Over 20 years ago, in April 1987, the Supreme Court of Canada released the "labour trilogy," and in doing so dashed the hopes of the labour movement that the Charter would help their cause. At that time, the Court gave freedom of association a narrow interpretation, defining it only as the freedom of individual workers to form, join, or maintain a union. The fundamentally collective nature of the right was reduced to allowing workers to do together only what they were lawfully allowed to do as individuals.
The outcome was that the right to strike was not granted constitutional protection, although the door was left open in the PSAC decision (one of the three labour trilogy cases) to argue that constitutional protection could be extended to collective bargaining in certain circumstances. In the trilogy, four of six justices held that the right to strike was not protected, while only three held that collective bargaining was not protected. In 1990, however, the Court firmly shut the door on constitutional protection for collective bargaining in the PIPS decision.
Subsequently, the rights of organized labour were essentially trampled with impunity by various governments. Collective agreements were overturned by legislation. Certain groups continued to be denied access to collective bargaining. Governments prevented some matters from being submitted to arbitration, even when the right to strike was removed.
On June 8, 2007, however, in a stunning reversal of its previous decisions, the Supreme Court of Canada held that "the reasons evoked in the past for holding that the guarantee of freedom of association does not extend to collective bargaining can no longer stand." With this statement, the Court breathed new life into section 2 (d). At a minimum, the right to bargain collectively gained constitutional protection, and governments can no longer override collectively bargained rights with impunity.
The factual underpinning of this case is important to consider. In 2002, the government of British Columbia enacted The Health and Social Services Delivery Improvement Act, which invalidated key job security protections in collective agreements then in force covering health care and social workers. There were minimal discussions with the affected unions prior to the enactment of the legislation.
The Court concluded that the legislated provisions that overrode layoff and bumping rights and protections against contracting-out violated the freedom of association guarantee. However, the provisions that modified the successor rights provisions in the legislation were upheld, on the basis that they were statutory and not negotiated protections, even though the Court acknowledged that the legislation made it less likely that a health care employer would still be considered the employer after contracting-out had occurred.
The Court concluded that the constitutional right to collective bargaining "concerns the protection of -the ability of workers to engage in associational activities, and their capacity to act in common to reach shared goals related to workplace issues and terms of employment." It therefore guarantees the process through which these goals are pursued. It means that:
* employees have the right to act in common to reach shared goals related to workplace issues and terms of employment, to present demands to employers collectively, and to engage in discussions in an attempt to achieve workplace-related goals;
* government employers have a corresponding duty to agree to meet and discuss employee demands; and
* constraints are placed on government' ability to exercise legislative powers in respect of the right to collective bargaining.
In coming to these conclusions, the Court held that a government measure would be found unconstitutional if there was "substantial interference" in collective bargaining. A two-stage test was adopted. Under the first stage, there must be an inquiry into the importance of the matter to collective bargaining, i.e., the ability of union members to pursue collective goals together.
The second part of the test calls for an inquiry into the manner in which the measure preserves or impacts the collective right to good-faith negotiation and consultation.
Therefore, not all legislation or conduct which interferes with collective bargaining will be found to be unconstitutional. In fact, the Court expressly held that the right to bargain collectively does not guarantee a particular substantive or economic outcome. Further, the right is to a general process of collective bargaining, not to a particular model of labour relations, nor to a specific bargaining method.
What does all this mean? How limited or how expansive is the right? In determining whether the government is substantially interfering with the process of collective bargaining, a court will consider two factors. First, it will look at how important the subject matter is to the process of collective bargaining. The more important the matter, the more likely that there is a substantial interference with the section 2(d) right.
The second factor a court will consider is the extent to which the government measure undermines or impacts on the collective right to good-faith negotiation and consultation. The Court held that the duty to negotiate in good faith lies at the heart of collective bargaining. While this duty is "essentially procedural" and "does not dictate the content of any particular agreement achieved through collective bargaining," the parties must engage in "meaningful dialogue" and "make a reasonable effort to arrive at an acceptable contract." Different situations may demand different processes and timelines, but a requirement still remains that legislative provisions maintain the process of good-faith consultation fundamental to collective bargaining.
