Health Services: Time to Celebrate?

An important Supreme Court of Canada (“SCC”) judgment dealing with the right to bargain collectively was delivered Friday, June 8, 2007. Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27,  is being hailed by some as a “landmark” ruling and was previously discussed here at The Court on June 15, 2007 and again yesterday.

Throughout 1991 to 2001, British Columbia experienced a rapid rate of growth in health care costs resulting from a dramatically increasing demand for health care and a corresponding increase in the actual cost of the services. By 2001, the government of British Columbia experienced great difficulty in their attempt to provide health care services to its citizens. In response, they introduced the Health and Social Services Delivery Improvement Act, SBC 2002, c 2 (the “Act”) as a means of lowering costs and more efficiently managing the health care sector workforce. Specifically, the Act allowed health care employers to make operational changes and reorganize the administration of the labour force in an attempt to adapt and improve health service delivery. Within three days of receiving a first reading as Bill 29 before the British Columbia legislature, the Act came into force.

The new law under ss. 6 and 9 introduced the “contracting out” of non-medical services that were traditionally performed by members of the union, relaxed notice provisions and reduced benefits for laid-off workers, and limited “bumping” options for employees.

As a result, the plaintiffs, Health Services and Support-Facilities Subsector Bargaining Association, who include unions and members of unions representing nurses, facilities, or community subsectors affected by the legislation, argued at trial that several of the constitutional rights guaranteed by the Charter, including freedom of association, life liberty and security of the person, and equality , were violated by the new legislation. However, both the trial judge and the British Columbia Court of Appeal found that the legislation did not violate ss. 2(d) (freedom of association) or 15 (equality) of the Charter. The s. 7 (life, liberty and security of the person) argument was not pursued.

Contrary to its predecessors and to the surprise of many, the SCC allowed the appeal in part and found that ss. 6(2), 6(4), and 9 of the Act are unconstitutional for their violation of s. 2(d) of the Charter. This s. 2(d) infringement was not justified under s. 1 of the Charter. The legislation was determined not to be in violation of s. 15 (equality) of the Charter. In short, “the general purpose of the Charter guarantees and the broad language of s. 2(d) are consistent with a measure of protection for collective bargaining.”

In coming to this conclusion, the SCC explained that prior to the advent of the Charter, collective bargaining association was long recognized as a fundamental Canadian right. Furthermore, Canada abides by international documents which identify a right to collective bargaining. The SCC explained that the Charter should afford protection to Canadians at least equal to that provided by international documents. Finally, the SCC found that the protection of collective bargaining under s. 2(d) is consistent with and supportive of both the purpose of the Charter as a whole, and the values underlying it.

While s. 2(d) protects the process of collective bargaining, it does not guarantee the objectives or goals pursued through the activity. In addition, the constitutional guarantee only protects against “substantial interference” with this associational activity which is inflicted in violation of a process of consultation and the duty of good faith negotiation. In this case, the infringement under s. 2(d) was not justified under s. 1 of the Charter because the Act was not found to minimally impair the employee’s s. 2(d) right of collective bargaining. Considering the rapid, three day passing of this Act, the government was unable to show that they had considered other less obstructive options before adopting the legislation, in spite of the strong objections by unions to the provisions. In their rejection of the s. 15 argument, the majority found that any unfavourable or differential effects of the legislation on some groups of workers pertain to the type of work they perform, rather than their personal characteristics.

“Lastly, the protection of collective bargaining under s. 2(d) is consistent with and supportive of the values underlying the Charter and the purposes of the Charter as a whole. Recognizing that workers have the right to bargain collectively as part of their freedom to associate reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the Charter.”

By recognizing the process of collective bargaining as a Charter guarantee, the SCC has given trade unions a reason to be optimistic about the future. Those involved in trade unions, of course, hope that the implications of this ruling will be widespread, giving them greater rights and protection in contract negotiations and a stronger voice in important workplace issues. The judgment not only gives government workers the right to collectively bargain with their employers, but may also affect private sector workers as well, as legislatures will be restricted from passing laws which “substantially” interfere in the collective bargaining process. While some may hail this decision as a “victory” for workers, others may be hesitant to begin the celebration. The SCC’s ruling does not affect the many employees who are not members of unions, and it is too soon to determine how the courts will interpret “substantial” interference in collective bargaining activities. While the exact implications of this decision are unknown and can only be determined in time, the acceptance of collective bargaining as a Charter protected right certainly seems like an important step forward in the recognition of workers’ rights.