The Freedom to Associate Includes Collective Bargaining

The Supreme Court of Canada’s (“SCC”) recent decision in Health Services and Support – Facilities Subsector Bargaining Assn. v British Columbia, 2007 SCC 27, finally clarified that the guarantee of freedom of association in section 2 (d) of the Charter protects collective bargaining rights.

The SCC stressed that this right is limited and does not guarantee access to any particular statutory regime or specified outcome of collective bargaining. Nonetheless, the constitutional protection of a procedural right to collective bargaining may be justifiably touted as a victory in organized labour’s long battle with the law.

On one side of the courtroom was a British Columbia government who enacted the Health and Social Services Delivery Improvement Act, SBC 2002, c 2. This act provided healthcare employers with the power to reorganize their relations with employees in ways that were not permissible under existing collective agreements. The government argued that this was a necessary response to what they described as a ‘crisis of sustainability’ in the province’s health care system.

On the other side were the employees of the provinces health care providers, who saw the Act as an “affront to the fundamental rights of employees and union members under the Charter”. Their opinion was that these rights included “a collective right to pursue fundamental workplace goals through collective bargaining” (para 3).

The result is that the parts of the legislation which substantially interfere with the workers’ right to bargain collectively do violate section 2 (d). They are not justified by section 1 and therefore, subject to a 12 month suspension in the effect of the judgment, they are struck down.

To reach this conclusion, the SCC was forced to reconsider its previous decisions concerning the freedom to associate. It then re-examined whether collective bargaining fits into section 2 (d), taking into account the history of labour organization, Canada’s current international commitments, and the importance of collective bargaining in promoting Charter values.

Clarifying the Conflicting Jurisprudence

The hurdle placed in front of the employee’s position came in the form of the Supreme Court’s uncertain stance with regards to how collective bargaining is situated in the Charter guarantee to freedom of association.

The SCC’s decisions in Reference Re Public Service Employee Relations Act (Alta.)[1987] 1 SCR 313 [Alberta Reference] and Professional Institute of the Public Service of Canada v Northwest Territories (Commissioner), [1990] 2 SCR 367 [PIPSC] seemed to suggest that collective bargaining did not fit within the scope of section 2 (d). However, the more recent decision in Dunmore v. Ontario (Attorney General), 2001 SCC 94 [Dunmore], re-opened the door to arguments that collective bargaining is protected.

In the end, the SCC did something it rarely does: admit that it was wrong. Justices McLachlin and LeBel state that the holdings in Alberta Reference and PIPSC can no longer stand. This is because

“None of the reasons provided by the majorities in those cases survive scrutiny, and the rationale for excluding inherently collective activities from s. 2(d)’s protection has been overtaken by Dunmore.” (para 36)

History as Persuasive Authority

The Supreme Court emphasized that Labour history played an important role in coming to the conclusion that a procedural right to collective bargaining is protected by the Charter.

The SCC categorizes the relationship between Canadian law and organized labour as passing through three phases. In the era of repression, the law was used as a tool to prevent labour organization by criminalizing many key union activities, such as strikes and collective bargaining. The law then moved into an era of tolerance, which decriminalized union activity but left employers with the freedom to ignore union demands and discriminate against unionized employees. Through the use of economic weapons, namely strikes, unions pushed governments to move the law into an era which formally protects collective bargaining rights. In the era of recognition, statutes have been enacted which require employers to bargain with a union provided it has the support of the majority of employees.

It seems that the right of collective bargaining is no longer seen by the SCC as a ‘modern right’ created by legislation, but rather a fundamental right which has only recently been recognized by the law after centuries of struggle.

International Law as an Interpretative Aid

After reviewing the history of labour relations in Canada, the Supreme Court turned to an analysis of Canada’s commitments in International Law to further support the conclusion that freedom of association should protect collective bargaining. Specifically, the SCC held that the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and the International Labour Organizations (“ILO’s”) Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organize all suggest that is an international consensus that freedom of association encompasses collective bargaining.

The SCC’s use of this type of analysis will likely excite constitutional and international law scholars alike. It further reiterates how Canada’s commitments in international agreements will shape the interpretation of the Charter. Moreover, the SCC is clear that this is not limited to international agreements which were signed prior to the adoption of the Charter. McLachlin and LeBel clearly state that

“Canada’s current international law commitments and the current state of international thought on human rights provide a persuasive source for interpreting the scope of the Charter.” (para 78).

Collective Bargaining Supports Charter Values

The Supreme Court’s final overarching reason for embracing a protection of collective bargaining is that such protection upholds Charter values.

First, by helping workers influence the establishment of workplace rules, they gain some control over a major aspect of their lives, their work. The SCC adopts the view that gaining some level of control over their work helps to enhance human dignity, liberty, and individual autonomy.

Second, collective bargaining also promotes equality because workers acting as a collective are able to rebalance the inherent inequalities in bargaining power between employees and employers.

Last, collective bargaining helps institute a form of workplace democracy. It leads to the establishment of the rule of law in the workplace and provides space for workers to play a role in the development of the rules governing the employment relationship.

What is perplexing about this aspect of the judgment is how these Charter values are satisfied considering the limits of the newly adopted s. 2 (d) right to collective bargaining. The SCC is clear that the right only protects a procedural right to collective bargaining and does not provide guarantees to particular outcomes, such as the reaching of a collective agreement. However, it is difficult to see how the procedural right itself promotes these Charter values. It is only after a collective agreement is reached that workers are able to participate in workplace democracy and require their employers to follow the rule of law enshrined in the collective agreement. It will be interesting to see how these Charter values will be used in arguments in future labour-relations cases.

Refusal to Recognize Equality Concerns Inherent in the Labour Market

The recognition of collective bargaining as a constitutional right is a victory for labour; however, the court’s refusal to recognize equality concerns which are inherent in the labour market will disappoint many human rights advocates.

The argument seemed simple: the healthcare workers which are subject to the B.C. government’s legislation are predominantly female. A law that robs female dominated sectors of the economy of rights that are provided to sectors of the economy dominated by men constitutes a form of gender discrimination. Therefore, such a law should be seen as violating the equality guarantees in section 15 of the Charter.

However, the SCC was quick to dismiss this argument. They refuse to see how such a law may constitute gender discrimination. Instead, they characterize the distinctions made in the Act as relating only to different sectors of employment. It is disappointing that the SCC takes such a simplistic view of the labour market, which turns a blind eye to the ways gender differences are reflected in these sectors of employment.

This decision finally makes it clear that freedom of association includes a procedural right to collective bargaining. It reaches this conclusion after analysing the history of labour struggle in Canada, Canada’s international obligations, and the values which inform Charter interpretation. These developments will likely inform a renewed analysis of the jurisprudence around the freedom to associate.

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