LANDMARK SUPREME COURT
OF CANADA DECISION
PROTECTS COLLECTIVE BARGAINING
UNDER THE CHARTER
Freedom of Association Protects
Collective Bargaining
and Requires Employers to Bargain in Good Faith
By Fay Faraday
On Friday 8 June 2007, the Supreme Court of Canada released a landmark
decision on freedom of association ruling for the first time that collective
bargaining is protected under s.2(d) of the Canadian Charter of Rights
and Freedoms. The Court’s decision expressly overturns its
1987 freedom of association trilogy and extends Charter protection
beyond the right to unionize that was recognized in its 2001 decision
in Dunmore.
The decision in Health Services and Support-Facilities Subsector
Bargaining Association v. British Columbia, 2007 SCC 27, marks a
significant victory for the labour movement and establishes a new platform
for analysing the right to freedom of association under the Charter. The
decision will have significant implications for protecting collective
action by union members. While the decision deals specifically with laws
that affect collective bargaining and actions by the government as employer
the decision is significant for workers in both the public and private
sectors.
This appeal arose out of a challenge by a coalition of British Columbia
health sector unions to provincial legislation (Bill 29) which voided
health sector collective agreement provisions that prohibited contracting
out and that provided protections for layoff and bumping. Bill 29 also
prohibited future collective bargaining in respect of those issues. The
unions argued that Bill 29 violated both the freedom of association under
s. 2(d) of the Charter and the right to equality under s. 15
of the Charter.
The Supreme Court in a 6-1 majority decision written jointly by Chief
Justice McLachlin and Justice LeBel ruled that the right to bargain collectively
is protected as an exercise of freedom of association under s. 2(d) of
the Charter. The Court ruled that collective bargaining is consistent
with and supports the values of the Charter: “Recognizing
that workers have the right to bargain collectively as part of their freedom
to associate reaffirms the values of dignity, personal autonomy, equality
and democracy that are inherent in the Charter.” Significantly
for unions, the Court held that recognizing that collective bargaining
is protected under s. 2(d) of the Charter imposes corresponding
duties on employers to bargain in good faith. The Court ruled that the
duty to bargain in good faith – including the obligation to meet,
to commit time to the process, and to engage in meaningful dialogue that
is aimed at arriving at an acceptable agreement – “lies at
the heart of collective bargaining”. This process of collective
bargaining must be a “meaningful process of consultation and discussion”
and “cannot be reduced to a mere right to make representations”.
The majority of the Court concluded that the provisions in Bill 29 dealing
with contracting out, layoffs and bumping violated the right to freedom
of association and that these violations were not justifiable under s.
1 of the Charter because they did not minimally impair Charter
rights. The majority found that the legislation did not violate s. 15
equality rights. The Court suspended its declaration of invalidity for
12 months to allow the government to address the repercussions of the
decision.
Justice Deschamps, in a partial dissent, agreed with the majority’s
analysis finding that the right to bargain collectively is protected under
s. 2(d) but would have applied a different test for finding a breach of
s. 2(d) and would have found, with one exception, that the infringements
of s. 2(d) were saved under s. 1.
Our analysis below reviews the key findings of the Court. It addresses:
(a) the old framework for analysing freedom of association;
(b) the new basis for finding that collective bargaining is protected
under s. 2(d);
(c) the scope of collective bargaining that is protected under s. 2(d);
(d) the test for determining when s. 2(d) is breached;
(e) the application to Bill 29; and
(f) the equality rights argument.
A. Background: The Old Framework for Analysing Freedom of Association
Since the Supreme Court issued its 1987 Trilogy on freedom of association,
the Court has taken the position that freedom of association protects
four elements of association. It protects (1) the freedom to establish,
belong to and maintain an association; (2) it does not protect activity
even if it is essential to the association; (3) it protects the exercise
in association of constitutional rights and freedoms; and (4) it protects
the exercise in association of rights that can be lawfully exercised by
individuals 1. The Court had consistently
ruled that the right to bargain collectively and the right to strike were
not protected under freedom of association.
In 2001, in the case of Dunmore v. Ontario (Attorney General) 2
the Supreme Court opened the door to granting broader protection to workers
under s. 2(d) by recognizing that rights that are inherently collective
in nature must also be protected as an exercise of freedom of association.
