Fundamental labour rights, pursued historically and recognized under international conventions, must be respected in Canada, according to the highest court in the land. In a judgment rendered June 8, the Supreme Court of Canada reversed itself and recognized that freedom of association includes the right to collective bargaining.
Collective bargaining complements and promotes the values expressed in the Canadian Charter of Rights and Freedoms, according to this major judgment affirming that the role of trade unions cannot be repressed “in a free and democratic society.”
The Supreme Court decision struck down key provisions of Bill 29, introduced five years ago by the government of British Columbia as part of a plan to contract out and privatize that province’s health services. The decision not only overturned lower court judgments, but, more importantly, it also re-wrote the Supreme Court’s own jurisprudence on key issues of labour rights.
The Canadian labour movement can now look forward to a brighter future in pursuing collective bargaining rights on fundamental workplace issues. The Court states firmly that collective bargaining is necessary for workers “to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work.”
Section 2 of the Canadian Charter of Rights and Freedoms states: “Everyone has the following fundamental freedoms: a) freedom of conscience and religion; b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; c) freedom of peaceful assembly; and d) freedom of association.”
However, in a crucial trilogy of labour cases decided by the Supreme Court in 1987, five years after the adoption of the Charter, freedom of association was severely limited. Justices argued that, through association, individuals could protect their rights as individuals, but did not gain any additional rights, such as the right to bargain collectively.
Choosing its words carefully, the Surpreme Court in June overruled its labour trilogy’s exclusion of collective bargaining as a necessary part of freedom of association: “None of the reasons provided by the majorities in those cases survive scrutiny.”
The Justices cited the testimony of a former Liberal Minister of Justice, who admitted that the Charter’s right of association had been intended to include the right to collective bargaining, even though it was not made explicit.
The majority decision, six justices concurring and one partially dissenting, draws upon the work of labour historians, labour law specialists, and government commissions to outline the context for the Court’s explicit recognition of collective bargaining as a fundamental freedom.
While the Hospital Employees’ Union and the British Columbia Government Employees Union can celebrate a victory for all Canadian workers, the (mostly) women who lost salaries, benefits, severance pay, and jobs through layoffs were not offered remedies by the Court decision. Instead, the B.C. government was given one year to make illegal sections of its legislation comply with the court ruling.
This ruling has a legacy: it will imprint on the legal system, at every level and jurisdiction, the recognition of labour rights as fundamental rights. According to the Court: “Human dignity, equality, liberty, respect for the autonomy of the person, and the enhancement of democracy are among the values that underlie the Charter... All of these values are complemented and indeed, promoted, by the protection of collective bargaining in Section 2(d) of the Charter.”
Contrary to the charge of “judicial activism” levelled by the B.C. government against the Supreme Court, its judgment created no new rights. In its ruling, the Court cited legal scholars Judy Fudge and Harry Glasbeek: the union right to bargain was recognized by the federal government in wartime, by order-in-council PC 1003, and subsequently incorporated into provincial legislation. The Court referred to an article by CUPE research officer John Calvert to show that only in the 1970s were collective bargaining rights extended to cover public sector workers.
The Court noted that, although labour organizations first appear in Canada at the end of the 18th century, “From the beginning, the law was used as a tool to limit workers’ rights to unionize.”
This judgment recognizes that labour rights are part of the values protected by the Charter; that Canada has signed international conventions and has thus recognized labour rights under international law; that historically collective bargaining is integral to the right to association; and, finally, that the Supreme Court itself was wrong earlier not to admit that the guarantee of freedom of association extends to collective bargaining.
Section 1 of the Charter “guarantees the rights and freedoms set out in it are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Since the Supreme Court decision recognizes labour rights as a part of a free and democratic society, any future restrictions on collective bargaining on workplace issues will be very difficult for lower courts to justify.
(Duncan Cameron is a political scientist, author of several books, a former president of the CCPA, and now a CCPA research associate and associate publisher of rabble.ca, where this essay first appeared.)