The Early Effects of the Health Services Decision

Four months ago, in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, [2007] 2 SCR 391 [Health Services], the Supreme Court of Canada (“SCC”) ruled that Canadian workers and unions have a constitutional right to engage in collective bargaining. In recent weeks, this young decision is beginning to exercise some effect on both the British Columbia healthcare workers who launched the case and the union-side labour bar that is eager to test the extent to which the Charter protects union activity.

The Case

Health Services has been extensively commented on by contributors at Professor Judy Fudge’s post on June 20th, 2007 characterised the case as a symbolic and moral victory for organized labour, but also provided a realistic overview of the case’s limitations. Jakki Warkentin and I also provided our initial reactions to the case, which can be read here and here, respectively.

Directly at issue in Health Services were provisions of Bill 29. That Bill was passed by the British Columbia government as the Health and Social Services Delivery Improvement Act, SBC 2002, c 2. Its purpose was to address what the government characterised as a financial crisis in delivering healthcare services. It allowed the government to ignore many of the procedures for contracting work to non-union workers which unions had gained after negotiating collective agreements with British Columbia healthcare providers.

After the SCC determined that Canadian workers have a constitutionally protected right to collective bargaining, it ruled that the provisions in Bill 29 which substantially interfered with that procedural right constituted a Charter violation. According to the majority, that violation could not be saved by section 1. However, the SCC suspended the invalidity of the sections which allowed healthcare providers to easily contract work to non-union employees for a period of one year. For a more detailed summary of the case, please refer to the previous articles, mentioned above.

Effects on Healthcare Workers in British Columbia

In the weeks following the decision, it appeared that the B.C. government was going to temporarily ignore the ruling. It issued a Request for Proposals (“RFP”) aimed at creating a public-private partnership to take on the project of expanding some Okanagan area hospitals. The RFP included an option to privatize hospital housekeeping and plant maintenance staff. The Hospital Employees Union claimed that such an arrangement could lead to the loss of almost 300 jobs. However, in the past few weeks, it appears that the government backed off from that position and has recently ensured that hospital cleaning staff would continue to hold their current positions.

Perhaps the more significant effect that Health Services has had on B.C. healthcare workers is to force the government and the healthcare unions back to the bargaining table. The government’s lack of consultation with unions when passing Bill 29 played an important part in the SCC’s ruling. Initial discussions between the government and the four biggest healthcare unions began in early October and are expected to continue for several months.

The discussions are focused on determining how the Health Services decision should be implemented in B.C. Early reports suggest that the government is resisting any significant alteration to their policies on contracting out services to private firms. It seems that the B.C. government has read Health Services in a way that suggests that contracting-out provisions are not barred from being a part of legislative response to the decision. Such a stance may make it difficult for the government and the unions to reach a mutually acceptable agreement on how the government should respond to the ruling when the one year suspension of the judgment has expired.

Litigation Launched to Challenge Alberta’s Labour Code

The Health Services decision is also having effects outside of British Columbia. In Alberta, four construction unions have initiated a constitutional challenge to provisions of the provinces labour laws which bar workers from striking even after a strong majority of them vote for strike action.

The provision at issue is s. 189 of the Alberta Labour Relations Code, RSA 2000, c L-1 [Alberta Labour Code]. That section states that when 75% of the groups of trade unions and registered employers’ organizations in the construction sector have entered into collective agreements, any strike or lockout in existence between the parties is deemed to terminate. The terms and conditions of employment that applied to the parties immediately prior to the strike or lockout are deemed to continue. Therefore, any strike activity that does take place is found to be illegal and work conditions are returned to those of the expired collective agreement. The issues on the bargaining table are then referred to a binding arbitration process.

Last month, over 84% of the members of the United Brotherhood of Carpenters and Joiners voted in favour of a strike. However, since over 75% of other bargaining units in the construction industry had reached collective agreements, the strike was deemed illegal and the union was forced into binding arbitration.

Statements of Claim challenging the constitutionality of the Alberta Labour Code have been filed by the United Brotherhood of Carpenters and Joiners, the Boilermakers, Plumbers & Pipefitters and Electrical Workers. The Alberta Building Trades Council of Unions has also joined the challenge and pledged financial support for litigating the matter all the way to the Supreme Court.

This case will test the effectiveness of Health Services as a precedent for asserting the rights of workers and unions to engage in collective bargaining. It will also be interesting to see if the courts will allow legislation which attempts to limit strike activity to be justified under s. 1 of the Charter even if such legislation violates collective bargaining rights. Check back soon for further developments.

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