September 2007: Is Collective Bargaining Now Really Free?

Labour relations faces major shakeup from Court ruling
September 1, 2007

On June 8, 2007, Canada’s Supreme Court constitutionalized collective bargaining in Canada. In doing so, it expanded considerably on its 2001 Dunmore decision which declared that all Canadian workers have the right to organize in their interests, select leaders of their own choosing, develop programs to forward their interests, and make demands on their employers.

The Dunmore ruling also suggested that, under those conditions, the employer has a duty to meet with employee representatives. Unions weren't impressed. They argued that the decision did not require bargaining in good faith. The historic B.C. Health Services remedies that defect by declaring that good faith bargaining is now an employer duty.

In arriving at its opinion, the Supreme Court leaned heavily on international human rights standards and, in particular, the jurisprudence developed by the International Labour Organization (ILO) to interpret the meaning of Freedom of Association. It said: "Canada's current international law commitments and the current state of international thought on human rights provide a persuasive source for interpreting the scope of the Charter." It also said that "Canada should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified."

In short, international law would seem to be the best current guide as to how the Court will rule in future on the constitutional rights and responsibilities of governments, employers, unions, and workers. International labour law clearly includes the right of workers to strike without putting their jobs in jeopardy.

The Charter of Rights and Freedoms, according to the Court, binds governments directly--both as law-makers and as employers. As a result, governments as employers apparently now have a direct responsibility to negotiate in good faith with independently chosen representatives of their employees. Combined with Dunmore, the decision would seem to suggest that employees not covered by statutes (such as part-time workers in Ontario's colleges who recently formed an independent association) have a right to be recognized and to bargain collectively, especially if they are considered to be employees of the province.

If they continue to be guided by the international jurisprudence, the courts will no longer permit governments to strip key contract clauses as they did in B.C., nor unilaterally impose new terms as the government recently did in Quebec, nor order workers on legal strike back to work as has become all too common over the past few decades. In addition, Canadian public service statutes commonly exclude certain issues (pensions, promotions, technological change) from bargaining and prohibit non-essential employees from striking. Both of those policies offend international standards.

According to the international jurisprudence, our system of certifying exclusive bargaining agents is okay, but workers who choose not to make use of those procedures should still be able to exercise their rights. As a result, employers may be on the hook to deal with as many employee organizations as are formed. There is also potential, of course, for employers setting up company-dominated unions to appear to comply "voluntarily" with the new standard. Such "unions" are contrary to international law, but, lacking appropriate legislation, the difference between genuine and phony unions may not be obvious to all. In short, if the Court makes it clear that it will continue to be guided by international law, we may see a rash of new labour legislation.

To this point, the press and various commentators have focused on the decision's public sector impact. Certainly that is where it is likely to have its most immediate effect. But the rights enshrined in the Constitution are rights that all Canadians are supposed to enjoy. The Charter, however, does not bind private sector employers. Instead, the onus is on employees to exercise their rights, and, only if they are found to be unable to do so because of the existence of obstructing legislation or the absence of facilitating legislation, will the Court compel governments to act.

That is precisely what the Court did in the case of Dunmore, which referred to the situation of agricultural workers in Ontario. When the Harris Government removed them from the province's labour legislation, the Court decided that by doing so it had made it nearly impossible for those workers to exercise their constitutional rights and thus ordered the government to formulate legislation that would protect their rights. In light of the B.C. decision, that legislation (the Agricultural Employees’ Protection Act) probably did not go far enough. To be consistent with international standards, it will have to be revised to provide for bargaining in good faith and the right to strike.

In short, the B.C. Health Services decision has the potential to significantly alter Canadian industrial relations. But “potential” is just that. It will likely take awhile for governments, employers, and unions to work through the possibilities and pitfalls of changing current practices. It will also be some time before the courts have heard enough cases to clarify the practices they are prepared to tolerate and those that must be changed.

(Roy J Adams is Professor Emeritus in Industrial Relations at McMaster University and the author of Labour Left Out.)