Informe provisional - Informe núm. 316, Junio 1999

1. 229. In a communication dated 21 July 1998, the Canadian Labour Congress (CLC) presented a complaint concerning violation of freedom of association against the Government of Canada (Ontario). Public Services International (PSI) and the International Confederation of Free Trade Unions (ICFTU) endorsed this complaint in communications dated 23 and 27 July 1998.
2. 230. The Government sent its observations on the case in communications dated 25 January and 19 April 1999.
3. 231. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). However, it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), or the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant's allegations

1. 232. The complaint concerns Bill 22 -- an Act to prevent unionization with respect to community participation under the Ontario Works Act, 1997, (hereinafter "Bill 22"), which was adopted on 18 December 1998.
2. 233. The complainant alleges that Bill 22 deprives the workers concerned of fundamental rights to join organizations of their own choosing, bargain collectively or strike, in the context of participation in community participation programmes under the terms of the Ontario Works Act, 1997. The complainant also states that under the terms of Bill 22, the Labour Relations Act, 1995 (LRA), is no longer applicable to workers involved in community participation activities under the Ontario Works Act, 1997. In general terms, the complainant considers that Bill 22 violates some of the most fundamental rights and principles embodied in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
3. 234. More specifically, the complainant notes that the adoption of Bill 22 came soon after that of Bill 142 -- an Act to revise the law related to social assistance by enacting the Ontario Works Act and the Ontario Disability Support Program Act, by repealing the Family Benefits Act, the Vocational Rehabilitation Services Act and the General Welfare Assistance Act and by amending several other statutes (hereinafter "Bill 142"). The complainant states that Bill 142 came into force on 1 January 1998 and its main effect is to modify the rules governing welfare payments, to the detriment of welfare recipients. The complainant indeed alleges that Bill 142 is detrimental to the recipients in a number of ways: by forcing some recipients into community participation activities, by providing for more stringent measures to combat fraud including the possibility of using personal and confidential data, and by redefining "disability". The complainant considers that the purpose of Bill 142 is to force recipients to work as a condition of receiving social assistance and thus violates the universal principle of the right to income support.
4. 235. The complainant points out that the purpose of social assistance is to help the least well-off members of the community to meet their basic needs. According to the complainant, the community participation activities which are obligatory under Bill 22 are completely ineffective in achieving their stated goal, owing to the growing number of recipients, the inadequate level of public funding for their reinsertion in employment and the lack of interest of private employers in any jobs that are not -- at least in part -- government-subsidized at some level or other. Forcing these welfare recipients to accept any job on whatever terms will lead to even greater disparities between, on the one hand, a minority of people in well-paid employment and, on the other, an ever-growing number of workers in precarious jobs.
5. 236. The complainant maintains that the Government's adoption of Bill 22, which amends Bill 142 by prohibiting welfare recipients from joining trade unions of their own choosing, bargaining collectively or striking, marks a retrograde step and a return to the conditions that prevailed before the Industrial Revolution, when establishing trade unions was regarded as a criminal activity in Canada and employers were free to deny recognition to trade unions if they so chose.
6. 237. In the complainant's view, implementing Bills 22 and 142 will have the effect of seriously violating the principles of freedom of association. More specifically, with regard to Convention No. 87, the very title of Bill 22 is clearly indicative of the legislators' aims: it unambiguously denies welfare recipients fundamental rights such as the right to form or join trade unions of their own choosing. Similarly, welfare recipients cannot formulate their own programmes of collective action, which violates Article 3 of Convention No. 87. As for Convention No. 98, the complainant, while acknowledging that Canada has not ratified this Convention, emphasizes that Bill 22 constitutes a clear act of discrimination against welfare recipients required to enrol in community participation programmes, by preventing them in this context from joining trade unions of their own choosing, contrary to Article 1 of Convention No. 98.
7. 238. Furthermore, the complainant considers that forcing welfare recipients to renounce their right to join a trade union is detrimental to the trade union movement and might lead to a reduction in overall unionization in the province, thus depriving workers of any means of collectively defending their rights and interests.
