Presented by Barbara Byers on Tuesday, 8 June 2010

(Check Against Delivery)

Thank you et merci.

Canadian workers welcome this review by the Committee of Experts on the Application of Conventions and Recommendations regarding Canada’s record on Convention 87, Freedom of Association and Protection of the Right to Organize.

We appreciate the comprehensiveness of the 2010 Report, while also noting that many of the comments are a repetition from previous reports indicating little progress in improvements in legislation or practice. As evidenced by the 2010 Report, the governments of Canada and its provinces continue to violate both the intent and the letter of ILO Convention 87. In this way they also violate other Conventions that are inextricably linked to Convention 87, such as Conventions 98, 100 and 111.

In order to promote efforts to remedy the ongoing situation of non-compliance of the right to freedom of association in Canada, Canadian workers call on the ILO to undertake a Mission of Direct Contact to Canada. In addition to discussions with the federal government, the mission must include discussions with provincial and territorial governments on the issues raised in the report. It is essential that the social partners, at the national, provincial and territorial levels, are included in this initiative.

We believe such a mission is necessary because of the high frequency of violations to Convention 87, and because they continue unabated even as our country’s performance is reviewed by the ILO. We believe that a Direct Contact Mission would be able to directly hear about the constant undermining of the rights to Freedom of Association, the Protection of the Right to Organize and the Right to Collective Bargaining in Canada.

A Direct Contact Mission would confirm details regarding the many barriers or exclusions affecting wide categories of workers, such as agricultural and domestic workers, nurses, educators, and even gardeners in health care facilities, to name but a few. These exclusions are in direct violation of Article 2 which states that workers have the right to establish organizations of their own choosing. Details of these exclusions in at least nine of Canada’s ten provinces, are clearly outlined in the Committee’s report.

A Direct Contact Mission would investigate violations of Article 3 protecting workers’ rights to create their own rules, elect their own representatives and formulate their own programs. Repeatedly the Committee has confirmed non-compliance by the federal and provincial governments which continue to interfere in the affairs of unions, especially with regards to the right to strike. The Committee also confirms the bias of many administrative tribunals that continue to reinforce existing barriers or in creating their own.

In February 2009 the federal government released a report with the explicit aim of identifying mechanisms to limit the frequency and duration of work stoppages in Canada. It encouraged the introduction of measures such as the one described for the province of Manitoba on page 92 of the Committee’s report. Similarly, on November 30, 2009 the federal government introduced Bill C-61 requiring striking railway workers to return to work, much like another piece of legislation introduced in 2007. A number of provinces have repeatedly manipulated the use of the term “essential services” to prohibit or restrict workers from taking strike action, even in situations without so-called ‘serious national impact’, such as strike action taken by teachers in the province of British Columbia.

As the Committee reported, a landmark decision by the Supreme Court of Canada in 2007 confirmed that Freedom of Association and Collective Bargaining are protected by the Canadian Charter of Rights.

What was needed, and continues to be needed, following this decision was the undertaking of a comprehensive legal inventory and analysis of Canadian law relative to provincial, territorial and national legislation to identify possible non-conformity to ILO conventions. This comprehensive review needs to be a tripartite process involving the social partners with the federal government and the provinces and territories to review the analysis and define the framework for a legislative agenda with time-lines for change and resulting implementation of new legislation and regulations.

There continues to be a growing list of court rulings consistently striking down attempts by governments to implement current or new non-conforming legislation aimed at restricting the rights of workers and trade unions. However, rather than remedy the problems, governments in Canada continue to challenge court decisions themselves or implicitly support challenges by employers.

In response to the 2009 cycle reviewing Canada’s enforcement of Convention 87, the government has provided the Committee with a list of measures undertaken. These changes and the government answers to the Committee of Experts are reflected in the current report. However, it should be noted that the government gave no anticipation of expected change, especially with respect to the provinces.

