1
RESTRICTIONS ON ACCESS TO THE RIGHT TO ORGANIZE
AND BARGAIN COLLECTIVELY IN ONTARIO
PREPARED BY MARY CORNISH, FAY FARADAY AND ROB GIBSON
Cavalluzzo Hayes Shilton McIntyre & Cornish
43 Madison Avenue, Toronto, Ontario
ph..416-964-1115, fax. 416-964-5895
mcornish@cavalluzzo.com, ffaraday@cavalluzzo.com, rgibson@cavalluzzo.com
www. cavalluzzo.com
A.
INTRODUCTION
On January 1, 1994, the North American Agreement on Labour Cooperation (“NAALC”)
- the NAFTA side agreement on Labour - came into effect. On its face NAALC appeared
to provide a commitment to and protection for workers’ rights and specifically the rights
to organize, collectively bargain, and strike. Yet, despite these promising guiding
principles of NAALC, the concern expressed by community, social and labour
organizations at the time was that NAALC lacked minimum mandatory and enforceable
labour standards and this would lead to a "race to the bottom". That is, the signatory
countries, Canada, the United States and Mexico would lower their labour standards in
a bid to increase their competitiveness with one another and globally. A particular
concern was an anticipated move to reduce the protections for workers to organize,
collectively bargain and strike.
An examination of Ontario's experience from 1994 to the present indicates that these
concerns were well-founded. Since the introduction of NAALC ,the Ontario government
has repeatedly reduced access to collective bargaining, the right to organize, and the
right to strike for workers in Ontario. The Ontario Government enacted these changes
as part of its stated quest to be more competitive with its trade partners and the
international community and, to use the language of the Ontario government’s Common
Sense Revolution, to make Ontario “open for business”.
B.
NAALC
NAALC was enacted as part of NAFTA's explicit committment to "protect, enhance and
enforce workers' rights among signatory countries. Article 1(b) of NAALC provides that
one of its objectives is to promote, to the maximum extent possible, a set of eleven
labour principles, of which the following three directly relate to the right to organize and
bargain collectively:
“1.
Freedom of association and protection of the right to organize.
2
The right of workers exercised freely and without impediment to establish
and join organizations of their own choosing to further and defend their
interests.
2.
The right to bargain collectively.
The protection of the right of organized workers to freely engage in
collective bargaining on matters concerning the terms and conditions of
employment.
3.
The right to strike.
The protection of the right of workers to strike to defend their collective
interests.”
C.
OVERVIEW OF MAJOR ACCESS TO COLLECTIVE BARGAINING CHANGES
SUBSEQUENT TO NAALC
Since NAALC was passed in 1994, the Ontario Government

enacted an entirely new Labour Relations Act, 1995 ("LRA, 1995") with a different
purpose which restricted significantly the rights of workers;

excluded the following employees from access to bargaining:
- domestics employed in a private home
- agricultural workers
- principals and vice principals
- professional employees (architects, dentists, land surveyors, lawyers and
doctors)
- provincial judges
- labour mediators and conciliators;

repealed successor rights protections for crown employees in the event of a sale or
transfer of a business to facilitate privatization of public institutions;

repealed legislation that allowed agricultural workers to unionize;

introduced “workfare” and introduced legislation that denies workfare participants the
rights to join unions, engage in collective bargaining and strike;

undermined unionization in the health care sector by out-sourcing home care and
enacting legislation by which contracts in the home care/long term care sector
are subject to competitive bidding processes on an annual basis;
3

increasingly used back to work legislation to end strikes;

enacted further Labour Relations Act amendments in 2000 which encourage
decertification; and

