Abstract
Collective bargaining in common law Canada is regulated by statutes based on the U.S. Wagner Act model but with the primary goal of getting the parties to the bargaining table and thereby promote labour peace rather than the U.S. focus on representative democracy. At the federal and provincial levels, governments have attempted to limit collective bargaining by, for example, requiring higher thresholds of union support to gain certification as exclusive bargaining agent only to have such legislation repealed with a change of government at the next election. This paper focusses primarily on private sector collective bargaining where unionization rates have been declining. In the public sector, unionization rates are relatively stable particularly since Canadian law recognizes collective bargaining and the right to strike as protected elements of the right to freedom of association. Such protection does not extend to private sector employees because of the constitutional right generally binds government but not private employers. Approximately 70% of unionized employees are represented by national unions through local organizations. The decentralized model of collective bargaining reflects the constitutional structure of common law Canada as a federation with both the federal and provincial governments regulating collective bargaining in relation to matters within their legislative jurisdiction. Collective bargaining is focussed on the common employer within the territorial jurisdiction of the federal or provincial government so that, as a result, sector bargaining is relatively unknown in Canada with the exception of the construction industry. Mobility of labour is a constitutional right between provinces in Canada though the right is subject to laws of general application. Other means of enhancing mobility of labour exists through the Agreement on Internal trade and special protections for temporary foreign workers in domestic legislation and in international trade agreements. Globalization has had limited impact on collective bargaining though more specialized employees are increasingly subject to temporary employment as independent contractors instead of permanent status as an employee protected by a collective agreement.
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Notes
- 1.
The ten provinces (from west to east) are: British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador. The three territories are the Northwest Territory, Nunavut and Yukon. The population estimate is from Statistics Canada for the year 2017.
- 2.
Constitution Act, 1867, s 91 (federal legislative jurisdiction), s. 92 (provincial legislative jurisdiction). See also: s 95 re shared jurisdiction in relation to agriculture and immigration.
- 3.
See, for example, the Nunavut Act, SC 1993, c 28, s 23 “Legislative Powers”.
- 4.
RSC 1985, c L-2, Part I “Industrial Relations”.
- 5.
Note 2 at s. 91(5).
- 6.
E.g. Industrial Relations Act, RSNB 1973, c. I-4; also known variously, for example, as the Labour Relations Act, 1995, SO 1995, c 1 (Schedule A) in Ontario and the Labour Relations Code, RSBC 1996, c 244 in British Columbia.
- 7.
Note 2 at ss 92(10) and (13).
- 8.
National Labor Relations Act of 1935 (49 Stat. 449) 29 USC § 151–169.
- 9.
Note 4, at s 3(1) “collective agreement”.
- 10.
Ibid., s 3(1) “bargaining agent”.
- 11.
See, for example, the Industrial Relations Act (NB), note 6, at ss 2 - 9.
- 12.
Sack and Mitchell (1985), para 3:3140 (quotation is modified version of a list). These factors, from United Steelworkers of America v. Usarco Limited, [1967] OLRB Rep. 526, are still frequently quoted in labour board decisions.
- 13.
Ibid.
- 14.
Ibid., para 3:3120 (format of quotation is modified version of a list).
- 15.
For example: Metroland Printing, Publishing and Distributing Ltd., [2003] OLRD No 514 (OLRB).
- 16.
Energy and Paperworkers Union of Canada Local 87-M Southern Ontario Newspaper Guild v. Metroland Printing Publishing and Distributing Ltd., 2003 CanLII 33962 (ONLRB) quoting Hospital for Sick Children, [1985] OLRB Rep. 266, para 12.
- 17.
Note 4, section 3 “employee”. The definition of “employee” for the purposes of the Code excludes management and confidential employees.
- 18.
See, for example: Trade Union Act, RSNS 1989, c 475, s 25(3)(7) and Labour Relations Act, 1995, SO 1995, c 1, Sch A, s 8(2)(5).
- 19.
Labour Relations Code, RSBC 1996, c 244, s 24(1)(2).
