Wednesday, August 18, 2010

Harper, Wall governments ignoring International Labour Organization obligations

As a member state of the International Labour Organization (ILO), Canada has an obligation to respect, to promote and to realize in good faith the fundamental principles and rights concerning freedom of association and collective bargaining.

On March 23, 1972, Canada ratified ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organize (1948).

This fundamental convention sets forth the right for workers and employers to establish and join organizations of their own choosing without previous authorization. Workers’ and employers’ organizations shall organize freely and not be liable to be dissolved or suspended by administrative authority, and they shall have the right to establish and join federations and confederations, which may in turn affiliate with international organizations of workers and employers.

On June 18, 1998, delegates to the 86th International Labour Conference, the annual gathering of the ILO global membership in Geneva, adopted by an overwhelming vote a Declaration on Fundamental Principles and Rights at Work, reaffirming the commitment of the international community to uphold fundamental rights in the workplace, including the right of workers and employers to freedom of association and the effective right to collective bargaining. The vote was 273 for, and zero against, with 43 abstentions. Canada was among those that voted in favour.

The ILO notes on its website: “International labour standards are legal instruments drawn up by the ILO’s constituents (governments, employers and workers) and setting out basic principles and rights at work. They are either conventions, which are legally binding international treaties that may be ratified by member states, or recommendations, which serve as non-binding guidelines. In many cases, a convention lays down the basic principles to be implemented by ratifying countries, while a related recommendation supplements the convention by providing more detailed guidelines on how it could be applied. Recommendations can also be autonomous, i.e. not linked to any convention.

“Conventions and recommendations are drawn up by representatives of governments, employers and workers and are adopted at the ILO’s annual International Labour Conference.”

Human Resources and Skills Development Canada’s Labour Program manages Canada’s labour affairs abroad. The International Labour Affairs Division handles the country’s participation in the ILO on behalf of the federal Minister of Labour.

According to an ILO-related report posted on the HRSDC website: “In a federal State such as Canada, when the subject of a Convention or Recommendation is partly within provincial and territorial jurisdictions, the federal government must refer the instrument to the attention of the other competent authorities, i.e. the provinces and territories.

“The long-standing Canadian practice, as regards ILO Conventions dealing with matters under both federal and provincial/territorial jurisdictions, has been to ratify a Convention only if all jurisdictions concur with ratification and undertake to implement the Convention’s requirements in their respective jurisdictions.”

Sadly, another long-standing practice in Canada has been for the federal and provincial governments to pay lip service to the ILO while and ignore its recommendations.

A classic example of this was in March 2003 when the ILO ruled against the right-wing B.C. Liberal government concerning six pieces of legislation adopted by the government in connection with labour relations, and in particular the right to strike and collective bargaining in the health and education sectors. The ILO Committee on Freedom of Association found that workers’ rights had been violated and recommended the government repeal or amend some of the legislation but the Campbell government ignorantly refused.

The Vancouver Sun reported Premier Gordon Campbell saying he had no intention of making such changes: “We said in the election we were going to do this and that is what we have done,” he stated. “I feel no pressure whatsoever. I was not participating in any discussion with the UN.” [Labour lauds UN slap at Liberals (Vancouver Sun, March 28, 2003)]

Graham Bruce, B.C.’s then labour minister, said the government passed the new laws to allow reforms aimed at reducing the province’s mounting deficit.

He said the government was not planning to amend or repeal the legislation, but was looking for different ways to negotiate public-sector collective agreements.

“What’s done is done. What I’m trying to do is move forward,” Bruce said on March 27, 2003. “We will note the ILO’s recommendations and carry on with the steps we need to take.” [Laws violated workers’ rights (Leader-Post, March 28, 2003)]

Seven years later it was the Saskatchewan Party government’s turn to bring shame to Canada.

In June 2008, the National Union of Public and General Employees (NUPGE), on behalf of the Saskatchewan Government and General Employees’ Union (SGEU/NUPGE), filed a complaint against the Wall government with the ILO alleging that the Public Service Essential Services Act and changes to the Trade Union Act impede workers from exercising their fundamental right to freedom of association by making it more difficult for workers to join unions, engage in free collective bargaining and exercise their right to strike.

A similar complaint was also filed by the Saskatchewan Federation of Labour (SFL) on behalf of more than a dozen other unions in the province.