enacted a new Employment Standards Act which undercuts minimum protections for
employees, particularly around maximum hours of work and overtime pay.
These changes all came as a result of the election of a right wing Progressive
Conservative Party which took power in June, 1995 and moved quickly to eliminate
progressive labour law changes enacted by the previous New Democratic Party
Government in 1993.
The new Conservative Government proceeded to pass
retrogressive labour legislation to carry out their agenda of repealing any so-called “jobkilling regulations” in the field of labour relations so as to encourage new business
investment in Ontario.
There have been a number of court challenges to these amendments to Ontario’s labour
legislation. While the ILO has repeatedly recognized the Ontario government’s actions
as being contrary to international standards on freedom of association, Canadian courts
have, to date, found no violation of the Canadian Charter of Rights and Freedoms
although one case (involving agricultural workers) is on appeal to the Supreme Court of
Canada to be heard in 2001 and another (involving school principals and viceprincipals) is awaiting decision on an application for leave to appeal to that Court.
D.
ACCESS TO COLLECTIVE BARGAINING IN ONTARIO BEFORE NAALC
Bill 40 amended Ontario's Labour Relations Act ("LRA") effective January 1, 1993 and
represented a significant advancement in the rights of Ontario workers to organize and
to engage in collective bargaining, consistent with the stated principles of NAALC.
Bill 40's new purpose clause which formed the interpretive foundation for the rest of the
LRA emphasized the importance of the right to organize, which encouraged the process
of collective bargaining and which encouraged unions and employers to take cooperative approaches to adapting to changes in the economy.
“2.1 The following are the purposes of this Act:
1.
To ensure that workers can freely exercise the right to organize by
protecting the right of employees to choose, join and be represented by a
trade union of their choice and to participate in the lawful activities of the
trade union.
2.
To encourage the process of collective bargaining so as to enhance,
i.
the ability of employees to negotiate terms and conditions of
employment with their employer,
4
ii. the extension of co-operative approaches between employers and trade
unions in adapting to changes in the economy, developing work force skills
and promoting workplace productivity, and
iii. increased employee participation in the workplace.
3.
To promote harmonious labour relations, industrial stability and the
ongoing settlement of differences between employers and trade unions.
4.
To provide for effective, fair and expeditious methods of dispute
resolution.”
Under s. 2 of the LRA after Bill 40, the following groups were excluded from collective
bargaining under the Labour Relations Act:

a person employed in agriculture, hunting or trapping, except that the LRA would
apply to a person employed in such class of agricultural operations as may be
prescribed by regulation, s. 2(1)(b), s. 2(2) [no such regulations were made];

a person, other than an employee of a municipality or a person employed in
silviculture, who is employed in horticulture by an employer whose primary
business is agriculture or horticulture, except that the LRA would apply to a
person employed in such class of horticultural operations as may be prescribed
by regulation, s. 2(1)(c), s. 2(2) [no such regulations were made];

a member of the police force within the meaning of the Police Services Act, s. 2(1)(d)
[However, members of the police force were permitted to bargain collectively
under the Police Services Act];

a full-time firefighter within the meaning of the Fire Departments Act, s. 2(1)(e)
[However firefighters were permitted to bargain collectively under the Fire
Departments Act];

a teacher as defined in the School Boards and Teachers Collective Negotiations Act,
except as provided in that Act, s. 2(1)(f) [However, teachers were permitted to
bargain under School Board and Teachers Collective Negotiations Act
(“SBTCNA”)];

a physician to whom the Ontario Medical Association Dues Act, 1991 applies or to
an intern or a resident described in subsection 1(2) of that Act, s. 2(1)(g);

those persons exercising managerial functions and those who are employed in a
confidential capacity in matters relating to labour relations s.1(3); and
5

E.
by virtue of the definitions of “employee” and “dependent contractor” in the LRA,
independent contractors were effectively excluded from collective bargaining in
Ontario.
LEGISLATIVE AMENDMENTS AFFECTING THE RIGHT TO COLLECTIVELY
BARGAIN IN ONTARIO SUBSEQUENT TO NAALC
Bill 7: Labour Relations and Employment Statute Amendment Law, 1995
In 1995, as one of its first acts in power, Ontario’s new Conservative Government
passed Bill 7, the Labour Relations and Employment Statute Amendment Law, 1995
S.O. 1995, c. 1, effective 10 November 1995 which amended many collective bargaining
statutes and repealed the entire existing LRA, replacing it with a new statute called the
Labour Relations Act, 1995. The full name of this Act reveals the agenda of the
Governent - An Act to restore balance and stability to labour relations and to promote
economic prosperity and to make consequential changes to statutes concerning labour
relations
As evidence of its new "business" mandate, LRA, 1995 replaced the old "collectivebargaining friendly" purpose clause of LRA, 1993 with a new clause which places
increased emphasis on individual employee rights, workplace flexibility and adapting to
change while removing the prior law’s encouragement of cooperation in these respects:
“2. The following are the purposes of the Act:
1.
To facilitate collective bargaining between employers and trade
unions that are the freely-designated representatives of the
employees.
2.
To recognize the importance of workplace parties adapting to
change.
3.
To promote flexibility, productivity and employee involvement in the
workplace.
4.
To encourage communication between employers and employees
in the workplace.
5.
To recognize the importance of economic growth as the foundation
for mutually beneficial relations amongst employers, employees and
trade unions.
6.
To encourage co-operative participation of employers and trade
unions in resolving workplace issues.
7.
To promote the expeditious resolution of workplace disputes.
6
Under Bill 7, the LRA, 1995 was amended to broaden the range of exclusions to include,
in addition to all those listed under Bill 40:

a domestic employed in a private home;

a member of the Ontario Provincial Police Force, s. 3(g);

an employee within the meaning of the Colleges Collective Bargaining Act, s. 3(h);

a provincial judge, s. 3(i); and

a person employed as a labour mediator or labour conciliator, s. 3(j).
Other Labour Law Amendments - 1994-2001
Over the next number of years, the Ontario Government passed many more labour laws
affecting the rights of specific workers.

Education and Quality Improvement Act, 1997 governing teachers and other school
employees

The Prevention of Unionization Act, 1998 governing welfare recipients in workfare
programmes

Bill 31: The Economic Development and Workplace Democracy Act, 1998 and Bill
69: An Act to Amend the LRA, 1995 affecting construction employees

Bill 136: Public Sector Transition Stability Act, 1997 governing the labour relations
consequences for public sector employees of public sector restructuring
The provisions of these laws are referred to in more detail under Section F below which
reviews the treatment of various categories of employees whose access to organize and
bargain collectively has been affected.
As well, there were other laws of more general application which affected collective
bargaining rights which are reviewed below.
Bill 136: Public Sector Transition Stability Act, 1997
Bill 136 provided for two new statutes, the Public Sector Dispute Resolution Act, 1997
and the Public Sector Labour Relations Transition Act. It had two main purposes: to
create a permanent statutory tribunal as an alternative to private interest arbitration for
public sector employees who did not have the right to strike and to create a separate
successor rights regime for public sector restructuring in the municipal sector, the
hospital sector and employees covered by the Labour Relations Act in the school sector.
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These amendments dramatically shifted the balance of collective bargaining power from
unions to employers and government-appointed adjudicators in order to facilitate public
sector restructuring at the lowest public cost.
However, SEIU Local 204 and the Canadian Labour Congress filed a complaint with the
ILO: Case No. 1943 in which the ILO expressed its concern with respect to how Bill 136
affected the independence of members of the OLRB.
On a related matter, the Ontario Court of Appeal recently ruled that the retired judges
appointed to determine interest arbitrations under HLDAA as amended by Bill 136 were
insufficiently independent: CUPE v. Ontario (Minister of Labour) [2000] O. J. No. 4361
(C.A.).
Bill 139: An Act to Amend the Labour Relations Act, 1995
The LRA, 1995 was amended again in December 2000 by the Conservative
government. These amendments do not result in further explicit exclusions from
bargaining but they place many new barriers on the rights of workers to get organized
and on their rights once organized. Bill 139 requires that in every unionized workplace
an employer must post guidelines with respect to how to decertify the union, must
circulate this information to all employees once every year, and in addition must provide
this information to any employee who asks for it at any other time – conduct which, prior
to the amendments would have been considered an unfair labour practice under the Act.
Bill 147: An act to amend the Employment Standards Act
At the same time as the Ontario Government moved in 2000 through Bill 139 to amend
the LRA to make it more difficult to organize and bargain collectively, the Government
also brought in massive amendments to its Employment Standards Act which governs
both unionized and non-unionized workers. These changes erode the protections of
workers with respect to matters such as maximum hours, overtime and vacations.
Accordingly, while the Government has increased the number of workers who are either
directly or indirectly prevented from being unionized, the Government at the same time
is limiting the rights under the Employment Standards Act which is the statute nonorganized employees look to for protection.
F.
RESTRICTIONS ON WORKERS’ RIGHTS TO ORGANIZE AND BARGAIN
COLLECTIVELY IN ONTARIO
The following is an overview of the major changes concerning the right to organize, to
engage in collective bargaining and to strike in Ontario in the period from the
introduction of NAALC to the present grouped into the following major categories of
workers.
AGRICULTURAL WORKERS