- 20.
Either party may give notice to bargain for the renewal of a collective agreement (which pre-supposes an existing collective agreement) with the time limit set by statute, variously at 3 or 4 months before expiration of the existing agreement. For example, the Canada Labour Code, note 4, s 49(1) sets the time limit at 4 months.
- 21.
See: Canada Labour Code, note 4, s 50(b). The example is from Canadian Union of Public Employees, Local 1840 v New Brunswick, 2014 CanLII 80521 (NB LEB) (with opening of new court facility, the employer discontinued the practice of providing employees with free on-site parking for their personal vehicles—as at the previous facility—which left employees to bear the cost of parking at commercial lots).
- 22.
Employment and Social Development Canada (2016b), “Overview of Collective Bargaining in Canada, 2015”, at 5 (text at note 7).
- 23.
Ibid., the report indicates that in 2015, 65.8% of collective agreements were achieved by the parties themselves through direct bargaining; conciliation achieved 7.9%; mediation, 15.8%; arbitration, 8.1%; and that no settlements resulted from legislated intervention. The 2014 statistics are similar.
- 24.
Canada Labour Code, note 4, s 50(a). See also: Royal Oakes Mines v. Canada (Labour Relations Board), [1996] 1 SCR 369, 1996 CanLII 220, para 42 et seq.
- 25.
United Electrical, Radio and Machine Workers of America v. DeVilbiss (Canada) Ltd. (1976), 76 CLLC 395 at 404-05 (O.L.R.B.). This decision quotes Cox (1958), p. 1409.
- 26.
Ibid. See also: Canadian Association of Industrial, Mechanical and Allied Workers v. Noranda Industries Ltd., [1975] 1 Can IRBR 145 (employer’s refusal to disclose cost of benefits).
- 27.
Graphic Arts International Union Local 12-I v. Graphic (Ontario) Inc., [1976] OLRB Rep 221.
- 28.
Canadian Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers, Local No. 304 v. Canada Trustco Mortgage Company, [1984] OLRB Rep 1356, at 1364 (para. 31 et seq.).
- 29.
Canada Labour Code, note 4, s. 70.1 et seq. re conciliation officers and conciliation boards.
- 30.
Ibid., at s. 89(1).
- 31.
Ibid., at s. 87.2.
- 32.
See, for example, the Canada Labour Code, note 4, s 80; Trade Union Act, RSNS c 475, ss. 40A-40B; Labour Relations Act, SO 1995, c 1 Sch A, s 43; Code du Travail, CQLR, c C-27, art 93.1.
- 33.
Enacted as SC 2011, c 17.
- 34.
[1990] 3 SCR 229.
- 35.
Douglas / Kwantlen Faculty Association v. Douglas College, [1990] 3 SCR 570.
- 36.
[1997] 3 SCR 624.
- 37.
Ibid., para. 44.
- 38.
[1987] 1 SCR 313.
- 39.
[1987] 1 SCR 424.
- 40.
[1987] 1 SCR 460.
- 41.
Seven justices heard the appeals but six participated in the judgment. One member of the panel died following the hearing of the appeals and before judgment.
- 42.
[1990] 2 SCR 367.
- 43.
Ibid., 402.
- 44.
[2001] 3 SCR 1016.
- 45.
Ibid., para 45.
- 46.
See, for example, An Act to Amend the Public Service Labour Relations Act, SNB 2010, c 20. The amending legislation followed a successful court challenge asserting such rights for casual and seasonal employees: Canadian Union of Public Employees v. Province of New Brunswick, 2009 NBQB 164.
- 47.
[2007] 2 SCR 391. See: Fudge (2008).
- 48.
Ibid., para. 19.
- 49.
Ibid., para. 30.
- 50.
Ibid., para. 92.
- 51.
Ibid., para. 109.
- 52.
Ibid., para. 81.
- 53.
[2015] 1 SCR 245.
- 54.
Ibid., para. 2 (per Abella J.).