8. 239. Lastly, the complainant refers to Bill 31 -- an Act to promote economic development and create jobs in the construction industry, to further workplace democracy and to make other amendments to labour and employment statutes (hereinafter "Bill 31"). The complainant considers that Bill 31 makes it more difficult to effectively enforce the right to organize, especially in the construction sector: a majority of workers must vote in favour of a trade union in a secret ballot before that union can be certified, thus preventing the Ontario Labour Relations Board from automatically certifying a union in cases where an employer is deemed to have intimidated workers. Bill 31 also allows "project agreements" to be concluded for specific construction projects; these agreements override the terms of provincial agreements and prohibit strikes and lock-outs.
9. 240. Lastly, the complainant considers that Bill 31 will allow certain entities outside the construction sector to give preference in hiring to non-union labour for particular projects.
10. 241. In conclusion, the complainant criticizes the use of repressive laws by the Government of Ontario to prevent certain categories of workers from unionizing. The complainant considers that Bill 22 violates the principles of freedom of association and requests the Committee to put pressure on the authorities to repeal the Bill.

B. The Government's reply

• Description of the Ontario Works Program
  242. 242 In its reply, the Government explains that the Ontario Works Program, which was announced in June 1996, aims to encourage self-reliance through employment by allowing welfare recipients to develop their skills and work experience through involvement in community participation activities. The Government hopes in this way to help welfare recipients to find the shortest route towards paid employment. The Program gives participants the chance to contribute to their community while themselves benefiting from it in terms of self-esteem and independence, thus breaking the cycle of dependency on government (social) assistance.
  243. 243 The Ontario Works Act, 1997, came into force on 1 May 1998 and marks the first major reform of the Ontario social welfare system for 30 years. Social assistance, which will now be paid at municipal level, comprises two main elements, namely, basic financial assistance to those most in need, and employment assistance, comprising a job placement service and training opportunities. The Government considers that this programme will help welfare recipients to find their way back into the world of work in their respective communities, and the community assistance component is a crucial means of achieving this. A community participation placement is any unpaid community service activity sponsored by a non-profit or volunteer community agency under the Ontario Works Program.
  244. 244 The Government also states that programme participants must be registered as welfare recipients under the terms of the General Welfare Assistance Act for the entire period of their community placement
• Presentation of Bill 22 -- an Act to prevent unionization with respect to community participation
  245. 245 The Government recalls that Bill 22 came into force on 18 December 1998. Its purpose was to amend the Ontario Works Act, 1997, by expressly stating that the Labour Relations Act, 1995 (LRA), is not applicable to participation in a community participation programme and that persons enrolled in such a programme cannot join a trade union, bargain collectively on wages and conditions, or strike.
  246. 246 The Government emphasizes that Bill 22 has a very narrow and specific focus, in excluding from the scope of the Labour Relations Act, 1995 (LRA), only recipients of social assistance involved in community participation activities under the terms of the Ontario Works Act, 1997. Bill 22 in no way prevents welfare recipients from exercising their right to organize in other situations. There are two reasons for introducing Bill 22, namely, the need to safeguard the integrity of the Government's welfare reforms and the need to protect the opportunities created by the Ontario Works Program with a view to making welfare recipients more self-sufficient.
  247. 247 The Government emphasizes that community activity participants are not employees. However, although Bill 22 expressly states that the Labour Relations Act, 1995 (LRA), is not applicable to community participation projects, participants do enjoy a certain level of protection, including an obligation on the part of the participating organization to comply with federal and provincial laws concerning the protection of human rights and occupational health and safety. Furthermore, community placements must not involve work for more than eight hours a day or 44 hours in a week, and the cash benefit paid divided by the monthly hours of work must be not less than the hourly minimum wage. Lastly, the recipient must be granted a certain amount of time off and be provided with adequate accident insurance cover
       • Non-violation of Conventions Nos. 87 and 98
  248. 248 The Government considers that Bill 22 in no way violates Convention No. 87. Firstly, persons taking part in community participation programmes are not employees and are not covered by the Labour Relation Act, 1995 (LRA), a state of affairs which Bill 22 simply states in explicit terms. In the event that the courts were to reach a different conclusion, participants in these programmes would still be able to form associations, bargain collectively or strike outside the framework of the Labour Relations Act, 1995. Bill 22 in no way prevents them from organizing, bargaining collectively or striking under the terms of the 1995 Act if these activities relate to employment outside their participation in a community participation programme.
