ILO’s 177 member states, with unions in Canada filing more complaints than the national labour movements of any other country.  
  • Since the ILO Freedom of Association Committee was established in 1951, only unions from four other countries—Argentina, Colombia, Peru and Greece—have submitted more complaints than Canadian unions.
  • The 70 ILO complaints filed against Canadian federal and provincial labour legislation represent over 5% of all complaints filed with the ILO since 1982.   Several of these complaints were subject to more than one restrictive piece of labour legislation.  
  • Of those 70 complaints, the ILO has reached decisions on 60 and found that freedom of association principles had been violated in 45 of the cases. Three-quarters of all ILO complaints on restrictive labour legislation passed in Canada since 1982 (covering 70 pieces of legislation) were found to be in violation of ILO freedom of association principles.
  • Also troubling has been the complete disregard shown by the federal and provincial governments for the rulings of the ILO Governing Body. Canada’s record has been so bad of late that, at the June 2002 annual Conference of the ILO, the Committee on Freedom of Association asked its chairperson to hold consultations with the government delegation from Canada regarding the large number of complaints from Canadian unions and the lack of responsiveness by the federal and provincial governments to the ILO Governing Body’s rulings.  
  • The only other governments the Committee on Freedom of Association felt compelled to consult regarding multiple complaints and lack of government cooperation were Chad and Morocco—certainly not countries that Canada would like to be compared to in terms of labour legislation.

The sustained attack on labour rights by federal and provincial governments has hurt the labour movement’s ability to effectively represent the interests of organized workers. It also continues to hamper unions’ efforts to organize the unorganized.

The time has come for labour to respond. This will not be a simple or quick campaign. We will need to focus on the ILO and its provisions, on using the courts to establish and re-establish our basic rights, on effective political pressure, and on mobilization of workers through their unions. Such a campaign, effectively conducted, can turn collective bargaining rights in Canada from an illusion into a reality.

(Derek Fudge is National Director of Policy Development and Liaison for the National Union of Public and General Employees. This article is a summary of Collective Bargaining in Canada: Human Right or Canadian Illusion?, a national study recently published by NUPGE and the United Food and Commercial Workers Canada. The study was researched and written by Fudge, with the assistance of John Brewin of the law firm of Ryder Wright Blair & Doyle.The study provides the foundation for a joint national campaign by the two unions around promoting and restoring workers’ rights in Canada.  Along with the study, the campaign is supported by a web site ——which readers are encouraged to visit.)