If the matters affected do not substantially impact on the process of collective bargaining, the measure will not violate section 2(d) and the employer may be under no duty to respect the process of good-faith bargaining. At the same time, even if the matters do substantially touch on collective bargaining, section 2(d) will not be violated if the process of consultation and good-faith negotiation is preserved. The Court concluded:
In summary, s. 2(d) may be breached by government legislation or conduct that substantially interferes with the collective bargaining process. Substantial interference must be determined contextually, on the facts of the case, having regard to the importance of the matter affected to the collective activity, and to the manner in which the government measure is accomplished. Important changes effected through a process of good faith negotiation may not violate s. 2(d). Conversely, less central matters may be changed more summarily, without violating s. 2(d). Only where the matter is both important to the process of collective bargaining, and has been imposed in violation of the duty of good faith negotiation will s. 2(d) be breached.
Will the decision provide labour with any new arsenal against draconian governmental action? The answer is Yes, but to what extent is currently unclear. There is certainly some protection where the parties have agreed to provisions in their collective agreements which governments then subsequently decide to override, or when governments prevent bargaining over important items. But governments can always try to justify interferences with freedom of association by relying on section 1 of the Charter, which provides that legislation interfering with constitutional rights can be upheld where it is "demonstrably justified" as a reasonable limit in a free and democratic society.
As well, some employer advocates have argued that the decision means that a substantial impact on a collective right may ultimately be tolerated as long as the process is preserved-in other words, that freedom of association is not violated as long as, before overriding a collective agreement provision, government consults with the affected union.
It would be folly, however, for any government to mistakenly believe that, as long as it goes through the motions of talking to union negotiators, it can then interfere with collective bargaining with impunity. The more likely meaning of the Court's decision is that overriding collective agreements or preventing future negotiations over important issues fails to respect the process of good-faith bargaining, and so interferes with freedom of association.
Not surprisingly, the Court's decision has already re-opened issues related to the right to strike. It can be expected that back-to-work legislation, as well as other draconian 1990sera legislation enacted primarily by Conservative governments will be subject to challenge. It remains to be seen whether such challenges will meet with success, given that the Court explicitly stated it was not considering whether the right to strike is protected as part of freedom of association. However, given that the right to strike is regarded as essential to freedom of association and collective bargaining in international law, it would seem difficult to justify excluding the right to strike from the ambit of s. 2(d).
As was the case 20 years ago, the Court's analysis of s. 2(d) poses difficulties for all parties. As a result of its recent decision, the Supreme Court of Canada has now signaled to governments that they must consider the rights of workers to engage in collective bargaining before they proceed with legislation that will adversely affect workers' existing and future rights. However, we can expect that, with the principle of constitutional protection for collective bargaining now being established, the precise implications of its scope and application will be contested.
Whether or not organized labour has gained meaningful and substantive rights from this decision will depend on whether future courts take an unduly narrow reading of the decision as simply imposing a mere consultation requirement on governments before overriding collective bargaining rights, or more fulsomely and purposively view the decision as requiring governments to truly respect good-faith bargaining by respecting negotiated collective agreements and avoiding legislation which limits the scope of bargaining.
This more robust and expansive view of freedom of association would be consistent with international law, the purpose of the Charter, and the Supreme Court's jurisprudence on collective aboriginal rights. However, it is likely that defining the scope of those activities with some certainty will give rise to further protracted litigation. Only time will tell whether the euphoria from this recent decision of the Supreme Court will be shortlived or meaningful.
In the meantime, the labour movement should not lose sight of the ongoing need for organizing, mobilizing, concerted political action, and the development of political alliances, which have proven over time to be more effective than reliance on the courts to advance labour rights and freedoms.
"The Court breathed new life into section 2(d), giving collective bargaining constitutional protection and ensuring that governments can no longer override collectively bargained rights with impunity."
(Valerie Matthews Lemieux practises labour and Aboriginal law through her own law corporation in Manitoba. She was co-counsel for the AG Manitoba in the original labour trilogy. Steven Barrett is managing partner at Sack Goldblatt Mitchell in Ontario. He was co-counsel for the Canadian Labour Congress in the recent Health Services case. The views expressed in this article-a more detailed version of which was originally published by the CCPA's Manitoba Office as part of its Fast Facts series-are the authors' own and not necessarily those of their trade union clients.)…