The Court in that case recognized that the right to unionize was protected
under s. 2(d) but did not go further to examine whether any aspect of
collective bargaining was protected.
With its new Bill 29 decision, the Supreme Court has squarely ruled that
collective bargaining is protected and has expressly overturned twenty
years of jurisprudence which had rejected protection for this fundamental
labour right. The Court’s decision does not specifically address
the issue of the right to strike.
B. The New Basis for Protecting Collective Bargaining Under s.
2(d)
The Supreme Court ruled that s. 2(d) protection for freedom of association
rests on four principles:
1. The reasons evoked by the Supreme Court in the past
for excluding collective bargaining from the protection of s. 2(d) “do
not withstand principled scrutiny and must be rejected” [para. 22].
The Supreme Court’s earlier analysis had not been conducted contextually
with appropriate analysis of the nature of collective bargaining. It had
focussed too narrowly on the question of individual activities and the
objects sought to be achieved through bargaining. It failed to give appropriate
recognition to the fundamental importance of collective bargaining and
had taken an overly broad view of judicial deference by effectively declaring
“a judicial ‘no go’ zone for an entire right”
on the ground that it may involve the courts in reviewing decisions reflecting
legislative policy [para. 22-30]. Instead, the Court confirmed that legislative
policy must conform to the Charter. The Court’s rejection of the
arguments previously used to exclude collective bargaining from protection
under the Charter lead to a reassessment of whether it was properly
protected under s. 2(d).
2. Excluding collective bargaining from s. 2(d) protection
is inconsistent with Canada’s historic recognition of the importance
of collective bargaining to freedom of association. While the majority
of the Court had previously held that the rights to strike and bargain
collectively are “modern rights” created by legislation, this
belies the fact that “the fundamental importance of collective bargaining
to labour relations was the very reason for its incorporation into statute.”
[para. 25] The Court recognizes that “association for purposes of
collective bargaining has long been recognized as a fundamental Canadian
right which predated the Charter” [para. 40, 41]. After
reviewing the evolution of labour rights in Canada from the 1700s, the
Court concluded that “the protection enshrined in s. 2(d) of the
Charter may properly be seen as the culmination of a historical movement
towards the recognition of a procedural right to collective bargaining.”
[para. 68]
3. International conventions to which Canada is a party
recognize the right of the members of unions to engage in collective bargaining,
as part of the protection for freedom of association. In reaching this
conclusion, the Court examined the international instruments which Canada
has ratified 3 and the ILO’s
interpretation of those instruments. The Court concluded that, as stated
by Dickson C.J.C. in 1987, s. 2(d) of the Charter should be interpreted
as granting at least the same level of protection as is granted under
international human rights instruments that Canada has ratified. [para.
70, 79]
4. Charter values support protecting a process
of collective bargaining under s. 2(d) of the Charter. The Court
ruled that
“the protection of collective bargaining under s. 2(d) of the
Charter is consistent with and supportive of the values underlying
the Charter and the purposes of the Charter as a whole. Recognizing
that workers have the right to bargain collectively as part of their
freedom to associate reaffirms the values of dignity, personal autonomy,
equality and democracy that are inherent in the Charter”
[para. 86]
C. What Scope of Protection is Granted to Collective Bargaining under
Section 2(d)?
In granting protection to collective bargaining, the Court has made
clear that s. 2(d) protects the process of collective bargaining
but does not guarantee any particular outcomes that may be sought through
bargaining. Moreover, in protecting the right to collective bargaining,
the Charter protects the right to “a general process of
collective bargaining, not to a particular model of labour relations,
nor to a specific bargaining method.” [para. 91]
Section 2(d) protection applies both in respect of legislation that
is passed by government and state action where the government is an employer.
With respect to legislation, the Court confirmed that “legislation
must conform to s. 2(d) of the Charter and is void under s. 52
of the Constitution Act, 1982 if it does not (in the absence
of justification under s. 1 of the Charter)” [para. 88].
