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- Title
The International Labour Organization and Freedom of Association: Does Freedom of Association Include the Right to Strike?
- Authors
Regenbogen, Sonia
- Abstract
In its landmark decision in B.C. Health extending protection to collective bargaining under section 2(d) of the Charter, the Supreme Court of Canada relied heavily on international labour law and principles, especially as defined by the International Labour Organization. In particular, the Court treated as a "cornerstone" of the international law in this area the opinions of the ILO's Committee of Experts and Committee on Freedom of Association (CFA), and cited those opinions in support of its finding that freedom of association under ILO conventions includes a right to bargain collectively. This paper argues that in B.C. Health and other cases involving constitutional labour rights, the Supreme Court has misunderstood and oversimplified the ILO supervisory process. The author points out that neither the CFA nor the Committee of Experts is constituted as an adjudicative or judicial body, and neither has the authority to issue binding interpretations of ILO conventions. Rather, to the extent that the supervisory process contemplates an adjudicative role, it is exercised by the Application of Standards Committee -- the central component of the ILO's tripartite supervisory system. In the author's view, the differences in the roles of these bodies are particularly important in determining whether and to what extent ILO conventions include a right to strike. Whereas the CFA and the Committee of Experts have interpreted ILO Convention 87 as protecting an expansive right to strike as part of freedom of association, the Application of Standards Committee has repeatedly declared that no consensus exists on whether Convention 87 includes such a right. The author cautions that if the Supreme Court of Canada continues to invoke international labour law in constitutional cases, particularly as regards the right to strike, it will be incumbent on the Court to arrive at a better understanding of ILO institutions and processes.
- Subjects
CANADA; LABOR laws; INTERNATIONAL Labour Organisation; FREEDOM of association; RIGHT to strike
- Publication
Canadian Labour & Employment Law Journal, 2012, Vol 16, Issue 1, p385
- ISSN
1196-7889
- Publication type
Article