Archived - Canadian position with respect to Conventions and Recommendations

Adopted at the 87th and 88th Sessions of the International Labour Conference
June 1999 and June 2000
Geneva

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TABLE OF CONTENTS

Introduction

1. Convention 182 and Recommendation 190 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour adopted at the 87th Session of the International Labour Conference, Geneva, June 1999

2. Convention 183 and Recommendation 191 concerning Maternity Protection adopted at the 88th Session of the International Labour Conference, Geneva, June 2000

1. Texts of the instruments adopted at the 87 and 88th Sessions of the International Labour Conference, June 1999 and June 2000, Geneva

   1. Convention 182  Worst Forms of Child Labour
   2. Recommendation 190  Worst Forms of Child Labour
   3. Convention 183  Maternity Protection
   4. Recommendation 191  Maternity Protection
   
   

2. Record of the vote of the Canadian delegates at the Conference upon the adoption of the instruments in June 1999 and June 2000

3. Text of Article 19 of the ILO Constitution regarding the obligation of ILO Members in respect of adopted Conventions and Recommendations

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INTRODUCTION

The purpose of this report is, in accordance with the International Labour Organisation's (ILO) Constitution, to bring recently adopted Conventions and Recommendations to the attention of the competent authorities.

The present document deals with Convention 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour and its accompanying Recommendation 190, which were adopted by the International Labour Conference at its 87th Session in June 1999, and with Convention 183 concerning Maternity Protection and its accompanying Recommendation 191, adopted by the International Labour Conference at its 88th Session in June 2000.

This report includes a general description of these instruments and an assessment of the extent to which current Canadian law and practice comply with their provisions.

Established in 1919, the ILO became a specialized United Nations (UN) agency in 1946. It is the only tripartite UN organization with representatives not only of governments, but also of workers' and employers' organizations having an equal say in the development and administration of the ILO's policies, programs and international labour standards. Canada was among the founding members of the ILO, which currently has 175 member States.

The tripartite General Conference of the ILO adopts international standards in the form of Conventions and Recommendations. Conventions become binding instruments, once they have been ratified by member States. Recommendations are non-binding instruments which can be adopted on their own or as accompanying a given Convention. In the first instance, a Recommendation is designed to provide guidelines for the development of national policy, legislation and practice. In the second instance, it aims at providing guidance as to possible ways of implementing the provision of the Convention to which it refers.

Under the ILO Constitution, all member States are required to bring newly adopted ILO Conventions and Recommendations to the attention of the competent authority or authorities, to inform the ILO that this has been done, and subsequently to report to the ILO, upon request, on the position of its law and practice with respect to the matters dealt with in these Conventions and Recommendations.

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.

A member State has no obligation to ratify any Convention, but if it does ratify, it undertakes to fully implement the Convention and to report regularly to the ILO on its implementation measures. These reports are reviewed by a Committee of Experts, which reports annually to the International Labour Conference on the degree of compliance of the various member States with the Conventions that they have ratified.

Failure to implement a ratified Convention can give rise to observations by the Committee of Experts and to requests from the lnternational Labour Conference Committee on Application of Standards to appear before it and explain the reasons for non-compliance. A member State can also be subject to representations to the ILO by another member State, or by an association of workers or employers, alleging failure to implement a ratified Convention.

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.

A. Convention 182 and Recommendation 190 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour adopted at the 87th Session of the International Labour Conference, Geneva, June 1999

Background

On June 1999, the International Labour Conference unanimously adopted the ILO Convention 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour. The Convention became one of the eight ILO Core Labour Standards Conventions, which were identified as fundamental to the rights of human beings at work.

Legislative jurisdiction

The subject matters of these instruments fall under both federal and provincial/territorial jurisdictions.

The Convention

Article 1 of the Convention requires countries to "take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency".

For the purposes of the Convention, a child is a person under 18 years of age, and the term "the worst forms of child labour" comprises: all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; the use, procuring or offering of a child for prostitution, for the production of pornography, for pornographic performances, for illicit activities, in particular for the production and trafficking of drugs, and work which is likely to harm the health, safety or morals of children.

The Convention requires that the types of work likely to harm the health, safety or morals of children, which would be worst forms of child labour and prohibited for children under the age of 18, be determined by national laws or regulations, or by the competent authority, after consultation with the organizations of employers and workers concerned. Article 6 requires that programs of action to eliminate worst forms of child labour be designed and implemented, and article 7 requires effective implementation and enforcement of provisions giving effect to the Convention. To help achieve the objectives of this Convention, article 8 calls for enhanced support for international cooperation and assistance, including support for social and economic development, poverty eradication programs and universal education.