The Court has defined the scope of the protected bargaining process
broadly to take into account the history of collective bargaining in Canada
and Canada’s international human rights obligations. It also confirms
that the protection of collective bargaining under the Charter imposes
corresponding obligations on employers to bargain in good faith:
... s. 2(d) should be understood as protecting the right of employees
to associate for the purpose of advancing workplace goals through a
process of collective bargaining. ...
...
... The scope of the right properly reflects the history of collective
bargaining and the international covenants entered into by Canada. Based
on the principles developed in Dunmore and in this historical
and international perspective, 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.
In brief, the protected activity might be described as employees banding
together to achieve objectives sought through this associational activity.
However, it guarantees the process through which those goals are pursued.
It means that employees have the right to unite, to present demands
to health sector employers collectively and to engage in discussions
in an attempt to achieve workplace-related goals. Section 2(d) imposes
corresponding duties on government employers to agree to meet and discuss
with them. It also puts constraints on the exercise of legislative powers
in respect of the right to collective bargaining... [para. 87-89]
D. The Test to Find that the Right to Bargain Collectively is Breached
The Court notes that s. 2(d) does not protect all aspects of collective
bargaining. Rather, it protects only against “substantial interference”
with associational activity. The Court asks: “does the state action
target or affect the associational activity, ‘thereby discouraging
the collective pursuit of common goals’?”
To establish a breach of s. 2(d), it is not necessary to show that there
was an intent to interfere with collective bargaining. Instead,
“it is enough if the effect of the state law or action
is to substantially interfere with the activity of collective
bargaining, thereby discouraging the collective pursuit of common goals.”
The Court ruled that
“It follows that the state must not substantially interfere
with the ability of a union to exert meaningful influence over working
conditions through a process of collective bargaining conducted in accordance
with the duty to bargain in good faith. Thus the employees’ right
to collective bargaining imposes corresponding duties on the employer.
It requires both employer and employees to meet and to bargain in good
faith, in the pursuit of a common goal of peaceful and productive accommodation.”
[para. 90]
The Court stressed that “the right to bargain collectively protects
not just the act of making representations, but also the right of employees
to have their views heard in the context of a meaningful process of consultation
and discussion. ... the right to collective bargaining cannot be reduced
to a mere right to make representations.” [para. 114]
In order for legislation or government action to constitute substantial
interference with freedom of association, “the intent or effect
must seriously undercut or undermine the activity of workers joining together
to pursue the common goals of negotiating workplace conditions and terms
of employment with their employer”.
Union-breaking, denying a union access to labour laws as in Dunmore,
acts of bad faith or unilateral nullification of negotiated terms without
any process of meaningful discussion and consultation are all examples
that may significantly undermine the process of collective bargaining.
But the Court also noted that “less dramatic interference with the
collective process may also suffice” to establish a breach.
Ultimately, whether there is a breach must be assessed on a case-by
case basis:
“the inquiry in every case is contextual and fact-specific.
The question in every case is whether the process of voluntary, good
faith collective bargaining between employees and the employer has been,
or is likely to be, significantly and adversely impacted.” [para.
92]
Determining whether the right to bargain collectively has been substantially
interfered with involves two inquiries, both of which are necessary:
1. The first inquiry relates to “the importance
of the matter affected to the process of collective bargaining, and more
specifically, to the capacity of the union members to come together and
pursue collective goals in concert.” [para. 93] To find a breach
of freedom of association, “the interference with collective bargaining
must compromise the essential integrity of the process of collective bargaining
protected by s. 2(d).” [para. 129]
2. The second inquiry relates to “the manner
in which the measure impacts on the collective right to good faith negotiation
and consultation” [para. 93]
On the first inquiry, “the essential question is whether the subject
matter of a particular instance of collective bargaining is such that
interfering with bargaining over that issue will affect the ability of
unions to pursue common goals collectively. “ The more important
the matter, the more likely that there will be substantial interference
with s. 2(d). The Court stated that
“Laws or state actions that prevent or deny meaningful discussion
and consultation about working conditions between employees and their
employer may substantially interfere with the activity of collective
bargaining, as may laws that unilaterally nullify significant negotiated
terms in existing collective agreements.” [para. 96]
Where it is established that the government legislation or action affects
a subject matter important to collective bargaining, and the capacity
of union members to pursue common goals, the analysis moves to the second
inquiry. At this stage, the question is whether the legislation or government
action “respect[s] the fundamental precept of collective bargaining
– the duty to consult and negotiate in good faith? If it does, there
will be no violation of s. 2(d), even if the content of the measures might
be seen as being of substantial importance to collective bargaining concerns,
since the process confirms the associational right of collective bargaining.”
