Freedom of Association and Collective Bargaining Rights Face Legislative Challenge: British Columbia Teachers’ Federation v British Columbia
The government of British Columbia (“BC”) recently filed an appeal challenging the decision by the Supreme Court of British Columbia (“BCSC”) in British Columbia Teachers’ Federation v British Columbia, 2014 BCSC 121 [BCTF] which found in favour of the provincial teachers’ union. The leader of the governing BC Liberal Party, Christy Clarke, has signalled the province’s readiness to fight the teachers up to the Supreme Court of Canada (“SCC”), so this appeal will likely not resolve the legal and political issues in question between the teachers and the government anytime soon. BC governments have historically had a conflictual relationship with BC teachers, resulting in several instances of failed legislation, court cases, and teacher strikes — sometimes, at the same time. In addition, the neoliberal economic context has presented the opportunity for governments to pass legislation challenging the collective bargaining regime in regions across Canada.
These were some of the issues in BCTF, where the constitutionality of Bill 22 — legislation passed by the BC Liberals—was challenged on the basis that it violated the section 2(d) Charter right of freedom of association for the teachers. The legislation prohibited collective bargaining on certain working conditions, including class sizes and supports for special needs students. It also deleted certain terms from the teachers’ collective agreement. The legislation was nearly identical to previous legislation that was also struck down by the BCSC in British Columbia Teachers’ Federation v British Columbia, 2011 BCSC 469. The BC government did not appeal the 2011 decision; rather, it responded to the judgment with nearly identical legislation that was then challenged by the BC teachers’ union in BCTF.
A Cure for Unconstitutional Legislation?
Although the Court identified 10 issues in the judgment, the main issue in this case was whether there was anything different about the new legislation that would allow it to pass constitutional muster where the old legislation did not. The BC government argued that the new legislation only “temporally” limited collective bargaining over working conditions since the limiting legislation was due to expire in June 2013.
In addition, the government argued that the unconstitutionality of the legislation struck down in the previous case (“Bill 28”) was “cured” by the fact that the government had consulted with the union. However, BCSC Justice Griffin concluded that the consultation had not met the “meaningful” standard for consultations that was set out in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia,  2 SCR 391 [Health Services], and Ontario (Attorney General) v Fraser,  2 SCR 3 [Fraser].
Justice Griffin was not persuaded in the least by the government’s argument that it had “cured” the unconstitutional aspect of the legislation by consulting with the union. She explained the government’s reasoning as being suspect for the reasons that,
Just as it is hard to imagine a law that is otherwise an interference with a Charter right being found not to interfere because of pre-legislative consultation, it is even harder to imagine a situation where legislation is found to be unconstitutional as amounting to substantial interference with s. 2(d) rights, but then this unconstitutionality could be ‘cured’ by the government ‘consulting’ with the union after the fact of the legislation. This is essentially the unusual position the government takes in this case (para 91).
It is in this sense that Justice Griffin criticized the absurdity of the government’s position in consideration of the actual legislation, which had not changed save for the government’s claim that it had consulted the union. Justice Griffin also noted the legislation was similar to that enacted in the health sector at the time and ultimately declared unconstitutional by the SCC in Health Services, as that legislation also voided terms in the collective agreement and prohibited future collective bargaining. Justice Griffin then considered the meaning of the term “consultation” and the relevance of consulting before passing legislation that limits collective bargaining rights.
It was the union’s position that consultation cannot save otherwise unconstitutional legislation, however, consultation could be relevant to the section 1 Charter analysis as to whether the legislation minimally impairs freedom of association. However, the union submitted that the section 1 analysis was irrelevant in a context in which the previous legislation was already found to have gone beyond the minimal impairment of freedom of association.
The issue between the union and the government could be said to hinge on the definition of “a process of consultation and good faith negotiation” as was noted to be necessary by the Court in Health Services. That is, what constitutes “negotiating in good faith?” Is good faith merely a duty to consult before pressing forward with legislation or, is it something more substantial? In this case, Justice Griffin noted the consultation had to be meaningful. She also went on to note, following Health Services, that the legislation must be considered in terms of how it actually affects the process of bargaining and consultation, not just processes prior to legislation.
(Neo) BC Liberal Strategies Undermine Collective Bargaining
Thus, Justice Griffin found that the government did not negotiate in good faith with the union, but rather acted to provoke a strike and gain political support for the legislation:
From the start of its post-Bill 28 Decision negotiation with the BCTF, the government had a strategy in mind that it would be to its benefit if negotiations failed and if collective bargaining resulted in a strike and impasse. This would give it the opportunity to pass legislation which would address the repercussions of the Bill 28 Decision, and at the same time, pass legislation imposing a new collective agreement with net zero compensation (para 368).