The Recommendation

The Worst Forms of Child labour Recommendation was adopted in June 1999. The provisions of the Recommendation supplement those of the Worst Forms of Child Labour Convention.

The Recommendation specifies that the programs of action referred to in the Convention, should be designed and implemented as a matter of urgency, in consultation with relevant government institutions and employers' and workers' organizations. For instance, such programs should aim at identifying and denouncing the worst forms of child labour, and preventing the engagement of children in or removing them from the worst forms of child labour, protecting them from reprisals and providing for their rehabilitation and social integration through measures which address their educational physical and psychological needs.

In identifying the types of work which are likely to harm the health, safety or morals of children, the Recommendation provides that consideration should be given to work which exposes children to physical, psychological or sexual abuse, work underground, under water, at dangerous heights or in confined spaces, work with dangerous machinery, equipment and tools, or which involves the manual handling or transport of heavy loads, work in an unhealthy environment, and work under particularly difficult conditions such as work for long hours or during the night or work where the child is unreasonably confined to the premises of the employer. The Recommendation also provides that national laws or regulations or the competent authority could, after consultation with the workers' and employers' organizations concerned, authorize employment or work as from the age of 16 on condition that the health, safety and morals of the children concerned are fully protected, and that the children have received adequate specific instruction or vocational training in the relevant branch of activity.

With respect to implementation, the Recommendation encourages Members to compile detailed information and statistical data on the nature and extent of child labour and keep them up to date to serve as a basis for determining priorities for national action for the abolition of child labour, particularly for the prohibition and elimination of its worst forms. Members should also establish or designate appropriate national mechanisms to monitor the implementation of national provisions for the prohibition and elimination of the worst forms of child labour, after consultation with employers' and workers' organizations.

The Recommendation encourages Members to cooperate with international efforts aimed at the prohibition and elimination of the worst forms of child labour as a matter of urgency. Enhanced international cooperation and/or assistance among Members should complement national efforts.

Finally, the Recommendation urges ratifying States to declare the worst forms of child labour criminal offences and impose penal sanctions on those who would perpetrate them.

Means of implementation

Once ratified, Convention 182 requires member States to take effective and time-bound measures to: prevent the engagement of children in the worst forms of child labour; provide assistance to remove children from the worst forms of child labour and for their rehabilitation and social integration; ensure access to free basic education, and, wherever possible and appropriate, vocational training; identify and reach out to children at special risk; and take account of the special situation of girls.

Canadian situation with respect to Convention 182 on Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour

Following adoption of the Convention in June 1999, all jurisdictions reviewed their laws and practices and no barriers to ratification were identified. Canada ratified Convention 182 on June 6, 2000, with the formal agreement of all Canadian jurisdiction and the support of Canadian workers' and employers' organizations.

B. Convention 183 and Recommendation 191 concerning Maternity Protection adopted at the 88th Session of the International Labour Conference, Geneva, June 2000

Background

Convention 183 concerning Maternity Protection is a revision of Convention 103 on Maternity Protection. Maternity protection of women at work has been of importance to the International Labour Organization since its establishment in 1919. The Maternity Protection Convention, 1919 (No. 3), was among the first instruments to be adopted. In 1952, this Convention was revised to take into consideration developments in national law and practice, especially in the realm of social security. The years since 1952 have similarly seen dramatic changes, notably in the participation of women in the workforce, and an ever growing commitment to eliminate discrimination in employment. However, the resulting increased importance of maternity protection to women at work has not resulted in a high number of ratifications of either Convention No. 3 or Convention No. 103.

Maternity protection in the last half century has been marked by progress in law, an evolution in workplace practice and rising social expectations regarding the rights of working women during their child-bearing years. According to the ILO, the gains registered have so far failed to resolve the fundamental problem experienced by many working women at some point in their professional lives: unequal treatment in employment due to their reproductive role.

The revised Convention 183 and Recommendation 191 are designed to modernize existing practices in line with these realities.

Legislative jurisdiction

According to the federal Department of Justice, the subject matters of these instruments fall within provincial and territorial as well as federal jurisdiction.

The Convention

The Convention applies to all employed women, including those in atypical forms of dependent work. After consulting the representative organizations of employers and workers concerned, each ratifying Member may exclude wholly or partly from the scope of the Convention limited categories of workers when its application to them would raise special problems of a substantial nature.