[para. 97]
The Court held that “consideration of the duty to negotiate in
good faith which lies at the heart of collective bargaining may shed light
on what constitutes improper interference with collective bargaining rights.”
In doing so, at para. 98-99, the Court drew on the principles of good
faith bargaining articulated by the ILO which the Court found have been
consistently incorporated into federal and provincial labour legislation:
“The principle of good faith in collective bargaining implies
recognizing representative organizations, endeavouring to reach an agreement,
engaging in genuine and constructive negotiations, avoiding unjustified
delays in negotiation and mutually respecting the commitments entered
into, taking into account the results of negotiations in good faith.”
[para. 98]
The Court found that a basic element of the duty to bargain in good faith
is the obligation to actually meet and commit time to the bargaining process.
The parties also “have a duty to engage in meaningful dialogue and
they must be willing to exchange and explain their positions. They must
make a reasonable effort to arrive at an acceptable contract.” [para.
101]
The duty to bargain in good faith does not impose an obligation to conclude
a collective agreement or to accept any particular contract provisions.
Generally, the s. 2(d) right is not concerned with the content of bargaining.
However, when the content of bargaining shows hostility from one party
toward the collective bargaining process, this will constitute a breach
of the duty to bargain in good faith.” [para. 104] If the employer
engages in surface bargaining – if the nature of its proposals and
positions is aimed at avoiding the conclusion of a collective agreement
or at destroying the collective bargaining relationship – the duty
to bargain in good faith will be breached. [para. 104-105]
Finally, the Court ruled that in considering whether legislative provisions
violate the collective right to good faith negotiations and consultation,
one must have regard for the circumstances surrounding the adoption of
the law. Situations of “exigency and urgency” may affect the
content and modalities of the duty to bargain in good faith. Different
situations may demand different processes and time lines. The Court ruled
that
“failure to comply with the duty to consult and bargain in good
faith should not be lightly found, and should be clearly supported on
the record. Nevertheless, there subsists a requirement that the provisions
of the Act preserve the process of good faith consultation fundamental
to collective bargaining. That is the bottom line.”
Even where there is a breach of s. 2(d), there may be circumstances
where this is justified under s. 1 of the Charter:
“This may permit interference with the collective bargaining
process on an exceptional and typically temporary basis, in situations,
for example, involving essential services, vital state administration,
clear deadlocks and national crisis.”
E. Application to the Facts in the Bill 29 Appeal
On the facts in the Bill 29 appeal, the majority of the Court found
that various provisions in Bill 29 violated the freedom of association.
The provisions which were found to be unconstitutional were those which
* voided provisions
in collective agreements protecting against contracting out [s. 6(2)];
* voided provisions in collective agreements which
had required the employer to consult with the union prior to contracting
out [s. 6(4)];
* voided provisions in collective agreements which had provided protections
in the context of layoff and bumping with the result that the employer
was able to reorganize the delivery of health care services without
reference to these protections [s. 4, 5, 9, 10]; and
* prohibited the parties from bargaining in respect of these issues
in future rounds of collective bargaining.
The Court found that these provisions interfered with collective bargaining
by disregarding past processes of collective bargaining and by pre-emptively
undermining future processes of collective bargaining.
The Court found that the violations were not justifiable under s. 1
of the Charter. While the Court found that the government’s
objectives to cut costs and increase management power were not pressing
and substantial, the Court found the legislation did have a pressing and
substantial objective to the extent that it sought to improve the delivery
of health care services in British Columbia. [para. 146-147].