- 55.
e.g. Public Service Labour Relations Act, RSNB 1973, c. P-25, s 43.1 (as amended by SNB 1990, c 30, s 7; 1991, c 53, s 15; 1994, c 52, s 5); and Canada Labour Code, note 4, s 87.4.
- 56.
RSNB 1973, c I-4, as amended, ss 52 et seq and s 76(4).
- 57.
SO 2000, c 41.
- 58.
Code civil du Québec, arts 1371–1373.
- 59.
e.g. The Industrial Relations Act (NB), note 6 at s 37(3).
- 60.
Mitchnick and Etherington (2018), p. 504.
- 61.
Ibid. at 400.
- 62.
Ibid. at 401 referencing IPSCO Inc. and International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 805 (2004), 124 L.A.C. (4th) 403 (Warren) in which the “zipper clause” read: “This contract constitutes the entire Agreement between the parties and supersedes and replaces all previous Agreements and practices both written and oral.”
- 63.
Canada Labour Code, note 4 at s 57.
- 64.
E.g. Labour Relations Code, RSBC 1996, c 244, s 84(2); Labour Relations Code, RSA 2000, c L-1, ss 135-36; Labour Relations Act, 1995, SO 1995, c 1, Sch A, s. 48(2). Industrial Relations Act (NB), note 6, s 55.
- 65.
For example, Labour Relations Act, RSNL 1990, c L-1, ss 91.3–91.4.
- 66.
Labour Relations Code, RSBC 1996, c 244, s 83.
- 67.
SO 1972, c 67; now SO 1993, c 38, s 7(3) as amended.
- 68.
Crown Employees Grievance Settlement Board (2017), Annual Report 2016–2017, at pp. 15–17. Pursuant to the Public Service of Ontario Act, 2006, SO 2006, c 35, Sch A, Ontario established the Public Service Grievance Board to adjudicate grievances submitted by non-unionized management and excluded crown and government employees. This four person Board disposed of 137 grievance files in fiscal 2016–2017; 25 were adjudicated, 30 were settled, 28 were withdrawn, and 58 were dealt with by an administrative decision without a hearing. See: Public Service Grievance Board, Annual Report 2016–2017, at pp. 9–10.
- 69.
Crevier v. Attorney General of Quebec, [1981] 2 SCR 220, at 236 where the Court held that “a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction.” The reason lies with the constitutional protection afforded the jurisdiction of provincial superior courts to supervise the exercise of authority by inferior courts and administrative tribunals per the Constitution Act, 1867, s. 96.
- 70.
Canada Labour Code, note 4 at ss 58(1)(2)(3) and 243.
- 71.
Labour Relations Code, RSBC 1996, c 244, s 99: “(a) a party to the arbitration has been or is likely to be denied a fair hearing, or (b) the decision or award of the arbitration board is inconsistent with the principles expressed or implied in this Code or another Act dealing with labour relations.”
- 72.
Ibid., s 100.
- 73.
e.g. Labour Relations Act, 1995, SO 1995, c 1, Sch A, s. 48(19); Industrial Relations Act (NB) note 6, s 77(3).
- 74.
Dunsmuir v. New Brunswick, [2008] 1 SCR 190, 2008 SCC 9 (CanLII)—the third standard had been “patently unreasonable”. See: Mitchnick and Etherington (2018) at 220 et seq.
- 75.
Ibid., paras 53–54.
- 76.
Ibid., para 55.
- 77.
Ibid, para 58.
- 78.
I.L.O. Collective Bargaining Recommendation, 1981 (No. 163) states, at para. 4(1), that “measures adapted to national conditions should be taken, if necessary, so that collective bargaining is possible at any level whatsoever, including that of the establishment, the undertaking, the branch of activity, the industry or the regional national levels.”