  249. 249 The Government cites Case No. 1958 concerning Denmark, in which the Committee concluded that there were no violations of Conventions Nos. 87 and 98 in the context of government-subsidized employment programmes in which workers lose the right to collective bargaining on wages if certain conditions are met, namely, that the purpose of the programmes in question is to strengthen active employment measures and develop education and vocational training for young people and adults. Furthermore, the programmes must be of limited duration in order to ensure that the workers concerned are not permanently deprived of their right to bargain collectively. Lastly, the programmes do not provide ordinary work, since their purpose is to combat unemployment by creating subsidized jobs of limited duration, without placing the jobs of current workers in jeopardy.
  250. 250 The Government considers that the Ontario Works Program fully satisfies the criteria established by the Freedom of Association Committee, since its purpose is to provide training and educational opportunities and will contribute to the fight against unemployment. It is also of limited duration and cannot be used at any time as a means to replace regular paid workers.
  251. 251 In this context, the Government considers that neither of the Conventions (Nos. 87 and 98) has been infringed. The Ontario Works Program allows the welfare system to be used for its true purpose, which is to act as a transitional programme of last resort that provides people on welfare with a stepping-stone back into the workforce
• An Act to promote economic development and create jobs in the construction industry to further workplace democracy and to make other amendments to labour and employment statutes (Bill 31)
  252. 252 As regards Bill 31, the Government specifies that this bill aims at promoting job-creating investment through agreements concluded between employers and trade unions for specific construction projects. Bill 31 also removes non-construction employers from construction aspects of the 1995 Labour Relations Act (LRA). However, they remain bound by the other applicable provisions of the LRA. Finally, Bill 31 aims at ensuring that union certification is granted to the agent supported by the majority of the workers concerned.

C. The Committee's conclusions

1. 253. The Committee notes that the case concerns primarily legislative provisions which have been adopted as part of a reform of the welfare system in Ontario and are claimed to violate the principles of freedom of association in that they prohibit the persons concerned from joining a trade union, bargaining collectively on their terms of employment, or striking. However, no mention is made of any specific case in connection with the implementation of the provisions in question
   • The disputed legislative framework
2. 254. The Government of Ontario on 18 December 1998 adopted Bill 22 -- an Act to prevent unionization with respect to community participation under the Ontario Works Act, 1997. This Bill, as its title suggests, amends the Ontario Works Act, 1997, which was intended to reform welfare in the province.
   • (a) Ontario Works Act, 1997
3. 255. The explanatory note attached to the text of the Act adopted by the legislature states that the purpose of the Act is to establish a programme that recognizes individual responsibility and promotes self-reliance through employment; provides temporary financial assistance for those most in need while they comply with the obligations to become and stay employed; effectively serves people needing assistance; and is accountable to the taxpayers of Ontario. These observations are reproduced in section 1 of the Act itself which states its purpose.
4. 256. The Ontario Works Act, 1997, provides for two types of assistance, namely: income assistance to cover basic needs and shelter; and employment assistance, defined as assistance given to help a person to become and stay employed (section 4). The latter comprises two elements, namely, various employment measures including job search, job search support measures, referral to basic education and job-specific skills training, and employment placement (section 2); and community participation, which involves participation in community activities that contribute to the betterment of the community (ibid.).
5. 257. Under the terms of section 7 of the Ontario Works Act, 1997, no person is eligible for income assistance unless he or she meets certain conditions relating to participation in employment measures and community participation requirements (employment assistance activities).
6. 258. Under the terms of sections 25 and 29(1) of the Regulation, an individual may be required to participate in one or more employment assistance activities for which he or she is physically capable for a period to be determined by the competent authority. However, no person may be required to participate in community activities for more than 70 hours in a given month. In all cases, the amount of benefit received divided by the number of hours worked must be not less than the minimum hourly wage rate plus 4 per cent (vacation pay).
