Places right to organize, bargain collectively alongside other human rights
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Canada’s unions celebrated earlier this year when the federal government ratified the International Labour Organization’s (ILO’s) Convention 98, The Right to Organize and Collective Bargaining Convention, 1949. |
The convention reinforces the right to collective bargaining and protects all workers from anti-union discrimination, including being forced to give up union membership in order to get a job, or being fired for participating in union activities.
Most importantly, it places the right to organize and bargain collectively alongside other core human rights.
Convention 98 (C98) is one of the eight core conventions considered by the ILO to be minimum “enabling rights” people need to defend their rights and conditions at work, and to work in freedom and dignity. With the ratification of C98, Canada has now ratified all eight of these core labour rights conventions.
By doing so, Canada is recognizing the role strong unions and collective bargaining rights play in reducing inequality and building strong, fair and more inclusive communities.
It shows Canada is committed to promoting and upholding collective bargaining rights abroad, as well as at home.
Collective bargaining in Canada
The fact that workers in Canada must still fight for their right to collective bargaining is illustrated by several recent Supreme Court cases, beginning with the landmark Health Services decision (Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia) in 2007.
This was the first time the court interpreted the “freedom of association” to include the right to bargain collectively.
Following that decision, the court heard a case that narrowed the scope of this victory for workers. In Ontario, agricultural workers are excluded from the Labour Relations Act, but legislation in 2002 extended some minimum rights to form or join employees’ associations.
However, these minimum rights proved insufficient for agricultural workers’ associations to actually have a collective agreement bargained with an employer.
In the 2011 case of Ontario (Attorney General) v. Fraser, the court found “freedom of association” only guaranteed that employers hear and consider employee representations in good faith, but did not necessarily require other collective bargaining mechanisms that could guarantee workers would actually get a collective agreement out of the process.
The next challenge arose when legislation passed by the Saskatchewan provincial government in 2008 made it nearly impossible for public servants to strike, and made it harder for workers to vote to join unions.
The Saskatchewan Federation of Labour challenged this legislation as unconstitutional, based on the Health Services decision. In its 2013 ruling, the Supreme Court found that the right to strike was an essential component of collective bargaining, and that the provincial legislation was indeed unconstitutional.
In another case, the British Columbia government passed legislation denying teachers the right to bargain several issues, including class size, the number of special-needs students who could be in a class and the number of specialist teachers required in schools.
The Supreme Court again ruled in favour of workers’ right to free collective bargaining, overturning the B.C. legislation in 2015.
Also in 2015, the Supreme Court overturned legislation that had denied RCMP members the right to join a union and bargain collective agreements.
These Supreme Court judgments make it clear the right to form independent associations and engage in collective bargaining is constitutionally protected under the freedom-of-association guarantee of the Canadian Charter of Rights and Freedoms. But this right is limited, so we still need specific legislation designed to give practical effect to the Supreme Court’s rulings, and now to Canada’s obligations under C98.
Collective bargaining and international trade agreements
No matter how strong, national labour legislation isn’t enough to protect workers in an era of globalization, and workers around the world are feeling the impact of this governance gap.
Multinational corporations are now bigger and more powerful than many small, low-income nations. Considering the intense competition for foreign investment and jobs, this asymmetrical power relationship actually undercuts the ability of free trade to be “fair.”
Instead, we see the conditions that could lead to a “race to the bottom” when it comes to labour rights and respect for the health and safety of workers and consumers.
One way to counter this trend is to insist other countries respect the right to freely organize independent unions and collectively bargain.
Only about one per cent of Mexican workers belong to an independent and democratic union. Most workers are covered by “protection contracts” — agreements between a company and company-approved union. These organizations are neither representative of, nor accountable to, the workers covered by the protection contract.
Workers often don’t know a collective agreement is being negotiated, and even when they do, they don’t have the right to see their collective agreement. If workers try to vote in a democratic union, the results are often ignored or, even worse, union organizers face harassment and threats.
The rights of workers to freely associate and bargain collectively are also much weaker in the United States, where so-called “right-to-work” laws that make it difficult for unions to organize are commonplace. Employer interference in union organizing drives is also widespread, especially through “captive audience” meetings where employers meet with workers one-on-one before a union vote to discourage unionization.
In both Mexico and the U.S., this clampdown on labour rights results in a loss of bargaining power and suppression of workers’ wages.
Neither country has ratified C98, even though both nations have suggested they intend to do so. Canada should insist on the ratification and implementation of C98 as part of the North American Free Trade Agreement (NAFTA) trade negotiations.
Several other changes would be required in an ambitious and enforceable labour chapter.
The obligations in the labour chapter should not be limited to “manners affecting trade and investment,” a bar so high that no U.S. labour dispute challenge has ever been successful. And to ensure NAFTA improves the wages and bargaining power of all workers, there should be a specific obligation to ensure migrant workers have access to the same labour rights of all other workers.
Finally, there must be an effective enforcement mechanism within the trade agreement.
Next steps
The decline of collective representation in the workplace is a social problem in need of serious attention.
It is high time the specific right to organize and bargain collectively be inserted into Canada’s federal, provincial, and territorial human rights codes.
Along with this legislative change, governments in Canada should invest resources in informing employees of their human and constitutional rights to freedom of association and collective bargaining, and informing employers of their duty to recognize and deal with unions and independent employee associations.
Internationally, a truly ambitious labour chapter in NAFTA would make Canada a world leader in advancing workers’ rights.
Canada should take the opportunity of renegotiating the NAFTA deal to ensure its trading partners do not suppress labour rights as a route to international competiveness, as both the U.S. and Mexico do now.
Hassan Yussuff is president of the Canadian Labour Congress. For more information, visit www.canadianlabour.ca.