Marleau (2006), p. 119 described the Canadian system in the following terms:
…the European trend towards the decentralization of bargaining to the company level must be contrasted from decentralized collective bargaining regimes, i.e. regimes such as those of Canada and the United States that were designed as decentralized (single-level bargaining, single-employer and single bargaining unit). These regimes were intended to operate fundamentally at the local level. In single enterprise-level regimes there is no trend toward greater centralization…
The fully decentralized Canadian labour relations setting is particularly problematic in this respect. The Canadian model supports a fully decentralized version of labour law and labour relations as a result of the superposition of separate labour jurisdictions (constitutional framework), separate regulatory regimes (regulatory framework, and decentralized collective bargaining (labour relations framework).At all three levels, the decentralized framework follows a model of power allocation (and exercise) on the basis of exclusivity… .
- 79.
Consider: Service, Office and Retail Workers’ Union of Canada v. Canadian Imperial Bank of Commerce, [1977] 1 CanLRBR 99. Unit size and the number of employees were not the only factors considered by the Board.
- 80.
The survey, conducted in June 2017, provided the following results: Total—24,189; Canada (federal level)—1639 (per government official and including agreements applicable in the three territories); AB—1279 (Online Excel spreadsheet, dated March 2017); BC—533 (per government official re agreements ending between 2017 and 2022); MB—659 (per government official); NB—475 (confirmed by department official); NS—989 (government database); NL—510 (online database; confirmed by government official); ON—8634 (database for those in force as of Jan 1, 2016) but 4319 (database, in force as of Jan 1, 2017); QC—8640 (confirmed by government official); SK—approx. 750 (per government official as including expired agreements not yet renewed); YT—2 (government website); NT—2 (government website); NU—3 (government website).
- 81.
See: Uniforum, volume 4: “General Motors target in talks” No. 18, at 1 (8 Sept. 2016); “Unifor secures investment in tentative deal with GM” No. 19, at 1 (22 Sept, 2016); “Bargaining with FCA begins” No. 20, at 2 (6 Oct. 2016); “Pattern Agreement secured at FCA” No. 21, at 1 (20 Oct. 2016); and “Unifor Secures future for auto in Canada” No. 22, at 1 (3 Nov. 2016).
- 82.
See: https://nupge.ca under heading “About NUPGE” (accessed 16 April 2018).
- 83.
Employment and Social Development Canada (2016a), “Labour Organizations in Canada 2015” at 16.
- 84.
Ibid. at 3.
- 85.
Ibid.
- 86.
Note 22, at 5 (accessed again on 16 April 2018).
- 87.
- 88.
Ibid. and note 22, at 5.
- 89.
[1899] AC 580 (P.C.).
- 90.
Constitution Act, 1867, s. 92(13) as a matter of “Property and Civil Rights in the Province” and s. 92(10) “Local Works and Undertakings” within the Province.
- 91.
Ibid., s. 91(25).
- 92.
[1951] SCR 887, 1951 CanLII 2 (SCC), at 918 per Rand J.
- 93.
[1958] SCR 626, 1958 CanLII 1 (SCC).
- 94.
Ibid., at 642 per Rand J.
- 95.
Black v. Law Society of Alberta, [1989] 1 SCR 591, 1989 CanLII 132 (SCC).
- 96.
Enacted, for example, as Agreement on Internal Trade Implementation Act, SC 1996, c 17; An Act respecting the implementation of the Agreement on Internal Trade, SQ 1997, c 9; Internal Trade Agreement Implementation Act, SNS 1995-96, c 8.
- 97.
The disputes and resolutions are described in the annual reports of activities under the AIT which are prepared by its Secretariat. See: https://www.cfta-alec.ca/annual-reports/.
- 98.
See: information about the CFTA at https://www.cfta-alec.ca/ and the Labour Mobility Coordinating Group at http://www.workersmobility.ca.
- 99.
Text at note 47.
- 100.
Public Services Sustainability Act (Bill 28), SM 2017, c 24 (2 June 2017). The Act, per s. 12(1), imposes two 12 month periods of zero wage increased for public sector employees followed by an increase of 0.75% in the third 12 month period and 1% in the last 12 month period. As of September 2018, the Bill has not been proclaimed in force and is subject to a constitutional challenge by public section unions. On 20 July 2018, a judge rejected an application by the unions for an interim injunction pending a hearing on the constitutional issue—see: Manitoba Federation of Labour et al. v. The Government of Manitoba, 2018 MBQB 125 (CanLII). The delay in proclaiming the Act in force may also reflect a tactic by the government to encourage unions to voluntarily accept the scheme.