Where changes did occur to current legislation we observe that they often followed judicial decisions or threat of judicial proceedings that made them necessary. We are concerned that these court challenges and complaints to the ILO will continue and in fact become more frequent.

Across Canada restrictions have been placed on the rights of workers to organize in both public and private sectors. Collective agreements have been side-lined, freely negotiated wages and benefits have been revoked and employer-dictated processes have been legislatively imposed on workers. For example, collective bargaining was suspended for federal public sector workers in the 2009 Federal Budget. As outlined in the report, in Québec collective bargaining was eliminated for public sector workers, the right to strike directly removed, and severe sanctions were imposed on unions and individual workers for contravening the legislation. In Saskatchewan public sector workers have effectively had their right to strike removed by expansion of the definition of ‘essential services’ and workers have new restrictions placed on their rights to organize. Strikes that are taking place now, for example at the Vale owned mine at Sudbury, are seriously undermining workers' rights to freely associate and bargain collectively even though workers in Ontario have the legal right to union representation.

These restrictions on workers traditionally represented by unions are further exacerbated by the restrictions and exclusions placed on other workers such as agricultural and domestic workers and live-in caregivers. Governments have continued to exclude these workers from protections. Where they have made attempts to include them, such as in Québec for domestic workers, the legislation has restrictions which continue to exclude large numbers and thereby undermine the protection of those that have finally gained some recognition.

While there have been some victories, such as the recent decision from the Québec Labour Relations Board regarding part-time and seasonal agricultural workers − many of whom are migrant workers − workers in the same industry in other locations continue to fight for basic recognitions and rights, as in the pending Fraser vs. Ontario case at the Supreme Court.

Why is improving the situation so important?

In this era of globalization it is important to establish the credibility of labour standards as a cornerstone of international trade and development.

The Canadian government signed the North American Free Trade Agreement (NAFTA) with Mexico and the United States in 1994. A key feature of NAFTA was the inclusion of the North American Labour Cooperation Agreement, as a side deal, which was promoted as a means of ensuring that there would be no downward pressure on labour standards in North America, but contained very weak provisions for enforcing labour standards, and no provisions for improving labour standards.

While trade and investment flows did increase, NAFTA did not create more net trade-related jobs and those that it did create were very often less stable, non-union with lower wages and fewer benefits. Instead, increased trade largely benefitted the corporate elite in all three countries. Income inequality has also grown in the region and it is not surprising that during this same period, a record number of worker and trade union rights violations have reached their peak in both the Canadian courts and at the ILO.

Clearly, weak enforcement of ILO conventions within trade agreements is synonymous to adopting a policy of “a race to the bottom” on social standards.

Canada is currently negotiating or has concluded new trade agreements with a range of countries, focusing on the Americas and more recently, with the European Union.

Unless the tripartite partners at the ILO succeed in strengthening the Canadian ratification and enforcement of Conventions 87 and 98, there will be no basis in our country to protect the rights of our own workers, let alone in those of Canada’s trading partners.

Indeed Canadian workers must view the record of trade union violations in countries such as Mexico, Costa Rica and Colombia as one day resembling their own situation. We draw your attention to the fact that Mexico, Costa Rica and Canada are all on the list of 25 countries, whereas, Colombia, arguably the country with the worst record of labour rights violations in the Americas, has been excluded from the list. We are forced to ask ourselves and the rest of this Commission, exactly what information about Colombia is being censored and why?

In closing Chair, Canadian workers believe that the way forward to achieve a positive industrial relations climate, is for the federal government to set an example to the provinces and territories, through policies and actions that seek to respect ILO Conventions and to encourage and welcome a Mission of Direct Contact.

The ILO should be requested to facilitate such a process, by undertaking a Direct Contact Mission to Canada that would help define the terms of reference for a study and for a follow-up process and for action. Such a mission should take place withing a spirit of full dialogue and tripartite decision making.

Thank you. Merci beaucoup.