Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.
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CANADIAN HR REPORTER September 4, 2017 28 FEATURES Spiralbound • August 2017 $48* • L7798-7856 ISBN • 978-0-7798-7856-7 Multiple copy discounts available *Plus applicable taxes and shipping & handling (Prices subject to change without notice) Order your copy today. Visit www.carswell.com or call 1-800-387-5164 for a 30-day, no risk evaluation Alberta Legal Telephone Directory 2017-18 is all about your legal community connecting you to the lawyers and law offices you need in Alberta, Northwest Territories, Nunavut and Yukon. Published annually, it keeps you connected with new and updated names, mailing addresses, email addresses, phone numbers and fax numbers each year. Quickly and easily access: • Law Societies • Courts of Appeal • Federal Court of Canada • Government of Canada departments • Judicial districts and judicial officials • Incorporated Municipalities • Land registration and information services • Provincial government departments • Boards and Commissions • Law Related Services, Institutions and Organizations • University law faculties ... and more Connecting you to your LEGAL COMMUNITY LABOUR RELATIONS Ratification of ILO Convention 98 recognizes important role of unions Places right to organize, bargain collectively alongside other human rights By Hassan Yussuff C anada's unions celebrated earlier this year when the federal government rati- fied the International Labour Organization's (ILO's) Conven- tion 98, e Right to Organize and Collective Bargaining Con- vention, 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 col- lectively alongside other core hu- man rights. Convention 98 (C98) is one of the eight core conventions consid- ered 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 recog- nizing the role strong unions and collective bargaining rights play in reducing inequality and build- ing strong, fair and more inclusive communities. It shows Canada is committed to promoting and upholding col- lective bargaining rights abroad, as well as at home. Collective bargaining in Canada e 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 land- mark Health Services decision (Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia) in 2007. is was the first time the court interpreted the "freedom of as- sociation" to include the right to bargain collectively. Following that decision, the court heard a case that narrowed the scope of this victory for work- ers. In Ontario, agricultural work- ers 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 ag- ricultural workers' associations to actually have a collective agree- ment bargained with an employer. In the 2011 case of Ontario (At- torney General) v. Fraser, the court found "freedom of association" only guaranteed that employ- ers hear and consider employee representations in good faith, but did not necessarily require other collective bargaining mecha- nisms that could guarantee work- ers would actually get a collective agreement out of the process. e next challenge arose when legislation passed by the Saskatch- ewan provincial government in 2008 made it nearly impossible for public servants to strike, and made it harder for workers to vote to join unions. e Saskatchewan Federation of Labour challenged this legisla- tion 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 col- lective 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 num- ber of specialist teachers required in schools. e 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 judg- ments make it clear the right to form independent associations and engage in collective bargain- ing is constitutionally protected under the freedom-of-associa- tion 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 Su- preme 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 glo- balization, and workers around the world are feeling the impact of this governance gap. Multinational corporations are now bigger and more power- ful than many small, low-income nations. Considering the intense competition for foreign invest- ment and jobs, this asymmetrical power relationship actually un- dercuts 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 la- bour 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 inde- pendent unions and collectively bargain. Only about one per cent of Mexican workers belong to an in- dependent and democratic union. Most workers are covered by "protection contracts" — agree- ments between a company and company-approved union. ese organizations are neither repre- sentative of, nor accountable to, the workers covered by the pro- tection contract. Workers often don't know a col- lective agreement is being negoti- ated, 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. e rights of workers to freely associate and bargain collective- ly 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 in- terference in union organizing drives is also widespread, espe- cially through "captive audience" meetings where employers meet with workers one-on-one be- fore 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 work- ers' wages. Neither country has ratified C98, even though both nations have suggested they intend to do so. Canada should insist on the ratification and implementa- tion 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. e obligations in the labour chapter should not be limited to "manners affecting trade and in- vestment," a bar so high that no U.S. labour dispute challenge has ever been successful. And to en- sure NAFTA improves the wages and bargaining power of all work- ers, there should be a specific obli- gation to ensure migrant workers have access to the same labour rights of all other workers. Finally, there must be an ef- fective enforcement mechanism within the trade agreement. Next steps e decline of collective repre- sentation in the workplace is a social problem in need of serious attention. It is high time the specific right to organize and bargain collec- tively be inserted into Canada's federal, provincial, and territorial human rights codes. Along with this legislative change, governments in Canada should invest resources in inform- ing employees of their human and constitutional rights to freedom of association and collective bar- gaining, and informing employers of their duty to recognize and deal with unions and independent em- ployee associations. Internationally, a truly ambi- tious labour chapter in NAFTA would make Canada a world lead- er in advancing workers' rights. Canada should take the op- portunity 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.canadian labour.ca. In renegotiating NAFTA, Canada should ensure its trading partners do not suppress labour rights as a route to international competitiveness.