- 101.
For example, An Act to Ensure that Essential Services are Maintained in the Health and Social Services Sector, CQLR c M-1.1 and Essential Health and Community Services Act, SNS 2014, c 2.
- 102.
For example, The Essential Services (Health Care) Act, CCSM c E146 and Essential Services in Nursing Homes Act, SNB 2009, c E-10.5.
- 103.
Arthurs and Stone (2013).
- 104.
See: Visser (2015). The database has since been updated to version 5.1.
- 105.
An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act (Bill C-4) enacted as SC 2017, c 12.
- 106.
SO 2017, c 22.
- 107.
- 108.
Banks (2013) at 439 (footnotes omitted).
- 109.
Ibid., at 430.
- 110.
Njoya (2015), p. 121.
- 111.
Immigration and Refugee Protection Regulations, S.O.R. /2002-227, Part 11, ss. 194-209.997.
- 112.
Ibid., ss. 209.2 and 209.3.
- 113.
The cap is 10% for employers who did not employ temporary foreign workers before June 2014. See: https://www.canada.ca/en/employment-social-development/services/foreign-workers/median-wage/low/requirements.html.
- 114.
See, for example: Employment Standards Act, SNB 1982, c E-7.2, s 38.9; Labour Standards Code, RSNS 1989, c 246, s 89H-89Z; The Worker Recruitment and Protection Act, CCSM c W197; and The Foreign Worker Recruitment and Immigration Services Act, SS 2013, c F-18.1.
- 115.
“Negotech”, which is described as “A searchable repository, which provides access to the full text of the collective agreements, important benefit changes and latest wage adjustments”, is maintained by the Department of Economic and Social Development Canada at http://negotech.labour.gc.ca.
- 116.
Employment and Social Development Canada, “Negotiating and Implementing International Labour Cooperation Agreements” at https://www.canada.ca/en/employment-social-development/services/labour-relations/international/agreements.html. This Departmental website lists and includes the text of each Agreement and Chapter. See also: Singh (2002).
- 117.
See: https://www.dol.gov/ilab/trade/agreements/naalc.htm (accessed 16 April 2018).
- 118.
See: http://www.unifor.org.
- 119.
- 120.
SO 2017, c 22.
- 121.
- 122.
See: “Responsibility” at http://www.loblaw.ca/en.html (accessed 16 April 2018).
- 123.
Ibid., “2016 Corporate Social Responsibility Report” at 9.
- 124.
Rub (2002), p. 5.
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Case Law
Black v. Law Society of Alberta 1989] 1 SCR 591
Canadian Association of Industrial, Mechanical and Allied Workers v. Noranda Industries Ltd., [1975] 1 Can IRBR 145
Canadian Union of Public Employees, Local 1840 v New Brunswick, 2014 CanLII 80521 (NB LEB)
Canadian Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers, Local No. 304 v. Canada Trustco Mortgage Company, [1984] OLRB Rep 1356
Crevier v. Attorney General of Quebec, [1981] 2 SCR 220
Douglas / Kwantlen Faculty Association v. Douglas College, [1990] 3 SCR 570
Dunmore v. Ontario (Attorney General), [2001] 3 SCR 1016
Dunsmuir v. New Brunswick, [2008] 1 SCR 190
Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624
Energy and Paperworkers Union of Canada Local 87-M Southern Ontario Newspaper Guild v. Metroland Printing Publishing and Distributing Ltd., 2003 CanLII 33962 (ONLRB)
Graphic Arts International Union Local 12-I v. Graphic (Ontario) Inc., [1976] OLRB Rep 221
Health Services & Support-Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 SCR 391
Hospital for Sick Children, [1985] OLRB Rep. 266
IPSCO Inc. and International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 805 (2004), 124 L.A.C. (4th) 403
Manitoba Federation of Labour et al. v. The Government of Manitoba, 2018 MBQB 125 (CanLII)
McKinney v. University of Guelph, [1990] 3 SCR 229
Metroland Printing, Publishing and Distributing Ltd., [2003] OLRD No 514 (OLRB)
Murphy v. C.P.R., [1958] SCR 626
Professional Institute of the Public Service of Canada and Northwest Territories (Commissioner), [1990] 2 SCR 367
Public Service Alliance of Canada v. Canada, [1987] 1 SCR 424
Reference re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313
Retail, Wholesale and Department Store Union (RWDSU) v. Saskatchewan, [1987] 1 SCR 460
Royal Oakes Mines v. Canada (Labour Relations Board), [1996] 1 SCR 369
Saskatchewan Federation of Labour v. Saskatchewan, [2015] 1 SCR 245
Service, Office and Retail Workers’ Union of Canada v. Canadian Imperial Bank of Commerce, [1977] 1 CanLRBR 99
Union Colliery Company of British Columbia v. Bryden, [1899] AC 580 (P.C.)
