The Constitutional Right to Bargain Collectively: The Ironies of Labour History in the Supreme Court of Canada

Article excerpt

READERS OF THIS JOURNAL are probably aware that in a judgement issued in June 2007, Health Services and Support--Facilities Subsector Bargaining Association v. British Columbia, (1) the Supreme Court of Canada (scc) held that the right to bargain collectively is constitutionally protected under the Charter of Rights and Freedoms' guarantee of freedom of association. Less well known is that the court cited the work of this journal's current editor, Bryan Palmer, and a number of past contributors, (2) as well as that of other progressive academics and activists. (3) Not only is it unusual for labour history to make an appearance in scc judgements, but the court's reliance on the work of the critical labour historians is, to my knowledge, unprecedented. (4)

Arguably, this event should be cause for celebration. First, the work was put to a good cause. The court invoked Canadian labour history for the purpose of reversing a 29-year-old line of precedent holding that Charter-protected freedom of association does not extend to collective bargaining. (5) Second, the court's extensive referencing of the work of critical labour historians gives it the legal equivalent of the Good Housekeeping seal of approval. At least for lawyers and law students, their interpretive claims have been officially validated.

But before we break open the champagne (okay, union-made Canadian beer), a more careful reading of the case shows the judgement to be replete with ironies, both in its use of historical writing and in its result. Moreover, there is much less here to celebrate than readers might have thought. Indeed, as I will argue, the truth the judgement validates is the historiography of the industrial pluralists, who see the development of labour law as a natural process of interest adjustment in the name of achieving the common good, rather than that of their critics, who see labour law developing out of class conflict in ways that reproduce and only somewhat ameliorate unequal power relations. While the court's cavalier use of sources may offend academic sensibilities, the more important problem with the judgement arises from the consequences of its failure to acknowledge, let alone appreciate, the critique of industrial pluralism made in the work that it relied upon. This contributes to a judgement that both exalts and constitutionalizes a deeply flawed regime of industrial legality at a time when its limits have become increasingly apparent. Thus, while the judgement provides public sector workers with some welcome relief from assaults on their collective bargaining rights, it also endorses a set of ideological and institutional commitments that serve workers poorly. Before delving more deeply into these ironies, however, it will be helpful briefly to first locate the case in its historical context and summarize the judgement.

Contesting the Neo-liberal Assault

The post-World War II regime of embedded liberalism, characterized by state policies designed to promote employment, economic growth, and the welfare of its citizens, and which included a commitment to union-based industrial relations and collective bargaining, began to unravel in the 1970s in the face of a crisis of accumulation. Employers in Canada and in other industrial capitalist countries responded by pursuing workplace and political strategies that enabled them to capture a larger share of the value of social production. In part, this has been accomplished directly by the adoption of labour management policies that include increased resistance to and, where possible, avoidance of collective bargaining, shifting from more to less secure employment forms by using more part-time, temporary, and so-called self-employed workers, and demanding more from, while paying less to, its current workforce. (6) At the same time, they have also adopted more decentralized organizational forms of production that enhanced employee insecurity and reduced regulatory protection. …