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Agricultural Labour Relations Act
In addition to Bill 40, at around the same time that the NAALC took effect, the Ontario
government led by the New Democratic Party introduced legislation specifically
designed to govern collective bargaining for workers in the agricultural industry. The
Agricultural Labour Relations Act S.O. 1994, c. 6. (“ALRA”) came into effect June 23,
1994. The ALRA for the first time allowed employees in the agricultural sector to
organize and engage in collective bargaining, although the legislation did prohibit strikes
and/or lockouts of agricultural workers, instituting instead binding final offer arbitration.
Collective bargaining for agricultural workers was to be governed exclusively by the
ALRA rather than the LRA.
In 1995, as part of the new Conservative government’s overhaul of Ontario’s labour law,
the ALRA was repealed by the above-noted Bill 7. This denied agricultural workers the
right to organize and engage in collective bargaining. All bargaining rights and collective
agreements with respect to agricultural workers were rendered void by Bill 7 and any
legal proceedings commenced under the ALRA were terminated: Labour Relations and
Employment Statute Amendment Law, 1995, s. 80. Section 80 of Bill 7 provided as
follows:
“80. (1) The Agricultural Labour Relations Act, 1994 is repealed.
(2) On the day on which this section comes into force, a collective
agreement ceases to apply to a person to whom that Act applied.
(3) On the day on which this section comes into force, a trade union
certified under that Act or voluntarily recognized as the bargaining agent
for employees to whom that Act applies ceases to be their bargaining
agent.
(4) On the day on which this section comes into force, any proceeding
commenced under that Act is terminated.”
Although the ALRA had only been in effect a short time, some unions in fact gained
certification to represent agricultural workers. By the time the ALRA was repealed, the
United Food and Commercial Workers, for example, had been certified to represent 200
workers at the Highline Produce Limited mushroom factory farm in Leamington, Ontario
and had filed two other certification applications with respect to workers at other
agricultural production facilities.
The Government's decision to repeal the ALRA was subject to a constitutional court
challenge on the grounds that it violated the freedom of association guaranteed by s.
2(d) of the Canadian Charter of Rights and Freedoms and the right to equality under s.
15(1) of the Charter. In that case, Dunmore v. Ontario (Attorney General) (1997), 155
D.L.R. (4th) 193 (Ont. Gen Div); aff’d [1999] O.J. No. 1104 (C.A.), the court , at the initial
9
level and upheld by the Ontario Court of Appeal ruled that the right to bargain
collectively does not enjoy constitutional protection under s. 2(d) of the Charter.
The Courts in Dunmore held that the Charter does not mandate positive government
action to facilitate the formation of an association. Furthermore, the court ruled that,
although agricultural workers have been denied equal legal benefit of the right to
engage in collective bargaining, this does not amount to a violation of s. 15(1). While
agricultural workers are a disadvantaged group, they do not suffer discrimination on the
basis of a ground analogous to those enumerated in s. 15(1) of the Charter. On
February 24, 2000, the Supreme Court of Canada granted leave to appeal in Dunmore
v. Ontario. The appeal is tentatively scheduled to be heard on February 19, 2001.
The repeal of the ALRA was also challenged as part of a larger ILO complaint alleging
that Bill 7 as a whole violated international standards on freedom of association: Case
No. 1900. The ILO complaint, filed by SEIU Local 204, alleged that Bill 7 violated ILO
standards and principles regarding freedom of association;

by excluding domestic workers, certain specified professionals, and agricultural
workers from access to collective bargaining and the right to strike;

by terminating their existing organizing rights, nullifying existing collective
agreements and removing measures which protected these particular workers
from anti-union discrimination; and

by removing successor rights and related employer rights from Crown employees in
Ontario and eliminating successor employer protection from workers in the
building services sector
In Case No. 1900, the ILO’s Committee on Freedom of Association found that:

denying the excluded employees the right to organize was inconsistent with ILO
standards on freedom of association and called upon the government to take the
necessary measures to ensure that these excluded workers all enjoyed the
necessary protections to establish and join organizations of their choosing and to
ensure that they are not denied the right to strike;

the absence of any statutory mechanism for the promotion of collective bargaining
and the lack of specific protective measures was an impediment to the principles
of freedom of association and called upon the government to take the necessary
measures to ensure these workers enjoyed effective protection in this regard,
and asked the Government to take the necessary measures to ensure that those
organizations that had been created and recognized as bargaining agents be recertified and their collective agreements revalidated.
No action was taken by the Ontario Government as a result of this ILO ruling.
10
CROWN EMPLOYEES
In 1993, the NDP government enacted the Crown Employees Collective Bargaining Act,
1993. Seven categories of employees were excluded from bargaining under CECBA:

members of the Ontario Provincial Police Force [s. 1(1)(a)]

community college employees [s. 1(1)(b)]

physicians to whom the Ontario Medical Association Dues Act, 1991 applies or an
intern or resident described in subsection 1(2) of that Act [s. 1(1)(c)]

provincial judges [s. 1(1)(d)]

labour mediators and conciliators [s. 1(1)(e)]

confidential employees working for Ministers [s. 1(1)(g)]

those providing advice to Cabinet, Ministers and Deputy Ministers on employmentrelated matters that directly affected the public sector [s. 1(1)(f)]
Section 10 of CECBA, 1993 provided that s. 64 of the LRA – the successor rights
provisions in the LRA – applies to Crown employees with respect to a transfer of an
undertaking from an employer whose employees were Crown employees to whom the
Act applied, to another employer whose employees were not Crown employees; or with
respect to a transfer of an undertaking between employers whose employees were
Crown employees to whom the Act applied. Section 3 of CECBA, 1993 also provided
that the related employer provision in s. 1(4) of the LRA applied with respect to Crown
employees. These provisions were a continuation of successorship and related
employer provisions which had applied to Crown employees since the original CECBA
in 1972.
In 1995, the Conservative Government with its Bill 7 expanded the list of employees
who are excluded from bargaining under CECBA. These exclusions introduced by s. 13
of Bill 7 are now itemized in s. 1.1(2) and (3) of CECBA. In addition to the exclusions
that were contained in the 1993 version, the 1995 amendments to CECBA added the
following exclusions:

architects, dentists, lawyers, and physicians employed in their professional capacity;

persons employed by the Ontario Financial Authority or the Ministry of Finance who
spend a significant portion of their work borrowing or investing money or
managing the assets and liabilities of the Consolidated Revenue Fund; and

persons the Ontario Labour Relations Board considers to be in a conflict of interest
with the bargaining unit.
11
Bill 7 amended CECBA to eliminate successor and related employer rights for Crown
employees. Section 15 of Bill 7 eliminated related employer rights. Section 23 of Bill 7
repealed successor rights.
The repeal of successor and related employer rights was challenged before the ILO by
SEIU Local 204. In Case No. 1900, the ILO found that:

although successor rights were repealed, Crown and building services employees
whose work had been transferred continued to have the right to organize and
establish a collective bargaining relationship;

the absence of successor rights protections may give rise to serious instability and
so the ILO asked the government to indicate that it had undertaken certain
contractual obligations aimed at protecting the rights of former Crown employees
and to take measures to ensure that their rights to organize are adequately
protected.
TEACHERS
In 1993, teachers’ collective bargaining was governed by the School Boards and
Teachers Collective Negotiations Act ("SBTCNA"). Teachers were entitled to bargain
collectively. Principals and vice principals, falling within the definition of teacher, also
had the right to bargain collectively and did so. Principals and vice principals were part
of the same bargaining unit as other teachers and they were represented by the same
teacher associations. SBTCNA, however, limited principals and vice principals right to
participate in any strike by teachers.
In 1997, the Ontario government introduced Bill 160 Improvement Act, 1997, S.O. 1997, c. 31. Bill 160:
The Education Quality

significantly overhauled the governance of school boards in the province;

introduced a new funding scheme that transferred significant control from school
boards to the provincial cabinet;

repealed SBTCNA and transferred teacher collective bargaining to the Education
Act;

defined "teachers" to exclude principals and vice-principals. As a result, they were
denied the right to bargain under the Education Act;