United Electrical, Radio and Machine Workers of America v. DeVilbiss (Canada) Ltd. (1976), 76 CLLC 395 at 404-05 (O.L.R.B.)
United Steelworkers of America v. Usarco Limited, [1967] OLRB Rep. 526
Winner v. S.M.T. (Eastern) Ltd., [1951] SCR 887
Legislation
Constitution Act, 1867
Canadian Charter of Rights and Freedoms (1982)
Canada (Federal Government)
An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act (Bill C-4), SC 2017, c 12
Agreement on Internal Trade Implementation Act, SC 1996, c 17
Canada Labour Code, RSC 1985, c L-2, Part I “Industrial Relations”
Immigration and Refugee Protection Regulations, S.O.R. /2002-227, Part 11
Restoring Mail Delivery for Canadians Act, SC 2011, c 17
Alberta
Labour Relations Code, RSA 2000, c L-1
British Columbia
Labour Relations Code, RSBC 1996, c 244
Manitoba
The Essential Services (Health Care) Act, CCSM c E146
Public Services Sustainability Act (Bill 28), SM 2017, c 24
The Worker Recruitment and Protection Act, CCSM c W197
New Brunswick
Employment Standards Act, SNB 1982, c E-7.2
Essential Services in Nursing Homes Act, SNB 2009, c E-10.5
Industrial Relations Act, RSNB 1973, c. I-4
Newfoundland and Labrador
Labour Relations Act, RSNL 1990, c L-1
Nova Scotia
Essential Health and Community Services Act, SNS 2014, c 2
Labour Standards Code, RSNS 1989, c 246
Internal Trade Agreement Implementation Act, SNS 1995-96, c 8
Trade Union Act, RSNS 1989, c 475
Ontario
Crown Employees Collective Bargaining Act, SO 1972, c 67; now SO 1993, c 38
Employment Standards Act, 2000, SO 2000, c 41
Fair Workplaces, Better Jobs Act, 2017, SO 2017, c 22
Labour Relations Act, 1995, SO 1995, c 1 (Schedule A)
Quebec
An Act respecting the implementation of the Agreement on Internal Trade, SQ 1997, c 9
An Act to Ensure that Essential Services are Maintained in the Health and Social Services Sector, CQLR c M-1.1
Code civil du Québec, CQLR c CCQ-1991
Code du Travail, CQLR, c C-27
Saskatchewan
The Foreign Worker Recruitment and Immigration Services Act, SS 2013, c F-18.1
United States
National Labor Relations Act of 1935 (49 Stat. 449) 29 USC § 151–169 (“Wagner Act”)
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McEvoy, J.P. (2019). Canada. In: Liukkunen, U. (eds) Collective Bargaining in Labour Law Regimes. Ius Comparatum - Global Studies in Comparative Law, vol 32. Springer, Cham. https://doi.org/10.1007/978-3-030-16977-0_4
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