On production of a medical certificate or other appropriate certification, an employed woman must be entitled to a period of maternity leave of not less than 14 weeks. Maternity leave must include a period of six weeks' compulsory leave after childbirth, unless otherwise agreed at the national level by the government and representative organizations of employers and workers, with due regard to the protection of the health of the mother and that of the child.

Ratifying member States are required to adopt appropriate measures to ensure that pregnant or breastfeeding women are not obliged to perform work which has been determined by the competent authority to be prejudicial to the health of the mother or the child, or where an assessment has established a significant risk to the mother's health or that of the child.

The Convention provides that cash benefits must be at a level which ensures that the woman can maintain herself and her child in proper conditions of health and with a suitable standard of living. Where under national law or practice, cash benefits paid with respect to maternity leave are based on previous earnings, the amount of such benefits must not be less than two-thirds of the woman's previous earnings or of such of those earnings as are taken into account for the purpose of computing benefits. Where other methods are used to determine the cash benefits paid with respect to such leave, the amount of benefits must be comparable to two-thirds of the woman's previous earnings.

The Convention requires that employers be prohibited from discriminating against a pregnant or nursing woman in employment including access to employment. Appropriate measures must be adopted to prohibit requirements for a pregnancy test or a certificate of such a test when a woman is applying for employment, except where required by national laws or regulations (e.g. where there is a recognized or significant risk to the health of the woman and child).

It must be unlawful to terminate the employment of a woman during her pregnancy or absence on maternity leave or during a period following her return to work except on grounds unrelated to the pregnancy or birth of the child and its consequences or nursing. The burden of proving that the reasons for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing, should rest on the employer. A woman must be guaranteed the right to return to the same position or an equivalent position paid at the same rate at the end of her maternity leave.

Finally, ratifying member States must provide a woman with the right to one or more daily breaks or a daily reduction of hours of work to breastfeed her child. The period and the duration of those breaks or the reduction of daily hours of work, must be determined by national law and practice and be counted as working time and remunerated accordingly.

Means of implementation

The provisions of the Convention shall be applied by laws or regulations or by any other means consistent with national practice, such as court decisions, arbitration awards or collective agreements.

The Recommendation

The Convention on maternity protection is supplemented by a non-binding Recommendation that sets out provisions designed to serve as guidelines for national policy.

The Recommendation contains more detailed provisions for the protection of workers in areas already mentioned in the Convention.

The Recommendation calls on member States to endeavour to extend the period of maternity leave to at least 18 weeks and to the extent possible, to adopt measures to ensure that the woman is entitled to choose freely the time at which she takes any non-compulsory portion of her maternity leave before or after childbirth.

The Recommendation provides that where practicable, the cash benefits to which a woman is entitled during maternity leave, should be raised to the full amount of the woman's previous earnings or of such of those earnings as are taken into account for the purpose of computing benefits. To the extent possible, the medical benefits provided for in the Convention should include a wide range of care such as maintenance in a hospital or other medical establishment as well as dental and surgical care.

The Recommendation provides that a woman should be entitled to return to her former position, or an equivalent position paid at the same rate, at the end of her maternity leave. The period of maternity leave should be considered as a period of service for the determination of her rights.

The Recommendation calls on member States to adopt measures to ensure assessment of any workplace risks related to the safety and health of the pregnant or nursing woman and her child. The results of the assessment should be made available to the woman concerned. In addition, where a significant risk has been identified, the Recommendation suggests that measures should be taken to provide, on the basis of a medical certificate as appropriate, an alternative to work in the form of elimination of risk, an adaptation of her conditions of work, etc. The woman should retain the right to return to her job or an equivalent job as soon as it is safe for her to do so.

With respect to breastfeeding breaks, provision should be made for the establishment of facilities for nursing under adequate hygienic conditions at or near the workplace.

The Recommendation provides that in case of the death, sickness or hospitalization of the mother, before the expiry of postnatal leave, the employed father of the child should be entitled to leave of a duration equal to the unexpired portion of the postnatal maternity leave.

With respect to parental leave, the Recommendation provides that the employed mother or the employed father of the child should be entitled to a period of leave following the expiry of maternity leave.

Finally, the Recommendation provides for the access to the system of protection offered by the Convention to adoptive parents, especially regarding leave, benefits and employment protection.

Canadian situation with respect to Convention 183 and Recommendation 191 on Maternity Protection

All Canadian jurisdictions have specific legislation governing the protection of maternity in the workplace. With respect to the period of maternity leave of 14 weeks required by the Convention, all jurisdictions provide for 15 weeks or more of maternity leave and parental leave of between 35 and 52 weeks. In some jurisdictions, eligibility for maternity leave is subject to minimum service requirements.