On March 25, 2010, the ILO issued a decision (contained in the 356th Report of the Committee on Freedom of Association) supporting the unions’ claims and made six non-binding recommendations for appropriate action by the Wall government:

▪ hold full and specific consultations with the relevant workers’ and employers’ organizations in the future at an early stage of considering the process of adoption of any legislation in the field of labour law;

▪ take the necessary measures, in consultation with the social partners, to amend the Public Service Essential Services Act so as to ensure that the Labour Relations Board may examine all aspects relating to the determination of an essential service, in particular, the determination of the sectors in question, classification, number and names of workers who must provide services and act rapidly in the event of a challenge arising in the midst of a broader labour dispute;

▪ amend the Public Service Essential Services Regulations in consultation with the social partners;

▪ take the necessary measures so that compensatory guarantees are made available to workers whose right to strike may be restricted or prohibited and to keep it informed in this respect;

▪ take the necessary measures to amend the Trade Union Act so as to lower the requirement, set at 45 per cent, for the minimum number of employees expressing support for a trade union in order to begin the process of a certification election; and,

▪ consult with the social partners to find an appropriate means of ensuring that the Labour Relations Board enjoys the confidence of all the parties concerned.

Like the B.C. Liberals, the Wall government thumbed its nose at the ruling. Saskatchewan’s then Advanced Education, Employment and Labour (AEEL) Minister Rob Norris went a step further insulting the ILO.

“This is non-binding and certainly I don’t think this is some of the best work from the ILO,” Norris said.

Norris said the recommendations made by the ILO “will not force a change in the legislation.”

“The ILO has offered an opinion that’s non-binding,” he said. “The analysis is incomplete. Certainly from where we stand we have every confidence in both our essential services legislation and the amendments to the Trade Union Act.” [Province Will Ignore International Labour Ruling (NewsTalk 650, March 29, 2010)]

Norris did not explain how the ILO analysis was incomplete.

The Wall government, through HRSDC, made two submissions to the ILO in its defense: A Statement of Evidence dated February 11, 2009, and a Response for Request for Further Clarification dated October 15, 2009. The submissions are posted on the provincial government website but are damn near impossible to find.

In the Statement of Evidence the province freely admits that “a formal consultation process with labour and employers organizations was not conducted prior to the introduction of the Bills in the Legislature.” A key recommendation of the ILO was that the Wall government consult with unions at an “early stage” when developing labour legislation. It was the government’s position, however, that it was under no obligation to do so.

“Under Canadian law, legislators are generally not required to consult with affected parties before introducing legislation,” the Wall government said.

The Wall government said it “was elected to form a majority government for the province” and justified its actions by saying the offending labour legislation was introduced “to fulfill commitments made by the Saskatchewan Party in its election platform.”

This might fly for the Trade Union Act amendments where there is a kernel of truth to the government’s claim, but in the case of essential services it’s a bald faced lie. The Saskatchewan Party’s election platform didn’t mention essential services legislation, but rather a pledge that a Saskatchewan Party government would work with public sector unions to ensure essential services are in place in the event of a strike or labour action.

Fortunately, the ILO was able to look past this nonsense and put the rights of workers ahead of the political interests of the Saskatchewan Party. The bad news is the Harper and Wall governments don’t seem to care what the ILO thinks.

In April 2010, a letter was sent to Labour Minister Lisa Raitt asking her what the federal government’s position was on the ILO’s Saskatchewan ruling and what steps her department was taking to ensure that the Wall government complies with the recommendations. The letter was copied to Premier Brad Wall, NUPGE president James Clancy and SFL president Larry Hubich.

The first to respond was Wall with a short letter dated May 4, 2010, repeating the same disingenuous message that the Saskatchewan Party government have been peddling since the November 2007 provincial election, which is that the “government is committed to ensuring a fair and balanced labour environment that contributes to growth and is competitive with other Canadian jurisdictions.”

The next to respond was Norris in a letter dated May 18, 2010 that is less credible and believable than the premier’s.

Norris said the government “has the greatest respect for the ILO and its work to promote rights at work, encourage decent employment opportunities, enhance social protection and strengthen dialogue in handling work-related issues.” The contents of the ILO report were “still being reviewed,” so “it would be inappropriate to comment on the future actions of the Government on this matter,” he said.

Gosh, it must have been a different Rob Norris that crapped all over the ILO a few weeks earlier, slamming its report and recommendations. Those things do happen from time to time.