amended s. 3(f) of the LRA Act, 1995 to prevent principals and vice-principals from
bargaining under this statute as well. Section 3(f) now provides that the LRA,
1995 does not apply “to a member of a teachers’ bargaining unit established by
Part X.1 of the Education Act, except as provided by that Part, or to a supervisory
12
officer, a principal or a vice-principal.” As a result, principals and vice-principals
are entirely denied the right to bargaining collectively: Education Quality
Improvement Act, s. 151.
Following first and second reading of Bill 160, teachers engaged in a 10-day province
wide political protest. After second reading and immediately after the political protest,
the government amended Bill 160 to exclude principals and vice principals from the
bargaining units and to deny them the right to organize and bargain collectively under
either the Education Act or the LRA, 1995. See definition of “teacher” in s. 277.1 and s.
277.3 of the Education Act as enacted by s. 122 of Bill 160; and s. 3(f) of the LRA, 1995
as enacted by s. 151 of Bill 160.
The Ontario Teachers Federation ("OTF") and all the Ontario teacher affiliates
challenged the constitutionality of the exclusion of principals and vice principals on the
basis that it violated rights to freedom of association under s. 2(d) of the Charter and
that it violated rights to equality under s. 15(1) of the Charter. In OTF v. Ontario
(Attorney General) [1998] O.J. No. 1104 (Gen. Div.); aff’d (2000), 49 O.R. (3d) 257
(C.A.) the Ontario Court General Division and the Ontario Court of Appeal both ruled
that the amendments did not violate either s. 2(d) or s. 15(1) of the Charter. The
teachers have applied for leave to appeal to the Supreme Court of Canada and are
awaiting a decision on that application.
In addition to the constitutional challenge, the Ontario Secondary School Teachers'
Federation ("OSSTF") filed a complaint with the ILO arguing that the exclusions
violated international labour standards on freedom of association: Case No. 1951. In an
interim report on the Case, the ILO

adopted its analysis from the above-noted Case No. 1900 dealing with Bill 7;

requested the Ontario Government to take the necessary measures to ensure that
principals and vice-principals have access to procedures to facilitate collective
bargaining;

noted that where government intends to alter an existing bargaining structure it
should do so on the basis of adequate and good faith consultation with the
affected parties; and

found that the consultations with respect to Bill 160 were not adequate and asked
the government to ensure in the future that adequate consultation was
undertaken.
The first round of collective bargaining under Bill 160 lead to numerous strikes. Striking
teachers were legislated back to work under Bill 62 which imposed a system of
mandatory interest arbitration conducted by arbitrators (mostly retired judges) appointed
by the government and whose mandate was strictly limited by Bill 62.
13
The Ontario English Catholic Teachers Association, ("OECTA") filed an ILO complaint
alleging that Bill 62 was contrary to international standards on freedom of association:
Case No. 2025. In that case the ILO found that:

Bill 62 violated international standards on freedom of association;

since Case No. 1943 (dealing with Bill 136), the ILO had been called upon to
consider numerous legislative initiatives by the Harris government, each of which
was inconsistent with international standards of freedom of association and
expressed concern as a result of these repeated actions; and