The Court found, however, that the Act did not minimally impair Charter
rights and that the government had adduced no evidence to support
a conclusion that the impairment was minimal. Instead, the government
had simply asserted that the legislation minimally impaired rights. The
Court ruled that “in the absence of supportive evidence, we are
unable to conclude that the requirement of minimal impairment is made
out in this case.” Moreover, it found that the provisions at issue
bore little evidence of a search for minimal impairment: “insofar
as it hammers home the policy of no consultation under any circumstances,
it can scarcely be described as suggesting a search for a solution that
preserves collective bargaining rights as much as possible, given the
legislature’s goal.” [para. 151-154] Further “government
presented no evidence about why this particular solution was chosen and
why there was no consultation with the unions about the range of options
open to it.”
The Court noted that while it was not ruling that legislatures have
an obligation to consult, this is a factor that would be taken into account
in the course of conducting the s. 1 analysis:
“Legislators are not bound to consult with affected parties
before passing legislation. One the other hand, it may be useful to
consider, in the course of the s. 1 justification analysis, whether
the government considered other options or engaged consultation with
the affected parties, in choosing to adopt its preferred approach. “
[para. 157]
. . .
“This was an important and significant piece of labour legislation.
It had the potential to affect the rights of employees dramatically
and unusually. Yet it was adopted with full knowledge that the unions
were strongly opposed to many of the provisions, and without consideration
of alternative ways to achieve the government objective, and without
explanation of the government’s choices.” [para. 160]
In the result, the Court ruled that the provisions of Bill 29 violated
freedom of association under s. 2(d) of the Charter and were
not justified under s. 1. The Court suspended the declaration of invalidity
for 12 months to allow the government to address the repercussions of
the decision.
F. Equality Rights Argument
The unions in their appeal had argued that the provisions of Bill 29
discriminated on the basis of sex because they targeted only sectors of
the economy that were overwhelmingly female-dominated and because they
targeted pay equity adjustments that the unions had secured after many
years of collective bargaining.
The Court, in five brief paragraphs, dismissed the s. 15 argument. The
Court concluded that the distinctions made by Bill 29 “relate essentially
to segregating different sectors of employment, in accordance with the
long-standing practice in labour regulation of creating legislation specific
to particular segments of the labour force and do not amount to discrimination
under s. 15 of the Charter.” The Court found that the differential
impact and effects of the legislation “relate essentially to the
type of work [the workers] do and not to the persons they are.”
[para. 165]
To view a copy of the Supreme Court of Canada decision, click here.
Paul Cavalluzzo and Fay
Faraday were counsel to UFCW Canada which intervened before the Supreme
Court of Canada on this appeal. For further information about the case
and its implications, please contact Paul or Fay.
- Reference re Public Service Employee Relations Act
(Alberta) [1987] 1 S.C.R. 313; PSAC v. Canada [1987] 1 S.C.R. 424; RWDSU
v. Saskatchewan, [1987] 1 S.C.R. 460. See also Professional Institute
of the Public Service of Canada v. Northwest Territories (Commissioner)
[1990] 2 S.C.R. 367
- [2001], 3 S.C.R. 1016
- International Covenant on Civil and Political Rights;
International Covenant on Economic Social and Cultural Rights; Convention
No. 87 Concerning Freedom of Association and Protection of the Right
to Organize; and the Declaration on Fundamental Principles and Rights
at Work.
Top
Human Rights Update Archives
| Cavalluzzo website | Update
for Professionals
We welcome your comments. If you have comments about the newsletter,
we would value receiving them, or to unsubscribe to this newsletter, please
send a reply e-mail with UNSUBSCRIBE in the subject or send an e-mail
to the Editor, Jo-Anne Pickel, at humanrightsupdate@cavalluzzo.com.
To add yourself to the newsletter mailing list, please send an email to
majordomo-2@cavalluzzo.com
with the word SUBSCRIBE in the subject line.
To find out more information about the firm and its lawyers and the scope
of our practice generally, visit our web site at www.cavalluzzo.com.
Providing this information does not constitute individualized legal
advice, and does not establish any form of lawyer-client relationship
with our firm or with any of our lawyers. Readers should not rely on or
take any action based on this information; professional advice should
be obtained. While we strive for accuracy, mistakes are possible and there
may be errors and omissions. We disclaim any liability for such errors
and omissions.
Copyright 2007 © Cavalluzzo
Hayes Shilton McIntyre & Cornish LLP
|