Norris seems to forget that when he said the ILO report won’t cause the government to change the legislation he revealed the government’s future action. The last paragraph of his letter reiterates that: “The Government remains committed to supporting a fair and balanced labour relations framework for Saskatchewan workers, employers and citizens. The Public Service Essential Services Act and the amendments of The Trade Union Act are an important part of that commitment. In drafting, consulting and implementing these pieces of legislation, we took a measured, appropriate and lawful approach.”

In a cabinet shuffle on June 29, 2010, Norris was thankfully stripped of the labour portfolio becoming Minister of Advanced Education, Employment and Immigration. Don Morgan was appointed Minister of Labour Relations and Workplace Safety in addition to being Minister of Justice and Attorney General. It didn’t solve anything, though.

In an interview with StarPhoenix reporter James Wood on July 5, 2010, Morgan said he was “vocally supportive” of the labour changes made by the government and backed Norris’ navigation of the portfolio.

He said there will be no reversal on the key policy changes made by the government. [Labour leaders eye better relations with gov’t after cabinet shuffle (StarPhoenix, July 6, 2010)]

The Wall government is also refusing to disclose certain information on the subject. In response to an access to information request for briefing notes government officials released several records with the sections containing advice, recommendations, analyses or policy options blacked out. What is the Saskatchewan Party government hiding?

The last to respond was Minister Raitt who, in a letter dated July 22, 2010, basically said the federal government’s role in the issue was limited to shuffling papers back and forth between the province and the ILO.

Raitt said if the ILO Committee of Freedom of Association finds there has been a violation of standards or principles related to freedom of association, it issues a report. Governments are subsequently requested to report on the implementation of its recommendations.

“Where, as in the current case, the issue concerns legislation or measures taken by a province or territorial government, the Government of Canada works with the government concerned to ensure that responses and follow-up information are provided to the CFA in a timely manner. When the CFA issued its report in March 2010, the Government of Canada provided the report to the Government of Saskatchewan, which has the exclusive authority to follow-up on the CFA’s recommendations.

“I have recently spoken with my counterpart in Saskatchewan to ensure our continued collaboration as Saskatchewan provides follow-up information to the ILO on this case.”

The Harper government appears to have little interest in taking a leadership role in pressuring the provinces to comply with ILO rulings. It instead uses provincial autonomy as a shield to avoid international obligations arising from Canada’s ILO membership. This was evident at the 99th International Labour Conference that took place in Geneva from June 2-18, 2010. The Canadian government delegates included Ms. Debra Young, Director General, Human Resources and Skills Development Canada, and Mr. Marius Grinius, Ambassador, Permanent Representative, Department of Foreign Affairs and International Trade, Permanent Mission, Geneva.

The government delegates were joined by an employer delegate and a worker delegate. Technical advisors assist the delegations, which are usually headed by Cabinet Ministers who take the floor on behalf of their governments. In Canada’s case, it appears Raitt and her deputy minister, Ms. Hélène Gosselin, were no shows even though their names appear on the initial list of attendees. Were they too busy to represent Canada?

The Canadian contingent was part of the Committee on the Application of Standards, a standing committee of the Conference composed of 220 members tasked with considering and reporting on item III on the agenda: “Information and reports on the application of Conventions and Recommendations”. Among the topics of discussion was Canada’s dismal record in applying Convention No. 87 on Freedom of Association and Protection of the Right to Organise.

The Report of the Committee on the Application of Standards, Provisional Record No. 16, Part Two (released June 17, 2010), shows the government member from Belarus and worker members from Colombia, Sweden and Brazil were all critical of Canada’s poor track record on complying with the Convention. Even the employer members “urged the federal Government to ensure that provincial governments fully complied with strict freedom of association and right to organize requirements for the benefit of all workers.”

The Canadian government representative, presumably Ms. Young, appeared to be going through the motions retelling the same tale of woe that delegates over the years have grown tired of hearing: “that Canada remained committed to observing the Convention” but “that ensuring full implementation of international labour obligations in a context where the federal Government had the authority to ratify ILO Conventions, but was bound to rely on the provinces and territories to implement their provisions in areas of their exclusive authority, was a challenging task.” It seems the best she could muster was to say that the federal government was engaging “the provinces and territories on a continuous basis with a view to promoting implementation of Canada’s international labour obligations and ensuring that full and transparent information was made available to the ILO supervisory bodies.”

The federal government claims to be powerless. The provinces exploit it. In the end nothing changes. Ultimately, it’s the federal government that has to answer for this failing. As the old English proverb says, ‘Where there’s a will, there’s a way.’ But the Harper government appears content to let the status quo prevail.

Censored AEEL ILO briefing note, March 24, 2010


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