recommended again that the Ontario government consider having recourse to
assistance from ILO Office.
INDEPENDENT
EMPLOYEES
CONTRACTORS,
MANAGERIAL
AND
CONFIDENTIAL
There have been neither amendments to the LRA nor significant changes in the case
law with respect to independent contractors in the period since the NAALC was
introduced in 1994. Consequently, independent contractors remain excluded from the
right to organize and to engage in collective bargaining in Ontario by virtue of the
definition of “employee” in the LRA, 1995.
Similarly, throughout the period from the inception of NAALC to the present, managerial
employees and confidential employees have been expressly excluded from the right to
organize and bargain collectively under the LRA.
WELFARE RECIPIENTS
In 1997 the Ontario government overhauled the provincial welfare legislation to
introduce “workfare” which required able-bodied welfare recipients to perform certain
work in order to receive benefits. Subsequent to the enactment of this workfare
legislation, many unions announced that they would endeavour to organize the
employees compelled to work through the workfare program.
In response, in 1998 the Ontario government introduced the Prevention of Unionization
Act, 1998 which denies individuals performing workfare the right to join a union, engage
in collective bargaining and go on strike.
The UN Committee on Economic, Social and Cultural Rights issued a decision in 1998
which criticizes this Act and urges the government to review its workfare legislation in
order to ensure that none of the provisions violate international labour standards.
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DOMESTICS EMPLOYED IN A PRIVATE HOME
Prior to the introduction of Bill 40 by the NDP government in 1993, domestics employed
in private homes had been explicitly excluded from collective bargaining under the LRA.
In 1993, the LRA was amended to remove that exclusion thereby for the first time
providing this particularly vulnerable group of workers with the right to organize, to
bargain collectively and to strike.
In 1995, however, through Bill 7 the Ontario government introduced the LRA, 1995
which once again expressly provides that domestic workers in a private home are not
entitled to organize or engage in collective bargaining.
PROFESSIONAL EMPLOYEES
At the time NAALC came into effect in January 1994, professional employees in
Ontario, with the exception of those in the medical profession, were entitled to organize,
engage in collective bargaining and exercise the right to strike under the LRA, although
physicians were excluded from coverage under CECBA.
In 1995, the Ontario government passed the LRA, 1995 which prohibited professional
employees, including those in architecture, dentistry, land surveying, law and medicine,
were excluded from collective bargaining. Bill 7 contained provisions by which
professional employees who were then included in a bargaining unit and covered by a
collective agreement were removed from the bargaining unit and any existing collective
agreement was rendered void as it may have applied to them, s. 7:
“7(1) This section applies with respect to bargaining units that include, on
the day this section comes into force, persons who are entitled to practise
one of the following professions in Ontario and who are employed in their
professional capacity:
1.
2.
3.
4.
5.
Architecture
Dentistry
Land Surveying
Law
Medicine
(2) A trade union that is the bargaining agent for employees in a
bargaining unit that includes persons described in subsection (1) ceases
to represent the persons described in subsection (1) 90 days after this
section comes into force.
(3) A collective agreement that applies with respect to persons described
in subsection (1) ceases to apply to them on the earlier of
15
(a) the day on which the collective agreement expires; and
(b) 90 days after this section comes into force.”
In addition, in 1995 the Crown Employees Collective Bargaining Act was amended to
exclude architects, dentists, lawyers, and physicians employed in their professional
capacity
These provisions in Bill 7 had the following effects on professional employees under the
LRA:
 Existing collective agreements were nullified. For example, lawyers employed by
the Government of Ontario had organized under their bargaining agent, the
Association of Law Officers of the Crown (ALOC) and had entered into a
collective agreement effective March 1995. As a result of Bill 7 and the LRA,
1995 their right to engage in collective bargaining was repealed and their existing
collective agreement nullified.

Those professional employees who were then included in a bargaining unit and
covered by a collective agreement were removed from the bargaining unit and
any existing collective agreement was rendered void as it may have applied to
them.
PROVINCIAL JUDGES AND LABOUR MEDIATORS/CONCILIATORS
Similarly, while they were excluded from collectively bargaining under CECBA in 1993
and have remained so, provincial judges and labour mediators and conciliators were not
excluded from the right to organize and collectively bargain under the version of the
LRA in effect at the time of the 1993 introduction of the NAALC. Subsequently,
however, the Ontario government replaced the LRA with LRA, 1995 which expressly
denied provincial judges and labour mediators/conciliators the right to organize and
bargain collectively under that legislation.
CONSTRUCTION EMPLOYEES
In 1998, the LRA, 1995 was amended by Bill 31: The Economic Development and
Workplace Democracy Act, 1998 (“Bill 31"). Although Bill 31 did not explicitly extend
the exclusions to collective bargaining set out in the LRA, 1995, it did introduce the
concepts of project agreements and non-construction employers to the LRA, 1995, both
of which had important implications for access to collective bargaining and existing
bargaining rights in the construction industry.
The project agreement provisions of Bill 31 enable special “project agreements” to be
negotiated for certain projects designated by the government. Essentially, the
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provisions enable the owners of a project to use union labour on particular projects
while at the same time opting out of the provincial collective agreements which would
normally apply to those projects. The government’s stated purpose in enacting these
provisions was to enable owners and construction unions to negotiate lower wage rates
and other terms and conditions of work on certain major industrial projects, thereby
attracting investment and making Ontario more competitive with other jurisdictions.
Significantly, the project agreement provisions provide that where a project agreement
is reached with respect to a particular project, non-union contractors would be entitled to
work on the project under the terms of the project agreement and the workers employed
by that non-union contractor would not be entitled to organize that employer.
With respect to non-construction employers, Bill 31 amended the LRA, 1995 to provide
that employers whose involvement in the construction industry is only “incidental” to
their primary business (such as banks, municipalities, and school boards) may apply to
the Labour Board for termination of a construction union’s bargaining rights. The nonconstruction employer only has to establish that on the date of its application it did not
represent employees represented by the trade union. Once that is established, the
trade union’s construction industry bargaining rights are extinguished and any existing
collective agreement no longer applies to those construction employees.
In 2000, the Ontario Government brought in Bill 139: An Act to Amend the Labour
Relations Act, 1995 which also amended the LRA, 1995 to:

expand the application of the project agreement provisions of the LRA, 1995 to
include multiple projects, future projects, and even non-construction projects. As
a result of the expansion of the application of the project agreement provisions of
the LRA, 1995 to additional projects, the exclusion of workers employed on those
projects from the right to organize has also been expanded.

make it easier for “non-construction employers” to terminate the construction
industry bargaining rights held by a trade union.

by broadening the definition of “non-construction employer” to include “an
employer who does no work in the construction industry for which the
employer expects compensation from an unrelated person”. Thus, an
employer would merely need to establish that it did not sell construction
services to third parties to take advantage of the decertification process for
non-construction employers.

by removing the requirement in Bill 31 that the employer establish that it
had no employees in the construction industry on the date of the
termination application.
Thus, even where the employer employs
construction employees on the date the termination application is filed, as
long as the employer meets the broader definition of “non-construction
employer” in Bill 69 the Labour Board must terminate the trade union’s
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bargaining rights with respect to the “non-construction” employer’s
construction employees.
In December 2000, the Ontario government further amended the
construction industry provisions of the LRA, 1995 through Bill 69 - An Act
to Amend the LRA, 1995 in relation to the construction industry. While Bill
69 does not expressly expand the exclusions from the LRA, 1995, it does
make significant changes that affect collective bargaining and the right to
strike in the construction industry. Bill 69:

removes the right to strike from certain workers in the residential sector of the
construction industry;

amends the successor and related employer provisions of the LRA, 1995 as they
apply to the construction industry so as to not consider family relationships;

places restrictions on the application of the “key person” principle in single
employer/related employer applications to make it more difficult for trade unions
to preserve their existing construction industry bargaining rights in the face of
corporate transactions; and

amends the LRA, 1995 to provide that the Lieutenant Governor in Council may, by
regulation, deem bargaining rights held by an employer bargaining agency and
its affiliated bargaining agents to be abandoned with respect to an employer or a
class of employers and that any collective agreement in effect no longer binds
the employers.
G. CONCLUSION
An analysis of the legislative enactments and actions of the Ontario Government in the
period from the inception of NAALC to the present indicates that in Ontario the
government has moved clearly and remarkably away from extending or even protecting
workers’ rights to organize, bargain collectively and strike.
In its shortsighted and rather simplistic claim that it is making Ontario more competitive
and “open for business’, the Ontario government has expanded the groups of workers
excluded from collective bargaining, increased restrictions on the right to strike and
placed obstacles in the way of organizing while at the same time facilitating
decertification applications. In short, the Ontario government has failed to live up to the
principles set out in NAALC and instead has undertaken a course of action attacking
workers’ rights and specifically the rights to organize, collectively bargain and strike.
At the same time that the Ontario government has made it more difficult to organize and
has broadened the exclusions from the right to bargain collectively, it has also recently
revamped the Employment Standards Act to dramatically reduce the protections for
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non-union workers in the province in key areas such as hours of work and overtime pay.
It would appear that in Ontario, at least, the evidence thus far indicates that those
commentators who warned that NAFTA and the lack of mandatory and enforceable
labour standards in NAALC would lead to a “race to the bottom” when it came to
protecting and establishing labour standards were indeed correct.