Justice Griffin noted the motives behind the government’s approach to “negotiation” with the unions, in its institution of a “net zero” compensation policy. The net-zero policy meant that if gains were to be obtained by the unions for their members, they would have to trade away previously won benefits. One example given was that if senior-level workers sought wage increases, they could concede a decrease in wages for entry-level workers. It is in this sense that net-zero could be seen to be a strategy of divide-and-conquer through pitting groups of workers against each other to create greater conflict.
Justice Griffin also noted the economic context of the emergence of this policy following the global economic crisis (para 34). Thus, the neoliberal economic context is apparent in terms of the limitations for collective bargaining as a result of the restrictions placed on labour in the consolidation of capital during times of economic crises.
This labour squeeze provided the opportunity for the government to negotiate with the goal of failure, as the government sought to provoke a strike in the hopes of turning public opinion against the teachers. As Justice Griffin explained, the evidence from the internal notes of the employer’s association showed that the government sought to put terms on the negotiation that they could foresee would be unacceptable to the BCTF (para 380). These circumstances lead Justice Griffin to conclude, “the government thus expected from even before collective bargaining began in March 2011 that it would lead to the BCTF calling a strike” (para 381).
Initially, the teachers avoided a strike by responding with other forms of labour action such as the withdrawal of non-essential services like report cards. In response, the government increased the pressure on the teachers to strike by reducing funding to school districts. An application was also brought to the Labour Relations Board to reduce teachers’ pay. The application, however, was denied. Eventually these government strategies succeeded in provoking a strike — the longest teacher strike in BC’s history.
Given the context of efforts by the government and the employer’s association to undermine the collective bargaining process, Justice Griffin concluded that there could be no equality of bargaining power and that the government representatives did not meet the requirements of consulting in good faith.
In reaching her decision, Justice Griffin discussed the meaning of the section 2(d) Charter right of freedom of association and the scope of that right. Justice Griffin noted that section 2(d) does not require the state to uphold the traditional “Wagner Act” model of collective bargaining rights as defined in Mounted Police Association of Ontario v Canada (Attorney General), 2012 ONCA 363 (paras 23-29). While there are many features of the Wagner Act model, it can briefly be described as a regime of collective bargaining established through legislation which provides for majoritarian exclusivity (an association will have the exclusive right to bargain on behalf of employees if selected by a majority of the employees) and the requirement of employers to bargain in good faith with the bargaining agent of the employees.
Although Justice Griffin reasons that freedom of association does not necessarily signify the Wagner Act model, she grapples with the meaning of freedom of association in relation to collective bargaining rights in the jurisprudence. In dealing with the meaning of freedom of association and the specific activities included under the scope of that right, Justice Griffin followed the decision in Fraser, and noted that Fraser, “slightly changed the nomenclature regarding the s. 2(d) right from a collective bargaining right, as sometimes described in Health Services, to a right more generally described as the protection of ‘associational collective activity in furtherance of workplace goals’” (para 26).
Thus, it appeared that Justice Griffin had adopted a somewhat more benign definition which expresses collective bargaining as a “derivative right” of freedom of association. However, she went on to note that the facts of the instant case and the associational activity between the BC teachers’ union and the employers was that of a “traditional collective bargaining model,” perhaps suggesting elements of Wagnerism. Nevertheless, the traditional model seems to remain undefined in the case.
The Remedy for “Curing” Unconstitutional Legislation
In any event, the Court concluded that the actions of the government constituted a substantial interference with the section 2(d) right of teachers. As a result, the unconstitutional aspects of Bill 28 — and the subsequent near identical legislation of Bill 22 — were voided by Justice Griffin, restoring the deleted terms from the collective agreement and reinstating the collective bargaining provisions. The court also awarded the union $2 million in damages from the government under section 24 (1) of the Charter.
Justice Griffin also noted that while the normal remedy for unconstitutional legislation by the government is the striking down of legislation, section 24(1) also provides for remedies against other unconstitutional conduct by government outside of legislation. However, it is in only rare circumstances that both remedies will be applied, as was noted in Schachter v Canada,  2 SCR 679 (720); Mackin v New Brunswick (Minister of Finance); Rice v New Brunswick,  1 SCR 405 (paras 78 and 81).
This case represents a strong criticism of the government’s attempt to undermine the collective bargaining process and the freedom of association right of the teachers’ union. Given the recent appeal by the BC government, it will certainly be an important case to follow to gain a greater understanding of the scope of freedom of association in relation to collective bargaining and strikes. As noted by Peter Spiro in a previous post, the SCC jurisprudence has been evolving with respect to labour rights and the constitution. The SCC may be ready to give a more clear definition of the scope of freedom of association and whether it includes collective rights to strike under the Charter — in the meantime, the political-economic erosion of labour rights continues.