7. 259. Directive 41.0 specifies the conditions of implementation of the Ontario Works Act. It states that community participation activities must be of benefit both to the community for which the service is performed and to the individual performing the service, who is supposed to gain useful experience with a view to his reinsertion in the labour market. The activities must be unpaid and carried out under the supervision of a representative of the community or of a non-profit (charitable) organization. Private organizations may provide only financial or material assistance, and may not at any time provide, administer or supervise community participation placements. The duration of a community placement must not exceed six months. All participating organizations must comply with federal and provincial human rights and health and safety laws and standards, particularly with regard to maximum daily and weekly working hours, compulsory rest breaks, public holidays, maternity and parental leave.
8. 260. There can be no community placement in an enterprise whose workers are legally exercising their right to strike. Furthermore, people taking part in community participation activities may not at any time replace regular employees of an organization or be required to take part in activities which would violate their conditions of membership of a professional association or trade union
   • (b) Bill 22 -- an Act to prevent unionization with respect to community participation under the Ontario Works Act, 1997
9. 261. According to section 1 of Bill 22, the Ontario Works Act, 1997 is amended by adding the following section:
10. (1) The Labour Relations Act, 1995 does not apply with respect to participation in a community participation activity under this Act.
11. (2) Without limiting the generality of sub-section (1), under the Labour Relations Act, 1995, no person shall do any of the following with respect to his or her participation in a community participation activity:
12. 1. Join a trade union.
13. 2. Have the terms and conditions under which he or she participates determined through collective bargaining.
14. 3. Strike.
    • Ontario Works Program (employment assistance programme)
15. 262. The Committee notes that, according to the Government, the Ontario Works Program announced in June 1996 and implemented by the Ontario Works Act, 1997, seeks to encourage self-reliance through employment by allowing recipients of social assistance to develop their skills and work experience within the framework of community participation activities. In this way, the Government wishes to help such recipients return to regular paid employment, and marks a reform of the province's welfare system.
16. 263. The Committee notes that the Ontario Works Program is one of a number of active labour market measures adopted by governments around the world in recent decades with the aim of promoting employment and developing vocational education and training. In response to the employment crisis, such programmes have given rise to different types of unpaid work aimed at stimulating the creation or preservation of jobs by subsidizing various forms of employment. In this context, certain measures go as far as obliging individuals in need and without regular work to accept some form of work in exchange for state benefits. Such programmes are also known as "workfare".
17. 264. In the first place, the Committee considers that it does not come within its competence to assess the validity of the Ontario Works Program or to express an opinion as to whether such a programme infringes or restricts the universal right to income support. In the particular case under consideration, the Committee must instead determine whether excluding persons involved in community participation activities from the scope of the Labour Relations Act, 1995 (LRA) -- the fundamental law which provides the framework for industrial relations in the province -- and prohibiting them from joining a trade union, bargaining collectively or striking under the Labour Relations Act, 1995 (LRA), is contrary to the principles of freedom of association.
18. 265. The Government refers to the criteria which were established by the Committee in a similar case (see 312th Report, Case No. 1958 (Denmark), paras. 4-77). According to the Government, the Ontario Works Program satisfies the criteria established by the Committee, since its purpose is to provide training and education opportunities and combat unemployment. Furthermore, placements under the programme are of limited duration and cannot be used to replace regular paid employees.
19. 266. The Committee emphasizes that the case cited by the Government concerns allegations of government interference in the application of collective agreements by imposing an hourly wage ceiling for workers employed in subsidized jobs. Such workers are not totally excluded from the right to organize but are restricted in their right to bargain collectively by a wage ceiling imposed during a period of subsidized work which cannot in any event last longer than three years. In this case, the Committee noted that these programmes are aimed at combating unemployment through subsidized job offers of limited duration, without placing in jeopardy the posts of current employees, and concluded that such jobs do not constitute ordinary work. The Committee nevertheless emphasized that such programmes must remain limited in duration and must not be used to fill regular jobs with unemployed persons restricted in their right to bargain collectively in respect of wages.