Health and safety legislation in all Canadian jurisdictions recognize the right of workers to refuse to perform dangerous work and human rights laws prohibit discrimination against pregnant and breastfeeding women in the workplace.

In general, Canada complies with most of the Convention's requirements but there remain some differences between the Canadian situation and certain requirements of the Convention.

For instance, a number of jurisdictions have specific provisions for the reassignment of a pregnant or breastfeeding woman where a medical practitioner determines that the employee's work may pose a risk to the health of the mother, the foetus or the child. While this right is not clearly legislated in all jurisdictions, there is some jurisprudence suggesting that such accommodation for pregnant and nursing mothers is required under human rights legislation.

With respect to maternity leave, not all jurisdictions require a period of six week's compulsory leave after the actual birth date. Moreover, in those jurisdictions which have such a provision, the period of compulsory leave may be shortened at the request of the mother so that she can freely determine her time of return to work.

Benefits under the Employment Insurance Act are provided at a rate of 55 % of eligible previous earnings rather then the two-thirds provided for in the Convention. However, benefits are payable for a combined period of maternity/parental leave up to 52 weeks. In addition to benefits paid under the Employment Insurance Act, some collective agreements provide for the payment of supplementary benefits offered directly by the employer or through a wage loss insurance plan. Low-income families with children can also benefit from the Family Supplement program, which provides additional post-natal cash benefits.

In all jurisdictions, it is unlawful to dismiss or terminate employment for reason of pregnancy or breastfeeding before or during the maternity leave. However, some legislation is less specific on determining if the burden of proof rests with the employer in case of termination of employment during maternity or related leave. As the alleviation of the burden of proof in favor of the employee is not universally recognized across the country, further study is needed to examine the practice in jurisdictions that do not have such a provision.

Finally, there is an absence of provisions in current labour standards legislation on paid breastfeeding breaks as required in the Convention. Non-discrimination provisions in human rights laws have been interpreted in at least two cases as requiring employers to reasonably accommodate breastfeeding mothers in the workplace. However, there is insufficient jurisprudence to support a conclusion of categorical implementation across all jurisdictions.

As to the accompanying Recommendation, the more detailed provisions contained in this non-binding instrument are also, for the most part, compatible with the situation in Canada, again with certain differences.

For example, there is no legislation that provides an extension of maternity leave in the event of multiple births as all provinces offer parental leave following maternity leave, which ranges from 35 to 52 weeks.

Finally, with respect to the provision for adoptive parents, the Recommendation provides that they have full access to the system of protection offered by the Convention to pregnant and breastfeeding women. In all jurisdictions, adoptive parents are entitled to benefits, leave and employment protection under parental leave provisions of labour standards legislation.

Areas of potential divergence

As indicated above, there exist areas of divergence between the Canadian situation and some provisions of the Convention and Recommendation, which need to be further examined.

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The vote of Canadian delegates regarding the Instruments adopted by the ILO Conference in June 1999

Convention 182  - Worst Forms of Child Labour

Recommendation 190  - Worst Forms of Child Labour

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The vote of Canadian delegates regarding the Instruments adopted by the ILO Conference in June 2000

Convention 183  - Maternity Protection at Work

Recommendation 191  - Maternity Protection at Work

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Text of Article 19 of the ILO Constitution regarding the obligation of ILO Members in respect of adopted Conventions and Recommendations

Article 19

Conventions and Recommendations. Decisions of the Conference

1. When the Conference has decided on the adoption of proposals with regard to an item on the agenda, it will rest with the Conference to determine whether these proposals should take the form: (a) of an international Convention, or (b) of a Recommendation to meet circumstances where the subject, or aspect of it, dealt with is not considered suitable or appropriate at that time for a Convention.

Vote required

2. In either case a majority of two-thirds of the votes cast by the delegates present shall be necessary on the final vote for the adoption of the Convention or Recommendation, as the case may be, by the Conference.

Modifications for special local conditions

3. In framing any Convention or Recommendation of general application the Conference shall have due regard to those countries in which climatic conditions, the imperfect development of industrial organization, or other special circumstances make the industrial conditions substantially different and shall suggest the modifications, if any, which it considers may be required to meet the case of such countries.

Authentic texts

4. Two copies of the Convention or Recommendation shall be authenticated by the signatures of the President of the Conference and of the Director-General. Of these copies one shall be deposited in the archives of the International Labour Office and the other with the Secretary-General of the United Nations. The Director-General will communicate a certified copy of the Convention or Recommendation to each of the Members.

