CHARTER PROTECTION FOR COLLECTIVE BARGAINING: Supreme Court Ruling Welcome, but How Far Does It Reach?
Lemieux, Valerie Matthews, Barrett, Steven, CCPA Monitor
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 …
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Publication information: Article title: CHARTER PROTECTION FOR COLLECTIVE BARGAINING: Supreme Court Ruling Welcome, but How Far Does It Reach?. Contributors: Lemieux, Valerie Matthews - Author, Barrett, Steven - Author. Magazine title: CCPA Monitor. Volume: 14. Issue: 8 Publication date: February 2008. Page number: 32+. © Canadian Centre for Policy Alternatives Mar 2009. Provided by ProQuest LLC. All Rights Reserved.
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