20. 267. However, the approach adopted by the authorities in the present case differs from the one followed in the case cited by the Government. Rather than fixing certain conditions of employment such as wages, section 1 of Bill 22 completely excludes participants in the Ontario Works Program from the terms of the fundamental labour law, namely, the Labour Relations Act, 1995 (LRA). Such persons are not considered as workers under the LRA and therefore cannot now enjoy the rights and safeguards which it provides. In particular, they cannot belong to a recognized union, be represented by a registered trade union or exercise the rights that ensue from this, including the right to bargain collectively and the right to strike. In this respect, the Committee emphasizes that section 1, paragraph 2 of Bill 22 simply states the prohibitions already implied in paragraph 1 by stipulating that persons involved in community participation activities cannot join a union, have the terms of their participation fixed by collective bargaining, or strike under the Labour Relations Act, 1995 (LRA).
21. 268. In the present case and in the case cited by the Government, the Committee notes that the employment provided does not constitute ordinary work but rather, activities which, according to the Government, aim to encourage self-reliance through employment. These activities are of limited duration (six months at most) and cannot replace work done by regular employees. In addition, participants in these schemes cannot take the place of workers legally exercising their right to strike.
22. 269. Furthermore, there is no doubt in the Committee's view that people involved in community participation activities are not true employees of the organization which benefits from their labour and can therefore legitimately be excluded from the scope of collective agreements in force, at least in respect of wages.
23. 270. On the other hand, it is an undeniable fact that persons involved in community participation activities are performing work and providing a service of benefit to the organizations concerned. For this reason, they must enjoy a certain protection in respect of their working and employment conditions. The Committee understands that such protection is provided, since the programmes in question are covered by laws and standards relating to human rights and health and safety, which govern aspects such as hours of work, compulsory rest breaks, public holidays and maternity and parental leave. However, the approach adopted here by the legislative authorities with regard to freedom of association is different and indeed at variance with this: as the full title of Bill 22 clearly indicates (an Act to prevent unionization with respect to community participation under the Ontario Works Act, 1997), persons involved in community participation activities do not have the right to join a trade union, bargain collectively on wages and conditions, or strike under the Labour Relations Act, 1995 (LRA). The Committee emphasizes the universality of the principle of freedom of association and recalls that all workers, without distinction whatsoever, must have the right to organize, in accordance with Convention No. 87, and that non-discrimination must be regarded as the general principle, the only exception being permitted under Article 9 of the Convention, which allows national authorities to determine the extent to which the safeguards provided by the Convention are to be applied to the armed forces and the police. Since persons working under community participation programmes are workers within the meaning of Convention No. 87, they must have the right to organize, given that they undeniably have collective interests which must be promoted and defended. The Committee therefore requests the Government to take the necessary measures to amend its legislation relating to community participation activities and to extend to persons involved in such activities the right to organize, in accordance with the principles of freedom of association in general and the provisions of Convention No. 87 in particular. The Committee requests the Government to keep it informed in this regard.
24. 271. In any event, the Committee regrets that the Government, in the very title of Bill 22, has indicated its intention to prevent unionization in community participation programmes
    • (c) Bill 31 -- an Act to promote economic development and create jobs in the construction industry, to further workplace democracy and to make other amendments to labour and employment statutes
25. 272. Finally, as regards Bill 31 -- an Act to promote economic development and create jobs in the construction industry, to further workplace democracy and to make other amendments to labour and employment statutes (hereinafter "Bill 31"), the Committee takes note of the complainant's allegations and the information provided by the Government. The Committee observes that Bill 31 modified the Labour Relations Act (LRA) as regards specific construction projects and primarily aims at promoting economic development. At this stage however, the Committee is unable to express its view on this aspect of the case in light of the lack of precision in the complainant's allegations as well as the brief reply of the Government. The Committee would therefore request the complainant to provide additional information in respect of Bill 31; the Committee also requests the Government to furnish clarification with regard to the impact of Bill 31 on previously concluded agreements and on the prohibition on the right to strike and lock out.
26. 273. The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.