Obligations of Members in respect of Conventions

5. In the case of a Convention

1. the Convention will be communicated to all Members for ratification;
   
   
2. each of the Members undertakes that it will, within the period of one year at most from the closing of the session of the Conference, or if it is impossible owing to exceptional circumstances to do so within the period of one year, then at the earliest practicable moment and in no case later than 18 months from the closing of the session of the Conference, bring the Convention before the authority or authorities within whose competence the matter lies, for the enactment of legislation or other action;
   
   
3. Members shall inform the Director-General of the International Labour Office of the measures taken in accordance with this article to bring the Convention before the said competent authority or authorities, with particulars of the authority or authorities regarded as competent, and of the action taken by them;
   
   
4. if the Member obtains the consent of the authority or authorities within whose competence the matter lies, it will communicate the formal ratification of the Convention to the Director-General and will take such action as may be necessary to make effective the provisions of such Convention;
   
   
5. if the Member does not obtain the consent of the authority or authorities within whose competence the matter lies, no further obligation shall rest upon the Member except that it shall report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of its law and practice in regard to the matters dealt with in the Convention, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention by legislation, administrative action, collective agreement or otherwise and stating the difficulties which prevent or delay the ratification of such Convention.

Obligations of Members in respect of Recommendations

6. In the case of a Recommendation

1. the Recommendation will be communicated to all Members for their consideration with a view to effect being given to it by national legislation or otherwise;
   
   
2. each of the Members undertakes that it will, within a period of one year at most from the closing of the session of the Conference or if it is impossible owing to exceptional circumstances to do so within the period of one year, then at the earliest practicable moment and in no case later than 18 months after the closing of the Conference, bring the Recommendation before the authority or authorities within whose competence the matter lies for the enactment of legislation or other action;
   
   
3. the Members shall inform the Director-General of the International Labour Office of the measures taken in accordance with this article to bring the Recommendation before the said competent authority or authorities with particulars of the authority or authorities regarded as competent, and of the action taken by them;
   
   
4. apart from bringing the Recommendation before the said competent authority or authorities, no further obligation shall rest upon the Members, except that they shall report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of the law and practice in their country in regard to the matters dealt with in the Recommendation, showing the extent to which effect has been given or is proposed to be given, to the provisions of the Recommendation and such modifications of these provisions as it has been found or may be found necessary to make in adopting or applying them.

Obligations of federal States

7. In the case of a federal State, the following provisions shall apply:

1. in respect of Conventions and Recommendations which the federal government regards as appropriate under its constitutional system for federal action, the obligations of the federal State shall be the same as those of Members which are not federal States;
   
   

2. in respect of Conventions and Recommendations which the federal government regards as appropriate under its constitutional system in whole or in part, for action by the constituent states, provinces, or cantons rather than for federal action, the federal government shall

   1. make, in accordance with its Constitution and the Constitutions of the states, provinces or cantons concerned, effective arrangements for the reference of such Conventions and Recommendations not later than 18 months from the closing of the session of the Conference to the appropriate federal, state, provincial or cantonal authorities for the enactment of legislation or other action;
      
      
   2. arrange, subject to the concurrence of the state, provincial or cantonal governments concerned, for periodical consultations between the federal and the state, provincial or cantonal authorities with a view to promoting within the federal State co-ordinated action to give effect to the provisions of such Conventions and Recommendations;
      
      
   3. inform the Director-General of the International Labour Office of the measures taken in accordance with this article to bring such Conventions and Recommendations before the appropriate federal state, provincial or cantonal authorities with particulars of the authorities regarded as appropriate and of the action taken by them;
      
      
   4. in respect of each such Convention which it has not ratified report to the Director-General of the International Labour Office at appropriate intervals as requested by the Governing Body, the position of the law and practice of the federation and its constituent states, provinces or cantons in regard to the Convention, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention by legislation, administrative action, collective agreement, or otherwise;
      
      
   5. in respect of each such Recommendation, report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of the law and practice of the federation and its constituent states, provinces or cantons in regard to the Recommendation, showing the extent to which effect has been given, or is proposed to be given to the provisions of the Recommendation and such modifications of these provisions as have been found or may be found necessary in adopting or applying them.

Effect of Conventions and Recommendations on more favourable existing provisions

8. In no case shall the adoption of any Convention or Recommendation by the Conference, or the ratification of any Convention by any Member, be deemed to affect any law, award, custom or agreement which ensures more favourable conditions to the workers concerned than those provided for in the Convention or Recommendation.